Calcutta High Court (Appellete Side)
Kaberi Pal (Sinha) vs The State Of West Bengal & Ors on 8 August, 2014
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
08.08.2014
c.L.-87(KB)
W.P. 24994 (W) of 2012
Kaberi Pal (Sinha)
Versus
The State of West Bengal & Ors.
Mr. Debasish Kundu
... For the petitioner.
The instant writ application was admitted on 3rd
June, 2013 with a direction towards exchange of
affidavits. In spite of such order, no affidavit-in-opposition
has been filed by the respondents.
Mr. Kundu, learned advocate appearing for the petitioner, submits that the petitioner's father expired on 8th August, 2003 while working in the post of Class-IV staff at Sheorafuli Surendranath Vidya Niketan for Girls(hereinafter referred to as the said school). Due to loss of the sole earning member, the family was suffering from extreme financial distress and as such the petitioner approached the authorities for consideration of her claim towards grant of compassionate appointment in place and stead of her father. The said application was not responded to by the authorities and that as such the 2 petitioner was constrained to prefer a writ application being W.P. No. 12518 (W) of 2012 and the same upon contested hearing was disposed of with a direction upon the respondent no.3 to give a reply to the petitioner's application dated 29th August, 2005 for grant of compassionate appointment. Pursuant to the said order of this Court, the respondent no.3 passed an order on 16th October, 2012 rejecting the petitioner's claim and challenging the said order, the instant writ application has been preferred.
The writ application was admitted on 3rd June, 2013 with a direction towards affidavits but no affidavit- in-opposition has been filed by the respondents.
A perusal of the impugned order dated 16th October, 2012 reveals that the petitioner's claim was primarily rejected on the ground that she is a married daughter.
Mr. Kundu, learned advocate appearing for the petitioner, submits that through the notification/circular dated 26th December, 2005, the West Bengal Schools (Recruitment of Non-Teaching Staff) Rules, 2005 were promulgated and that the same does not have any manner of application in the instant case since 3 the petitioner's father expired much prior thereto in the year 2003.
Mr. Kundu further argues that the issue as to whether a married daughter is entitled to be considered for grant of compassionate appointment has been dealt with by this Court in the following judgments.
(a) - Smt. Usha Singh versus State of West Bengal reported in 2003 (1)_ CLJ 407.
(b) - Smt. Chitra Mali (Mondal) versus The State of West Bengal & Ors. reported in 2011 WBLR CAL 533.
(c) - Soumik Dandapath versus Sate of West Bengal reported in 2012 (l) CHN (CAL) 60. . Mr.Kundu has also placed reliance upon an unreported judgment delivered by this Court in W.P.32137 (W) of 2008.
The first ground of rejection, as contained in the impugned order, is that the petitioner has made a representation for grant of compassionate appointment after two years from the date of death of her father.
The respondents themselves kept the matter pending since the year 2005 and as such the petitioner was constrained to approach this Court and only after a 4 direction was issued by the Writ Court on 3rd September, 2012, the impugned order was passed. The respondents, themselves having kept the petitioner's claim pending for a period of seven years cannot reject the petitioner's claim on an alleged ground of delay of twenty one days on the part of the petitioner, moreso, when authority stands conferred upon the respondents to condone such delay.
A perusal of the order further reveals that the petitioner's claim has been rejected on the basis of a Government Circular dated 26th December, 2005 by which the West Bengal Schools (Recruitment of Non- Teaching Staff) Rules, 2005 were promulgated. It is well settled that the claim for appointment on compassionate ground is to be considered in terms of the rules which were in existence at the time of the death of the concerned employee. In the instant case the petitioner's father expired on 8th August, 2003 and that as such the said notification/circular dated 26th December, 2005 cannot be made applicable to the petitioner's case.
The third ground of rejection is that the petitioner is a married lady and as such she is not entitled to be considered for compassionate appointment. 5
The said ground has been discussed by the Hon'ble Division Bench of this Court in the judgment referred to by Mr. Kundu and it has inter alia, been held that a married daughter shall also be entitled to be considered for grant of compassionate appointment and that as such it was not proper on the part of the said respondent no.3 to reject the petitioner's claim on the ground of being a married lady.
The said impugned order also suffers from total non-application of mind inasmuch as the issue of penury was not even dealt with by the said respondent no.3.
For the reasons as discussed above, the impugned order dated 16th October, 2012 passed by the respondent no.3 is set aside and quashed and the said respondent no.3 is directed to decide the petitioner's claim for compassionate appointment afresh, in the light of the observations made above, upon granting an opportunity of hearing to the petitioner and to pass a reasoned order in accordance with law and to communicate the same to the petitioner. 6
The above exercise should be concluded within a period of eight weeks from the date of communication of this order.
Needless to observe, in the event the petitioner's claim deserves acceptance, necessary follow up steps should be taken by the respondents without any further delay.
The writ application is, accordingly, disposed of.
There shall, however, be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be handed over to the petitioner on compliance of necessary formalities.
(Tapabrata Chakraborty, J.)