Calcutta High Court (Appellete Side)
Smt. Papia Banerjee vs The State Of West Bengal & Ors on 20 January, 2015
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 425 20.1.2015
gd W.P. 23687 (W) of 2012
Smt. Papia Banerjee
Vs.
The State of West Bengal & Ors.
Mr. Tapan Chakraborty
Md. Ali Mallick
..for the Petitioner
The grievance of the petitioner is that solely on the ground that she is married, her application for appointment on compassionate grounds following the death in harness of her father has been rejected.
The first aspect that has to be noticed in a matter carried to court complaining of failure to give appointment on compassionate grounds is the date of death of the concerned employee. In this case the concerned employee died on March 22, 2010 and the application was made by the employee's widow on April 22, 2010 to the District Judge. The inquiry report is in favour of the grant of the compassionate appointment but the petitioner failed at the last hurdle in view of the relevant government notification under the West Bengal Service Rules that extends an appointment on compassionate grounds to only the spouse or son or unmarried daughter of a deceased employee.
The relevant clause reads as follows:
"2. (1) ...
(2) For the purpose of appointment on compassionate ground, a dependant of a Government employee shall mean wife/husband/son/unmarried daughter of the employee, who is/was solely dependant on the Government employee.
(3) ..."
There are two conditions which are evident from the relevant 2 provision: that the applicant for appointment on compassionate grounds ought to be a spouse or son or unmarried daughter of the deceased employee; and, that the applicant ought to have been solely dependant on the deceased government employee.
As far as the first of the conditions is concerned, the same is arbitrary and unreasonable and fails the test of Article 14 of the Constitution in refusing to acknowledge the right of a married daughter - whether the married daughter is happily married or divorced or widowed. There is no reasonable basis to making a distinction between a married daughter and an unmarried daughter, particularly since the second condition would also apply; and, if it is discovered that the applicant married daughter of the deceased employee was not dependant on the income of the deceased employee, she would not be eligible to be appointed. However, there is no rationale in differentiating between a married daughter and an unmarried daughter in the first of the conditions if a corresponding distinction is not made between a married son and an unmarried son. The relevant condition has, therefore, to be read down and the word "unmarried" has to be disregarded. In other words, the first condition has to be read without reading the word "unmarried" therein.
In this case, the application by the widow indicated that she wanted her married daughter to get the appointment as the widow was unwell and unable to undertake any work herself. In course of the inquiry, the affidavit filed by the widow has been accepted; but there does not appear to have been any medical examination of the widow of the deceased employee to ascertain the veracity of her assertion that she was ill and unable to work.
This aspect of the matter is relevant in view of the second condition apparent from the relevant provision, which is just and reasonable. The unfortunate death of a government employee cannot be used as a fortuitous circumstance for a relative to obtain 3 an appointment on compassionate grounds unless the family of the deceased employee is in financial distress and the conditions in the relevant provision quoted above are complied with. If the widow of a deceased employee is qualified to obtain an appointment on compassionate grounds but is not desirous of accepting the same, she can pass on the benefit to any other eligible relative including a married daughter. However, a married daughter would not, ordinarily, have been dependent on the deceased employee and, as such, the second condition in the relevant provision would then not be complied with.
In such circumstances, though the order impugned dated September 19, 2012 is set aside and the candidature of the petitioner for appointment on compassionate grounds following the death of her father is required to be reassessed, it is made clear that a medical examination of the widow of the deceased employee will first be conducted and if the medical opinion rendered is that she is unfit for employment, will the candidature of the petitioner be considered. Again, if the petitioner is given an appointment upon the petitioner's mother being found medically unfit to take up employment, a condition will be attached to the appointment that the widow of the deceased employee shall be looked after by the petitioner and any complaint by the widow of her daily needs not being taken care of by the petitioner will result in the petitioner's employment being terminated.
Generally, an appointment on compassionate grounds cannot be made after the lapse of several years. In this case the concerned employee died in the year 2010 and a period of almost five years has elapsed since then. However, the petition has been pending in court from 2012 and the petitioner cannot be prejudiced for the time taken by court in deciding the matter. Again, a distinction has also to be made between a petition pending for years without any attempt by the petitioner to have it heard and a petition 4 that appears for hearing in the usual course after a long gap.
W.P. 23687 (W) of 2012 is disposed of by directing the appropriate official in the Judicial Department of the State to take a reasoned decision on the matter within four weeks of the service of a copy of this order.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Sanjib Banerjee, J.) 5