Masud Choudhury vs The State Of West Bengal & Ors
2022 Latest Caselaw 817 Cal

                                        1


                     IN THE HIGH COURT AT CALCUTTA

                      (Constitutional Writ Jurisdiction)

                               APPELLATE SIDE

Present:

The Hon'ble Justice Krishna Rao

                             WPA 11964 of 2016

                              Masud Choudhury

                                     Versus

                       The State of West Bengal & Ors.



                 Mr. Jakir Hossain
                                       .....For the Petitioner


Heard on                : 16.02.2022

Judgment on             : 24.02.2024

Krishna Rao, J.: Vide order dt. 05.08.2016 direction for filling of affidavit was

given but no affidavit is filed. On 21.02.2017 an extension was sought for and

the same was extended for a further period of two weeks but no affidavit has

been filed.   Since 05.06.2018 no one is appearing for the respondents.      On

15.02.2022, a notice was again issued upon the Counsel for the respondents

but no one appeared on behalf of respondents.

The petitioner has challenged the order passed by the District Inspector

of School (SE), Dakshin Dinajpur vide Memo No. 2242 dt. 26.08.2015 wherein

the request of the petitioner for appointment on compassionate ground was

rejected.

The father of the petitioner was appointed as Assistant Teacher in the

year 1990. On 27.08.1999 the father of the petitioner expired leaving the

petitioner as his legal heir. The mother of the petitioner was the pre-deceased

to the father of the petitioner.

The date of birth of the petitioner is 02.01.1992 and at the time of the

death of the father, the petitioner was aged about 7 years. After the death of

the father of the petitioner, the grandmother of the petitioner had made an

application to the District Inspector of School on 02.07.2001 for appointment

of the petitioner on compassionate ground on attaining the age of majority.

The request of the grandmother of the petitioner was forwarded by the School

Authority to the District Inspector of School. In the mean time, the petitioner

persuaded his studies and obtained graduation degree. In the year 2015, when

the petitioner attained the majority and obtained graduation degree had made

a representation to the District Inspector of School for appointment on

compassionate ground on account of the death of his father in harness.

On receipt of the representation submitted by the petitioner, the District

Inspector of School rejected the prayer of the petitioner with the reason, as per

existing rules, prayer for enlistment of name in the register should be

submitted within two years from the date of death of employee but the

petitioner has submitted application after the period of 15/16 years. The

Counsel for the petitioner relied upon the judgment passed in the case of Syed

Khadim Hussain -Vs- State of Bihar & Ors. reported in (2006) 9 SCC 195,

Khadeja Bibi & Ors. -Vs- State of West Bengal & Ors. reported in 2002 (2) CLJ

108 and Bimal Kumar Gayen & Anr. -Vs- State & Ors. reported in 1995 (1) CLJ

393.

The Larger Bench of this Court in the case of Piali Saha -Vs- State of

West Bengal reported in (2013) (1) CHN 18 had decided that Section 6 (1) of the

Limitation Act is applied for taking action before the judicial fora for asserting a

right which has accrued already, not for acquiring or creating right which is

non-existent. Provision of Section 6 of the Limitation Act is essentially

designed to provide a safe guard measure against legal disability in bringing

legal action to assert right before the judicial fora. When the rule creating

some substantive right does not envisaged any power to condone delay how

Court can do it. Again we add concept of continuous wrong giving rise

continuous cause of action applies in judicial proceeding for assessing existing

right either codified or common law against wrong-doer, not for creating

substantive right now non-existent. The Hon'ble Larger Bench has

categorically held that the Court cannot have any amending power of the

legislation. The Hon'ble Larger Bench has held that the time fixed in the Rule

is a rigid, subsequent application after attaining majority is not a lawful

application and the same cannot be said to be continuing process.

The instant case is squarely covered in the judgment passed by the

Hon'ble Larger Bench (supra) as the petitioner was minor at the time of the

death of the father. The father of the petitioner expired in the year 1999 and

the petitioner became major in the year 2013 and thereafter in the year 2015,

the petitioner has made an application for his appointment on compassionate

ground i.e. after the period of 16 years, the judgment relied by the Counsel for

the petitioner is not applicable in the instant case as in the said case the point

whether on attaining majority a subsequent application can be deemed to be

held as continuing process with standing the fact that such was made after the

statutory period of 2 (two) years was not decided.

In view of the judgment passed by the Larger Bench of this Court (supra)

the impugned order dt. 26.08.2015 passed by the District Inspector of School

(S.E), Dakshin Dinajpur does not require any interference.

WPA No. 11964 of 2016 is dismissed.

Parties shall be entitled to act on the basis of a server copy of the

Judgment and Order placed on the official website of the Court.

Urgent Xerox certified photocopies of this judgment, if applied for, be

given to the parties upon compliance of the requisite formalities.

(Krishna Rao, J.)