Ashim Kumar Banerjee, J.@mdashAppellant No. 1 was a primary teacher under the Malda District Primary School Council. His date of birth was
July 14, 1942. His natural date of superannuation was July 31, 2002 when he was to attain the age of 60 years.
2. Under Rule 14(b) of the Recruitment and Leave Rules, 1991 in case a primary teacher was declared permanently incapacitated by competent
medical board set up therefore and he was allowed to retire prematurely at least two years before he attained the age of superannuation and it was
found that his family was in extreme economic hardship due to sudden retirement, his or her dependant would be considered for compassionate
appointment. The appellant No. 1 was ill and he applied on November 24, 1999 to the District Primary School Council for his premature
retirement coupled with a prayer for consideration of his son being appellant No. 2 for compassionate appointment. At that time the appellant No.
1 was well within the cut off date for being eligible to apply for premature retirement coupled with a prayer for compassionate appointment of his
dependant. He was also not attending school since then.
3. Alleging non-action on the part of the council he filed a writ petition being W. P. No. 626(W) of 2000 in this Court. It was disposed by the
learned Single Judge by an order dated February 2, 2000, inter alia, directing the council to act on his representation. In compliance with the said
order dated February 2, 2000 medical board was constituted which examined the appellant No. 1 and declared him medically fit vide their
certificate dated April 29, 2000.
4. Being aggrieved by the finding of the medical board second writ petition being W. P. No. 7440(W) of 2000 was filed which was disposed of by
the learned Single Judge vide order dated July 12, 2000 appearing at page 20-22 of the paper book. It was contended before His Lordship that
the Council did not follow the required procedure under Rule 14(b). His Lordship directed the council to have petitioner''s case enquired into by
the enquiry committee. It was also observed by His Lordship that in ease the council was satisfied as to the case made out by the writ petitioner his
case would be forwarded to the medical board and it would take steps in accordance with the rules to declare him permanently unfit to continue
his duties and to provide his dependant with suitable appointment under the appropriate rules His Lordship also directed the Council to refer the
issue to the medical board within two weeks from the date of enquiry to be made by the enquiry committee.
5. On July 31, 2000 the petitioner attained the age of 58 years. The council presumably was satisfied with the case made out by the petitioner and
as such referred him again to the medical board which called the writ petitioner for his examination on August 26, 2000. Such examination was
cancelled as would appear at page 23 of the Paper Book. The medical board re-examined the petitioner on September 23, 2000 and declared
him fit again. Within a span of 35 days on October 28, 2000 writ petitioner was again examined by the medical board where he was declared
medically unfit.
6. The appellant No. 1 was duly communicated the decision of the Medical Board vide their communication dated December 1, 2000 appearing
at page 24 of the Paper Book and he was allowed to go on premature superannuation.
7. Third writ petition was filed being W. P. No. 7190(W) of 2001 by the appellant No. 1 which was disposed of vide order dated August 7, 2002
asking the Director, School Education to consider the representation and dispose of the same within the stipulated date.
8. In terms of the direction of this Court in the third writ petition reasoned order was passed by the Director on December 18, 2000 appearing at
page 48-50 of the paper book. By the said reasoned order the Director rejected the prayer of the appellant No. 1 for compassionate appointment
of the appellant No. 2. It was observed by the Director in the said reasoned order that since the appellant No. 1 was declared medically unfit after
attaining the age of 58 years his prayer for compassionate appointment of his son could not be considered.
9. The reasoned order passed by the Director was impugned in the fourth writ petition being W. P. No. 9331(W) of 2003. The said writ petition
was dismissed by the learned Single Judge by order dated August 28, 2003 appearing at page 63-64 of the paper book.
10. By the said order the learned Single Judge observed that since he was found fit to work even after his application when he was within the
prescribed age further declaration by the medical board after appellant No. 1 had attained the age of 58 years did not have any relevance in the
matter of compassionate appointment. His Lordship further observed that why a third medical board examined the petitioner on October 28,
2000, could not be answered by the learned Advocate for the petitioner. His Lordship held that since Rule 14(b) stipulated a condition that the
incumbent must be declared medically unfit for becoming eligible for compassionate appointment of his dependant the prayer of the writ petitioners
in the instant case could not be acceded to. His Lordship further held that there was no scope for setting up a third medical board which was ""de
hors of statutory provision.
11. Being aggrieved by, and dissatisfied with, the judgment and order of the learned Single Judge the appellants filed the present appeal.
12. Mr. Ashok Kumar Maity, learned Counsel appearing for the appellants contended before us that since the petitioner applied within the
prescribed age for premature retirement as well as for compassionate appointment of his son belated medical examination should not stand in the
way in getting a consideration of his application for compassionate appointment especially, when he was ultimately declared unfit and was allowed
to go on superannuation prematurely. In support of his contention he relied on an unreported decision of the Division Bench of this Court in the
case of Haridas Roy and Anr. v. State of West Bengal and Ors. (MAT No. 941 of 2000) dated September 16, 2003. In the said case, the
incumbent applied within the prescribed age of 58 years. The Medical Board declared him unfit, however by that time the incumbent crossed the
age of 58 years. Considering such fact the Division Bench was of the opinion that the incumbent was entitled to have consideration in the matter of
compassionate appointment.
