Calcutta High Court (Appellete Side)
(Gobinda Hazra vs State Of W.B. & Ors.) on 26 June, 2018
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
W.P. 13147 (W) of 2017
(Gobinda Hazra vs. State of W.B. & Ors.)
with
W.P. 13149 (W) of 2017
with
W.P. 13151 (W) of 2017
with
W.P. 13191 (W) of 2016
with
W.P. 13194 (W) of 2016
with
W.P. 13195 (W) of 2016
with
W.P. 13197 (W) of 2016
with
W.P. 13207 (W) of 2016
with
W.P. 13209 (W) of 2016
with
W.P. 24166 (W) of 2015
with
W.P. 24167 (W) of 2015
with
W.P. 24168 (W) of 2015
with
W.P. 24169 (W) of 2015
with
W.P. 31057 (W) of 2017
with
W.P. 29553 (W) of 2017
with
W.P. 4388 (W) of 2017
with
W.P. 4386 (W) of 2017
with
W.P. 29570 (W) of 2017
2
with
W.P. 29564 (W) of 2017
With
W.P. 29565 (W) of 2017
with
W.P. 29560 (W) of 2017
with
W.P. 29556 (W) of 2017
with
W.P. 31056 (W) of 2017
with
W.P. 21009 (W) of 2015
with
W.P. 21010 (W) of 2015
with
W.P. 21011 (W) of 2015
with
W.P. 21012 (W) of 2015
with
W.P. 21014 (W) of 2015
with
W.P. 21016 (W) of 2015
with
W.P. 21022 (W) of 2015
with
W.P. 21041 (W) of 2015
with
W.P. 24170 (W) of 2015
with
W.P. 24171 (W) of 2015
with
W.P. 25494 (W) of 2015
with
W.P. 25492 (W) of 2015
with
W.P. 1014 (W) of 2017
with
W.P. 3197 (W) of 2016
with
W.P. 3196 (W) of 2016
3
with
W.P. 3198 (W) of 2016
with
W.P. 3199 (W) of 2016
with
W.P. 3200 (W) of 2016
with
W.P. 3201 (W) of 2016
with
W.P. 3202 (W) of 2016
with
W.P. 3203 (W) of 2016
with
W.P. 27686 (W) of 2015
with
W.P. 7179 (W) of 2018
with
W.P. 7172 (W) of 2018
with
W.P. 328 (W) of 2016
with
W.P. 24583 (W) of 2016
with
W.P. 4590 (W) of 2016
with
W.P. 30285 (W) of 2016
with
W.P. 30279 (W) of 2016
with
W.P. 5323 (W) of 2018
with
W.P. 3529 (W) of 2012
Mr. Bibek Jyoti Basu, Advocate
Mr. Uttam Kumar De, Advocate .....For the Petitioner in
W.P. 13147 (W) of 2017
W.P. 13149 (W) of 2017
W.P. 13151 (W) of 2017
W.P. 19191 (W) of 2016
W.P. 19194 (W) of 2016
4
W.P. 19195 (W) of 2016
W.P. 19197 (W) of 2016
W.P. 19207 (W) of 2016
W.P. 19209 (W) of 2016
Mr. Uday Sankar Chattopadhyay, Advocate
Mr. S.S. Chatterjee, Advocate
Mr. Santanu Maji, Advocate
Ms. Snigdha Saha, Advocate
Ms. Payel Shome, Advocate .....For the petitioner in
W.P. 24166 (W) of 2015
W.P. 24167 (W) of 2015
W.P. 24168 (W) of 2015
W.P. 24169 (W) of 2015
W.P. 21009 (W) of 2015
W.P. 21010 (W) of 2015
W.P. 21011 (W) of 2015
W.P. 21012 (W) of 2015
W.P. 21014 (W) of 2015
W.P. 21016 (W) of 2015
W.P. 21022 (W) of 2015
W.P. 21041 (W) of 2015
W.P. 24170 (W) of 2015
W.P. 24171 (W) of 2015
Mr. Sankar Biswas, Advocate ....For the petitioner in
W.P. 31059 (W) of 2017
W.P. 4388 (W) of 2017
W.P. 4386 (W) of 2017
W.P. 31056 (W) of 2017
W.P. 25494 (W) of 2015
W.P. 25492 (W) of 2015
W.P. 24583 (W) of 2016
Mr. Gurusaday Dey, Advocate
Mr. Bidhyak Lahiri, Advocate ...For the Petitioner in
W.P. 3197 (W) of 2016
W.P. 3196 (W) of 2016
5
W.P. 3198 (W) of 2016
W.P. 3199 (W) of 2016
W.P. 3200 (W) of 2016
W.P. 3201 (W) of 2016
W.P. 3202 (W) of 2016
W.P. 3203 (W) of 2016
W.P. 3529 (W) of 2012
Mr. Sudeep Sanyal, Advocate
Mr. Snehasis Jana, Advocate
Ms. Tutun Das, Advocate ...For the petitioner in
W.P. 29553 (W) of 2017
W.P. 29576 (W) of 2017
W.P. 29565 (W) of 2017
W.P. 29564 (W) of 2017
W.P. 29560 (W) of 2017
W.P. 29556 (W) of 2017
Mr. Subhasish Banerjee, Advocate ...For the petitioner in
W.P. 1014 (W) of 2017
Mr. Partha Sarkar, Advocate ...For the petitioner in
W.P. 4590 (W) of 2016
Mr. Lal Ratan Mondal, Advocate
Mr. Dilip Sadhu, Advocate ....For the petitioner in
W.P. 30285 (W) of 2017
W.P. 30279 (W) of 2017
Mr. Tilak Mitra, Advocate
Ms. Dipanwita De, Advocate ....For the petitioner in
W.P. 27686 (W) of 2015
Mr. Bikash Shaw, Advocate ....For the petitioner in
W.P. 7179 (W) of 2018
W.P. 7172 (W) of 2018
Ms. Dipika Basu, Advocate ....For the petitioner in
W.P. 328 (W) of 2016
6
Mr. Anjan Bhattacharya, Advocate
....For the petitioner in
W.P. 5323 (W) of 2018
Mr. Joytosh Majumder, G.P.
