Tasneem Ara vs State Of West Bengal & Ors
2021 Latest Caselaw 5879 Cal

Item No.7


                       In The High Court At Calcutta
                      Constitutional Writ Jurisdiction
                           (via video conference)


30.11.2021
  Ct-24
                              WPA 4931 of 2021
                                   Tasneem Ara
                                        v.
                           State of West Bengal & Ors.

                  Mr. Mohinoor Rahaman
                  Ms. Maria Rahaman
                               ... for the petitioner.

                  Mr. Susanta Pal
                  Mrs. Kakoli Samajpati
                                ... for the State.

                  Mr. Bhaskar Prasad Vaisya
                  Mr. Pinaki Bhattacharyya
                                ... for DPSC.

                  The father of the petitioner was serving as an

             Assistant Teacher of Williamson Islamia Anglo-Urdu FP

             School. He died-in-harness on June 6, 2012.

                  The widow made an application for appointment of

             her daughter, the petitioner herein, on compassionate

             ground on August 12, 2013. The said application was

             made along with photocopy of the admit card, mark-

             sheet and the certificate issued in favour of the

             petitioner in her Madhyamik Examination.

                  On receipt of the aforesaid documents from the

             widow the Chairman, District Primary School Council,

             North-24 Parganas, Barasat wrote to the Sub-Inspector
                             2




of Schools to submit the requisite papers to the Council

as soon as possible for considering the case for providing

appointment on compassionate ground in favour of the

petitioner herein, ward of the deceased teacher.

        As no favourable consideration was made the

petitioner approached this Court by filing writ petition

being WP No. 8359(W) of 2019 which was heard and

disposed of by this Court on March 13, 2020. The Court

directed the respondent no. 2 to consider the petitioner's

claim for compassionate appointment and to take a final

decision in accordance with law.

The order passed by the Commissioner, School

Education on September 18, 2020 communicated vide

Memo No. 46/01(04)/LP/RO, IC-404-LP-2019 dated

September 28, 2020 rejecting the prayer of the petitioner

on the ground that she submitted application for

compassionate appointment beyond two years from the

date of her father's death is impugned in the instant writ

petition.

According to the petitioner application was made

within a period of two years by her mother and all the

papers in respect of the petitioner were annexed and

forwarded with the said application.

Attention of the court has been drawn to a

communication dated April 8, 2014 issued by the

Chairman of the District Primary School Council to the

Sub-Inspector of Schools with a copy to the petitioner

wherefrom it appears that the proposal for providing

compassionate appointment in favour of the petitioner

was already under process.

Attention of this Court has further been drawn to

a Memo dated May 14, 2019 issued by the Chairman-in-

Charge of the District Primary School Council, North 24-

Parganas that the file was processed and sent to the

Director of School Education for approval by Memo

dated October 7, 2015.

Learned advocate for the petitioner submits that

since the application of the mother was made in favour

of the petitioner within the time prescribed in law,

accordingly, the application of the petitioner ought not to

have been rejected on the ground that the same was

filed at a delayed date.

The petitioner has relied upon a judgment passed

by this Court in the matter of Namita Pramanik v. State

of West Bengal & Ors., reported in (2008) 1 CAL LT

217(HC) paragraph 14 wherein it has been mentioned

that Rule 14 of the Primary Teachers Recruitment Rules,

2011 postulates a "family" but not an "individual" for

making application. The process for seeking

appointment on compassionate ground by the family

began within two years from date of death of the

employee.

The petitioner submits that in view of the law laid

down in Namita Pramanik (supra) the case of the

petitioner is to be considered by the respondent

authorities and the impugned order rejecting the prayer

for compassionate appointment is liable to be set aside.

The learned advocate representing the State

respondents submits that the petitioner applied beyond

the prescribed period and accordingly, it is not open for

the court to relax the time period as mentioned in law.

The learned advocate representing the State

respondents relies upon a Larger Bench decision of this

court in the matter of Piali Saha v. State of West Bengal

reported in 2013(1) CHN (CAL) 18 paragraphs 11, 16

and 17 which mentions that when the legislature has

fixed a time limit the Court cannot take the task of

legislature and extend time limit. It amounts to

amendment of Rule. The Court cannot have any

amending power of legislation.

From the submissions made on behalf of the

parties it appears that the teacher died in harness on

June 6, 2012 and the widow applied on August 12, 2013

for providing appointment to the petitioner herein. The

documents of the petitioner i.e.; her admit card, mark-

sheet and the certificate for the Madhyamik Examination

were forwarded by the widow to the District Primary

School Council at the time of making the application

itself.

On receipt of all the necessary documents the

claim of the petitioner for compassionate appointment

was taken into consideration by the respondent

authorities.

To process the application of the petitioner the

Chairman of the Council sought for a formal application

by the ward of the deceased through the Sub-Inspector

of Schools. A copy of the said communication was

forwarded to the petitioner. Neither the Council nor the

District Inspector or Sub-Inspector of Schools directed

the petitioner to file a fresh application for consideration.

The same implies that the application which was made

by the widow was good enough to be considered for

processing the claim of the ward of the deceased for

grant of compassionate appointment.

The observation of the Commissioner that the

petitioner applied beyond the prescribed period of two

years accordingly, cannot be accepted in the facts and

circumstances of the case. Had the application of the

widow not been taken up for consideration and

processed at all, then the matter would have been

different.

In the present case, the application of the widow

in favour of the daughter was duly taken up for

consideration and processed further. Accordingly the

ground for rejection that the application was made at a

delayed date is misconceived.

At this juncture the judgment in the matter of

Namita Pramanick (supra) comes to the aid of the

petitioner wherein it has been stated that the application

made by any member of the family of the deceased

within a period of two years from the date of death of the

employee may be processed for seeking appointment on

compassionate ground.

In Piali Saha's case the court laid down that the

time limit fixed by the legislature cannot be extended.

The same is a very settled proposition of law. In the case

at hand, the application for compassionate appointment

was made within the prescribed period of limitation.

There is no question of extending time limit by the court

or by the authority as the application was made within

the due date. It is only because the application was

made within time, that the same was taken up for

consideration and processed by the authority, otherwise

the same would have been dismissed at the very first

step and would not have been processed at all. At this

stage the authority cannot turn around and say that the

application was made beyond the period of limitation.

The Commissioner ought to have appreciated that

the District Primary School Council by a communication

dated April 8, 2014 requested the Sub-Inspector of

Schools to forward the documents in respect of the

petitioner. There was no formal communication from the

respondent authorities directing the petitioner to file any

fresh application. The proposal made by the widow in

favour of the petitioner was duly taken up for

consideration.

The Commissioner also failed to appreciate that

the application was made by the widow on 12th August,

2013 and the Chairman of the District Primary School

Council requested the Sub-Inspector of Schools to

forward the application from the ward by a

communication dated 8th April, 2014. The delay on the

part of the Council in calling for documents from the

Sub-Inspector of Schools cannot be attributed to the

petitioner. The petitioner was no way responsible in the

delay in processing the application.

In view of the above, the impugned order of

rejection is set aside.

The matter is remanded back to the Commissioner

of School Education being the respondent no. 2 herein to

take a fresh decision in the matter, in accordance with

law, at the earliest, but positively within a period of eight

weeks from the date of communication of a copy of this

order.

The said respondent shall pass a reasoned order

and communicate the same to the petitioner immediately

thereafter.

The writ petition stands disposed of.

Urgent photostat certified copy of this order, if

applied for, be given to the parties after completion of all

legal formalities.

Sh                                (Amrita Sinha, J.)