Amitava Lala, J. - (1.) This writ petition relates to approval of service of anyone to the family members of the teacher died in harness at the age of 33 years. Such death occurred in the year 1985. The application was made by the mother in the year 1987. Again the son became major and applied in the year 1994. All the happenings were occurred prior to coming of the Memorandum No. 4- SE(Pry)/4A-17/54, dated 2nd January, 1995.
(2.) Under such circumstances, legal justice and equitable justice in respect of the matter require certain clarification under the order itself and pass an appropriate order. But before that the Court has to be very sure about the presence of the respondents. On last two occasions either at the time of moving the application as and by way of court application or today as and when the matter is fixed under the heading 'Motion New'; repeated directions were given to serve notice which has been done by the petitioner and appropriate affidavits of service were filed. But it appears that none appeared at any point of time on behalf of the respondents. Therefore it gives a necessary presumption in the mind of the Court that the respondents have no case in this regard. That apart, under the impugned order, I find the concerned District Inspector of Schools under Memorandum No. 90(3) CC, dated 28th March, 2001 refused the claim of the petitioner due to non production of certain documents as per the Rules in support of his claim and lastly opined that under G.O. No. 4.SE (Pry), dated 21st January, 1995 the petitioner cannot be given any relief.
(3.) Against this background I have gone through the earlier Memorandum being No. 457-Edn (P) /4A-50/83, dated 12th October, 1987 which has been modified under the aforesaid Memorandum being No.4-SE (Pry)/4A-17/54, dated 2nd January, 1995. The earlier Memorandum does not prescribe modus of any application to be made by the heirs and legal representatives to give service on account of death in harness. As because the same was incorporated by the amending Memorandum in the year 1995, incorporating a scheme was provided for the purpose of making application within a period of two years from the date of death of the concerned teacher, it can not be effective prior thereto. As I find that the death occurred in 1985 and applications were made by the mother in 1987 and by the son in 1994, subsequent Memorandum of 1995 cannot be applicable in the case of the incumbent. It might have a prospective effect but cannot be given a retrospective effect when such applicants were unaware of the rules of making such application. If I allow the same to do, it will definitely hamper the equitable justice available to such incumbent or incumbents. Therefore it appears to me that the order impugned under Annexure 'K' to the writ petition is not sustainable in view of making it applicable in connection with the subsequent Memorandum being dated 2nd January, 1995.;