Mr. Pinaki Dhole, Advocate
Mr. Avishek Prasad, Advocate
Mr. Suvro Lahiri, Advocate
Ms. Chaitali Bhattacharya, Advocate
Ms. Joyee Maiti, Advocate ...For the State in
W.P. 13147 (W) of 2017
Mr. Joytosh Majumder, G.P.
Mr. Pinaki Dhole, Advocate
Mr. Avishek Prasad, Advocate
Mr. Suvro Lahiri, Advocate ......For the State in
W.P. 29553 (W) of 2017
W.P. 29570 (W) of 2017
W.P. 29565 (W) of 2017
W.P. 29564 (W) of 2017
W.P. 29560 (W) of 2017
W.P. 29556 (W) of 2017
W.P. 7179 (W) of 2018
W.P. 7172 (W) of 2018
W.P. 5323 (W) of 2018
Mr. Tarakeswar Hazra, Advocate
Md. Zakir Hossain, Advocate ...For the State in
W.P. 19197 (W) of 2016
Mr. Pantu DebRoy, Advocate
Mr. Subrata Guha Biswas, Advocate ...For the State in
W.P. 19207 (W) of 2016
W.P. 24166 (W) of 2015
Mr. Bhaskar Prasad Vaisya, Advocate
Mr. Suman Dey , Advocate ...For the State in
W.P. 19194 (W) of 2017
7
Mr. Susanta Pal, Advocate
Ms. Joyee Maiti, Advocate ...For the State in
W.P. 31057 (W) of 2017
Mr. Biswajit De, Advocate
Ms. Rajlakshmi Ghatak, Advocate ...For the State in
W.P. 25492 (W) of 2015
W.P. 3197 (W) of 2016
Md. Yasin Ali, Advocate
Ms. Tapati Samanta, Advocate ...For the State in
W.P. 21012 (W) of 2015
W.P. 30279 (W) of 2016
Ms. Sanghamitra Nandy, Advocate
Ms. Manika Pandit, Advocate ...For the State in
W.P. 3202 (W) of 2016
Md. Zakir Hossain, Advocate ...For the State in
W.P. 21022 (W) of 2015
Mr. Joytosh Majumder, Ld. G.P.
Mr. Abdus Salam, Advocate ...For the State in
W.P. 328 (W) of 2016
Ms. Chaitali Bhattacharya, Advocate
Ms. Joyee Maity, Advocate ...For the State in
W.P. 24170 (W) of 2015
W.P. 3200 (W) of 2016
Mr. Kalimuddin Mondal, Advocate
Mr. Bipin Ghosh, Advocate ...For the State in
W.P. 27686 (W) of 2015
Mr. Sandip Kumar Bhattacharya, Advocate
...For the Municipality in
W.P. 31057 (W) of 2017
W.P. 4388 (W) of 2017
W.P. 4386 (W) of 2017
8
W.P. 31056 (W) of 2017
W.P. 27686 (W) of 2015
Mr. Achintya Kumar Banerjee, Advocate
Mr. S.K. Faridullah, Advocate ... For the Municipality in
W.P. 5323 (W) of 2018
Mr. Nilanjan Bandopadhyay, Advocate
Mr. Soumya Roy, Advocate
Mr. Suman Banerjee, Advocate ... For the Respondent Nos. 2 & 3
in
W.P. 7179 (W) of 2018
W.P. 7172 (W) of 2018
Mr. Swarup Kumar Ghosh ...For the Respondent Nos. 3,4 & 5 in
W.P. 29553 (W) of 2017
W.P. 29570 (W) of 2017
W.P. 29565 (W) of 2017
W.P. 29564 (W) of 2017
W.P. 29560 (W) of 2017
W.P. 29556 (W) of 2017
Mr. Hiranmoy Bhattacharya ...For the A.M.C. in
W.P. 30285 (W) of 2016
W.P. 30279 (W) of 2016
Heard on : June 26, 2018
Judgment on : June 26, 2018
Debangsu Basak, J.:‐
These writ petitions involve similar issues and are taken up for
consideration analogously. Essentially, the petitioners seek
compassionate appointment in the died‐in‐harness category for the
family members of the deceased municipal employee.
9
Since a number of writ petitions are involved and since
different counsel have advanced arguments on behalf of the
petitioners, it would be appropriate and convenient to collate the
submissions on behalf of the petitioners as one and record the same
accordingly.
The petitioners rely upon the provisions of the West Bengal
Regulation of Recruitment in the State Government Establishments of
Public Undertakings, Statutory Bodies, Government Companies and
Local Authorities Act, 1998. The petitioners rely upon Section 1, Sub‐
Section (4) of the Act of 1999 and contend that, the Act of 1999 applies
to all posts in State Government Establishments and Establishments of
Public Undertakings, Statutory Bodies, Government Companies and
Local Authorities. Relying to Section 2(7) of the Act of 1999, the
petitioners contend that, local authorities are defined therein. It has
the same meaning as Sub‐Section (23) of Section 3 of the Bengal
General Clauses Act, 1899. Section 3(23) of the Bengal General
Clauses Act, 1899 defines a local authority. It stipulates that, a
municipality would come within the definition of a local authority.
Consequently, the Act of 1999 is applicable to a municipality.
Moreover, the Act of 1999 deals with the method of appointment of
10
employees to a municipality inasmuch as it provides that, the posts
which are required to be filled up on the recommendations of the
municipal authorities as noted in Sub‐Section (4) of Section 1. The Act
of 1999 allows the State Government to stipulate the persons who
would be treated as falling within the exempted category. The
exempted category, according to the petitioners, has been notified by
the State Government, from time to time. In this regard three
notifications all dated August 21, 2002 being Emp. 301, Emp. 302 and
Emp. 303 are relied upon by the petitioners. The petitioners also rely
upon Emp. 97, dated June 6, 2005, Emp. 142, dated November 1, 2007,
Emp. 30, dated April 2, 2008 and Emp. 251, dated December 3, 2013 in
support of the contentions that, there subsists a scheme for grant of
compassionate appointment to employees in the died‐in‐harness
category for all municipalities. According to the petitioners, the
scheme for grant of compassionate appointment in such a situation
can be found by reading Emp. 301 to 303, dated August 21, 2002 along
with Emp. 30, dated April 2, 2008. The petitioners also rely upon
Emp. 98, dated April 28, 2015.
