Calcutta High Court (Appellete Side)
Rina Manna Nee Dey vs State Of West Bengal & Ors on 5 October, 2018
Author: Amrita Sinha
Bench: Amrita Sinha
1
05.10.2018
Sl.No. 04
Ct.No. 24
aa
W.P.No. 13168 (W) of 2012
Rina Manna nee Dey
Vs.
State of West Bengal & Ors.
Mr. Kazi Sajjad Alam
...for the petitioners
Mr. Bhaskar Mitra, Sr. Advocate
Mr. Ram Mohan Chattopadhyay
...for the WBSEDCL/licensee
The reasoned order dated 27th February, 2012 passed by
the Director (HR), West Bengal State Electricity Distribution
Company Limited rejecting the prayer for compassionate
appointment of the petitioner is under challenge in the present
writ petition.
The facts of the case are as follows:-
One Satya Kinkar Dey was an employee of the
respondent/WBSEDCL. He died-in-harness on 8th February,
1996 leaving behind his widow mother and his sister the petitioner herein. After the death of the deceased employee the mother made an application in the prescribed form on 14th July, 1996 praying for offering compassionate appointment to her daughter. The said application had not been taken up for consideration. The petitioner moved before this court by filing a writ petition being WP 16427 (W) of 2009 which was disposed of 2 on 13th September, 2011 directing the Secretary, West Bengal State Electricity Distribution Co. Ltd. to take a decision in the matter and to communicate the same to the petitioner within a period of 8 weeks from the date of communication of the order.
The case of the petitioner was considered and rejected. The grounds for rejection are set out herein below:-
"On perusal of records, it is seen that the Office Order nos. 5233 dated 16.03.1995 read with Office Order No. C/IR/D.D.Emp./242 dated 04.04.2008 are the applicable Office Orders for judging the claim for employment of Smt. Rina Manna. In the said Office Orders, it has been stated that widow, son, unmarried daughter, widow daughter, dependant brother and unmarried/widow sister who are economically dependant on the concerned deceased employee are eligible for getting employment as dependant of the deceased employee.
Even under the provisions of the Recruitment Policy, 2010, married sister is not eligible for consideration of employment under died-in-harness category and hence Smt. Manna is not eligible for employment in terms of Clause 6(f) of the Recruitment Policy, 2010.
Since the petitioner Smt. Rina Manna was married as on date of submission of her application for employment as dependant of Lt. Satya Kinkar Dey, Ex-Linesman, she cannot be considered for such employment.
I, therefore, in an open and fair mind, hereby order that the application for employment of Smt. Rina Manna sister of Lt. Satya Kinkar Dey cannot be considered for providing employment on compassionate ground in view of the fact that she is the married sister of the deceased employee and thus is 3 not eligible for getting employment against death of her brother as per prevailing rules of such employment."
It has been averred in the writ petition that after the death of the employee there was no earning member in the family of the petitioner and the widow mother of the deceased employee was suffering from various ailments. The deceased employee was a bachelor at the time of death. The petitioner is the married sister of the deceased employee. She had studied up to Class VIII and is eligible for being appointed as a Group 'D' staff of the respondent authorities. The petitioner submits that as per the decision of the Special Bench rendered in the case of State of West Bengal & Others Vs. Purnima Das & others reported in (2017) 4 CLT 238 (HC) the marital status of the petitioner ought not to stand in the way of considering her case for compassionate appointment.
The respondent authorities have filed affidavit-in-opposition wherein the circulars relating to compassionate appointment are annexed. The term 'dependant' has been defined in the said circular dated 16th March, 1995 and it covers widow, son, unmarried daughter, widow daughter, dependant brother and unmarried/widow sister who are economically dependant on the concerned deceased/affected employees.
4By a subsequent office order dated 4th April, 2008 the respondents set down further norms and procedures for employment/financial relief on compassionate ground to the dependant employees of the erstwhile West Bengal State Electricity Board under the West Bengal State Electricity Distribution Company Limited who dies-in-harness/died-in- harness. In the said office order it was mentioned that in case of death in harness/accident arising in course of and out of employment/premature retirement on permanent incapacitation occurring prior to 6th June, 2005 shall be dealt with as per the provisions laid down in the Government notification No. 301- 303-Emp. dated 21st August, 2002 of Labour Department, Government of West Bengal as those being followed from time to time by the erstwhile WBSEB as per office order No. 5233 dated 16th March, 1995 and office order No. 5477 dated 26th February, 1997 subject to availability of vacancies only as well as subject to provisions of restrictions made in the said circular based on enquiry report and recommendation already available otherwise on fresh enquiry. It was also mentioned that the term 'dependant' for the said purpose shall prior to 6th June, 2005 cover widow, son, unmarried daughter, widow daughter, dependant brother and unmarried/ widow sister who are 5 economically dependant on the earning members of the concerned deceased/affected employees.
It is the specific case of the respondents that since the petitioner is the 'married sister' of the deceased employee she does not come within the zone of consideration for providing employment on compassionate ground. His further argument is that the cases for appointment on compassionate ground has to be strictly construed within the meaning of the scheme itself and any person who is not entitled under the scheme cannot be taken into consideration.
