JUDGMENT
P.K. Ray, J.
1. Heard the learned advocate appearing for the parties.
2. In the instant writ application the petitioner challenged the decision dated 1.3.96 passed by the Chairman, Adhoc Committee, Birbhum District Primary School Council, Suri, being annexure ‘E’ to the writ petition, whereby and whereunder the petitioner’s prayer for appointment on compassionate ground under died-in-harness category was rejected upon holding, inter alia, that petitioner had sufficient means to maintain himself due to his stay in town where he was maintaining himself being engaged as private teacher. In the impugned decision the said authority did not deal with the contentions made in the earlier writ application filed by the petitioner upon which Paritosh Kumar Mukherjee, J. (as His Lordship then was) by the order dated 11.2.94 directed the said authority to decide annexure ‘B’ to the writ application. Annexure ‘B’ to the said writ application was an application dated 24.3.93 filed by the present petitioner just immediately after the death of father on 6.2.93 who was a primary teacher and died-in-harness upon contending, inter alia, that at the time of death his father left behind two sons and one daughter, amongst them the elder son was married six years before the death of the father and the daughter got married three years before the death of the father and thereby the petitioner became the sole dependant of the deceased father till his death and being qualified with pass in Madhyamik examination as well as due financial constrain was entitled to be considered for appointment under compassionate ground for the post of assistant teacher in a primary school. This representation since was not disposed of, the petitioner ultimately moved this writ Court when the aforesaid order dated 11.2.94 was passed by Paritosh Kumar Mukherjee, J. (as His Lordship then was) disposing of the writ application. However, from the records it appears that the petitioner’s brother who was married six years before the death of the father, also moved the writ application before this Court praying for consideration of his representation seeking job on compassionate ground which was registered as C.O. No. 18842(W) 1993 whereby and whereunder Susanta Chatterjee, J. (as His Lordship then was) directed the concerned authority to decide the question upon hearing the said petitioner. In pursuance thereof the present petitioner as well his brother both were heard by the Chairman, Adhoc Committee, Birbhum District Primary School Council hereinafter referred to as the Chairman and a decision was reached rejecting the prayer of both the persons concerned on different grounds. So far as the rejection made in respect of the prayer made by the petitioner’s brother it was asserted that petitioner’s brother was not only married but was engaged in business and thereby was not at all dependent of his father at the material time when teacher breathed last. So far as the present petitioner’s case is concerned it has been considered with reference to the contention made in the writ application wherein the petitioner contended that long after the death of the father, the petitioner to maintain himself started to reside in the town and somehow was maintaining by engaging himself in the job of “private tuition” and had no regular income. It is submitted by the learned advocate for the petitioner that the impugned order is de-hors of the statutory provision and the reason as assigned is not legally sustainable, far to say sufficient reason. It has been submitted that the financial condition of the petitioner as dependent of a deceased father as was existing at the material time were not all looked into and considered but on the contrary the concerned authority decided the matter on the basis of subsequent events when to maintain livelihood the petitioner was compelled to render job of “private tuition”.
3. The learned advocate for the respondents strongly opposed the contention of the petitioner and it has been contended by the learned advocate for the respondents, inter alia, that the petitioner had no hereditary right to claim service after the death of the father. It is further contended that since the matter was considered and decided by the competent authority by assigning the reason, this Court sitting in the writ jurisdiction will not test the sufficiency of the reason and to that effect reliance has been placed to the judgment passed by Paritosh Kumar Mukherjee, J. (as His Lordship then was) in the case of Niranjan Ghosh v. The Managing Director, Durgapur Steel Plant and Ors., reported in Cal LT (1993) 1 HC 146. It is contended further that since one of the members of the family i.e. elder brother was already running a business, accordingly in terms of the Apex Court judgment the present petitioner is not entitled to have relief by way of appointment on compassionate ground. The learned advocate has referred to a judgment in support of his argument, as passed by the Apex Court in the case of Steel Authority of India Ltd. and Anr. v. Awadhesh Singh and Ors., . It is contended further that the compassionate appointment is only to rehabilitate the family in distress of the deceased employee who died-in-harness and since the petitioner somehow is maintaining himself by private tuition there is no question of economic distress which is a condition precedent for providing job on compassionate ground. Reliance has been placed to the judgment passed in the case of Dalla Ram v. Union of India and Ors., reported in AIR 1999 SC 564. The learned counsel contended further upon relying the judgment passed in the case of Sanjay Kumar v. State of Bihar and Ors., , that after long lapse of so many years the petitioner had no right to claim appointment. Compassionate appointment is intended to enable the family of the deceased employee to tide over immediate crisis resulting due to death of the bread-earner who had left the family in penury and without any means of