Without prejudice to the first contention and thereto, it is
contended by the petitioners that, the provisions of the West Bengal
11
Municipal Act, 1993 if read harmoniously, provides that, an employee
of the municipality should be treated as a State Government
employee. According to the petitioners, the State Government
employees have a subsisting scheme for grant of compassionate
appointment. Since an employee of a municipality is to be treated on
the same position as that of a State Government employee, then the
scheme governing the State government employee should also apply
for an employee of the municipality. There being a subsisting scheme
for the State Government employees, the municipal employee should
also receive the same benefit. In support of the contentions that, an
employee of the municipality is to be treated as an employee of the
State reliance is placed on Section 53 (1), Section 54 (2) and (3) as also
Section 56, Section 57 and Section 425 of the Act of 1993.
It is next contended on behalf of the petitioners that, assuming
that, the municipal employee cannot be treated to be at par with that
of the employee of the State Government, then also, the Service Rules
governing a State Government employee should apply so far as the
municipal employees are concerned. In absence of the municipality
framing any service rules in respect of municipal employees, since the
State Government employees have a scheme for compassionate
12
appointment, such scheme should apply to municipal employees also.
The provisions of the Scheme for compassionate appointment in the
died in harness category can be read into the service rules governing a
municipal employee and appropriate measures can be taken by the
Court acting on such premise.
The State should be considered as the master so far as the
employees of the municipality is concerned. An employee of the
municipality is appointed on the basis delegation of powers under the
Act of 1993. Although the persons empowered under the Act of 1993
to appoint an employee of a municipality essentially such persons act
as delegated of the State. The State is the master for all practicable
purposes. Grant of appointment by the persons enumerated in the
Act of 1993 does not mean that, municipal employees cease to be an
employee of the State. For all practical purposes, the State is to be
considered as the employer. The State provides the funds to the
municipality for payment of salaries. Consequently, there is no reason
why an employee of the municipality cannot be treated as an
employee of the State.
Relying upon 2018 (2) W.B.L.R. (Cal) 648 (Jaitra Acharya v.
The State of West Bengal & Ors.) it is submitted on behalf of the
13
petitioners that, a Coordinate Bench had granted compassionate
appointment. According to the petitioners, a Division Bench by a
judgment and order dated February 9, 2015 passed in AST 276 of 2014
with ASTA 213 of 2014 had issued directions for grant of
compassionate appointment in respect of an employee of the
municipality. Consequently, according to the petitioners, the issue as
to whether an employee of a municipality is entitled to grant of
compassionate appointment has already been decided in presence of
the State. Such issue is now by the principles of constructive res
judicata or not is constructively res judicata. The State was entitled to
raise the point of absence of a scheme in those proceedings. The State
did not do so. In support of the contention that the plea is barred by
the principles of constructive res judicata, reliance is placed on AIR
1949 Privy Council 302 (Sha Shivraj Gopalji v. Edapakath Ayissa Bi
and Ors.) by the petitioners.
It is contended by the petitioners that, they are similarly
situated and circumstanced as that of the writ petitioners of Jaitra
Acharya (supra) and AST 276 of 2014 (supra). The petitioners should
not be discriminated against by the State or the municipality. There
are numerous instances where the municipality had considered grant
14
of compassionate appointment and had granted the same with the
approval of the State. It no longer lies with the State Government to
deny the existence of a scheme for compassionate appointment. The
petitioners cannot be discriminated against. The Court should not
permit such a discrimination to be made against the petitioners.
In the event, the Court is of the view that, there does not exist
any scheme for grant of compassionate appointment for the municipal
employees, then also, the Court should direct that, the State to
formulate a scheme for such employees so as to bring the municipal
employees at par with that of State Government employees who enjoy
such a scheme. Any other action by the State and in fact, the non‐
grant of compassionate appointment so far as the municipal
employees are concerned, breaches Article 14 of the Constitution of
India. Relying upon 2000 (6) SCC 493 (Balbir Kaur & Anr. v. Steel
Authority of India Ltd. & Ors.), it is contended that, the Supreme
Court is of the view that, compassionate appointment should be
granted to a deceased employee for the family to tide over the
financial difficulties. Reliance is also placed on 2017 (5) SCC 383
(Mukesh & Anr. v. State of Bihar & Ors.) and 2013 (10) SCC 545
(Vishwanath Pandey v. State of Bihar & Ors.) in support of the
15
contentions that, the municipality and the State must grant
compassionate appointment in the died‐in‐harness category.
One of the writ petitions concerns grant of compassionate
appointment to a married daughter. It is contended by the petitioners
there relying upon a Full Bench decision reported at 2007 (4) CHN
(Cal) 362 (State of West Bengal v. Purnima Das), that, a married
daughter is entitled to grant of compassionate appointment in the
died‐in‐harness category. The learned council appearing in support of
such writ petition, in his usual fairness, submits that, Court in a
judgment and order dated June 13, 2018 passed in W.P. No. 28509(W)
of 2017 (Sampa Poddar v. State of West Bengal) has decide the issue
of grant of compassionate appointment, against the petitioners.
However, all the points now sought to be canvassed by the parties,
were not taken in that matter.
Learned Government Pleader appearing on behalf of the State
submits that, there is no scheme for grant of compassionate
appointment so far as employees of the municipalities are concerned.
He relies upon Circular Nos. Emps 301 to 303, dated August 21, 2005,
Emp. 97, dated June 6, 2005, Emp. 142, dated November 1, 2007, Emp.
30, dated April 2, 2008, Emp. 251, dated December 3, 2013, Emp. 96,
16
dated April 28, 2015 in support of his contentions that, there is no
scheme for the grant of compassionate appointment in the died‐in‐
harness category or any other category so far as the municipal
employees are concerned. According to the Government Pleader,
Purnima Das (supra) does not consider a situation where municipality
is involved. It involves Panchayat. Panchayat has a scheme for grant
of compassionate appointment. In such context, it has also held that a
married daughter is entitled to grant of compassionate appointment.
