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2011 Supreme(Cal) 1266
IN THE HIGH COURT AT CALCUTTA
Amit Talukdar & Raghunath Bhattacharya, JJ.
GOPAL MONDAL
Vs.
STATE OF WEST BENGAL
M.A.T. No. 1270 of 2011 in A.S.T.A. 337 of 2011
Decided on : September 13, 2011
Ekramul Bari, Biswarup Biswas, Tanuja Basak, S. M. Ali, K. M. Hossain, Shamim- Ul-Bari for the applicant/appellant.
A minor is not entitled to compassionate appointment under Rule 14 of the Leave and Recruitment Rules, 1991.
Headnote:
COMPASSIONATE APPOINTMENT - WEST BENGAL PRIMARY EDUCATION ACT, 1973 - RULES 14, 106 - LEAVE AND RECRUITMENT RULES, 1991 - SUMMARY
Fact of the Case:
The appellant's father, a teacher, passed away on 11.2.2002, leaving the appellant as the heir. The appellant, who was a minor at the time, applied for compassionate appointment. However, the application was rejected on the ground that, as per Rule 14 of the Leave and Recruitment Rules, 1991, a minor is not entitled to compassionate appointment.
Finding of the Court:
The court held that the appellant was not entitled to compassionate appointment at the time of his father's death as he was a minor. However, the court also held that the appellant's application was processed when he had attained majority and that the authorities had accepted a part of the claim. The court further held that the respondent No.2 (Director of School Education) had sought clarification from the respondent No.1 (Government of West Bengal) on whether the age could be relaxed for the purpose of giving compassionate appointment.
Issues: 1. Whether a minor is entitled to compassionate appointment under the Leave and Recruitment Rules, 1991? 2. Whether the appellant's application for compassionate appointment was processed when he was a minor or after he attained majority?
Ratio Decidendi: 1. The court held that a minor is not entitled to compassionate appointment under Rule 14 of the Leave and Recruitment Rules, 1991. 2. The court held that the appellant's application for compassionate appointment was processed when he had attained majority.
Final Decision: The court allowed the appeal and directed the respondent No.3 (D.I.O.S.) to take the application for Compassionate appointment to its logical conclusion within a period of three weeks from the date of communication of this Order.
1. On the strength of Division; Bench decision of this Court in Sajal Kumar Mondal vs. State of West Bengal Ors. reported in 1999 LAB.I.C. 3405, the Hon'ble Single Judge dismissed the Writ Application filed by the present appellant on the ground that at the time of demise of his father he was a minor and in view of Rule 14 of the Leave and Recruitment Rules, 1991 (hereinafter referred to as the said Rules') framed under section 106 of the West Bengal Primary Education Act, 1973 he was not entitled for compassionate appointment.
2. Shri Bari for the appellant has submitted before us from the various Annexures of the Stay Petition that the father of the Appellant passed away on 11.2.2002. The appellant attained the age of 18 years in 2005 and on 30.1.2006 the District Inspector of Schools, Paschim Medinipur (respondent No.3) wrote to the Chairman, of the District Primary School Council, Paschim Medinipur (respondent No.5, Pg.28 of the application) recommending his case for compassionate appointment. On the basis of such recommendation the respondent No.5; (Chairman, of the District Primary School Council, Paschim Medinipur) wrote to the respondent No.2 (The Director of School Education) forwarding the claim of the appellant on 3.5.2006. But as he did not receive any response he approached the Hon'ble Writ Court and in course of hearing of the Writ Application, according to Shri Bari, on the directions passed by His Lordship, an affidavit was used by the State which incorporated the letter (annexure R-2) written by the Director of School Education to the respondent No.1 that on the ground of the Appellant being a minor his case could not be considered.
3. Shri Bari has distinguished the decision of the Division Bench in Sajal Kumar Mondal's case (supra). According to Shri Bari as the prayer for compassionate appointment was already in process when the appellant had attained majority, in the meantime the said decision of Sajal Kumar Mondal (supra) would have little application and furthermore when the respondent No.2 (Director of School Education) has himself sought for clarification from the Respondent No.1 as to whether the Rules be relaxed for the purpose of giving compassionate appointment, the situation cannot remain static.
4. Shri Bari, as a part of his submission, referred to a Division Bench decision of Syed Iftikar Ali vs. State of West Bengal, reported in 2011(2) CHN (CAL) 17. According to Shri Bari the said Division Bench decision in Syed Iftikar Ali (supra) took note of the decision of the Supreme Court in Syed Khadim Hussain vs. State of Bihar, reported in 2006 (9) SCC 195 which had not been taken note of by the Hon'le Trial Court and; the said Division Bench decision which was later, in point of time, took the earlier Division Bench decision in Sajal Kumar Mondal's case (supra) without having taken note of the Supreme Court Judgment in Syed Khadim Hussain (supra) which is required to be followed.
5. This matter was heard on the last occasion and was adjourned today for further hearing even on second call none has appeared on behalf of either the State or any other respondents. We heard Shri Bari in extenso.
6. Earlier Shri Bose for the State has referred to Pg.6 of the affidavit which Shri Bari has relied to show from the communication dated 11.11.2006 by the respondent No.2 to the respondent No.1 and was of the view that when his initial prayer was not maintainable as he was a minor the entire steps taken on the basis of the application of the Date Office notes, reports, Orders or proceedings with signature appellant even after he attained majority was not maintainable and cannot be subsequently cured in view of the defect that attracts the provisions of Rule 14 of the said Rules,
We have heard the submission made at the Bar and find that primarily the Hon'ble Single Judge was of the view that as the Division Bench decision of Sajal Kumar Mondal [supra) has decided the question that when the appellant was a minor
