Calcutta High Court
Sm. Debirani Bhattacharjee And Anr. vs District Inspector Of Schools (S.E.) ... on 4 April, 1996
Equivalent citations: (1997)IILLJ477CAL
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha, J.
1. This appeal is directed against a judgment and order dated February 11, 1994 passed by a learned Single Judge of this Court whereby and whereunder the said learned Judge disposed of the writ petition filed by the appellant claiming appointment on compassionate ground and/or regularisation with certain directions.
2. The writ-petitioners filed the writ application, inter alia, on the ground that the husband of the petitioner No. 1 and grandfather of the petitioner No.2, Sasthiram Bhattacharjee was a Class IV employee of Durgapur T.N. High School (hereinafter referred to as the said School). He died in harness on November 29, 1989, allegedly, leaving behind a widow, a son and the writ-petitioner No. 2 who is his grandson. According to the writ-petitioners, the petitioner No. 1 has been ailing for a long time and has not been in a position to work. The father of the petitioner No.2 is also a handicapped person. The writ-petitioners in support of their aforementioned contention relied on a certificate issued by Tarun Chatterjee, Member, Legislative Assembly, West Bengal, which is contained in annexure 'B' to the writ application. The Managing Committee of the said School by a Resolution dated December 9, 1989 keeping in view the financial condition of the writ-petitioner No.2 made recommendation for his appointment on a temporary basis as a Class IV employee on a salary of Rs. 300/- per month. As the appointment of the said writ-petitioner was not being approved, he filed the aforementioned writ-application along with his grandmother, praying inter alia, therein for issuance of a writ of or in the nature of mandamus directing the respondents to approve his services with retrospective effect from the date of his joining as also for a direction for payment of full salary, allowance and service benefit with effect from December 1989. It was stated that the application for approval was also submitted before the competent authority. The learned Trial Judge upon taking into consideration the relevant circulars disposed of the writ application with a direction to the District Inspector of Schools (S. E.) Burdwan to refer the matter to the Director of School Education and to consider the representation of the said petitioner dated 'November 30, 1989 as contained in annexure 'D' to the writ application in the event his case comes within the purview of 'died in harness circular'.
3. Mr. Pratap Roy, learned Counsel for the appellants, has principally raised three contentions in support of this appeal. The learned counsel submits that the meaning of 'ward' as stated in paragraph 5 in the circular letter dated October 12, 1987 should be given a wide meaning so as to encompass within its ambit such persons who are living under the same roof and has moral duty, if not legal, to maintain his parents and ailing grand mother. It was submitted that the circulars issued by the State of West Bengal for the purpose of grant of appointment on compassionate ground being a beneficient provision should be construed liberally and in support of his aforementioned contention reliance has been placed on Baldev Sharma v. R.C. Vasin . Mr. Roy would contend that the definition of 'ward' does not exclude the other blood relation and/or other members of the family. Reliance in this connection, has been placed on the meaning of the word, 'Family 'as contained in Black's Law Dictionary at page 543. As regards the decision of the Supreme Court of India , it was submitted that in the said decision there was no provision for relaxation which exists in the instant case. It was also submitted that the State having a duty to impart education in terms of the constitutional mandate, must also take steps to fill up the posts, inter alia upon taking recourse to the circulars issued by it. It was urged that as under Rule 28 of the Management of Recognised Non-Government Institution (Aided and Unaided) Rules, 1969, all the circulars issued by the State are binding on all the State authorities, the circulars issued by the labour department as also the recent circular of the State dated March 13, 1996 are also binding on them. Mr. Roy would further submit that for the purpose of consideration of appointment on compassionate ground financial condition of the family has to be taken into consideration. Reliance in this connection has been placed on .
