2015 Supreme(Cal) 523

CALCUTTA HIGH COURT
Ashoke Kumar Dasadhikari, J.
Smt. Kalyani Bhattacharyya & Ors. - Petitioners
Versus
State of West Bengal & Ors. - Respondents
W.P. No. 34253 (W) of 2014
Decided On : 09-03-2015

The provisions of the West Bengal Primary Education Act, 1973 and the Rules framed thereunder do not apply to the exceptional cases of successors of assistant teachers who die in harness during the service period as assistant teacher in higher secondary school having qualifications for appointment as primary school teacher.

Headnote:

PRIMARY EDUCATION - COMPASSIONATE APPOINTMENT - JURISDICTION - WEST BENGAL PRIMARY EDUCATION ACT, 1973 - RULES FRAMED THEREUNDER - GOVERNMENT ORDERS - INTERPRETATION - APPLICABILITY:

Fact of the Case:

Father of the petitioners, an assistant teacher in a secondary school, died in harness. Widow's application for appointment on compassionate ground was not considered. Son applied for appointment on compassionate ground in "die-in-harness" category. His name was recorded in the life register maintained by the office of District Inspector of School, Secondary Education, Birbhum. District Inspector of School, Secondary Education, Birbhum forwarded his name to the concerned District Primary School Council for consideration of his prayer for appointment as a primary teacher. His prayer was kept pending for a long time. He filed a writ petition which was disposed of with a direction to the concerned respondents to consider the representation of the petitioner and dispose of the same in accordance with law upon hearing the petitioner and passing a reasoned order within 12 weeks from the date of communication of the order passed by the Hon'ble court. Pursuant to such direction, petitioner was called upon by the Chairman, Birbhum District Primary School Council to submit some documents and papers. In spite of receipt of all those documents in August 2012, no decision was taken on the application of the petitioner for his appointment on compassionate ground. Proposal for appointment was also not sent by the Chairman of the District Primary School Council to the Director of School Education, West Bengal, now designated as Commissioner of School Education, West Bengal for approval. Thereafter second writ application was filed by the petitioner with a prayer for issuance of writ of mandamus directing the Chairman, Birbhum District Primary School Council to forward the proposal for compassionate appointment before Director of School Education, now designated as Commissioner of School Education with a further direction upon the Director of School Education to approve the same on receipt of such proposal from the Chairman. The second writ application filed by the petitioner was also dismissed by the learned single judge. The widow as well as the petitioner preferred an appeal which was allowed by the Hon'ble Division Bench with a direction to the Chairman of the Birbhum District Primary Schools Council to take his ultimate decision on the fate of the said application of the appellant/petitioner No.2 and if ultimately a decision is taken by the said Chairman of the Council in favour of the appellant/petitioner No.2, he should forward the proposal for his appointment to the Director of School Education now designated as Commissioner of Schools Education, West Bengal so that the said authority can take the ultimate decision for approving the appointment of the appellant/petitioner No.2 immediately thereafter. In view of the aforementioned order directing the Chairman of the concerned Council to decide the case of the petitioner. It was made clear that in the event Chairman of the concerned District Primary School Council ultimately held that he has no jurisdiction to take ultimate decision, he will forward all necessary papers to the concerned authority who has jurisdiction to deal with. In terms of the order of the Hon'ble Division Bench dated 6th March 2014 the matter was taken up by the Chairman, Birbhum District Primary School Council and the petitioner's case was not considered taking note of Rule 14 of the Rules framed under the West Bengal Primary Education Act 1973.

Finding of the Court:

The Chairman of the Council has jurisdiction in view of the Government policy which was declared by the Government by two successive Orders. One is of dated 12th October 1987 bearing Memo No 457 Edn (P) and another is of dated 22nd August 2005 bearing memo no. 898 SE (Pry). The Government policy as regards the successor of assistant teachers who die in harness during the service period as assistant teacher in higher secondary school having qualifications for appointment as primary school teacher was dealt with by the two notifications. Therefore, the present Act of 1973 and Rules of 1991 do not apply in such type of exceptional cases. Accordingly, those rules have no manner of application in the instant case, which is an exceptional one.

Issues: Whether the Chairman of the District Primary School Council has jurisdiction to consider the petitioner's case for appointment on compassionate ground in view of the Government Orders dated 12th October 1987 and 22nd August 2005?

Ratio Decidendi: The Government policy as regards the successor of assistant teachers who die in harness during the service period as assistant teacher in higher secondary school having qualifications for appointment as primary school teacher was dealt with by the two notifications. Therefore, the present Act of 1973 and Rules of 1991 do not apply in such type of exceptional cases. Accordingly, those rules have no manner of application in the instant case, which is an exceptional one. The Chairman of the Council has jurisdiction in view of the Government policy which was declared by the Government by two successive Orders.

Final Decision: The impugned order is set aside. The Chairman of School Council is directed to recommend the case of the petitioner before the Commissioner of School Education for approval within four weeks from the date of communication of this order and the concerned Commissioner will give approval within two weeks thereafter.