HARISH TANDON, J. - (1.) A question has cropped up in the instant writ application as to whether the time limit prescribed in Rule 14 of the West Bengal Primary Teachers Recruitment Rules, 2001 can be relaxed in genuine and exceptional cases. In other words the time limit prescribed in the said Rule is directory or mandatory in nature.
(2.) BEFORE dealing with the aforesaid questions, brief facts are narrated as follows : (i) The father of the writ petitioner, Anukul Sen, since deceased, was appointed as an assistant teacher in Tarachi Primary School on 25.3.1983 (ii) the said Anukul Sen died on 21.8.2004, while in service, leaving spouse and two minor daughters including the writ petitioner (iii) the mother of the writ petitioner applied within the said period of two years as enshrined under Rule 14 of the West Bengal Primary Teachers Recruitment Rules 2001 seeking appointment of the writ petitioner on compassionate ground. (iv) the Chairman, District Primary School Council, Birbhum, vide memo No. 1086 dated 3.7.2006, directed that the application having filed by the mother seeking an appointment of a daughter, it would be proper if the daughter of the writ petitioner herein should make an application for her appointment. (v) In terms of the said direction, the writ petitioner as well as her mother applied on 11.7.2006 by two separate applications seeking the appointment of the writ petitioner on compassionate ground. (vi) The second application was rejected by the Chairman, District Primary School Council, Birbhum, vide memo No. 1267 dated 8.8.2006, on the ground that the writ petitioner did not attain the age of 18 years within two years from the date of death of the said teacher. (vii) After attaining the age of 18 years, the writ petitioner as well as her mother again applied on 24.12.2007 for appointment on compassionate ground. (viii) The fate of the third application was the same as of the second one with an additional ground that the third application is filed beyond the prescribed period of two years. (ix) The writ petitioner has challenged the memo NO. 1114 dated 11.11.2008 by which the said third application was dismissed by the concerned authority. Mr. Amitava Mukherjee, learned Advocate appearing for the petitioner submits that the period of two years as envisaged under Rule 14 of the West Bengal Primary Teachers Recruitment Rules 2001 is directory and not mandatory. To substantiate his submission as above, he relies upon a judgment of this court in case of Khadeja Bibi and Ors. Vs. State of West Bengal and Ors. reported in 2000 (2) CLJ 108. He further argues that the first and second application were taken out within the said prescribed period of two years and those applications have not been disposed of on merit but were not entertained on technical grounds. Even if the third application in technical sense, was made beyond the said period of two years, the authority ought to have considered that the initiation was made within the said prescribed period and the application should not have been thrown on the touch-stone of limitation. To buttress such submission Mr. Mukherjee cited a decision of the Supreme Court in case of Syed Khadim Hussian Vs. State of Bihar and Ors. reported in (2006) 9 SCC 195. Mr. Mukherjee relies upon a judgment of this court in case of Namita Pramanick Vs. State of West Bengal and Ors. reported in (2008) 1 CLT 217 (HC) to contend that the word family incorporated in Rule 14 of the West Bengal Primary Teachers Recruitment Rules 2001 postulates the member as engrafted therein, if the process at the instance of any of the member commences within two years from the date of the death of the deceased employee, same shall be deemed to have been initiated within the prescribed limit. By deriving the inspiration from a judgment of this court in case of Usha Das Vs. State and Ors. reported in 1998 (11) CHN 375 Mr. Mukherjee submits that in almost all the cases the concerned respondent authorities have not dealt any application for appointment on compassionate ground independently without being directed by the writ court. Thus he submits that the respondent authorities should not be too hypertechnical in considering the applications of the writ petitioner for appointment on compassionate ground.
(3.) MR. Subir Sanyal, learned Advocate appearing for the District Primary School Council, Birbhum, respondent no. 2 submits that there is a prescribed period within which the application should be made for consideration for appointment of compassionate ground. Such prescribed period being mandatory in nature, there cannot be any relaxation of the period enumerated in the Rule governing the appointment on compassionate ground. He further argues that the Rule by which a provision is made for an appointment on compassionate ground is not a Rule for another mode of appointment but is an exception to the normal Rule of appointment and as such the Rule by which such appointment is made should be followed strictly and there cannot be any departure therefrom. He argues that the application filed by the writ petitioner was beyond the prescribed period of 2 years as enshrined in Rule 14 of the West Bengal Primary Teachers Recruitment Rules 2001 the same has been rejected by an authority. By contending that the delayed application cannot be considered, he relies upon the following judgments : Union of India and Ors. Vs. Bhagwan Singh reported in (1995) 6 SCC 476, Director of Education (Secondary) and Anr. Vs. Pushpendra Kumar and Ors. reported in (1998) 5 SCC 192, Life Insurance Corporation of India Vs. Asha Ramchhandra Ambekar reported in (1994) 2 SCC 718, Umesh Kumar Nagpal Vs. State of Haryana and Ors. reported in (1994) 4 SCC 138 and an unreported judgment of this court in WP No. 2027(w) of 2008. He further argues that the little difference in fact may change the complexion of the judgment and before applying the judgement the court must state the fact situation and its parity with the decision sought to be relied upon. To substantiate such argument he relies upon the judgment of the apex court in case of Bharat Petroleum Corporation Ltd. Vs. N. R. Vairamani reported in (2004) 8 SCC 579.;