Calcutta High Court (Appellete Side)
Tamal Krishna Chakraborty vs The State Of West Bengal & Ors on 17 June, 2013
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Justice: - Biswanath Somadder
W. P. 20212 (W) of 2012
Tamal Krishna Chakraborty
Vs.
The State of West Bengal & Ors.
For the petitioner :- Mr. Rudra Jyoti Bhattacharjee
Ms. Debjani Ghoshal
Sk. Kamaluddin ... For the Council.
Mr. Anami Sikdar
Ms. Tanima Sengupta ... For the State.
Heard on : 17.6.2013.
Judgment on : 17.6.2013.
Biswanath Somadder, J.:
The writ petitioner has approached this Court being aggrieved by the contents of a memo dated 9th July, 2012, issued by the Commissioner of School Education, West Bengal, whereby the said authority came to a finding that the family of the deceased school teacher, whose son is the writ petitioner in the instant case, cannot be considered as financially so distressed that it could not arrange two square meals and other essentials for the members of the family. As such, the Commissioner rejected the prayer of the petitioner for compassionate appointment, based on the relevant provision of the West Bengal Primary School Teachers' Recruitment Rules, 2001, as contained under Chapter III para no. 14, which reads as follows: -
"The Council may appoint primary teachers, with the approval of the Director of School Education, West Bengal or his authorised officer, on compassionate ground in the following cases where, in the opinion of the council, the cases deserve compassionate consideration: -
(1) when a teacher dies in harness before the date of his superannuation i.e. at the age of 60 years, leaving a family which, in the opinion of the council, is in extreme financial hardship that is it fails to provide two square meals and other essentials to the surviving members of the deceased teacher's family, the following members of the deceased teacher's family, viz.
the
(a) widowed wife, or
(b) widower, or
(c) son, or
(d) unmarried daughter, or
(e) divorcee dependent daughter-divorced before the date of death of the teacher, possessing required educational qualifications as laid down in Clause (a) and (c) of sub rule (1) of rule 6 and unemployed, and not below 18 years of age and not above 45 years of age and found eligible to teach, may make within two years from the date of such death, a prayer in writing to the Council for appointment as primary teacher on compassionate ground, provided that only one member of a deceased primary teacher's family may be appointed on compassionate ground."
From the records it appears that the father of the writ petitioner was the Head Master of a high school in the district of Hooghly. He died on 23rd November, 2003, whilst in service. The writ petitioner is his only son. He applied for appointment on compassionate ground under the 'died-in-harness' category to the concerned authority, which, in turn, sent all papers to the Chairman, District Primary School Council, Hooghly, vide memo dated 4th January, 2007. The Chairman, District Primary School Council, Hooghly, thereafter, sent a formal proposal for approval of appointment in favour of the writ petitioner on compassionate ground under the 'died-in-harness' category to the Director of School Education, West Bengal, vide his memo dated 26th March, 2007.
The writ petitioner subsequently approached this Court by filing a writ petition, being W. P. 9960 (W) of 2011, which was disposed of by an order dated 6th February, 2012, whereby the concerned authority was directed to take a decision in respect of the writ petitioner's application for appointment in a primary school within a certain time frame. Based on the directions as contained in the order of this Court dated 6th February, 2012, the Director of School Education, West Bengal, (now renamed, Commissioner of School Education, West Bengal) proceeded to consider the petitioner's case for compassionate appointment and consequently issued the impugned memo dated 9th July, 2012, rejecting the proposal for compassionate appointment of the writ petitioner under the 'died-in-harness' category.
While rejecting the proposal, the Commissioner of School Education, West Bengal, considered the case of the petitioner in the light of the various Circulars, Rules and Regulations, which were prevalent at the material point of time. In this context, the Commissioner of School Education, West Bengal, referred to Chapter III para no. 14 of the notification dated 15th January, 2002, i.e. the West Bengal Primary School Teachers Recruitment Rules, 2001, which has been quoted hereinbefore and made the following observations:
"...From records, it appears that the petitioner's mother received Rs. 1,40,000/- as Provident Fund, Rs. 2,26,800/- as death gratuity and had been drawing gross enhanced family pension Rs. 9888/- per month. She has also got her pension. In consideration of the above mentioned financial position of the family at the material point of time, I am of the opinion that the family cannot be considered as financially so distress (ed) that it could not arrange two square meals and other essentials for the members of the family. Therefore, the prayer of the petitioner for compassionate appointment is rejected."
The question that comes up for consideration in the facts of the instant case is whether the ground of rejection of the petitioner's case for appointment on compassionate ground is sustainable in law or not.
An applicant cannot claim appointment in a particular group/class of post as a matter of right. Appointment on compassionate ground too, cannot be claimed as a matter of right. There can be no quarrel with the settled legal proposition that a claim for appointment on compassionate ground is based on the premises that the applicant was dependent on the deceased employee. Strictly, such a claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. As a rule, public appointments should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment, but merely an exception to the aforesaid requirement, upon taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases, the object is to enable the family to get over sudden financial crisis and not to confer a status on the family (see Union of India & Anr. Vs. Shashank Goswami & Anr., reported in AIR 2012 SC 2294).
The observations of the Supreme Court in Govind Prakash Verma v. Life Insurance Corporation of India & Ors. reported in (2005) 10 SCC 289, on the question whether payment of terminal/retiral benefits to the family can be taken into consideration while deciding a case for compassionate appointment was specifically negated by the Supreme Court in its latter decision rendered in the case of Mumtaz Yunus Mulani (Smt.) v. State of Maharashtra & Ors., reported in (2008) 11 SCC 384, wherein the Supreme Court examined the scope of employment on compassionate ground in a Scheme where a dependant of an employee was considered ineligible for the post, in a case where the family received terminal/retiral benefits above the ceiling limit. The Supreme Court held that the judgment rendered in Govind Prakash Verma (supra) was decided without considering its earlier judgments, which were binding on the Bench. The Supreme Court further held that the appointment has to be made considering the terms of the Scheme and in case a Scheme lays down a criterion, such criterion is required to be followed. The observations made by the Supreme Court in Mumtaz Yunus Mulani (supra) were reiterated in its latter decision rendered in Union of India & Anr. v. Shashank Goswami & Anr. (supra).
In the facts of the instant case, if one takes into consideration the relevant provision of the Scheme governing compassionate appointment in respect of a deceased teacher - as applicable in the State of West Bengal - it is clear that a case for compassionate appointment would deserve consideration if the teacher dies in harness before the date of his superannuation leaving a family, which, in the opinion of the concerned authority, was in extreme financial hardship of such a nature that it failed to provide two square meals and other essentials to the surviving members of the deceased teacher's family.
In light of the clear view of the Supreme Court, which has been expressed in Mumtaz Yunus Mulani's case, as well as in Union of India & Anr. v. Shashank Goswami & Anr., the case of Satyagopal Mishra v. The State of West Bengal & Ors., reported in (2011) 2 WBLR (Cal) 757, cited by the learned advocate for the petitioner, would have no manner of application at all in the facts of the instant case. It is also noticed that the Division Bench of this Court while rendering its judgment in Satyagopal Mishra's case (supra) had relied on Govind Prakash Verma, the ratio of which has been categorically negated by the Supreme Court in its latter decisions as referred above. In such circumstances, this Court is unable to give any relief to the writ petitioner as prayed for, since there is no infirmity noticed in the impugned memo dated 9th July, 2012, that would warrant any interference of this Court. The writ petition is, therefore, liable to be dismissed and is accordingly dismissed.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocate for the petitioner.
ap (Biswanath Somadder, J.)