livelihood. It is contended that the petitioner’s case is not on “no means of livelihood”. But here it is the case that the petitioner is maintaining himself from the income of “private tuition” and in that view of the matter the petitioner does not deserve any relief. On consideration of the relevant arguments of the learned advocates appearing for the parties now the points to be decided whether the petitioner’s prayer as made seeking appointment on compassionate ground on 12.4.93 has been properly adjudicated. Relevant provision of the Rule is to be looked into for effecting adjudication of the matter. Rule 3D of Appointment Leave Rules and Condition of Service as framed under the Primary Education Act, 1930 was the only guiding rule for consideration of this matter, as the cause of action for such consideration of appointment on compassionate ground arose when the teacher breathed last in February, 1993. Though at the material time in the year 1993, West Bengal Primary Education Act, 1973 came into effect but the recruitment leave rules as framed and constituted in terms of Section 106 of the 1973 Act got no effect though it was notified in the year 1991 till 24.2.96 In view of stay order passed by a single Judge of this Court which was vacated by the Division Bench in the case Biman Chandra Karmakar and Ors. v. State of West Bengal and Ors., reported in 1998(1) CLJ 374. In terms of paragraph 5 of the said judgment, the recruitment and leave rules as modified on 27.11.1999 practically came into effect from 24.12.96 when the Division Bench decided the appeal and vacated the order of stay as passed by the Trial Court against whose order the aforesaid appeal arose. Hence, for adjudication of this case, Rule 3D under Bengal (Rural) Primary Education Act, 1930 is to be quoted. The relevant provision reads as follows:
“Such candidates may be given appointments irrespective of the fact whether the candidate is a trained one or untrained and also irrespective of the fact that available vacancy is reserved for trained candidates or untrained ones. The benefit should not be granted to more than one ward of a deceased teacher.”
4. Under the said provision, it appears that a substantive right is granted by using the language that a ward of a primary teacher who dies-in-harness can be appointed provided further that he fulfills the minimum qualification prescribed under the Rule for appointment of a Primary School Teacher. Under Rule 2(1) of the said Rule under the Act, 1930 which provides minimum qualification of the Assistant Teacher, it reads as follows:
“Assistant Teacher- School final pass. Training shall be treated as an additional qualification and a trained teacher shall be entitled to the ‘A’ category scale of pay.”
5. Hence, it appears that minimum qualification as mentioned under Rule 3D means minimum qualification viz. school final pass. Save and except such qualification no other rider has been made and/or no embargo has been placed under Rule 3D on point of economic distress and or any other grounds.
6. Under Rule 3D a substantive right was given to a number of primary teacher who dies-in-harness for consideration of his case for appointment as a teacher only upon fulfillment of minimum qualification and nothing more and nothing less. However, it appears that by a circular issued by the Education Department under No. 457-Edn(P)4A-50/83 dated 12.10.1987 different conditions have been imposed which was issued by the Deputy Secretary to the Government of West Bengal. In one of such condition as mentioned under Clause 6 of the said Circular, the word “ward” means fulfill the prescribed condition and also that the family must be in distress and in immediate need of assistance for such appointment. The learned counsel, has strongly relied upon the said Clause 6, which reads thus:
“The appointing authority after satisfying itself that the ward fulfills all the prescribed conditions and also that the family is in distress and in immediate need of assistance may issue necessary appointment orders only with the prior approval of the Director of School Education, West Bengal.”
7. Hence, it appears that by the administrative and an executive order of Deputy Secretary, a statutory Rule 3D was intended to be modified by way of adding different conditions viz. family’s distress condition and need of the family under the statute. Rule 3D never prescribed such conditions that the family must be in distress and the definition of the family. It is settled legal proposition that a right vested under a Statute or Rule cannot be circumvented and conditioned by any executive order or decision. The Circular Letter dated 12.10.1987 as referred, as has been strongly relied upon, is nothing but an executive decision and such executive decision cannot over ride or supercede Rule 3D. Hence, the argument of the learned counsel for the respondents that the Circular shall be the guiding circular fails. Rule 3D is a statutory provision and same is guiding the principle for deciding the application as would be filed. However, it is made clear that a procedural law can be changed and or modified by executive and/or administrative order viz. time for filing application, consideration of such application, requisite fees etc. But substantive right of a citizen as has been prescribed in terms of a statutory Rule cannot be changed and/or modified and or contoured by executive fiat by issuing executive and/or administrative instruction. However, an executive order under the seal of the Governor is admissible if it is issued in terms of Article 162 of the Constitution of India. Same acts when there is lacuna or gap in the Rule itself and to fill up the gap, said executive order is read in the statutory law. In the instant case, it appears that there is no such Governor’s order in terms of Section 162 of the Constitution. The Deputy Secretary is not the governor and Is not competent to issue order in terms of Article 162 of the Constitution of India.
