Samarendra Nath Bhattacharjee, J. - (1.) The writ petitioner was ahead teacher of Chandabila Primary School within District Midnapore. He was declared unfit by the Medical Board constituted in terms of Government Circular only four days before the age of superannuation. He prayed for appointment of his son in 1994 but the Medical Report was submitted on-23.2.96, the petitioner retired on 28.2.1996. The prayer for appointment of his ward/son on compassionate ground was rejected by the authorities. He filed the writ application which was disposed of by the learned Single Judge of this Court by order dated 29th September, 1997 directing the Secretary, Education Department to consider and dispose of the petitioner's representation in accordance with law after hearing the petitioner and by passing a reasoned order. The Secretary, Education Department by his order dated 19.11.1997, held:- "In terms of Rule 14(b) framed under the Primary Education Act, 1973 and as notified vide Notification No. 768 Edn. (P) dated 22.11 91, the case of appointment of the ward of a disabled teacher cannot be entertained after 58 years of age of the disabled incumbent.."
(2.) Impugning this order of the Secretary, Education Department, the present writ application has been filed. The learned Counsel for the petitioner has argued that the impugned order is a result of misapplication of the notification relied upon by the Secretary, Education Department and submits that the circular of the Government which is applicable to this case has been annexed to this writ application as Annexure 'F' wherein it has been stated in Paragraph 3 that when a teacher who dies or become physically incapacitated on the date of superannuation, the question of appointment of his ward/son on compassionated ground will not be considered. According to learned Counsel, the writ petitioner did not become incapacitated on the date of retirement but was found incapacitated 4/5 days before retirement. So under the circular, the Secretary, Education Department ought to have recommended appointment of his ward/son.
(3.) It is not disputed that the Rule 14(b) of the Recruitment and Writ Rules framed under Notification No. 768 Edn. (P) dated 22.1191 in exercise of the power conferred by sub-section (1) of Section 106 of the West Bengal Primary Education Act, 1973 (West Bengal Act, XLII1 of 1973) makes it clear in Paragraph (b) of Rule 14 by providing as follows:- "When a primary teacher is declared permanently incapacitated by the competent Medical Board set up according to the procedure' laid down in the Government order and he has been allowed to retire at least two years before he attains the age of superannuation and his family is in extreme economic hardship after such retirement (1) the unemployed wife, or (2) the unemployed son, or (3) the unemployed unmarried daughter, of the incapacitated and prematurely retired primary teacher possessing the required as laid down in sub-rules (a) and (b) of Rule 6. Educational qualifications and found eligible to teach, may make within two years from the date of such retirement, a prayer in writing in the Council for appointment as primary teacher on compassionate ground.";