- (1.) In the instant writ petition, the petitioner has challenged the order dated March 30, 2010 passed by the respondent no. 2, the Director of School Education, West Bengal, rejecting the prayer of the petitioner to appoint her in the post of primary teacher under the died- in- harness category.
(2.) It is the case of the petitioner that her father while serving as an Assistant Teacher of the Tentulkuli Primary School, suddenly died at the age of 56 years leaving behind his widow and two married daughters. According to the petitioner, although she was married but during the lifetime of her father, she was compelled to stay with her parents and was depended on her father's income. She further claimed that after the death of her father, she is continuing to stay with her mother and she is the only bread earner of the family who earns money by doing private tuition. The petitioner has further claimed that she has passed the Higher Secondary Examination, under the West Bengal Council of Higher Secondary Education and as per Rules 14, 15 and 16 of the West Bengal Primary School Council Rules, hereinafter called to as "the said Rules", she is entitled to be appointed as a primary teacher of any primary school in the district of Howrah on compassionate ground. However, in spite of requests being made by herself and her mother, the respondent no. 2 has refused to consider her appointment as a primary teacher on compassionate ground. It appears that on an earlier occasion the petitioner and her mother had approached this Court, by filing a writ petition, being W.P. No. 23440(W) of 2007 praying for, a direction upon the respondent State authorities to appoint her in the post of primary teacher of a primary school in the district of Howrah on compassionate ground. By an order dated January 31, 2008, a learned Single Judge of this Court disposed of the said writ petition by directing the Director of School Education, West Bengal, the respondent no. 2 in this writ petition to consider and dispose of the application of the petitioner dated January 28, 2006, in accordance with law by passing a reasoned order after giving an opportunity of hearing to the petitioner. The respondent no. 2 was also directed to communicate his decision to the petitioners of the said writ petition within two weeks from the date of passing of the order. In terms of the said order dated January 31, 2008, the respondent no. 2, the Director of School Education held hearing on July 31, 2008 which was attended by the petitioner, as well as the representative of the District Primary School Council, Howrah. After considering all the facts of the case, the respondent no. 2 found that the mother of the petitioner, as the widow of the deceased teacher of a primary school under the District Primary School Council, Howrah has been drawing Basic Family Pension amounting to Rs.3,225/- with admissible relief with effect from April 15, 2006 and the petitioner and her married younger sister are very much independent of the income of their mother. The respondent no. 2 further held that the respective husbands of the petitioner and her younger sister shall bear the maintenance of their wives and, as such, a case for need of the family is not established. Mr. Kanainal Samanta, learned advocate appearing for the petitioner, relied on a decision of a learned Single Judge of this Court in the case of Usha Singh vs. State of West Bengal and Ors.,2003 1 CalLJ 407 and submitted that it is the settled law that under Rules 14, 15 and 16 of the said Rules, married daughter of an assistant teacher of a primary school who has died in harness, before the date of his/her superannuation is entitled to be appointed as a teacher of a primary school on compassionate ground.
(3.) However, Kamalesh Bhattacharya, learned advocate appearing for the State respondents including the respondent no. 2, the Director of School Education strenuously contended that as per Rule 14 of the said Rules, a daughter of an assistant teacher of a primary school who was already married at the time of death of her father is not entitled to be appointed as a teacher of primary school. I have considered the facts of the case and as well as the submission made by both Mr. Samanta and Mr. Bhattacharya, appearing for the respective parties. Since the decision of the present writ petition is depended upon the effect of Rules 14, 15 and 16 of the said Rules, it would be appropriate to set out the said 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.";