A. Lala, J.@mdashCommon question is involved in respect of aforesaid two writ petitions. Therefore, a factual aspect of both the writ petitions have considered at a time for the purpose of determining the issue involved and the judgment delivered hereunder which will have binding effect in respect of both the writ petitions as above.
2. The fact of the first case is that the father of the petitioner was an Assistant Teacher of a Primary School, was expired when he was working in extension of service. The death took place on 8th April, 1996. The application was made by the petitioner for giving service under the compassionate ground on 21st May, 1996 well within the specified time.
3. An explanation was given by the petitioner about the economic distress by showing the monthly income of Rs. 6,600/- which would be evident from the certificate issued by the concerned Gram Panchyat of the District.
4. The petitioner further contended that by virtue of a circular being No. 457-Edn(P)4A-50/83 dated 12th October. 1987 if a Primary School Teacher died-in-harness a ward of the teacher concerned may be given appointment as a Primary Teacher on compassionate ground provided he/she possess the requisite qualification for such appointment. It was further provided therein that if a Primary Teacher died-in-harness, the ward of the teacher concerned should be considered for employment in the first instance in the Primary School in the District in which the deceased teacher last served.
5. It further appears that In a circular being No. 1008-Edn(P)/9A-3/76 dated 14th September, 1977 Issued by the Director of Primary Education West Bengal that after careful consideration the Government is pleased to order that when the Primary School Teacher dled-ln-harness one ward of the teacher may be given appointment to the post of Primary School Teacher provided the ward fulfils the qualification for such appointment. The appointment may be made against normal vacancies where post have not been filled up.
6. The petitioner further contended that on the similar circumstances, the concerned Chairman, Ad hoc Committee District Primary School Council vide Memo No.656 dated 3rd April, 1996 issued appointment letter in favour of one Smt. Kabita Goswami as Assistant Teacher under the said Council in the category of died-in-harness. Similarly, appointment letters were also Issued in favour of one Shree Pattanayek and also in favour of Shree Bidhan Chandra Mandol. Petitioner also contended that on the similar circumstances various writ applications were moved and orders were passed directing the authority to give appointment to the concerned incumbent in the died-in-harness category and pursuant thereto the concerned authority also appointed or absorbed.
7. Due to non-action on the part of the authority, the petitioner moved the writ petition for the purpose of passing appropriate order or orders.
8. So far as the second writ petitioner is concerned, father of the petitioner expired on 5th February, 1992 while he was functioning in the extended period of service as Head teacher of the concerned school under the same District Primary School Council.
9. The petitioner also made his statement about making an application for giving service in compassionate ground on 10th April, 1992 also well within the prescribed period.
10. The petitioner also made submission in connection with the economic distress of the family by describing monthly income of Rs.500/- duly certified by the Panchyat concerned Samlty. Apart from these two factual difference all other parts of the writ petition are more or less similar and harped on similar grievance.
11. The stand of the said respondent is a question of law which is described hereunder, but not a question of facts. Therefore, instead of giving directions for filing affidavits, the Court considered that the same is to be disposed of on the basis of such submissions on the question of law.
12. Question of law, as agitated by the respondent. Is that while the father of the petitioner or petitioners was or were with in the extended period of service, the incumbents being the heirs or legal representative of such deceased cannot get benefit of service under compassionate ground due to death-in-harness within such period.
13. I have considered several judgments in this respect which were passed by different Division Bench and single Benches of this Court. Twice this bench considered the issue in the earlier occasions in W.P. No. 1004 of 1998 (Madan Mohan Ghosh v. State of West Bengal & Ors.) and W.P. No. 13356(W) of 1999 (Shibram Kundu. v. State of West Bengal & Ors.). Both the aforesaid judgments are unreported Judgments as far as the knowledge of the Court is concerned. Other judgment is reported in 1998(3) CLT 434(HC) (Shyama Prasad Roy v. State of West Bengal & Ors.). Further Judgment is a Division Bench Judgment under MAT No. 1442 of 1998 (The Chairman Ad hoc Committee Nadia District primary School Council v. Md. Mantrut Islam & Ors.).
14. Therefore, before discussing with the single Bench Judgments as aforesaid, I want to go through the Division Bench Judgment in this respect. The important parts of the Division Bench judgment in based on the Rule 3D & 4A of the Bengal (Rural) Primary Education Rules 1940 framed under the Bengal (Rural) Primary Education Act, 1930 which are as follows :
"3D. Notwithstanding anything contained in Rule 3, Rule 3A or rule 3B, but subject to the provisions of rule 3C, a ward of a Primary Teacher who dies in harness may be appointed, with the approval of the Director of Public Instruction, West Bengal as an Assistant teacher/ school mother against regular vacancy irrespective of whether the available vacancy is to be reserved for trained or untrained candidates, provided that he/she fulfils the minimum qualifications for such appointment.