The facts scenarios in the present cases are different. The petitioners
have not established that, there is a scheme for grant of compassionate
appointment. In fact, there is no scheme for grant of compassionate
appointment.
Learned Government Pleader submits that, existence of scheme
for compassionate appointment is sine qua non for consideration of an
application for grant of the same. In support of such contentions, he
relies upon 2017 (2) CHN 683 (State of West Bengal v. Poly Dutta),
2018 (1) CHN (Cal) 504 (State of West Bengal v. Bimal Munda), 2008
(11) SCC 384 (Mumtaz Yunus Mulani (SMT.) v. State of Maharashtra
& Ors.), 2012 (11) SCC 307 (Union of India & Anr. v. Shashank
17
Goswami & Anr.) and 2014 (15) SCC 739 (State Bank of India & Ors.
v. Surya Narain Tripathi).
An employee of a municipality is not an employee of the State. In
support of such contentions, Learned Government Pleaser relies upon
2008(11) SCC 10 (Union Public Service Commission Dr. Jamuna Kurup
& Ors v. Dr. Jamuna Kurup & Ors.).
So far as the incidents where the municipality has granted
appointment on compassionate ground and where the Courts have
directed the municipalities to do so, he submits that, such orders of
the Court cannot be considered as binding precedence. No ratio has
been laid down therein. Ratio of a judgment is binding. The order is
not. None of the orders of the Court has returned a finding that, there
subsists a scheme for grant of compassionate appointment. The
petitioners cannot claim negative equality. In absence of a scheme for
compassionate appointment, if a municipality has acted wrongly or
illegally, in granting an appointment on such ground, the same cannot
form the basis for grant of relief to the petitioners. Relief as sought for
by the petitioners is not available on such foundational basis in view
of the principles of negative equality. According to him, the
petitioners are not entitled to any relief in any of the writ petition.
18
Having recorded the rival contentions of the parties, the issues
raised are required to be formulated. Shashank Goswami (supra) is of
the view that, grant of compassionate appointment is not a matter of
right. Appointments on compassionate grounds have to be made in
accordance with the rules, regulations or administrative instructions if
any, subsisting, taking into consideration the financial condition of the
family of the deceased. Appointment on compassionate ground is not
another source of recruitment but merely an exception thereto. As a
Rule, public service appointment should be made strictly on the basis
of open invitation of applications and merit.
Mumtaz Yunus Mulani (supra) is of the view that, appointment
on compassionate ground can only be granted to tide over the sudden
financial crisis. The right to get appointment on compassionate
ground would depend upon the scheme operating the field. Similar
view has been expressed in Surya Narain Tripathi (supra).
M.T. Latis (supra) is of the view that, compassionate
appointment being an exception to the general rule of appointment, it
has to be exercised only in warranting situations and circumstances
existing for granting appointment.
19
Vishwanath Pandey (supra) finds the petitioners therein to be
entitled to grant of compassionate appointment. It is followed up in
Mukesh & Anr. (supra).
Poly Dutta (supra) is of the view that, a scheme for grant of
compassionate appointment should be enforced at the material point
of time, i.e. at the time of the death of the concerned employee for the
dependent of such employee to be considered for grant of such
appointment. Similar view is expressed in Bimal Munda (supra).
Essentially, Poly Dutta (supra) and Bimal Munda (supra) require the
Court to find out as to whether there subsists any scheme for grant of
compassionate appointment for such Court to direct the authorities to
either consider an application for grant of compassionate appointment
or to grant such compassionate appointment. In both the cases, the
Division Bench after finding that, there was no scheme for grant of
compassionate appointment and finding that, the Trial Court had
directed grant of compassionate appointment without considering the
subsistence of a scheme for compassionate appointment had set aside
such direction.
The authorities noted above, require, the Court to find out
whether there subsists a scheme governing the field that is to say that,
20
whether there is a scheme in existence for grant of compassionate
appointment or not before embanking upon the exercise of
considering issuing directions for grant of appointments on such
ground.
In the context of the law stated above and the duty cast upon
the Court, the following issues arise for consideration in the present
writ petitions: ‐
(i) Is there any scheme for grant of compassionate appointment
in respect of employees of Municipalities?
(ii) If the answer to the first issue is in the negative, then, should
the scheme for State Government employees be read into
the service conditions for employees of Municipalities?
(iii) Can employees of a Municipality be treated as employees of
the State Government?
(iv) To what relief or reliefs, if any, are the parties entitled to?
Eight circulars are relevant for the purpose of consideration of
the first issue. Such circulars are 301‐Emp. to 303‐Emp. all dated
August 21, 2002, 97‐Emp. dated June 6, 2005, 142‐Emp. dated
21
November 1, 2007, 30‐Emp. dated April 2, 2008, 251‐Emp. dated
December 3, 2013 and 96‐Emp. dated April 28, 2015.
Relevant portions of such circulars are extracted below: ‐
"No.301‐EMP/1M‐10/2000 - 21st August 2002. -
In exercise of the powers conferred by sub‐section (a) of
section 3 of the West Bengal Regulation of Recruitment in
State Government Establishments and Establishments of
Public Undertakings, Statutory Bodies. Government
Companies and Local Authorities Act, 1999 (West Bengal
Act XIV of 1999), the Governor is pleased to declare
following categories of persons as exempted categories for
the purpose of the aforesaid Act: ‐
1. Dependents of employees dying in harness :
A solely dependent wife/son/daughter/near relation of an
employee who dies in harness leaving his family in
immediate need of assistance.
A near relation of the deceased employee may be
considered for employment on compassionate ground only
when the son/daughter/wife of the deceased employee
cannot be considered for employment owing to minor age
or other disabilities. In such a case the employment of a
near relation of the deceased employee may be considered
only for providing assistance immediately needed by the
family, left behind by the deceased.
.....................................................................
..................................................................... ..............................
This supersedes all earlier circulars and executive orders issued from time to time by the Government of West Bengal in the Labour Department relating to employment of persons belong to the Exempted Categories.
