Calcutta High Court (Appellete Side)
Samim Ahmed vs The State Of West Bengal & Ors on 15 July, 2013
Author: Biswanath Somadder
Bench: Biswanath Somadder
1
17.
15.07.2013.
d.d.
W. P. No.17245 (W) of 2013
Samim Ahmed
Vs.
The State of West Bengal & Ors.
Mr. B. N. Ray,
Ms. Priyanka Das
.... For the Petitioner.
Mr. Sadhan Halder,
Mr. K. M. Hossain
.... For the State.
Affidavit-of-Service filed in Court today be taken on
record.
Having heard the learned advocates for the parties and
upon perusing the instant writ application, it appears that the
petitioner has approached this Court in another round of
litigation, this time challenging a memorandum dated
2nd November, 2012 issued by the Commissioner of School
Education, West Bengal. The impugned memorandum, which is
the subject matter of challenge in the present writ proceedings,
has been rendered by the concerned officer in terms of and
pursuant to the order dated 22nd March, 2012, passed in an
earlier writ petition filed by the writ petitioner, being W.P.
No.3998 (W) of 2012. The Court's order 22nd March, 2012 made
it clear that when the concerned respondent authority was to
take a decision on the application for compassionate ground submitted by the petitioner, he was required to decide the 2 matter on the basis of Rule 14, as it existed in the year 2004 and for such purpose, an inquiry was to be made in accordance with law.
It is clear from the impugned memorandum that the concerned authority, namely, the Commissioner of School Education, West Bengal, while deciding the matter, has referred to the relevant notification dated 15th January, 2002, containing Rule 14, which sets out the conditions that are required to be taken into consideration for appointment on compassionate ground under the died-in-harness category.
While rejecting the prayer for compassionate appointment, the Commissioner of School Education observed, inter alia, as follows:
" From records, it appears that the petitioner's father received Rs.224579/- as death gratuity and had been drawing gross enhanced family pension Rs.3961/- per month. The annual income of the father of the petitioner from other sources was Rs.108000/- per annum. The income of the petitioner was Rs.600/- per month. So the total income of that family was Rs.(3961+9000+600)/- = Rs.13561/-.
The family is consisting of two members' viz. father of the petitioner and the petitioner. The elder brother of the petitioner is living separately.
In consideration of the above mentioned financial position of the family at the material point of time, even if the income from the family pension is ignored, I am of the opinion that the family consisting of two members cannot be considered as financially so 3 distressed 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 prayer for 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).4
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 5 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.
The authoritative views of the Supreme Court referred above, were considered by this Court in a recent decision rendered on 17th June, 2013 in W. P. No.20212 (W) of 2012 (Tamal Krishna Chakraborty Vs. The State of West Bengal & Ors.). The judgment of the Supreme Court reported in (2000) 6 Supreme Court Cases 493 (Balbir Kaur & Anr. Vs. Steel Authority of India Ltd. & Ors.), which has been cited by the petitioner, was rendered in the context of interpretation of the Family Benefit Scheme in respect of employees of Steel Authority of India Limited, as introduced in the NJCS Tripartite Agreement of 1989. The entire judgment is based on interpretation of the contextual facts and does not, in any manner, apply in the facts of the present case.
As observed hereinbefore, the Supreme Court has categorically held in its later judgments to the effect that appointment on the compassionate ground has to be made considering terms of the Scheme for such appointment and in case a Scheme lays down a criterion, such criterion is required to be followed, which has exactly been done in the facts of the instant case. In such circumstances, this Court is unable to give any relief to the petitioner as prayed for, since there is no infirmity noticed in the impugned memo dated 2nd November, 2012, which would warrant any interference by this Court.
6The writ petition is, therefore, liable to be dismissed and is, accordingly, dismissed.
( Biswanath Somadder, J. )