4A. A teacher appointed by the Board may be retained tn service upto the age of 60 years, but the Board may, if it thinks fit, grant thereafter extension of service of a teacher on a year to year basis upto the age of 65 years, provided the teacher continues to be physically fit and mentally alert.
Explanation--The continuous period of service extended beyond the age of 60 years of the teacher will Count towards increment in the scale of pay, terminal benefits and other benefits with the approval of the Government."
15. According to the Division Bench ex facie such extension of service would not carry with it all the benefits which are available to a teacher who was yet to reach his age of super-annuatlon. The said Rule 3D & 4A together gives a harmonious construction that the benefit of Rule 3D was not available to a teacher who was on extended service in terms of the Rule 4A. These are the two basic features for which the Division Bench disallowed the contention of the petitioner or petitioners therein in a similarly placed situation hereunder.
16. Many of us are taking the words in the statute very loosely without giving any Importance to such words to make a ''workable'' and ''practical'' solution. The similar situation arose herein. The explanation under 4A of the Rules clearly gives indication that the continuous period of service extended beyond the age of 60 years of the teachers will count towards increment of scale of pay, terminal benefits and other benefits with the approval of the Government. As and when such case was placed It was refused to entertain by the Division Bench on the ground that the Rule 3D was enacted keeping in view the provision of Article 16(2) of the Constitution of India. If such Rule making authority was to grant the said benefit to the dependant of an employee and express reference ought to have been made therefore in the exception. The same having not been done, it is not possible for the Court to read the benefit of Rule 3D as having been incorporated by reference in the explanation appended to Rule 4A. At the time of coming to conclusion, the Division Bench of this Court was pleased to refer a judgment reported in
"A consensus of the meaning of the words "willful default'' appears to indicate that default in order to be wilful must be Intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for Instance a case where a tenant commits default after default despite oral demands or reminders and falls to pay the rent without any Just or lawful cause, it cannot be said that he is not guilty or wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Tamil Nadu Act or other State Acts which are in pari material"
17. Thereafter, the Supreme Court Interpreted the meaning of the proviso :
"A proviso may have three separate functions. Normally, a proviso is meant to an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can It be used to nullify or set at naught the real object of the main enactment. While interpreting a proviso care must be taken that it Is used to remove special cases from the general enactment and provide for them separately. In short, generally speaking, a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main proviso and becomes an Integral part of it so as to amount to a substantive provision itself.
To sum up, a proviso may serve four different purpose :
(1) qualifying or excepting certain provisions from the main enactment;
(2) It may entirely change the very concept or the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) It may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and
(4) It may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real Intendment of the statutory provisions."
18. Ultimately, interpreted in respect of explanation as added to a statutory provision and function thereof which is as follows :
"It is now well settled that an Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision.
The object of an Explanation to a statutory provision is-
(a) to explain the meaning and Intendent of the Act itself.
(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to sub serve;
(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful.
(d) An Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court In Interpreting the true purport and Intendment of the enactment, and right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same."
19. But the decision was not unanimous. As per Sabyasachi Mukherjee, J. :
"If in cases where there are genuine and bona fide reasons for failure or non-payment of rent which cannot be excused after two months'' notice to pay rent, then other causes which lead to Inference of wilful default cannot also be construed as ''wilful default'' in the context of the Explanation. The legislature has provided an absolute and clear definition of ''wilful default''. Other circumstances cannot be considered as wilful default. The whole scheme of section 10 is that in order to be entitled to eviction on the ground of arrears of rent, the Ingredients of which the Controller must be satisfied are : (a) default; (b) default was wilful. Whether in a particular case default is wilful or not, must be considered in accordance with the definition provided In the Explanation to proviso to sub-section (2) of section 10 of the Act. If It was Intended that the Courts would be free to Judge whether In a particular set up of facts, the default was wilful or not where no notice has been given, then In such a case there was no necessity of adding this Explanation to the Proviso which Is a step to the making of the findings under clause (I) of sub-section (2) of section 10 of the Act. It Is well-settled that the Legislature does not act without purpose or in futility."
