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Md. Tohidur Rahaman v/s State of West Bengal

    F.M.A. 665 of 2010

    Decided On, 18 January 2018

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MS. JUSTICE PATHERYA & THE HONOURABLE MR. JUSTICE RAJASEKHAR MANTHA

    For the Appellant: Biswaroop Bhattacharya, Golam Mohiuddin, Reshmi Ghosh, Advocates. For the Respondents: Subir Sanyal, Susmita Sen, Advocates.



Judgment Text

1. This appeal has been filed from the order dated 11th January, 2010 passed in W.P. 9085 (W) of 2001. We find no reason to set aside this order. The court below rightly dismissed the writ petition.

2. In 1973, the West Bengal Primary Education Act, 1973 was promulgated and introduced in September, 1974. In 1991, Rules were framed and Rule 14 is of great importance to us. It is only for this reason that Rule 14 has been set out here-in-below.

"Ru

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le 14. Appointment on compassionate ground.- (1) When a teacher dies in harness before the date of his superannuation, i.e,. the age of 60 years, leaving a family which is, in the opinion of the Council, in such extreme financial hardship that it fails to provide two square meals and other essentials to the surviving members of the deceased teacher's family, the- (i) spouse; (ii) son (iii) daughter of the deceased teacher's family who is possessing required educational qualifications as laid down in clause (a) and (c) of sub-rule (1) of rule 6 and unemployed, and not below 18 years of age and not above 45 years of age and found eligible to teach, may within two years from the date of such death make a prayer in writing to the Council for appointment as primary teacher on compassionate ground:

Provided that only one member of the family of the deceased teacher may be appointed under the provision of this sub-rule.

(2) When a teacher applies to the Council for being declared permanently incapacitated on medical ground before attaining 58 years of age and discontinues to attend his duty for the reason of such incapacitation, the Council may direct him for appearing before the Medical Board set up for the purpose according to the procedure laid down in the relevant rules or order of the time being in force, and after receiving the report from the Council, if the Medical Board declares him permanently incapacitated to continue in further service, he may be allowed by the Council to retire on and from the date of submission in such application and by virtue of his early retirement, if his family is in such extreme financial hardship that it fails to provide two square meals and other essentials to the members of the retired teacher's family, the-(i) spouse (ii) son, (iii) daughter, of the prematurely retired teacher, who is possessing required educational qualifications as laid down in clause (a) and (c) of sub-rule (1) of rule 6 and unemployed, and below 18 years of age and above 45 years of age and found eligible to teach, may make within two years from the date of such retirement, a prayer in writing to the Council for appointment as primary teacher on compassionate ground :

Provided that only one member of the family of the retired teacher may be appointed under the provisions of the sub-rule.

Provided further that if the Medical Board shall declare the teacher to be permanently incapacitated, the Council may allow him to rejoin the duty and the period of his absence, if any, shall be regularised as per existing leave rules applicable to him.

(3) On receipt of the application under sub-rule (1) or sub-rule (2), as the case may be, if the Council considers that the case deserves the compassionate consideration, it may, with the prior approval of the Director or his authorised officer, give appointment to the applicant as primary teacher.

(4) Notwithstanding anything contained in sub-rule (1) and sub-rule (2), the rules, orders or notifications issued by the Government relating to appointment on compassionate ground shall also be taken into account in making appointment under this rule."

3. The appellant's father was an Assistant Teacher and he died on 2.1.1995. On this day the appellant was a minor. His mother i.e., widow of the employee filed an application in 1996 and she studied upto the 8th standard. Therefore she would not be appointed as an Assistant Teacher in a primary school. She could have been engaged only as a Group-D staff, but this could not be applied to her. Later in 1998 when her son became a major he filed an application for compassionate appointment and this application was considered and it was after four years that he filed his application on the basis of the 1995 circular. But the 1995 circular would not apply in view of the 1991 Rules and considering the decision of the Special Bench in (2013) 1 CHN 18, this appeal cannot be entertained nor the order of the court below can be interfered with.

4. Therefore, this appeal is rejected and dismissed.

5. Certified copy of this order, if applied for, is given to the parties on priority basis.

Rajasekhar Mantha, J.

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