No.302‐EMP/1M‐10/2000 - 21st August, 2002 - In exercise of the powers conferred by sub‐section
(b) of section 3 of the West Bengal Regulation of Recruitment in State Government Establishments and 22 Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 (West Bengal Act XIV of 1999), the Governor is pleased to order that of the local vacancies arising in a year under any appointing authority, other than the vacancies which are required to be filled up either on the recommendations of -
(a) the Public Service Commission, West Bengal or
(b) the West Bengal College Service Commission or
(c) the West Bengal School Service Commission or
(d) the Municipal Service Commission or
(e) the Co‐operative Service Commission Or by promotion, or by absorption of persons declared surplus by the State Government or by absorption of such categories of casual workers and other workers as the State Government may by notification specify from time to time, 30% shall be treated as reserved to be filled up by persons falling within the exempted categories notified under sub‐section (a) of section 3 of the aforesaid Act.
No.303‐EMP/1M‐10/2000 - 21st August, 2002 -
In exercise of the powers conferred by sub‐section (c) of section 3 of the West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 (West Bengal Act XIV of 1999), the Governor is pleased to prescribe the following procedure for filling up the vacancies reserved for the Exempted Categories as specified under sub‐section
(a) of section 3 of the aforesaid Act : ‐ 23 A.GENERAL PROCEDURE TO BE FOLLOWED IN RESPECT OF DIFFERENT EXEMPTED CATEGORIES:
1. Dependents of persons who died in harness:
None except wife/son/daughter/near relation of the deceased employee and solely dependent on the earnings of the deceased employee, shall be eligible for consideration for such employment. The benefit will be admissible if the family, left behind by the deceased employee, is in immediate need of assistance and such employment on compassionate ground is absolutely essential to support the family of the deceased. A person belonging to a completely separate family shall not be treated as solely dependent on the deceased employee for the purpose of such employment on compassionate ground.
The wife/son/daughter/near relation of an employee who died in harness, may apply to the appointing authority through the Head of the Office of the employee in a prescribed form as per Part I & II of Annexure "A" along with a copy of death certificate praying for employment to support the family of the deceased employee. On receipt of such application the appointing authority shall form an enquiring committee of senior officials not less than three in number. The committee so formed shall make an enquiry about the genuineness of the prayer as well as the financial condition of the family of the deceased employee and submit a report as per Annexure "A" to the appointing authority. The appointing authority will forward the case together with his views, recorded in Annexure "A", to the Administrative Department concerned for consideration. If it is decided by the administrative department to be a fit case for offering employment on compassionate ground a suitable vacancy may be identified under the appointing authority concerned for providing employment subject to the condition that the candidate satisfies the qualification and other requirements prescribed for recruitment to the post.24
If a suitable vacancy is not available under the appointing authority concerned the administrative department may identify suitable vacancy under some other appointing authority under its administrative control for providing employment. The administrative department will forward the case with suitable direction, to the appointing authority, in whose establishment the vacancy has been identified. In the event of non availability of the berth for accommodating such a case the administrative department concerned will have to move other departments for suitable berth. When a suitable vacancy is available in some other department to accommodate the case, the Administrative Department will forward the case along with the relevant papers to that department for further action. The Department having vacancy in the Exempted Category of posts will provide employment to the wife/son/daughter/near relation of the employee who died in harness subject to observance of relevant conditions and formalities.
..................................................................... ..................................................................... .............................
97-Emp. ‐ 6th June, 2005: ‐ In exercise of the powers conferred by CLAUSE (c) of section 3 of the West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999, the Governor has been pleased to lay down the following principles and procedures to be followed in dealing with the issue of appointment on compassionate ground to the dependants of employees who die in harness, or who retire prematurely on being declared permanently incapacitated.
2. One of the dependants of an employee who dies in harness or who retires prematurely on being declared permanent incapacitated may be offered 25 appointment on compassionate ground subject to the fulfillment of the following conditions :
(i) The employee has died, or retired on being permanently incapacitated before completing 20 years of services of before attaining the age of 50 years, whichever is earlier.
(ii) The family of the deceased of the retired employee, as the case may be, is in need of immediate assistance and appointment of dependant of the employee is absolutely essential for survival of the family.
For the purpose of appointment of compassionate ground in terms of this notification, a dependant shall mean spouse, a son or an unmarried daughter who ws (sic) solely dependent on the earnings of the deceased or the retired employee.
..................................................................... ..................................................................... ............................
8. The Labour Department will forward the name of persons found eligible for appointment on compassionate ground to one or more of the following Departments, for appointing them against available vacancies. ‐
1)Health & Family Welfare Department
2)School Education Department.
3)Higher Education Department.
4) Mass Education & Extension Department.
5) Home (Police) Department.
6) Jails Department.
..................................................................... ..................................................................... ..................................................................... ............................................ 26
16. Approval of the Appointment Committee of the Cabinet will not be required for offering appointment in terms of this notification.
EMP‐142 - 1st November, 2007:‐ Consequent upon issue of this Department's Notification No.97‐Emp, dated 06.06.2005, a question arose as to if the provisions of the said notification would be applicable to the State Government employees only or to the employees attached to such other establishments, as are mentioned in the West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Government Companies and Local Authorities Act, 1999, as well. To obviate the question, issue of a clarification in this regard has been under consideration of the Government for some time past and in terms of this Department Notification No.69‐Emp. dated 26‐06‐2007, it has been clarified that the term 'employee' will mean the State Government employee only for the purpose of this Department's Notification No.97‐ Emp, dated 06‐06‐2005.
2. The Governor has, now, been pleased to order that the appropriate authorities of the establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities, within the purview of the Act ibid, will, having regard to the principles applicable to the State Government employees as enunciated in this Department Notification No.97‐Emp, dated 06‐06‐2005, read with Corrigendum No.151‐Emp, dated 08‐09‐2005, Notification No.133‐Emp, dated 01‐10‐ 2007 and any other order/Notification to be issued subsequently by the Government in this regard, the financial position and the nature of activities of the respective organizations, formulate policies of their own in consultation with the respective administrative departments so as to follow the same in course of dealing with the prayers for appointment or financial assistance on compassionate ground, received by them, from the 27 dependents of the employees who die‐in‐harness or retire prematurely on being declared permanently incapacitated.
3. Before notifying the policy, the administrative Department shall obtain the concurrence of the Labour Department and the Financial Department.
4. This order issues with the concurrence of the Finance (Audit) Department, vide their u.o. No.3947 Group 'P' (Service), dated 31‐10‐2007.