The learned advocate relies upon an unreported judgment dated 15th May, 2013 delivered in FMA 49 of 2013 wherein a Division Bench of this Hon'ble Court held that it is not for the Court to rewrite such policy of compassionate appointment and direct the appointment on compassionate ground, which is an exception to the general rule of appointment from the open market. The Court has to go by the policy only and it is not for the Court to direct compassionate appointment to be offered. The Court cannot frame policy and it is not for the Court to direct to give appointment, de hors the policy. The learned advocate further refers to a judgment delivered in the case of State Bank of India and another Vs. Raj Kumar reported in (2010)11 SCC 661 wherein the Hon'ble 6 Supreme Court held that compassionate appointment is a concession and not a right. Compassionate appointment is not a source of recruitment. It is an exception to the general rule that recruitment to public services should be on the basis of merit, by open invitation providing equal opportunity to all eligible persons to participate in the selection process. With regard to the judgment passed by the Special Bench of this court in the case of State of West Bengal and others vs. Purnima Das & others (supra) it has been submitted that the said order has being stayed by the Hon'ble Supreme Court and accordingly, no direction can be passed relying on the same. It has been further submitted that WBSEDCL is an independent body. It is not guided by the orders and rules framed by the Government of West Bengal. It has been submitted that the prayer of the petitioner has been rightly rejected and the same does not merit any interference in the instant case.
Upon hearing the submissions made on behalf of both the parties it appears that though the respondents submit they are an independent body, the impugned order of the respondent authorities dated 4th April, 2008 specifically mention that the authorities were considering the case of compassionate appointment as per the provisions laid down in the government 7 notifications from time to time. Accordingly, the plea of not being guided by the government orders is not tenable. Moreover, WBSEDCL being a Government of West Bengal enterprise qualifies the expression 'State' under Article 12 of the Constitution of India. They are amenable to the writ jurisdiction under Article 226 of the Constitution of India and the ratio of the judgment delivered in the case of State of West Bengal and others vs. Purnima Das & others (supra) is very much applicable in this case. In Purnima Das & others (supra) the Special Bench of this Court formulated the question of law as to whether the policy decision of the government to exclude from the zone of compassionate appointment, a daughter of an employee, died- in-harness who is married on the date of his death although she is wholly dependant on the earning of such employee is constitutionally valid? The Court at the time of answering this question considered several judgments passed by various High Courts and held that the restriction on married daughters being ineligible to apply and to be considered for compassionate appointment is likely and has, in fact, given rise to a legitimate grievance in the minds of married daughters. Complete exclusion of married daughters from the purview of compassionate appointment meaning thereby that they are not 8 covered by the definition 'dependant' and ineligible to even apply is not constitutionally valid.
The Court further held that the adjective 'unmarried' before 'daughter' is struck down as violative of the Constitution. The Court held that after the need for compassionate appointment is established in accordance with the formula laid down a daughter who is married on the date of death of the concerned government employee while in service must succeed in her claim of being entirely dependant on the earnings of her father/mother (government employee) on the date of his or her death and agree to look after other family members of the deceased if the claim is to be considered further.
In view of the law laid down by the Special Bench the respondent authorities cannot reject the case of the petitioner only because of her marital status. When an unmarried/widow sister of a deceased employee is covered within the term 'dependant' there is no reason why the married sister be kept out of the zone of consideration. The same will be discriminatory and in violation of the Constitution of India. More over it has been averred that there is no other earning member in the family and the widow mother of the deceased employee was suffering from various ailments.
9The adjective 'unmarried' before the word 'sister' in the term 'dependant' in the circular of the respondent authorities relating to compassionate appointments is liable to be struck down and the case of petitioner is to be considered afresh. The marital status of the petitioner being the sister of the deceased employee ought not to stand in the way of consideration of her case for appointment on compassionate ground in accordance with the aforesaid circular.
The judgments referred by the learned advocate appearing for the respondents regarding right of a dependant to claim appointment on compassionate ground are settled law and calls for no further discussion in this case.
The submissions made by the learned advocate appearing on behalf of the respondents that in view of the order of stay granted by the Hon'ble Supreme Court in the pending SLP the Special Bench judgment cannot be relied upon also does not hold good in view of the decision passed by this court in Pijush Kanti Chowdhury Vs. State of West Bengal & others, reported in (2007) 3 CHN 178 wherein the Hon'ble Division Bench of this court held that unless the decision is set aside it remains a binding precedent although it may not be binding on the purpose to the proceeding where the Supreme Court passed an interim order of stay. It held that the stay order in a case 10 pending before the Supreme Court does not amount to any declaration of law. It is only binding on the parties of the stay proceedings.
In view of the discussions made hereinabove the impugned order dated 27th February, 2012 is set aside.
The respondent no. 3, Secretary, West Bengal State Electricity Distribution Company Limited is directed to consider the claim for compassionate appointment of the petitioner afresh and dispose of her case in accordance with the relevant circular within a period of eight weeks from the date of receipt of a copy of this order after giving an opportunity of hearing to the petitioner or her authorised representative. The marital status of the petitioner will not stand in the way of providing appointment to the petitioner on compassionate ground if she is otherwise entitled to the same.
The said respondent no. 3 will pass a reasoned order and communicate the same to the petitioner within a period of two weeks thereafter.
WP No. 13168 (W) of 2012 is disposed of accordingly. There will be no order as to costs.
Urgent certified photo copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of all requisite formalities.
11
( Amrita Sinha, J. )