The Court held that Rule 14(1) of the West Bengal Primary School Teachers Recruitment Rules, 2001 should be read by applying the converse ratio, otherwise it would fall foul of Article 14 of the Constitution of India.

TALUKDAR, J.

1. IT is now also well settled that a Court of Appeal should not ordinarily interfere with the discretion exercised by the Courts below." Sinha, J. speaking for the Bench in Majunath Anandappa urf Shivappa Hanasi v. Tamanasa and Ors., (2003)10 SCC 390 in Paragraph 36 quoted to the above extent after referring to its earlier decision in U. P. Coop. Federation Ltd. v. Sunder Bros, reported in AIR 1967 SC 249, wherein Paragraph 8 it had been held :

"........In dealing with the matter raised before it at the appellate stage the appellate Court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion........."

2. In the twilight zone of the same, we will be required to appreciate the verdict of the Hon'ble trial Court returned in W.P. No. 2093(W) of 2009 on 08/04/2010 and see as to whether the same can pass the touchstone of the aforesaid guidelines. His Lordship in the impugned Order referred to above, made a purposive construction of Rule 14 of the Primary Teachers Recruitment Rule, 2001 on the anvil of Article 14 of the Constitution of India and though the period of minority of an eligible heir has to be excluded in computing the time from the date of death by resorting to the provisions of Section 6(1) of the Limitation Act, 1963 and directed the respondent No.4 to issue appointment in favour of the Appellant.

3. This has been brought under the scanner of our extended Judicial Review in this Mandamus Appeal at the discretion of the State.

4. For a better appreciation of the Appeal we would outline the respective submissions made at the Bar and see as to whether the views expressed by the Court of First Instance can be sustained. Shri Tulsidas Maiti appearing in support of the Appellant (State of West Bengal) submitted before us that reference made by Hon'ble trial Court to the provisions of Limitation Act, was inappropriate as the same can only have application in a Judicial proceeding and not otherwise.

5. He was of the view that in the absence of any direction passed by the respondent No.2, no appointment can be given and the directions passed by this Court in this regard was not in tune with the Rules.

6. Shri Maiti submitted that the appellant was a minor when he lost his Father. As such, he cannot have any claim on appointment in the place of his Father. He submitted that Order under Appeal requires to be revisited.

7. Shri Lakshmi Kr. Gupta, learned senior Counsel for the respondent argued at length for maintaining the decision returned by the Hon'ble trial Court.

8. Learned senior Counsel showed the nidus of facts which enwomb the issues before us to the effect that the demise of the Father of respondent No. 1 took place on 24.07.2007. At the relevant point of time he was 15 years 7months and 6 days. After two years of the death of his Father, as soon as he attained the age of 17 and a V2 years, he made a prayer for compassionate appointment. He attained majority on 18.12.2008. Relying on his Return, the learned senior Counsel showed that on 22.12.2008 another prayer for compassionate appointment was made but on 15.01.2009 prayer was refused as the same was made after two years.

9. SHRI Gupta, learned senior Counsel wondered as to how such finding by the respondent No.4 (Page 40 of the Return) could be sustained when the same was made at the first instance just six months short of majority. They could have kept the same pending till he became a major.

10. HE was of the view that in terms of Rule 3D of the Recruitment Rules, 1940 framed under the Bengal (Rural)Primary Education Act, 1930 (Act VII of 1930)for Appointment, Leave and Conditions of Service of primary teachers, there must be proper consideration of such prayer for compassionate appointment. Instead in a cursory fashion the respondent No. 4 declined to accede to the prayer. Learned senio