Calcutta High Court (Appellete Side)
Piali Saha vs The State Of West Bengal & Ors on 12 May, 2011
Author: Biswanath Somadder
Bench: Biswanath Somadder
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12.5.2011.
ap W.P. 4364 (W) of 2011.
Piali Saha
Vs.
The State of West Bengal & Ors.
Mr. Sakti Pada Jana
Mr. Subhrangshu Panda
Mr. Pranab Chatterjee
... For the petitioner.
Mr. Subir Sanyal
Mrs. Sumita Sen
... For the Council.
Mr. Goutam Roy
... For the State.
Affidavit of service filed in Court today be kept on record.
Having heard the learned advocates for the parties and upon perusing the instant writ
petition it appears that the writ petitioner is essentially seeking appointment on
compassionate ground under the 'died-in-harness' category on the strength of her
application dated 7th August, 2008, read with a subsequent application made by her on 15th
March, 2010.
The writ petitioner's father was a primary school teacher under the District Primary
School Council Birbhum. He was initially appointed as an assistant teacher in Ahmadpur
Choto Linepara Primary School and was subsequently transferred to Choto Alunda Primary
School. He died in harness on 26th November, 2007, leaving behind wife and the writ
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petitioner as his only legal heirs. The petitioner made an application before the Chairman,
District Primary School Council, Birbhum on 7th August, 2008, seeking appointment on
compassionate ground under the 'died-in-harness' category. That application was, however,
rejected on the ground that she was under 18 years of age on the date of making her
application. After attaining 18-years of age on 12th March, 2010, the writ petitioner once
again applied before the Council on 15th March, 2010, seeking such appointment. Alleging
inaction on the part of the District Primary School Council, Birbhum, to take a decision on
her last application read with her earlier application dated 7th August, 2008, the writ
petitioner has filed the instant petition.
At the time of hearing of the matter, the learned advocate appearing on behalf of the
writ petitioner relies on a recent judgment and order dated 23rd March, 2011, passed by
another learned Judge of this Court in W.P. 5236 (W) of 2009 (Arpita Sen vs. The State of
West Bengal & Ors.). He submits that the issue raised in that writ petition was identical to
the issue sought to be raised in the instant matter. In that matter the learned Judge followed
a recent Division Bench judgment of this Court reported in (2011) 1 WBLR (Cal) 664, (The
Chairman, District Primary School Council vs. Sri Prithwish Samanta and Ors.) and held as
follows:-
" .... if the process of making a first application started, event at that point of time
the applicant was minor, his second application, upon attaining majority, should be
considered as continuation of an earlier one and the application could not have been
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dismissed on the ground that the same is filed beyond the prescribed period of two
years.
Thus I find that the order impugned passed by the authority concerned is rejecting
an application on the point of limitation that the same is not filed within the prescribed
period of 2 years from the date of the death of her father, is not tenable and is thus set
aside and quashed. The respondent no.2 is directed to consider the said application
afresh treating the same as having filed within the prescribed period as enshrined under Rule 14 of the said Recruitment Rules of 2001 and such decision would be taken within 4 weeks from the date of communication of this order."
He submits that the Division Bench judgment which was relied on by the learned Judge is squarely applicable in the facts of the instant case.
On the other hand, learned advocate appearing on behalf of the District Primary School Council, Birbhum relies on an earlier judgment rendered by another Division Bench of this Court in the case of Sajal Kumar Mondal vs. State of West Bengal and others, reported in 1999 LAB. I.C. 3405. He submits that it has been categorically held therein that if on the date of death of the concerned teacher the applicant was a minor, he/she had no legal right to be appointed on compassionate ground in terms of the relevant Recruitment Rules prevailing at that point of time. He further submits that although the 1991 Recruitment Rules have been since replaced by the 2001 Recruitment Rules, the language of Rule 14 remains essentially unchanged. He submits that the latter Division Bench judgment of this 4 Court does not refer to nor takes into consideration the earlier judgment rendered in the case of Sajal Kumar Mondal (supra). He further submits that the learned Judge in Arpita Sen's case had primarily relied on the latter Division Bench judgment without taking into consideration the earlier judgment of the Division Bench render in Sajal Kumar Mondal's case.
After considering the submissions made by the learned advocates appearing on behalf of the parties it appears that the judgment of the Division Bench reported in (2011) 1 WBLR (Cal) 664 does not refer to or take into consideration the earlier Division Bench judgment of this Court rendered in Sajal Kumar Mondal's case. It appears that although the 1991 Recruitment Rules have been replaced by the 2001 Recruitment Rules, the language and scope of Rule 14 which governs appointment on compassionate ground remains essentially the same. In Sajal Kumar Mondal's case it has been categorically held that a minor had no legal right to be appointed on compassionate ground in spite of the fact that the minor's mother had filed an application for appointment of her son, whereas in the latter Division Bench judgment it has been held, to the effect, that the first application should have been taken into account by the Council in spite of the applicant being a minor and the refusal of the second application on the ground that the same was put in after two years was absolutely a travesty of natural justice.
If this Court were to follow the latter Division Bench judgment, which was relied on by the learned Judge in Arpita Sen's case, then the law as laid down by the earlier Division Bench in Sajal Kumar Mondal's case, which took into consideration the applicability of 5 Rule 14 in respect of minor's legal right to be considered for appointment on compassionate ground, will be rendered practically nugatory and otiose.
However, in view of the apparent conflict between the two judgments, this Court is of the view that the matter may be placed before the Hon'ble the Chief Justice for constituting a larger Bench to decide the issue as to whether an applicant seeking appointment on compassionate ground under the 'died-in-harness' category who was a minor at the time of death of the concerned teacher or was a minor at the time of making an application within the statutory time-frame of two years has any legal right to be considered for such appointment as a minor and also whether on attaining majority a subsequent application can be deemed to be held as a continuing process notwithstanding the fact that such application was made after the statutory period of two years.
(Biswanath Somadder, J.)