30‐Emp. - 2nd April, 2008: ‐ At present appointment on compassionate ground of the defendants of state government employees who die in harness, or retire prematurely on being declared permanently incapacitated for service is governed by the provisions of Labour Department Notifications No.97‐ Emp, dated 06‐05‐2005, read with Corrigendum No.131‐ Emp, dated 26‐08‐2005, Corrigendum No.151‐Emp, dated 08‐09‐2005, Corrigendum No.27‐Emp, dated 08‐02‐2006, Memorandum No.28‐Emp, dated 08‐02‐2006 and notification No.69‐Emp, dated 26‐06‐2007 and 133‐Emp, dated 01‐10‐2007. The Government had been, for some time past, considering the necessity or reviewing these provisions. After careful review of the matter, the Governor has now been pleased to rescind the Notification No.97‐Emp, dated 06‐06‐2005 along with corrigenda/orders/notification issued in the context of the said notification and restore the position which was prevailing prior to the issue of Notification No.97‐Emp, dated 06‐06‐2005, subject to such modifications and clarifications as specifically mentioned hereunder. ..................................................................... ..................................................................... ..................................................................... ............................................
5. All other provisions laid down in the Notification No.301‐Emp, & 303‐Emp, dated 21‐08‐2002, to the extent those are not inconsistent with the provisions laid down in this Notification shall continue to apply. 28
6. All applications for appointment on compassionate ground shall henceforth be disposed of by the concerned administrative department in accordance with the provisions laid down in the notification. Approval of the Appointment Committees of the Cabinet will not be required for offering appointment in terms of this notification.
251‐Emp. - 3rd December, 2003:‐ The Governor is pleased hereby to make the following scheme regulating the appointment on compassionate ground in supersession of all previous orders in this respect :
Scheme :
(1) Short title and commencement -
This scheme may be called the West Bengal Scheme for Compassionate Appointment, 2013. This will come into force with effect from the date of issue. (2) Application -
This shall apply to a dependent family member of a Government employee who -
(a) dies while in service ; or
(b) is disabled permanently or otherwise incapacitated rendering him unfit to continue in service prematurely on being declared permanently incapacitated by a Medical Board formed by the Government.
96‐Emp. - 28th April, 2015:‐ A Question has arisen as to whether the provision of the Notification No.142‐Emp. dated 01‐11‐2007 would continue to be in effect consequent upon introduction of the West Bengal Scheme for Compassionate Appointment, 2013 issued under Notification No.251‐Emp. dated 03.12.2012. The Scheme ibid specifies that it is applicable for regular State Govt. Employees.
29
After careful consideration of the matter, the Governor has now been pleased to state that although Notification No.251‐Emp. dated 03.12.13 is not meant for the employees of Corporation Public Undertaking, Statutory Bodies, Govt. Companies' Boards, Local Bodies etc., if a notified policy for compassionate appointment already exists in a concerned Department in respect of the employees of the concerned organizations, prior to introduction of Notification No.251‐Emp. dated 03.12.13, which was issued after containing the concurrence of the Labour Department and Finance Department in pursuance of Notification No.142‐Emp. dated 01.11.2007, then there is no bar in implementing the same for the purpose of extending compassionate appointment to the dependents of employees who died‐in‐harness or are permanently incapacitated.
301‐Emp. dated August 21, 2002 was notified in exercise of powers conferred under Sub‐section (a) of Section 3 of the Act of 1999. It deals with grant of compassionate appointment to dependents of employees in the died‐in‐harness category. 302‐Emp. dated August 21, 2002 is an exercise of power under Section 3(b) of the Act of 1999. It specifies that, 30% of the vacancies reserved are to be filled up by persons falling within the exempted categories to be notified under Section 3(a) of the Act of 1999. 303‐Emp. dated August 21, 2002 prescribes the procedure for filling up the vacancies reserved for the exempted categories.
30
Reading 301‐Emp. to 303‐Emp., together, the irresistible conclusion is that, the State Government had formulated a scheme for grant of compassionate appointment in the died‐in‐harness category. The notifications are of the Labour Department. The question is whether such notification applies to employees of the Municipalities or not.
The next notification is 97‐Emp. dated June 6, 2005. This notification is in exercise of the powers conferred under Section 3(c) of the Act of 1999. It specifies that, the criteria which a person seeking appointment on the ground of compassionate appointment in the died‐in‐harness category must fulfil. It requires the Labour Department, on receipt of the recommendation of the Nodal Committee considering the grant of compassionate appointment, to forward such application to any of the six committees noted therein. It does not require the approval of the Appointment Committee of the Cabinet for offering appointment in terms of such notification. The department governing Municipality is not specified in the notification dated June 6, 2005.
The next notification is 142‐Emp. dated November 1, 2007. It seeks to answer the question, whether the provisions of 97‐Emp. 31 would be applicable to State Government employees only or that it would apply to the employees attached to other establishments as mentioned in the Act of 1999 as well. It answers the question in the negative so far as employees of other establishments are concerned.
30‐Emp. dated April 2, 2008 rescinds 97‐Emp. dated June 6, 2005 along with corrigenda/orders/notifications issued in the context of such notification and restores the position, which was prevailing prior to the issue of the notification being 97‐Emp. dated June 6, 2005 subject to such modifications and clarifications as specified therein. It also provides that, the provisions of 301‐Emp. to 303‐Emp., to the extent that they are not inconsistent with the provisions laid down in 30‐Emp. dated April 2, 2008, shall continue to apply and that, all applications for appointment on compassionate ground shall henceforth be disposed of by the concerned administrative department.
The subsequent notification is 251‐Emp. dated December 3, 2013 by which, the State promulgates a scheme for compassionate appointment for Government employees. It is called the West Bengal Scheme for Compassionate Appointment, 2013. There is no ambiguity in such notification, as it confines itself to a government employee 32 only. 96‐Emp. dated April 28, 2015 addresses the question whether the provisions of 142‐Emp. dated November 1, 2007 should continue to be in effect consequent upon introduction of the West Bengal Scheme for Compassionate Appointment, 2013 introduced by 251‐ Emp. dated December 3, 2013 or not. It goes on to state that, there is no bar in implementing the provisions of 142‐Emp. dated November 1, 2007 for the purpose of extending compassionate appointment to the dependents of employees who died‐in‐harness or are permanently incapacitated.
