Khondakar Minhazuddin vs The State of West Bengal and Others

Biswanath Somadder, J.

The Judgment of the Court was as follows:

None appears on behalf of the District Primary School Council, Burdwan, when the matter is taken up for consideration although learned advocate representing the State is present.The writ petitioner is the son of an assistant teacher of Raigram High School situated in the district of Burdwan, who died-in-harness on 7th June, 2005. Upon the death of the teacher, the Headmaster of the school, by a memo dated 16th August, 2005, approached the concerned District Inspector of Schools with a prayer for appointment of the writ petitioner on compassionate ground in the died-in-harness category. A copy of the said memo handed up by the learned advocate for the writ petitioner may be kept on record. Subsequently, by another memo dated 10th November, 2006, the Headmaster forwarded some additional papers relating to the prayer for compassionate appointment of the writ petitioner to the concerned District Inspector of Schools. A copy of the said memo which is also handed up by the learned advocate for the petitioner may be kept on record.

Thereafter, for almost three years the concerned District Inspector of Schools did precious little to consider the prayer for compassionate appointment of the writ petitioner in the died-in-harness category. Then, on 30 July, 2009, the District Inspector of Schools (SE) Burdwan. issued a memo to the writ petitioner for submission of option for sponsoring name as primary teacher/ for non-teaching post on compassionate ground. The writ petitioner was also directed to attend the office the said District Inspector of Schools on 14th August, 2009, along with original copies of testimonials and other documents as stated in the said memo. Subsequently, on 27th January, 2010, the Chairman, District Primary School Council, Burdwan, requested the writ petitioner to appear for a personal hearing at the office of the Council on 12th February, 2010, with all original certificates and testimonials together with admit card for Madhyamik/School Final/Higher Secondary Education. Other papers, as stated in the said memo dated 27th January, 2010, were also directed to be furnished by the writ petitioner to the Council.

It appears from record that the District Primary School Council, Burdwan, subsequently forwarded the proposal of appointment of the writ petitioner on compassionate ground to the office of the Director of School Education, West Bengal, by a memo bearing No. 8722 dated 1st November, 2010. This proposal of the Council was considered and rejected by the Director of School Education, West Bengal, which appears from a memo dated 2nd June, 2011, issued by the Director of School Education, West Bengal, addressed to the Chairman, District Primary School Council, Burdwan, a copy whereof, handed up by the learned advocate for the State, may be kept on record. The only reason for rejection of the proposal of the District Primary School Council, Burdwan, for appointment of the writ petitioner on compassionate ground, under the died-in-harness category, appears to be based on a Government Order dated 26th June, 2009. It has been categorically observed in the said memo dated 2nd June, 2011, that the family of the deceased teacher cannot be treated as financially distressed as per of the said Government Order.

The facts of the case, as elucidated above, is a classic example of sheer bureaucratic apathy and total non-application of mind on the part of the concerned State authorities. How it is so, will be apparent presently.

The bureaucratic apathy is manifest even from the face of record. The prayer for appointment on compassionate ground of the writ petitioner was forwarded by the Headmaster of the school to the concerned District Inspector of Schools as far back as on 16th August, 2005. Between 16th August, 2005 and 30th July, 2009 - a period of almost four years - the office of the District Inspector of Schools (SE), Burdwan, instead of playing a proactive role, simply hibernated over the prayer for such appointment. The learned advocate for the State has not been able to give any plausible reason as to what the office of the concerned District Inspector of Schools was doing between 16th August, 2005 and 30th July, 2009.

Now comes the example of total non-application of mind by the State authorities. It appears that the Director of School Education, West Bengal, rejected the proposal of appointment on compassionate ground of the writ petitioner, as forwarded by the District Primary School Council, Burdwan. on 1st November, 2010, solely on the basis of a Government Order dated 26th June. 2009.

A bare perusal of the Government Order dated 26th June, 2009, reveals that the same is actually a notification which introduces certain amendments to the West Bengal Primary School Teachers'' Recruitment Rules, 2001. The amendments concerning Rule 14, which relates to appointment on compassionate ground nowhere indicates that retrospective effect is to be given in respect of such amendments. Thus, the amendments concerning Rule 14 as contained in the said notification dated 26th June, 2009, could only be effective and binding for deciding proposals for compassionate appointment under the died-in-harness category, in such cases where applications have been lodged on or after 26th June, 2009, and not earlier. Had the application of the writ petitioner for compassionate appointment been considered by the concerned authority as soon as the same reached the hands of the said authority, i.e., in the year 2005, the question of relying on the notification dated 26th June, 2009, would not have arisen. Reliance on the said notification by the Director of School Education, West Bengal, in the facts of the instant case where the writ petitioner''s father expired on 7th June, 2005, and his prayer for appointment on compassionate ground was forwarded by the Headmaster of the school to the concerned District Inspector of Schools on 16th August, 2005, is, therefore, a clear example of total non-application of mind on the part of the office of the Director of School Education, West Bengal.

In this context, the observations made by a Division Bench of this Court in a recent judgment and order rendered in AST No. 119 of 2011 ASTANo.104 of 2011) (Sri Satyagopal Mishra v. The State of West Bengal & Ors.) dated 20th April, 2011, may be aptly quoted:

Wrapping up, we find the Appellant has passed the litmus test of compassionate appointment he deserves so. In fact, the Hon''ble Single Judge in his Lordship''s Order which has been carried at the instance of Shri Bari in Appeal has also much to his Lordship''s chagrin found the action smacks of arbitrariness. We would, in our power of extended judicial review, simply amplify the same and modify the same by way of directing that as he had qualified for the appointment Respondent No. 2 would pass necessary directions in this regard and proposal submitted by Respondent No. 5 be implemented by the Respondent No. 2 within a period of three weeks from the date of communication of this order.

This unfortunate Appellant has been pursuing his relief since January 2003 but fortune did not smile. It always remains concealed under the cloud of executive indifference. Now it should be just justice and it would be desert. Otherwise it would be -

Twixt tweedledum and tweedledee". The discipline of law, the due process of law and the rule of law become mere claptrap if Judges bound to obey precedent choose to disobey untenable alibi.

And, behind the stonewall of rules and dead regulations would wail the appellant "How long O Lord, how long!" Fuzlunbi Vs. K. Khader Vali and Another,

For reasons stated above, the rejection of the writ petitioner''s case by the Director of School Education, West Bengal, as appearing from the memo dated 2nd Jun 2011, is liable to be set aside and quashed and is accordingly set aside and quashed. The Director of School Education, West Bengal, is directed to reconsider the proposal of the Chairman, District Primary School Council, Burdwan, dated 1st November, 2010, afresh, in the light of the observations made hereinabove without relying on the notification dated 26th June, 2009. Such decision shall be taken by the Director of School Education, West Bengal, as expeditiously as possible, preferably within a period of three weeks, but not later than four weeks from date of communication of a Photostat certified copy of this order.The writ petition stands disposed of accordingly.

Urgent Photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.