Calcutta High Court (Appellete Side)
Bani Roy vs The State Of West Bengal & Ors on 14 September, 2011
Author: Biswanath Somadder
Bench: Biswanath Somadder
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14 9.2011.
ap
W.P. 16024 (W) of 2010.
Bani Roy
Vs.
The State of West Bengal & Ors.
Mr. Mohinoor Rahaman
... For the petitioner.
Mr. Amales Roy
Mr. Rakeswar Dey Sarkar
... For the Council.
Mr. Kamalesh Bhattacharya, A.G.P.
... For the State
Mr. Taraprasad Halder
... For the Board.
The petitioner is essentially seeking appointment on compassionate ground under
the 'died-in-harness' category upon death of her husband, who was a Headmaster of a
primary school situated within the jurisdiction of the District Primary School Council,
Cooch Behar, on 5th December, 2001.
The writ petitioner had earlier approached this Court by filing a writ petition, being
W.P. 27770 (W) of 2006, which was disposed of by a judgment and order dated 29th
January, 2007, passed by Debasish Kar Gupta, J. His Lordship directed the Chairman,
District Primary School Council, Cooch Behar, to consider and dispose of the
representation of the writ petitioner dated 16th December, 2003, in accordance with law
after giving an opportunity of hearing to the petitioner within a time-frame as specified in
the said order dated 29th January, 2007.
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The Chairman, District Primary School Council, Cooch Behar, by his memo dated
17th May, 2007, referred the matter to the West Bengal Board of Primary Education and the
Director of School Education, West Bengal, for necessary action, while observing that he
had no objection in giving appointment to the writ petitioner as a primary teacher on
compassionate ground under the 'died-in-harness' category in case of relaxation of her age
being granted by the West Bengal Board of Primary Education and the Director of School
Education, West Bengal.
It is the admitted position that the writ petitioner was over-aged by five months at the
time of death of her husband, who died on 5th December, 2001. In matters relating to
compassionate appointment to the post of a primary teacher under the 'died-in-harness'
category, the law as prevailing at the time of death of the concerned teacher would
ordinarily be the applicable law. The reason is, consideration of a case for compassionate
appointment can only arise upon the death of a teacher and not otherwise. The question of
relaxation of age could be a matter of discretion only if the rules as applicable are specific
in this regard. No mandamus can be issued directing the respondent authorities to relax the
upper age limit, if the relevant rule does not allow such discretion.
The most important requisite for issuance of mandamus is that it lies enforce a legal duty. A clear statutory duty must exist before it can be enforced through mandamus. A writ of mandamus is issued in favour of a person who establishes a legal right in himself or herself, which is enforceable.
The writ petitioner has not been able to demonstrate any such legal right in herself which can be made enforceable nor has she been able to show any existence of a clear statutory duty on the part of the respondent authorities to relax her age by five months. 3
For reasons stated above, this Court is unable to grant any relief to the writ petitioner. The writ petition is, thus, liable to be dismissed and is accordingly dismissed.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) 4