Pratap Kr. Ray, J. - (1.) Heard the learned Advocates appearing for the parties.
(2.) In the instant writ application the petitioner wife has challenged the decision of the Ad hoc Committee, Murshidabad District Primary School Council issued under letter No. 4107 dated 13th November, 1998 whereby and where-under the said Ad hoc Committee without referring the petitioner's husband's case to the Medical Board in terms of Rule 14(b) of Rules regulating the Recruitment and Leave of Teachers in Primary School in West Bengal as introduced in terms of Notification No. 768-Edn.(P) dated 22nd November, 1991 (hereinafter for brevity referred to as Recruitment of Leave Rules of 1991) rejected the onward communication of the papers to the Medical Board relying upon a report of Enquiry Committee, who opined that it was not a fit case for reference to the Medical Board and thereby the Ad hoc Committee advised to undergo treatment in a Mental Hospital and/or Nursing Home by a Psychiatrist. Challenging the said order, the petitioner has prayed for the following relief: "(a) For a writ of or in the nature of Mandamus commencing the respondents, their subordinates and agents to cancel, reject, withdraw or rescind from the Memo bearing No. 4107 dated 13.11.98 issued by the Secretary, Ad hoc Committee, Murshidabad District Primary School Council, Annexure 'L' to this writ application without any delay and to direct the respondent No.4. The Chairman, Ad hoc Committee, Murshidabad District Primary School Council to allow the Medical Report of the Medical Board dated 25.1.99 Annexure 'M' to this writ application and to take immediate step to appoint the elder son of your petitioner namely Abdul Gafur to be appointed to the post of an Asst. Teacher in 30, Teghari Primary School under Raghunathgunj East Circle in place of husband of your petitioner on. compassionate ground as early as possible. (b) For a writ of or in the nature of Mandamus directing the respondent No.4, The Chairman, Ad hoc Committee, Murshidabad District Primary School Council to consider the case of your petitioner by arranging a Medical Board for examining the present condition of the husband of your petitioner within time bound period."
(3.) The short fact of the writ application is to this effect: The petitioner is the wife of the concerned Assistant Teacher of the Primary School, who was suffering from Psychosis. The petitioner-wife submitted an application before the Primary School annexing Medical Certificate for necessary declarations that her husband was incapacitated to work. This application was filed on 20th July, 1998 by the petitioner wife on behalf of Abdul Karim, the Head Teacher, who was a Psychiatric patient. The suffering of the petitioner husband from manic depressive Psychosis was certified by Dr. Baidyanath Biswas, Neurologist and Psychiatrist, Sadar Mental Hospital, Berhampore. The Sub-Inspector of School concerned by his note dated 2let July, 1998 recommended the matter to the Chairman, Ad hoc Committee, Murshidabad District Primary School Council (hereinafter referred to as the concerned Primary School Council) for necessary action. The last working day of the concerned teacher was noted as 1011, July, 1998. The Savapati, Raghunathgunj-II Gram Panchayat Samity also opined in favour of the petitioner's husband by certifying that the concerned teacher was unable to do any work due to serious illness. The said Primary School Council had set up an Enquiry Committee, who by their report dated 90' November, 1998 did not favour the reference to the Medical Board, which was relied upon by the Primary School Council to reject the prayer for declaration of petitioner husband as incapacitated to work by the Medical Board, which is the impugned order in this writ application. The writ application has been opposed by filing affidavit by the said Primary School Council. It has been strongly relied upon by the learned Advocate for the Primary School Council, Mrs. Das by inviting the Court to enter into the facts of this case and by asserting that in terms of the Circular letter dated 22nd April, 1988 issued by the Deputy Secretary, Education Department, Primary Branch, there was a provision of Enquiry Committee to check up the cases on issue whether those were at all fit cases for recommendation to the Medical Board. The learned Advocate for the Primary School Council further had drawn the attention of the Court about the report of the Enquiry Committee by submitting that in the Enquiry Committee, a Medical Officer was included. On the contrary, it is submitted by the learned Advocate for the petitioner that under the Recruitment Rules, 1991 applicable to the Primary Teachers, there was no provision for scrutinising of the applications filed by the concerned teachers praying declaration by a Medical Board by the Enquiry Committee first as would be set up by the Primary School Council. It is further contended that the Enquiry Committee had no knowledge in the Medical Science, accordingly had no power and jurisdiction to decide the matter. Having regard to the rival contentions of the parties it is only a short question as is required to be decided by this Court on the issue whether the impugned decision as passed by the Primary School Council relying upon the Enquiry Committee report refusing to recommend the case of the petitioner's husband to the Medical Board was justified. However, before adjudication of the matter on travelling through the concerned rules it is noted by this Court that the learned Advocate of the Primary School Council intended to invite the Court to travel into the facts, which the Court has rejected because of the reason that the entire matter for adjudication requires interpretation of the Recruitment and Leave Rules, 1991. It is an admitted position that the Court is not a Court of fact but a Court of law. Having regard to the contentions now the impugned decision to be tested under the provision of the rule. By Notification No. 768-Edn.(P) dated 22nd November, 1991 the Recruitment and Leave Rules of the Primary Teachers was introduced. This notification was issued in exercise of the power conferred by sub-section (1) of section 106 of the Primary Education Act, 1973 by the Hon'ble Governor of the State of West Bengal. Rule 14(b) is the relevant Rule, which reads thus: "14. Appointment on compassionate ground.- The Council may appoint primary teaches with the approval of the Director on compassionate ground in the following cases where in the opinion of the Council, the cases deserve compassionate consideration: (b) 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 possession the required educational qualifications as laid down in sub-rules(a) and (b) of Rule 6, and found eligible to teach, may make within two years from the date of such retirement, a prayer in writing to the Council for appointment as primary teacher on compassionate ground: Provided that only one member of the family of the incapacitated and pre-maturely retired primary teacher possession the required educational qualifications and found eligible to teach, may be appointed on compassionate ground.";