Reading the notifications, as enumerated above, it appears that, a scheme for compassionate appointment was introduced by the circular nos.301‐Emp. to 303‐Emp. dated August 21, 2002. The three circulars were not understood or read to be a scheme governing all employees of other establishments governed by the Act of 1999. This stand of the State can be inferred from the contents of immediate notification subsequent to 301 to 303‐Emp. being 97‐Emp. dated June 6, 2005. 97‐Emp. dated June 6, 2005 notifies the departments in whose vacancies the appointments would be granted. The Departments are of the State. If 301 to 303‐Emp. dated August 21, 2002 are to be read so as cover all establishments of the Act of 1999, then 97‐Emp. dated June 33 6, 2005 should provide for appointment in the establishment covered by the Act of 1999 concerned. It does not do so. It hints itself to the departments of the State. A dependent of the deceased employee of the municipality cannot legitimately claim an employment in another legal entity other than the same legal entity where the deceased employee was employed. That is not the claim of the petitioners. The petitioners claim employment in the same municipality as that of the deceased employee through whom, the respective petitioners are claiming their right. That is not provided for in 97‐Emp. dated June 6, 2005.
97‐Emp. dated June 6, 2005 has been subsequently clarified by 142‐Emp. dated November 1, 2007 to be restricted to government employees and not to extend to employees of all establishments covered by the Act of 1999. Clause 2 of 142‐Emp. dated November 1, 2007 allows the appropriate authorities of the establishments covered by the Act of 1999 to formulate policies of their own in consultation with the respective administrative departments so as to follow the same in course of dealing with the prayers for appointment or financial assistance on compassionate ground. It also specifies that, before notifying such policy, the administrative department should 34 obtain the concurrence of the labour and the finance department. Nothing is placed on record to suggest that any of the municipalities involved had, in terms of 142‐Emp. dated November 1, 2007, formulated any policy for compassionate appointment, as prescribed, or otherwise. 97‐Emp. dated June 6, 2005 was rescinded by 30‐Emp. dated April 2, 2008. Subsequent thereto, the West Bengal Scheme for Compassionate Appointment, 2013 was introduced by 251‐Emp. dated December 3, 2013. Such Scheme is limited to State Government employees only.
Therefore, the reliance by the petitioners on such circulars for the purpose of contending that, there exists a scheme for compassionate appointment is misplaced.
In view of the discussions above, the first issue is answered in the negative and against the petitioners.
The second and the third issues are taken up for consideration together as a decision on the third issue will have ramifications for the second issue.
A municipality is a body corporate with perpetual succession and a common seal established under the provisions of the West Bengal Municipal Act, 1993. Section 13 of the Act of 1993 deals with 35 the establishment of a municipality and its manner of functioning. Section 13(2) of the Act of 1993 stipulates that, the municipality may be sued or sue in its name. Under Section 13(1), the Board of Councillors in a given case may decide to sue a party. Such proceeding has to be filed in the name of the municipality under Section 13(2). Likewise, where the municipality is sued, it has to be in its name, under Section 13(2). A contention was raised by some of the municipalities in these petitions that, the municipality has not been made party to the petitioner and as such the writ petition is not maintainable. Since, the writ petitions are heard on merits, such defective writ petitions are not dismissed on such ground alone, although such writ petitions where the municipality is not a party respondent, is liable to be dismissed. Section 13(1) allows the municipality to function through the Board of Councillors. Section 13(2) deals with the power to sue and be sued in its name. Section 53 of the Act of 1993 specifies the establishment of a municipality. It allows the Board of Councillors of a municipality to create a post, with the prior sanction of the State Government for such officers, and fix salaries and allowances for such officers, as may be required by a municipality. Section 53 of the Act of 1993 allows the Board of 36 Councillors of a municipality to regulate the size of the municipal establishment, categories and designations of its officers and employees and the pay and allowances that such officers and employees may receive. Creation of post, however, is subject to the prior sanction of the State Government. Section 54 of the Act of 1993 allows the State Government to constitute cadres for the State in respect of executive officers, health officers, engineers and finance officers of municipalities. It recognizes the State Government to be the appointing authority of the officers referred to in Sub‐section (1) of Section 53 and empowers the State Government to transfer such officers from one municipality to the other. Sub‐section (3) of Section 54 specifies that, the appointment of all other officers and employees not included in Sub‐section (1) of Section 54 shall be made by the municipality, with the prior approval of the State Government. Section 56 of the Act of 1993 deals with salaries and allowances of the officers and employees. It allows the municipalities to pay salaries and allowances from out of the municipal fund. Leave and other conditions of service of all officers and employees of the municipalities are subject to such considerations of service including leave and other benefits or obligations as may be prescribed. It is dealt 37 with in Section 67 of the Act of 1993. Section 425 of the Act of 1993 is in Chapter XXVIII relating to delegation, cooperation and control of a municipality. It empowers the State Government to delegate powers vested and functions imposed upon the State Government by or under the Act of 1993 upon the officials specified therein.
Reading the provisions of the Act of 1993, it appears that, a person appointed by the municipality would be the employee of the municipality and cannot be treated as the employee of the State Government. A municipality is a separate legal entity distinct from that of the State. A municipality may be an authority within the meaning of Article 12 of the Constitution of India. The funds of the municipality may be provided by the State Government. The State Government may retain the power to control the appointment of officers and creation of new post for a municipality. These incidences by themselves do not make an employee of the municipality to be an employee of the State Government. Dr. Jamuna Kurup & Ors. (supra) is of the view that, a municipal corporation is not the Government and, therefore, its employees are not Government servants. Employees of a municipal corporation may be governed by statutory rules but they do not enjoy the status of a Government servant. In the facts of 38 such case, the term 'employee' was considered. It was found that, the term 'employee' was not defined in the Delhi Municipal Corporation Act, 1957. The ordinary meaning of 'employee' was taken into consideration. The Act of 1993 also does not define the terms "employee". The ordinary meaning has to be taken into consideration. Therefore, the contention of the petitioners that, the master, of an employee of a municipality is the State Government and not the municipality, cannot be accepted.
