Pratap Kr. Ray, J. - (1.) Heard the learned Advocates appearing for the parties.
(2.) In the instant case, it is the grievance of the petitioner that the compassionate appointment under died-in-harness category in terms of Rule 14 of the Rules regulating the Recruitment and Leave of Teachers in Primary Schools in West Bengal as issued under Notification No. 768-Edn (P) dated 22nd November, 1991, has not been made to the dependent son despite filing of such application. The writ application has been opposed by the Primary School Council by filing affidavit. The State respondents have also filed affidavit-in-opposition opposing the writ application. In the affidavit-in-reply the petitioner reiterated the same point as taken in the writ application. From the records as admitted, it appears that on 11th November, 1993 the husband of the petitioner No. 1 breathed last while he was in service. It is also an admitted fact that within two years of death no application has been filed praying appointment under compassionate ground on the said category under in terms of Rule 14 of the aforesaid Recruitment and Leave Rules of 1991 as already referred to. Rule 14(a) which is the guiding Rule reads thus "14(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." The aforesaid Rule was framed and constituted exercising power under sub-section (1) of Section 106 of the West Bengal Primary Education Act, 1973. However, the learned Advocate for the petitioner intended to satisfy this Court that in the year 1997 the application which was filed that was within four years in terms of the circular letter no.4-SE (Primary)/4A-17/54 dated, Calcutta 2nd January, 1995. The petitioner has relied upon Clause (4) of the circular letter, which reads thus : "4. Accordingly, after careful consideration of the matter, the undersigned is directed by the order of the Governor to say that the Governor is pleased to decide, in terms of para 7 of the said G.O. No. 457 Edn. (P) dated 12.10.87 that (1) Application praying for an employment by a ward of a teacher who died in harness should be submitted to the District Primary School Council/District Inspector of Schools (PE)/D.I. of Schools (Secondary Edn.) within two years from the date of death of the concerned teacher. (ii) Applications received after expiry of the aforesaid time limit it should not be considered except under very special circumstances involving serious illness or physical inability of the applicant to submit such application on time, but even in such case, the application should be submitted within a period of 4 (four) years from the date of expiry of the concerned teacher. (iii) The ward of the deceased teacher must possess the requisite minimum educational and other qualifications on the .date on which he/she submits an application praying for such appointment. (iv) No application praying for such appointment on compassionate ground should be entertained from a ward of a deceased teacher who expired after attaining the prescribed age of superannuation at sixty years. (v) Cases decided in the past need not be reopened. (vi) All concerned may be informed accordingly. Sd/- S. Som Joint Secretary." From the said circular letter it appears that one earlier Government order providing the scope of appointment to dependent of the deceased teacher who died in harness as issued under G.O. No. 457 Edn. (P) dated 12th October, 1987 was modified by fixing the time limit for two years to file such application from the date of death upon putting an exception clause under 4(ii) of the said circular letter to this effect that two years time limit could be extended to four years from the date of expiry of the concerned teacher in the event the applicant suffered serious illness or physical inability to submit the application in proper time. The said circular letter of 2nd January, 1995 as relied upon by the learned Advocate for the petitioner to contend that the application as was filed on 12th August, 1997 by the petitioners praying appointment of the son of the deceased teacher was within time as the petitioner's son could not file the application due to his minority. The circular letter of 2nd January, 1995 as relied upon has no strength and effect to provide any relief to the petitioner since in that field of appointment on compassionate ground already a statutory rule was framed and notified under Notification No. 768-Edn.(P) dated 22nd November, 1991 on exercising the power conferred under sub-section (1) of Section 106 of the West Bengal Primary Education Act, 1973. It is settled law that when in any field the statutory rule is existing, everything to be controlled and guided by the said statutory rule and non-statutory Government order and or circular letter cannot override the statutory rule. Reliance may be placed to the judgment passed in the case C.L. Varma v. State of Madhya Pradesh, reported in AIR 1990 SC 463 : [1990(1) SLR 134 (SC)] wherein the Apex Court held "administrative instruction cannot compete with a statutory rule. If there be any contrary provision in the rule, the administrative instruction must give way and the rule shall prevail." Further reference is made to the judgment passed in the case Union of India v. Diljit Singh, reported in (1999)2 SCC 672 . In paragraph 11, the Apex Court held to this effect "the statutory notification cannot be superseded by non-statutory executive order. General rule that where a subsequent order does not specify and supersede the earlier order but both the orders relates to the same subject and/or issue in exercise of the same power, statutory or otherwise, notwithstanding the absence of specific ward superseding earlier order in the subsequent order, it can he interfered that the earlier notification has been impliedly superseded, it is not applicable, when earlier order is a statutory notification and the subsequent order is not a statutory notification, but is merely executive order". Hence, it is a settled law that a non-statutory order cannot replace a statutory notification even if it purposes to do so specifically, though a statutory notification can substitute a non-statutory notification. In the instant case, the aforesaid judgments are squarely applicable to adjudicate this matter. The learned Advocate for the petitioner has placed reliance to the circular letter no.4-SE (Primary)/4-A- 17/54 Calcutta 2nd January, 1995 to contend that time limit to file an application praying appointment under compassionate ground due to untimely death of any teacher was extended to four years which is directly in conflict with the statutory notification No. 768-Edn(P) dated 22nd November, 1991 issued by the Hon'ble Governor on exercising the power conferred by sub- section (1) of Section 106 of the West Bengal Primary Education Act, 1973 wherein such time limit has been prescribed two years only. The circular letter of 2nd January, 1995 is a non- statutory executive order issued by the Joint Secretary, School Education Department, Government of West Bengal, where as notification dated 22nd November, 1991 providing the Recruitment Rules for the primary teachers is a statutory notification exercising the power under sub-section (1) of Section 106 of the West Bengal Primary Education Act which provides that the Government will frame necessary rule for appointment, recruitment and leave of the primary teacher. Having regard to such state of affairs, this Court is of the view that the circular letter dated 2nd January, 1995 being a non-statutory executive order cannot supersede the statutory notification providing two years time limit under Rule 14 of the said Rules issued by the notification dated 22nd November, 1991.
(3.) In that view of the matter, this Court is not inclined to consider the other aspect of the case as the petitioner has no legal right to pray for writ of mandamus since in terms of the statutory rule namely Recruitment and Leave Rule applicable to the primary teachers issued under notification dated 22nd November, 1991 admittedly no application was filed within two years from the date of death of the teacher. In that view, the action of the respondents for non-entertaining the application as filed after expiry of the said period of two years is not illegal or arbitrary to suffer the wrath of the writ court. Since the petitioners have no legal right to claim, no writ of mandamus could be issued, the writ application accordingly stands dismissed.;