16.09.2026 Ct. No.446 Sl. No.3 akd W. P. A. 9517 of 2007 [Md. Moinuddin Abedin -Vs- The State of West Bengal& Ors.] Mr. Ekramul Bari .. Sr. Advocate Sk. Imtiaz Uddin … … for the petitioner Mr. Dinesh Chandra Singh … … for the State 1. Affidavit-of-service filed in Court today is taken on record. However, despite service, none appears on behalf of the State- respondents. 2. Mr. Dinesh Chandra Singh, learned Advocate, who ordinarily appears for the State/respondents, is requested to appear on behalf of the State/respondents and assist the Court in this matter. Let Mr. Singh’s appointment be regularized. 3. As prayed for, leave is granted to the learned Advocate for the petitioner to add the Commissioner of School Education, Government of West Bengal, as a party respondent to the instant writ petition and to amend the cause title accordingly, in the course of the day. 4. The present writ petition has been preferred challenging the legality and/or tenability of the communication dated 14th March, 2007, issued by the Chairman, District Primary School Council, North 24-Parganas, addressed to the petitioner herein, whereby the petitioner was intimated that his prayer for appointment on compassionate ground could not be considered in view of Memo No. 718(20)-SE(Pry.) dated 30th July, 2004, issued by the School Education Department, Government of West Bengal. The petitioner has also prayed for an appropriate 2 writ and/or order directing the concerned respondents to consider his prayer for appointment on compassionate ground. 5. Briefly stated, the facts leading to the filing of the present writ petition are that the petitioner’s father was an approved primary teacher of Bagdoba Panapukur F.P. School under Rajarhat Circle, District 24-Parganas (North) (hereinafter referred to as “the said school”), within the jurisdiction of the District Primary School Council, North 24-Parganas. The petitioner’s father had been suffering from various ailments and, owing to his ill health, was not in a position to continue in service. Accordingly, he submitted an application dated 23rd May, 2003, seeking voluntary retirement from service. 6. Pursuant to the said application, a Medical Board was constituted to assess the physical condition of the petitioner’s father. Ultimately, he was declared physically incapacitated, and his prayer for voluntary retirement on medical grounds was accepted by respondent no. 5 herein with effect from 3rd May, 2003. Thereafter, on 15th February, 2004, the petitioner submitted an application seeking appointment on compassionate ground. However, the records reveal that, by a communication dated 14th March, 2007, the petitioner’s prayer for compassionate appointment was rejected on the ground that, by Memo No. 718(20)-SE(Pry.) dated 30th July, 2004, the existing system of granting appointment on compassionate ground to a family member of an Assistant Teacher who had been declared physically incapacitated and had thereafter taken voluntary retirement had been abolished. 7. Mr. Bari, learned Advocate appearing for the petitioner, submits that an administrative order cannot override a statutory 3 provision. He further submits that all along, the provision for granting compassionate appointment to any family member of an Assistant Teacher of a primary school existed in the Recruitment & Leave Rules of Primary Teachers, 1991 and the West Bengal Primary School Teachers Recruitment Rules, 2001 (in short, “the 2001 Rules”). Such provision still exists even today in the latest Rules of 2008. He also submits that, in such conspectus, the communication dated 14th March, 2007 is unsustainable in law. Mr. Bari submits that a direction be given to the concerned respondent to appoint the petitioner on compassionate ground to a suitable post, taking into account the declaration of the Medical Board in respect of the petitioner’s father. 8. Mr. Singh submits that if the matter is relegated to the appropriate authority for consideration of the petitioner’s prayer for appointment on compassionate ground, he would have no objection to the same. 9. Heard the learned Advocates appearing for both the parties and perused the materials on record. 10. Records reveal that the petitioner’s father happened to be an approved primary teacher of the said school. He was declared permanently incapacitated by the Medical Board, and his prayer for voluntary retirement was accepted with effect from 3rd May, 2003. Thereafter, the petitioner made an application on 15th February, 2004, inter alia, stating therein that since his father, who was the sole breadwinner of the family, had been forced to take voluntary retirement, the family had plunged into penury. Accordingly, to mitigate such family crisis, he prayed that his prayer for compassionate appointment be considered. 4 11. As noted previously, the petitioner’s application for compassionate appointment was rejected on the ground that the provision for granting compassionate appointment to a family member of any teacher who has been declared permanently incapacitated had been abolished by the Memo dated 30th July, 2004, issued by the School Education Department, Government of West Bengal. 12. Undisputedly, in 2003, when the prayer for voluntary retirement of the petitioner’s father was accepted, the 2001 Rules were in vogue. Rule 14(2) of the 2001 Rules provides for the grant of compassionate appointment to any of the family members detailed therein, if it is found that the family is in extreme financial hardship after such retirement. Therefore, when the petitioner made an application seeking compassionate appointment, there was a statutory provision for the grant of such appointment under the 2001 Rules. There cannot be any quarrel with the proposition that an administrative order and/or circular and/or notification cannot override and/or whittle down a statutory provision, and such administrative order cannot arbitrarily take away such right and bypass the Rules. 13. In view thereof, based on the discussions made hereinabove, the communication dated 14th March, 2007 is set aside. 14. The writ petition is disposed of by directing the Commissioner of School Education, Government of West Bengal (respondent no. 6 herein), or any other competent officer deputed by him for the purpose, to consider the petitioner’s prayer for compassionate appointment, after affording an 5 opportunity of personal hearing to the petitioner herein and upon taking note of the relevant provisions of the 2001 Rules. 15. Needless to mention, if respondent no. 6 or any other competent officer deputed by him for the purpose finds that the petitioner’s prayer for compassionate appointment deserves to be accepted, the consequential steps shall follow. In the event respondent no. 6 or such competent officer comes to the conclusion that the petitioner’s prayer for compassionate appointment lacks merit, a reasoned order shall be passed and communicated to the petitioner. The aforesaid exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order. 16. It is clarified that this Court has not gone into the merits of the petitioner’s claim for compassionate appointment, and all points are left open for consideration by respondent no. 6 or the competent officer deputed by him for the purpose, at the time of deciding the petitioner’s application. 17. With these observations and directions, WPA 9517 of 2007 is disposed of. 18. Since no affidavits have been filed by the respondents, the allegations made in the writ petition shall be deemed to have not been admitted by the respondents. 19. There shall be no order as to costs. 20. Let urgent Photostat certified copy of this order be made available to the parties, if applied for, upon compliance of usual formalities. (Partha Sarathi Chatterjee, J.)