8. In that view of the matter, Circular Letter dated 12.10.1987 cannot take away the substantive right vested in terms of Rule 3D and the same is void ab initio. When a Rule making authority in terms of section of statutory provision had framed and constituted a rule, until and unless such rule is amended and or modified, such rule cannot be altered by executive decision. In Rule 3D the only condition is mentioned that the petitioner must fulfill minimum qualification of an Assistant Teacher. It is settled law in the interpretation of statutes that the ward to be considered after taking into account of the context of the statute itself. The language of Rule 3D is clear which requires only necessary minimum qualification.
9. In that view of the matter, the contention of the learned counsel appearing for the respondent is not acceptable. Further from the impugned decision it appears that the authority concerned did not consider the relevant conditions. In 1993 when the application was filed, such application was directed to be considered by the respondents and the respondents were duly bound to offer him the job when the petitioner was maintaining his livelihood by way of private tuition and private tuition is not an alternative mode of employment. A qualified person may engage himself in the private tuition when he has no income and when he is not employed suitably.
10. The judgments as referred to by the learned counsel for the respondents are not applicable in the instant case. It is settled law that when the question of fact and or law as applied thereunder, are identical in both same may be a precedent. Reliance may be placed in the case of State of Punjab v. Baldev Singh, . A judgment of Constitution Bench wherein the Court held that a decision of the Court takes its colour from the questions involved in the case in which it was rendered. In the case of Commissioner of Income Tax v. Sun Engineering Works (P) Ltd., the Apex Court held “that judgment must be read as whole, the observation of the judgment have to be considered in the light of the questions which were before the Court. A decision takes the colour from the questions involved, Court must carefully try to ascertain the true principle held down by decision and not to “pick out words or sentences” from the judgment divorced from the context of the questions under consideration by the Court, to support their reasonings.” It has been further held by the Apex Court long back in 1976 in the case of The Regional Manager and Ors. v. Pawan Kumar Dubey, as referred to in a case Chandra Prakash Shahi v. State of Uttar Pradesh and Ors., reported in AIR 2000 SC 1706 to this effect:
“It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decision and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.”
11. Learned advocate for the respondent District Primary School Council has relied upon the judgment Sail & Anr. (supra) to contend that whenever one of the defendants is already in employment, no job on compassionate ground is to be made available to other heirs. That judgment is distinguishable on the present facts of the case. In the instant case, admittedly, when the teacher breathed last he left behind only one son as dependant as the other son was already married and was engaged in business to maintain his own family. In view of the special facts of the case it appears that only the petitioner was the sole dependant upon his father when the teacher died on 6.2.93 and his status was unemployed as it appears from his representation filed on 24.3.93. Hence, the aforesaid judgment of the Apex Court cannot be a ratio decidendi and/or a precedent to adjudicate this case in view of the settled legal position regarding test of precedent and its application, as already referred to in the earlier paragraphs. The judgment of Dhalla Ram (supra) as relied upon to substantiate of Dhalla Ram (supra) as relied upon the substantiate the argument that the scheme for providing job under died in harness category is only to provide immediate assistance to the family members of the deceased employee and the object is for immediate rehabilitation of the family in distress, has no applicability in the instant case. Learned advocate of the respondents has stressed upon the words “rehabilitation of the family”, and thereby contended that the family of the deceased teacher was consisting of 2 sons and a married daughter, but from the records it appears that the eldest son got married 6 years before the death of the deceased teacher and was engaged by running a business of his own, the sole daughter got married prior to the death of the deceased teacher, and accordingly though the definition of the family has not been given in the concerned statute and/or the education code, but in common parlance relating to the scheme in question, the meaning of the family is to be confined to the dependant members who are existing after the sudden death of the teacher concerned. It is a settled law under statutory interpretation that the meaning of a word is to be given in terms of the context of the statute itself. The word ‘family’, however, is not appearing in the main rule, that is, Rule 3D as framed and constituted in terms of the Bengal (Rural) Primary Education Act, as aforesaid, which is the guiding rule to adjudicate this matter. As already