It is the contention of the petitioners that, the scheme for compassionate appointment governing a State Government employee should be read into the service conditions of an employee of the municipality. With respect, such a contention cannot be accepted. A municipality is a separate and distinct legal entity than that of the State Government. The contract of employment between the municipality and its employee cannot be altered by importing service conditions of employees of other legal entities. The Court should not endeavour to do so. Then the Court will not rewrite the contract of employment. The scheme for compassionate appointment governing a State Government employee cannot be incorporated into the service conditions of an employee of a municipality.
39
In view of the discussions above, the second and the third issues are answered in the negative and against the petitioners.
Jaitra Acharya (supra) concerns an employee of West Bengal Essential Commodities Supply Corporation Limited. It notes that, in a reply to a query under the Right of Information Act, 2005, as to what rules are followed to govern employees of the corporation, the answer was that, the Government rules are followed by the corporation. Since the stand of the corporation was that the Government rules are applied to its employees, a scheme for compassionate appointment governing employees of the corporation was found. Consequently, the petitioner was found to be entitled to compassionate appointment since there was a scheme for grant of compassionate appointment for State Government employees. The fact scenario in the present case is absolutely different. The municipalities do not have a scheme for grant of compassionate appointment for their employees.
Sampa Podder (supra) is of the view that, there is no scheme for compassionate appointment for employees of municipalities. It considers some of the circulars governing the field. In AST 276 of 2014 (supra) did not consider the issues that fall for consideration in the present writ petitions. It is silent as to whether there subsists any 40 scheme for grant of compassionate appointment to employees of a municipality. It directs grant of compassionate appointment upon receiving necessary order from the Directorate of Local Bodies, West Bengal. It does not decide any ratio. An order cannot be considered as a binding precedent. Ratio decidendi of a judgment is binding. It is the contention of the petitioners that, the State not having taken the point of absence of a scheme of compassionate appointment in AST 276 of 2014, the issue is no longer available to be raised on behalf of the State as the same is barred by the principles of constructive res judicata. Sha Shivraj Gopalji (supra) is a decision rendered in an execution proceeding of a decree. In the facts of that case, the point that the property is liable to attachment by reason of a statue was not taken in the earlier execution proceeding and, therefore, it was found that, it was not open to the decree holder at a later execution proceeding to question and plead that, under such statute, the property is liable to attachment. Res judicata is defined in Section 11 of the Code of Civil Procedure, 1908. Although the Code of Civil Procedure, 1908 is not attracted in a proceeding under Article 226 of the Constitution of India, the principles enunciated therein can be applied. For the principles of res judicata to apply, there must be identity of matter in 41 issue and parties; the parties must be litigating under the same title; there must be concurrence of jurisdiction of the Court in seisin of the two proceedings and a final decision must be rendered in one of the two proceedings, for it to apply in the other proceeding. In the facts of the present cases, although the State is a party respondent in AST 276 of 2014 (supra) the same parties as that of the present writ petitions are not parties therein. It cannot be said that, the issues raised here are barred by the principles of constructive res judicata. Moreover, the petitioners cannot rely upon the decision of AST 276 of 2014 (supra) on the principles of negative equality. The petitioners cannot be allowed to obtain benefit of something which they are not entitled to receive, in law, on the foundational basis that, the State had granted compassionate appointment on earlier occasions either voluntarily or under orders of Court. It is the contention of the petitioners that, the State should be directed to formulate a scheme for compassionate appointment governing the municipal employees. Such a consideration is in the realm of executive action. A Writ Court need not enter therein.
There being no scheme for grant of compassionate appointment, the petitioners are, therefore, not entitled to any relief as 42 prayed for in the present writ petitions. When there is no scheme for compassionate appointment, the question of a married daughter receiving an appointment on such ground does not arise. Purnima Das (supra) allows a married daughter to be considered for grant of compassionate appointment after finding a scheme for such purpose governing the employees of Panchayats. The fourth issue is answered accordingly.
W.P. 13147 (W) of 2017, W.P. 13149 (W) of 2017, W.P. 13151 (W) of 2017, W.P. 13191 (W) of 2016, W.P. 13194 (W) of 2016, W.P. 13195 (W) of 2016, W.P. 13197 (W) of 2016, W.P. 13207 (W) of 2016, W.P. 13209 (W) of 2016, W.P. 24166 (W) of 2015, W.P. 24167 (W) of 2015, W.P. 24168 (W) of 2015, W.P. 24169 (W) of 2015, W.P. 31057 (W) of 2017, W.P. 29553 (W) of 2017, W.P. 4388 (W) of 2017, W.P. 4386 (W) of 2017, W.P. 29570 (W) of 2017, W.P. 29564 (W) of 2017, W.P. 29560 (W) of 2017, W.P. 29556 (W) of 2017, W.P. 31056 (W) of 2017, W.P. 21009 (W) of 2015, W.P. 21010 (W) of 2015, W.P. 21011 (W) of 2015, W.P. 21012 (W) of 2015, W.P. 21014 (W) of 2015, W.P. 21016 (W) of 2015, W.P. 21022 (W) of 2015, W.P. 21041 (W) of 2015, W.P. 24170 (W) of 2015, W.P. 24171 (W) of 2015, W.P. 25494 (W) of 2015, W.P. 25492 (W) of 2015, W.P. 1014 (W) of 2017, W.P. 3197 (W) of 2016, W.P. 3196 (W) 43 of 2016, W.P. 3198 (W) of 2016, W.P. 3199 (W) of 2016, W.P. 3200 (W) of 2016, W.P. 3201 (W) of 2016, W.P. 3202 (W) of 2016, W.P. 3203 (W) of 2016, W.P. 27686 (W) of 2015, W.P. 7179 (W) of 2018, W.P. 7172 (W) of 2018, W.P. 328 (W) of 2016, W.P. 24583 (W) of 2016, W.P. 4590 (W) of 2016, W.P. 30285 (W) of 2016, W.P. 30279 (W) of 2016, W.P. 5323 (W) of 2018 and W.P. 3529 (W) of 2012 are dismissed accordingly.
There shall be no order as to costs.
Urgent website certified copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.]