Girish Chandra Gupta, J. - (1.) One Sri Ganga Dayal Singh was an assistant teacher of Janata Vidyalaya situate at Calcutta. He died on 25.9.1997 leaving him surviving his widow Smt. Saraswati Devi and his only child Smt. Usha Singh, an unmarried daughter. On 21.6.1998 Usha applied for appointment on compassionate ground in died- in-harness category. The Primary School Council by its letter dated 24.3.1999 directed the petitioner Usha to appear for an interview on 6.4.1999 together with the requisite testimonials for appointment in the died-in-harness category. The concerned Headmaster of the school and the Sub-Inspector of Schools were also directed to remain present at the time of interview to be held on 6.4.1999. Case of the petitioner is that on the date of interview after being fully satisfied with her candidature she was told by the authority that necessary recommendation would be forwarded to the Chairman seeking approval for appointment of the petitioner in the aforesaid category. She has since then been waiting for an appointment. In the month of April 2001 she got married to one Sri Indra Mohan Singh. She has however been looking after her widowed mother, since there is nobody else to look after her, with whatever money she earns by giving private tuition. By a letter 22.5.2002 the Chairman of the Primary School Council purported to inform the petitioner as follows: "In connection with the subject mentioned above, the undersigned has to inform that her case has been rejected by the Director of School Education, vide memo No. 555-SC/P dated 1.4.2002. It was stated in that memo that a married daughter of a teacher who died-in-harness is not considered as a "Ward" as per existing rules."
(2.) It is this order dated 22.5.2002 rejecting the candidature of the petitioner on the ground that a married daughter is not eligible for appointment in the died-in-harness category which is under challenge. She has also prayed for a writ in the nature of mandamus directing the respondent authorities to approve the recommendation of the Council for appointment of the petitioner to the post of an assistant teacher.
(3.) Directions for affidavit were issued on 17.7.2002. Copy of an affidavit-in-opposition used by the Council appears to have been served upon the petitioner but no such affidavit was filed with the Court even at the time of hearing of the petition. Mr. Tulsi Das Maity, learned Advocate appearing for the Council reiterated the stand of his client that a married daughter is not entitled to be appointed on compassionate ground in the died-in-harness category according to the rules governing the field. It would be apposite to set out the rules: 14. Appointment on compassionate ground. - The Council may appoint primary teachers 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: (a) when a teacher dies in harness before the date of his superannuation leaving a family which, in the opinion of the Council, shall be in extreme economic hardship. (1) the unemployed widowed wife, or (2) the unemployed son, or (3) the unemployed unmarried daughter, of the deceased primary teacher possessing 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 death a prayer in writing to the Council for appointment as primary teacher on compassionate ground, provided that only one member of a deceased primary teacher's family may be appointed on 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) 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 to the Council for appointment as primary teacher on compassionate ground: Provided that only one member of the family of the incapacitated and prematurely retired primary teacher possessing the required educational qualifications and found eligible to teach, may be appointed on compassionate ground. 15. Maintenance of roster. - (a) The Council shall maintain separate rosters for the cases as referred to in sub-rules (a) and (b) of Rule 14 and appointment shall be offered, after observing all formalities, to the seniormost in such roster. In no case, such appointment on compassionate ground shall be made exceeding ten percent of the existing vacancies in a calendar year. (b) In the cases of appointment under sub-rules (a) and (b) of Rule 14, reference to the employment exchange and preparation of panel shall not be necessary. 16. Posting on appointment. - The primary teachers shall be posted in primary schools within the jurisdiction of the Council according to vacancies as determined by the Council." (Relevant portion has been underlined by me for convenience) ;