held that by executive order, substantive right under a rule cannot be modified and/or changed and in that view of the matter, even if the word ‘family’ as appearing in the subsequent circular letter issued by the Deputy Secretary bearing No. 457/Edn(PJ/4A-50/83 dated 12.10.87, the same cannot disturb a rule wherein right of a ward of a primary teacher to have consideration of appointment under died in harness category only was subject to his minimum academic qualification. Since in the statute itself, that is in Rule 3D there was no mention about the word ‘family, the respondents cannot take resort to the circular letter issued by the Deputy Secretary dated 12.10.87 to contend that the elder brother since was engaged properly, there was no need of the family. Besides the concept that the word ‘family’ is to be construed with reference to the dependent members as the object of the scheme is to provide financial benefit to the dependents who may suffer distress condition due to the death of the sole bread earner. Hence, surely the word ‘family’ would mean those members who are defendants upon that deceased employee. At the material time, only the second son was the dependant member of the deceased teacher and the same is admitted, and in that view of the matter, family of the deceased teacher even if no application of circular letter dated 12.10.87 would be considered as consisting of only one member, that is the second son of the deceased teacher. In that view of the matter, the judgment as referred to has no applicability. Learned advocate for the respondents further relied upon the Judgment in the case of Sanjay Kumar (supra) to contend that the family of the deceased employee would be considered to have such benefit and accordingly it is contended that since another brother of the petitioner since was already engaged in business and maintaining his livelihood there was no need of the family. Such contention is not legally acceptable in view of the facts of the present case and the statutory rule.
12. Having regard to Rule 3D and the order passed earlier by Paritosh Kumar Mukherjee, J. directing the respondent concerned to decide the application of the petitioner, it appears that the impugned order was passed taking into account the factual situation as was existing at the time of passing the decision, that is in the year 1996, and the matter was not decided considering the circumstances as were existing at the material time when the teacher died, that is on 5.2.93 and application was filed by the petitioner on 24.3.93. There is no whisper in the impugned decision that in the year 1993, when the petitioner acquired the right to have consideration of his case in terms of Rule 3D of the said Rule, the petitioner had no need for such financial assistance to have appointment under died in harness category. In the representation the petitioner has categorically stated that he was unemployed and was in need of money for survival. Such point has also not been considered and looked into. As already held that in subsequent state, since the petitioner left the village and started to reside in town for maintaining his livelihood by private tuition, and accordingly the reason as assigned that the petitioner was financially solvent and there was no need for a job, has no logic. As already discussed in earlier paragraphs that a person waiting for consideration of his case under died in harness category, surely is not required to remain under starvation and in empty stomach expecting his job after 3/4/5 years. If the logic of the concerned respondents as reflected in the impugned order is accepted, the same will lead nothing but to an absurdity. In that view of the matter, the impugned decision is absolutely an unfair and unreasonable decision and hereby attracted by the doctrine of fairness and reasonableness. Accordingly, the impugned decision is set aside and quashed. The respondents concerned are directed to decide the case of the petitioner in terms of his application of the year 1993 on consideration of the factual situation as was existing at the material time, that is in the year 1993, and in terms of the rules as prevalent in the year 1993, since I have already held that the Rules of 1991 had no applicability in the year 1993 in view of the stay passed by a single Bench of this Court earlier. Recruitment and leave Rules as notified in the Gazette on 25.11.91 practically came into effect on 24.12.96 when the Division Bench had set aside the order of stay as granted by the trial Court, which is reported in 1998(1) CLJ 374 at paragraph 5. In that view of the matter, the writ application is allowed. The respondents are directed to decide the matter in accordance with law and more particularly on the basis of Rule 3D as referred to above and the observations as made in this judgment. Such decision is to be reached upon hearing the petitioner within 8 weeks from the date of communication of this order and a reasoned decision is to be passed and be communicated to the petitioner. Till such decision is reached, a post of Assistant Teacher in Birbhum District Primary School Council will be kept vacant.
The petitioner is granted leave to communicate this order to the concerned respondents.
Urgent xerox certified copy of this order, if applied for, be supplied expeditiously.