Calcutta High Court (Appellete Side)
Ganesh Chandra Jadab And Anr vs The State Of West Bengal And Ors on 5 September, 2013
Author: Soumitra Pal
Bench: Soumitra Pal
1
5.9.2013
kc
W.P. 5442(W) of 2013
Ganesh Chandra Jadab and Anr.
-versus-
The State of West Bengal and Ors.
Mr. B.R. Bhattacharyya (Senior Advocate),
Mr. Prahlad Chandra Ghosh,
Mr. Subir Hazra..... .......................For the petitioners.
Mr. Joytosh Majumdar,
Ms. Debjani Roy............................For the State.
Mr. Shamim Ul Bari.......................For the Council.
In the writ petition, the petitioner no. 1, ex-head teacher of Baiju
Ghoshtala Primary School , Mothabari New Circle, Malda and the petitioner no.
2, the son of the petitioner no. 1, have challenged the order contained in the
Memo. dated 31st August, 2012, issued by the Joint Secretary, School Education
Department, Elementary Education Branch, Government of West Bengal,
Kolkata, the respondent no. 2 and the order contained in the Memo. dated 12th
February, 2013 issued by the Commissioner, School Education, West Bengal, the respondent no. 3, rejecting the prayer for appointment of the petitioner no. 2, as primary teacher on compassionate ground.
It has been contended on behalf of the petitioners that as application by the petitioner no. 1 for declaring him medically incapacitated was filed before he had attained the age of 58 years and it was not dealt with promptly, though subsequently declared physically incapacitated, in view of the law established, he 2 should have been treated to have been medically incapacitated prior to attaining the age of 58 years since an application was already on record and the petitioner no. 2 should have been granted appointment on compassionate ground.
Submission is that as the petitioner no. 1 did not draw the salary for 954 days being the period of extraordinary leave which, if calculated, shows that such leave was granted due to physical disability before attaining the age of 58 years, it is prayed that the orders under challenge may be set aside and appropriate order may be passed directing consideration of the application of the petitioner no. 1 afresh for appointment on compassionate ground.
Mr. Bikash Ranjan Bhattacharyya, learned senior advocate appearing along with Mr. Prahlad Chandra Ghosh and Mr. Subir Hazra, learned advocates, for the petitioners have relied on an unreported judgment of the Division Bench in F.M.A. 178 of 1999 (Anil Chandra Maji -v- State of West Bengal and Ors.), in support of his submission.
Mr. Joytosh Majumdar, learned advocate appearing on behalf of the State disputing the submission made on behalf of the petitioners has submitted that the orders contained in the Memo. dated 31st August, 2012 and 12th February, 2013 are just and proper as it is evident from pages 28 to 31 of the writ petition that the petitioner by an application dated 7th December, 1999 had prayed for leave and no prayer was made for compassionate appointment. With regard to 3 the annexures in the said pages, it is submitted that evidently as those documents neither bear the seal nor the signature of the authorities of the Malda District Primary School Council, those were not furnished. Further as the application dated 7th December, 1999 for compassionate appointment of the petitioner no. 2 does not bear any seal of the authorities it is evident that such application was also not furnished. Moreover, the no objection declarations given by the family members of the petitioner appearing at pages 32 to 34 of the writ petition are neither in the prescribed format nor do they bear the seal and/or date of the authorities and thus, not acceptable. Further there is an interpolation in the no objection declarations of the family members. Submission is that though the petitioners claim that prayer was made at the appropriate time before attaining the age of 58 years for appointment on compassionate ground of the petitioner no. 2, however, from the order dated 3rd July, 2002 passed in W.P. 8648(W) of 2002 it is evident that no such prayer was made.
Submission is as the petitioners have accepted the order dated 20th December, 2004 issued by the Assistant Secretary, School Education Department, Primary Branch, Government of West Bengal sanctioning extraordinary leave without pay for 954 days and as consequently Pension Payment Order dated 21st September, 2005 was issued taking into note of the fact that 18th July, 2002 was the date of retirement, which the petitioner no. 1 had accepted and accordingly has been receiving pension, impugned orders passed may not be disturbed. Submission is as it is evident from the records 4 that on 29th September, 2001 the medical board had declared the petitioner no. 1 fit and it was found on the basis of facts and records that the petitioner no. 1 was not in extreme financial hardship, no order may be passed. Since an order contained in the Memo. dated 21st January, 2006 was passed under Rule 14(b) of the 1991 Rules rejecting the prayer of the petitioner no. 2 for appointment on compassionate ground after hearing, which has not been assailed, no order may be passed. Moreover, it is submitted that since law has laid down in State Bank of India and Anr. -v- Rajkumar : (2010) 11 S.C,C, 661 that rules which are prevalent on the date of grant shall be made applicable and as Rule 14(2) of the 2001 Rules was prevalent and as there is nothing on record to show that the application for appointment of the petitioner no. 2 on compassionate ground was made before the petitioner no. 1 had attained the age of 58 years, no order may be passed.
Heard learned advocates for the parties. It appears that on 7th December, 1999, the petitioner no. 1 by an application had prayed for leave of 180 days which was duly received by the appropriate authority. On the self-same day, the petitioner no. 1 had filed an application for declaring him medically incapacitated. Moreover, statutory forms were filled up on 7th December, 1999. It appears that the petitioner no. 1 had applied for appointment of the petitioner no. 2 on compassionate ground. In my view, the said annexures cannot be accepted as they do not bear the seal with regard to receipt of the same by the appropriate authorities. Moreover, the no objection declarations granted by the 5 family members cannot also be accepted as those are not in prescribed format and those also do not bear the date and/or seal of receipt by the authorities. In this context, it is to be noted that the no objection at page 34 of the writ petition also cannot be accepted as there is an interpolation.
The order dated 3rd July, 2002 passed in W.P. 8649(W) of 2002 directing the authorities for medical examination of the petitioner no. 1 before the appropriate medical board, on which much reliance has been placed by the petitioners, is of no help as the petitioner no. 1 was found fit before he had attained the age of 58 years. Moreover the petitioner no.1 had accepted the date on which he was declared unfit which has been accepted as the date of retirement as evident from the Pension Payment Order dated 21st September, 2005 which is a part of the record produced on behalf of the State, inspection of which was given to the petitioner. It is to be noted that the Pension Payment Order dated 21st September, 2005, wherein the date of superannuation has been recorded as 18th July, 2002, is not under challenge. Therefore, as the petitioner no. 1 has accepted 18th July, 2002 as his date of superannuation, the writ petition is without merit. Moreover, I am not prepared to accept the annexure at page 4 of the supplementary affidavit affirmed on 26th August, 2013, that is the Memo. dated 31st July, 2013 issued by the Chairman of the Malda District Primary School Council since no leave was sought from the Court for issuing the same and thus the said Memo. is arbitrary and illegal. Therefore, no order is 6 passed on the writ petition and the same is dismissed. There will be no order as to costs Let a copy of this order be served by the Principal Secretary, Department of School Education (Primary) Government of West Bengal for sending the same to the then Chairman of the Malda District Primary School Council, who had issued the Memo. dated 31st July, 2012.
Let the records furnished by Mr. Joytosh Majumdar , learned advocate for the State be returned.
Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.
(SOUMITRA PAL,J.) 7