13. Mr. Partha Sarathi Deb Barman learned Counsel appearing for the Primary School Council while opposing the appeal contended before us
that the facts and circumstances involved in the case of Haridas Roy (supra) were totally different from the present one. In the said case there had
been delay in holding the medical examination. Hence, the Division Bench granted relief to the incumbent. In the instant case, the application was
considered by the Council in terms of the order of this Court passed in the first writ petition where the incumbent was declared medically fit. His
further medical examination might have found him unfit at a subsequent stage. This would not be a relevant factor for consideration of his prayer for
compassionate appointment of his son as by this time he had corssed the age of 58 years. Mr. Deb Barman further contended that by making the
application the incumbent did not acquire any right. His right accrued only when he was declared medically unfit. The writ petitioner was declared
medically unfit after he had crossed the age of 58 years. Hence, he did not have any right to ask for consideration of his son''s case for
compassionate appointment.
14. In support of his first contention Mr. Deb Barman relied on an unreported decision of FMA No. 93 of 2005 dated September 21, 2006 of a
Division Bench of this Court. In the said decision the incumbent applied after he had attained the age of 58 years. His case was sent to the Medical
Board in terms of a direction of this Court where he was found medically unfit. The learned Single Judge on the basis of such finding directed
consideration of the prayer of compassionate appointment. The Division Bench set aside the decision of the learned Single Judge holding that since
the petitioner applied after attaining the age of 58 years, his prayer for consideration for compassionate appointment could not arise.
15. In support of the second contention Mr. Deb Barman relied on the decision of the Apex Court in the case of Chief of Marketing (Marketing
Division) Coal India Ltd. and Anr. v. Mewat Chemicals & Tiny SSI Coal Pulverising unit and Ors. In the said case the Apex Court held that there
was no vested right when a person made an application for allotment of quota and linkage in respect of supply of coal. Such right could accrue
only when allotment was made on the said application.
16. We have considered the rival contentions of the parties. We have perused the precedents cited before us. In the instant case, the application
for premature retirement coupled with a prayer for compassionate appointment was duly considered by the Council well within the prescribed
period. The appellant No. 1 was declared fit by the Medical Board before he had attained the age of 58 years. The issue did not rest there. The
second writ petition was disposed of by the learned Single Judge within a direction upon the Council to form an Enquiry Committee to consider
such application and then to send it to the Medical Board. No appeal was preferred from the said order. The Council acted on the said order and
referred his case to the Medical Board again. Hence, the declaration made on April 29, 2000 in our view, has no relevance herein.
17. In terms of the order of the learned Single Judge in the second writ petition he was called to appear before the Medical Board on September
23, 2000, by this time he had crossed the age of 58 years. The learned Single Judge passed the order on July 12, 2000 when the appellant No. 1
was about to cross 58 years. Hence, the report of the second Medical Board was relevant. The second report was also not in favour of the
appellant No. 1. Hence, he could not have been considered on the basis of the second report for compassionate appointment.
18. The learned Single Judge, however, could not find any plausible answer to a big question why he was examined third time on October 28,
2000 that to within 35 days after he was declared medically fit. The learned Judge observed that no answer was forthcoming from the writ
petitioner. In our view, here the learned Judge went wrong. It is true that the learned Counsel could not apprise the Court as to why he was
examined third time. The Council and the State respondents, in our view, could not avoid their responsibility to answer this question. We could not
get any assistance from the learned Counsel appearing for the parties as to what was the occasion for the medical board to re-examine the
petitioner within 35 days. We adjourned the hearing of the appeal to enable the Counsel for the respondent to get appropriate instruction in the
matter. The Council in turn wrote to the Chief Medical Officer of Health, Malda on November 8, 2006 to inform them or directly to this Court as
to why the appellant No. 1 was re-examined on October 28, 2000. No reply came till this judgment is delivered.
19. Mr. Deb Barman could not assist us properly in absence of appropriate instruction. He pleaded his helplessness in view of non-cooperation on
the part of the Health authorities of the State.
20. Coming back to the reasoned order we are of the view that the Director did not consider the controversy from the above angle. The learned
Judge was right that to determine the present controversy answer to such query was a must. In our view, since no answer was coming from the
State authorities the benefit must go in favour of the appellants.
21. With all humility may we observe that the learned Judge should have considered the issue from this angle as highlighted above.
22. The appeal, thus, succeeds. The order of the learned Single Judge dated August 28, 2003 appearing at pages 63-64 of the paper book
impugned herein is quashed and set aside. The reasoned order dated December 18, 2000 appearing at pages 48-50 of the paper book is also
quashed and set aside. The matter is sent back to the Director of School Education who is directed to consider the issue afresh in the light of the
observations made herein. We further make it clear that quashing of the reasoned order must not be construed to the effect that we are convinced
with the claim of the appellants for compassionate appointment.
23. The appeal is disposed of accordingly without, however, any order as to costs.
24. Urgent xerox certified copy would be given to the parties, if applied for.
Tapan Mukherjee, J.
25. I agree.