- (1.) The above writ petition came to be heard by the learned Single Judge on 20th November, 2001. In the above writ petition the petitioner's claim for relief is basically for appointment on compassionate ground. The learned Single Judge of this Court after hearing and having taken note of the judgment of the Division Bench of the High Court in the case of Chairman, Adhoc Committee, Nadia District Primary School Council vs. Md. Moinul Islam and others and that of the learned Single Judge in the case of Swapan Kumar Mukherjee vs. State of West Bengal and others, 2000 3 CalLT 62 came to conclusion that there has been apparent conflict between the judgment of the Division Bench of the High Court and the judgment of the learned Single Judge. Hence first mentioned learned Single Judge (hereinafter referring Judge) by an order dated 12th December, 2001 referred this matter requesting the Hon'ble Chief Justice for constitution of Larger Bench on the question as follows:- Whether appointment can be granted to the ward of a teacher who died on his extension of his service after attaining the age of superannuation? In the case on hand the petitioner's father died in harness during extended period of service on 27th December, 1991. Thereafter the dependent including the petitioner and his mother made two separate applications for compassionate appointment on 10th January, 1992. The respondent however refused to give appointment to the petitioner as a primary teacher even after holding interview on 10th March, 1992 in place of his father.
(2.) Mr. Golam Mostafa, learned counsel appearing for the writ petitioner contends that period of extended service is to be treated as continuous and regular, and in view of the circular issued by the Government of West Bengal, Education Department, Primary Branch being No. 1008-Edn.(P)/9A-3/76 dated 14th September, 1977, read with Circular No. 1663-Edn.(P)/9A-3/76 dated 12th October, 1978, compassionate appointment ought to have been made. The benefit of parent Circular being G.O. No. 1008-Edn.(P) dated 14th September, 1977, is applicable to the teachers who were granted extension beyond 60 years of age and died-in-harness during such extended period of service. The Division Bench in the case of Shyama Prosad Roy vs. State of West Bengal, 1998 3 CalLT 434 and the learned Single Judge in case of Swapan Kumar Mukherjee vs. State of West Bengal and others, 2000 3 CalLT 62 having taken note of above circulars granted relief to ward of the teacher who was on extension after completion of stipulated period of service. Learned counsel has also drawn our attention to two unreported judgments and orders of the learned Single Judge in case of Pintu Kumar Chatterjee vs. State of West Bengal (without having number of the matter) and also in case of Ashok Kumar Khan vs. Director of School Education, [WP 11723 (W) of 2001] wherein similar relief was granted to the wards of the deceased primary teachers treating extended period as being continuity of service period.
(3.) He further contends that now it has become settled position of law if any employee after having attained normal retirement age continues to serve on extension by a valid order of the department on the same terms and conditions his services shall be treated to be continuity in service in all respects. Hence, during this period if he dies the situation would be death in harness, under the scheme or rules framed by the Government eligible ward is entitled for appointment.;