The time frame in Rule 14 of the West Bengal Primary Teachers’ Recruitment Rules, 2001 is mandatory and that a subsequent application after attaining majority is not a lawful application and cannot be said to be a continuing process.

K.J. Sengupta, J.

1. The learned Single Judge by an order dated 12th May, 2011 while dealing with the above mentioned writ petition has been pleased to express His Lordship’s difference of opinion on the applicability of Rule 14 of the West Bengal Primary Teachers’ Recruitment Rules, 2001 in case of appointment on compassionate ground from the views taken by the another learned Single Judge in another case namely, W.P.No.5236 (W) of 2009 Arpita Sen vs. The State of West Bengal & ors. In the last mentioned writ petition learned Single Judge by judgment and order dated 23rd March, 2011 has been pleased to interpret the said Rule liberally following a Division Bench judgment of this Court in case of the Chairman, District Primary School Council vs. Sri Prithwish Samanta & ors. reported in (2011) 1 WBLR 664. The learned Single Judge in the first mentioned writ petition has expressed inability to follow the aforesaid Division Bench judgment as His Lordship has been pleased to observe that earlier Division Bench judgment on that point was not considered in the first mentioned Division Bench judgment. Hence His Lordship has been pleased to place the matter before the Hon’ble Chief Justice for constituting a Larger Bench to decide following questions:

(i) Whether an applicant seeking appointment on compassionate ground under the death-in-harness category who was a minor at the time of death of the concerned teacher or was a minor at the time of making an application within the statutory time framed of 2 years has any legal right to be considered for such appointment as a minor and

(ii) Whether on attaining majority a subsequent application can be deemed to be held as a continuing process notwithstanding the fact that such application was made after the statutory period of 2 years?

2. The Hon’ble Chief Justice on receipt of the aforesaid judgment of learned Single Judge has been pleased to pass an administrative order constituting a Larger Bench comprising of the Hon’ble Justice Bhaskar Bhattacharya (as His Lordship then was), Hon’ble Justice Aniruddha Bose and Hon’ble Justice Dr. S Chakrabarti. Thereafter the Bench was later reconstituted by order dated 31st January, 2012 comprising Hon’ble Judges of the present Bench.

3. Thus this Bench has been called upon to answer the two points on interpretation of the above Rules. We have heard the learned counsel for the writ petitioner and the learned counsel for the Primary School Council concerned.

4. Mr. Saktipada Jana, learned counsel appearing for the writ petitioner explaining fact in the writ petition made submission with reference to the Rule 14 of the West Bengal Primary School Teachers Recruitment Rules, 2001. According to him the time frame in the said Rule for making application is not mandatory.

5. His submission is that in case of minor ward the period of two years should be relaxed it ought to be applied from the date the minor attains majority. The directory character of the Rule would be clear from the word ‘may’ as mentioned in the said Rule. He while relying on the said Division Bench judgment mentioned by the learned Single Judge in Arpita Sen’s case, in Sri Prithwish Samanta’s case contends that the said Rule has been given purposive interpretation. If it is understood as mandatory character purpose of the Rule becomes frustrated in a given case like present one, where no member of the family is competent otherwise to get employment within two years from the date of death of employee teacher concerned. In that situation no appointment could be given and the object of the rule is to save the family of the deceased teacher who was only bread earner of the family would be defeated. He has sought support in this connection, of the judgment of the Supreme Court reported in (2006) 9 SCC 195 Syed Khadim Hussian vs. State of Bihar & ors.

6. Mr. Subir Sanyal, learned counsel for the respondent on the other hand contends that aforesaid provision of the Rule has been made fo