20. Therefore, In coming to the conclusion as to the explanation I can easily find out from the majority and minority view of the Supreme Court about the extent of the explanation. It Is clear that an explanation added to a statutory provision is not a substantive provision in any sense of term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision. The explanation cannot in any way interfere with or changes the enactment or any part thereof but where some gap is left which is relevant for the purpose of the explanation, in regard to suppress the mischief and advanced the object of the Act, it can help or assist the Court in interpreting to purport an intendment of the enactment and right with which any person under a statute has been clothed or set at naught the working of an Act by becoming a hindrance in the interpretation of the same. Is I go on the basis of the minority view side by side with the above expression of the majority view, I shall see that the learned Judge has explained that the legislature has provided an absolute and clear definition of ''wilful default''. Other circumstances cannot be considered as ''wilful default''. Whether in a particular case default is wilful or not must be considered in accordance with the definition provided in the explanation under the section of the Act. If it was intended that the Court would be free to judge whether in a particular set up of the facts, the default was wilful or not, where notice has been given, then in such a case there was no necessity of adding this explanation to the proviso which is a step to the making of the findings under the section of the Act. It is well settled that the legislature does not act without purpose or in futility. If I read and club together the majority view with the ''explanation'' along with the minority view the question will come out very clearly that unless any specific averment is made in the explanation one cannot presume such intention in the explanation to override the statutory enactment. In other words, an explanation without specification cannot over-ride the statute. Hence, I do agree with the interpretation of the Supreme Court of India in this respect and I cannot take the view of the Division Benches of this Court following such Supreme Court Judgment.
21. That apart there was a notification being No. 1663-Edn(P)/9A-3/76 dated 12th October. 1978 which is as follows :
"The undersigned is directed to invite a reference to her memo No.D/ 912/ED(R) dated 12/15.9.76 and to say that in implementation of G.O. No. 1008-Edn.(P) dated 14.9.77 the Directorate should consider the teachers on extension of service as in regular service. There should not arise any question of non-implementation of G.O. No. 1008-End. (P) dated 14.9.88 in the cases of Primary Teacher who are granted extension beyond 60 years of age and die-in-harness during such extension of services (with effect from 1.4.76 and onwards only)."
22. The applicability of the earlier notification about the effectiveness of giving service in respect of death-in-harness even in the extended period of service beyond 60 years of age which was not mentioned or indicated by either of the party before the Division Bench of this Court at the time of consideration which was considered by this Bench in an unreported single Bench judgment as above being W.P. No. 1004 of 1998 (Madan Mohan Ghosh v. State of West Bengal & Ors.). I have already held In such Judgment that once the service was extended by the Authority then such person is entitled to all benefits under such service. It is immaterial whether the deceased was within the extended period or within the normal period of service. The service on the compassionate ground If at all applicable in the normal course that will also be applicable in the extended period. In other words, extension of service is discretion of the Authority, but once discretion is applied all benefits are available for the Incumbent or his heirs or legal representative. Therefore, there cannot be any intelligible differentia in between the two stages as 1 have observed from the different orders passed by this Court and upon going through the various notices and applying the test of interpretation of statute.
23. The other part of the observations as I have made therein that the "benefit of service shall not be claimed as a matter of right" is applicable in two ways either in a conjunctive manner or in a disjunctive manner. If it is in a conjunctive manner as I have already held that the benefit should be given even in the extended period and no clarification is required to that extent. If it is in a disjunctive manner in that case also nobody can claim as a matter of right. But equity steps in the process on a fact situation. Therefore, if I go through the entire factual and legal aspect, I shall get that the service was extended, within the extended period application was made for giving service on a compassionate ground law came into play on the basis of the objection by the statutory authority and it is interpreted by the Court upon going through the same that such benefit will also be applicable without any specification under the Rule 4A of the said Rules. But totally coming under the purview of ''other benefits'' as provided therein when admittedly explanation cannot be superseded the enactment and it is well settled that the legislature does not act without purpose or any futility when other circumstances cannot be considered without specification under the words ''other benefits''. I have also considered the judgment passed by a single Bench of this Court as reported in 1998(3) CLT 434 wherein that the explanation is explicitly clear without any ambiguity that the teacher who had been serving on extension shall get ''other service benefit'' with the approval of the Government. The grammatical manner of the word ''extension'' is that by which something is extended; prolonged therefore there could be hardly any dispute that the expression of ''extension'' is nothing but a continuous of service. The explanation has also made further clear that the teacher working during the period of extension shall get all those benefits as that is available to a teacher who has yet to complete 60 years. Under such circumstances, and upon going through the judgments delivered by the Supreme Court as well as Division Bench and single Benches of this Court I interprete and say that the petitioners are entitled for getting service on compassionate ground even in case of death of the deceased employees within the extended period of their respective services.
Thus, both the writ petition succeeds. However, no order is passed as to costs.
Xerox certified copy of the Judgment passed by this Court to be supplied within 15 days from the date of putting requisition.
24. Petition succeeds