4. The second stream of argument of Mr. Roy is that in any event the writ-petitioner having worked since December 11, 1989 has acquired a right to be absorbed in services and in support of his aforementioned contention, reliance has been placed on 1993(3) CLJ 220, 1991 (2) CHN 355 (The District School Board 24-Pgs. (North & South) and Others v. Dukhiram Sardar and Ors.). Mr Roy would urge that Article 21 encompasses within its ambit the right to work and thus according to the learned Counsel the petitioner cannot be deprived from continuing to work; particularly in view of the fact that the Government is expected to act fairly, properly and in a reasonable manner. Reliance in this connection, has been on in Olga Tellise's Case and Delhi Road Transport Corporation v. D. T. C. Mazdoor Congress and Ors. Reported in (1991-I-LLJ-607).
5. In any event, the learned Counsel contends that this Court being a Court of equity should consider the problem of the appellant No.2 upon taking into consideration the fact that he had a hope to be absorbed in the service keeping in view the principles of social justice in mind.
6. Mr. Basu, learned Counsel appearing on behalf of the respondents however, submits that the appellant No.2 having not been appointed in terms of the recruitment rules his appointment is void ab initio. According to the learned Counsel, the learned Trial Judge cannot be said to have committed an error in referring the matter for consideration of the Director of School Education.
7. The object and purport for grant of appointment on compassionate ground is well-known. Such appointments are granted to ameliorate the immediate difficulty faced by a family when the bread- earner dies in harness. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to source of livelihood. Compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the tamily to get over the financial crisis which it faces at the time of death of the bread earner, the compassionate employment cannot be claimed and offered whatever be the lapse of time and after the crisis is over.
8. The question which, therefore, arises for consideration is as to whether grandson will come within the purview of the definition of family so as to entitle him to claim appointment on compassionate ground in terms of circular letter dated October 12, 1987 particularly, in the facts and circumstances of the case. The Education Department of the State of West Bengal issued a circular letter dated October 12, 1987 as regards the matter relating to appointment on compassionate ground of a 'ward' of teaching and non-teaching Staff employed in the schools, the relevant clauses whereof are as follows: -
"The claim for employment on compassionate ground of the wards of Primary/Junior/ High/Secondary/Higher Secondary School teachers and that of the wards of the non-teaching employees attached to such educational institutions as aforesaid shall be restricted to 10% of the total vacancies occurring in a particular year in a district as of the exempted category.
The term 'ward' shall mean a son/a dependent daughter, the widow/the husband of the deceased teacher or of the deceased non-teaching employee. The ward shall apply for appointment on compassionate ground to the authority concerned immediately after the death of the teacher or of the non-teaching employees concerned.
In all cases where it is proposed to relax the conditions mentioned in paras five and six above the appointing authority shall refer the matter to the Government in the Education Department through the Director of School Education, West Bengal and the final decision in the matter will rest with the Government. "
The other circulars referred to by Mr. Roy having been issued by the Labour Department, in our opinion, have no application for any purpose whatsoever inasmuch as an aided school cannot be said to be a department of the State of West Bengal. In any event , the school being governed by the circular letters issued by the Education Department the concerned authorities are bound thereby and thus even according to the contention of Mr.Roy, the circular letters issued by the Labour Department will have no application in the instant case.
9. There cannot be any doubt that word, 'Family', as understood in common parlance may include the grandson. However, the questions posed in this appeal have to be considered from the legal aspect of the matter and not on the ground of equity and/or sympathy.
10. Articles 14 and 16 of the Constitution of India guarantee consideration of employment of all eligible persons. Nobody under the Constitution of India has a right to work but has a right to be considered for appointment. Clause 2 of Article 16 of the Constitution of India clearly stipulates that no citizen shall be eligible or discriminated against in respect of any employment. Appointment on compassionate ground is an exception to the said Rule. This aspect of the matter has been considered by the Supreme Court in Auditor General of India v. G.Ananta Ra-jeswara Rao reported in (1994-II-LLJ-812). In the said decision the Supreme Court of India struck down a rule in terms whereof appointment could be given to any relative apart from a son or a daughter. The Apex Court observed that a person who dies in harness and whose members of the family need immediate relief of providing appointment to get rid of economic distress from the loss of the bread-winner of the family need compassionate treatment. But all possible eventualities have been enumerated to become a rule to avoid regular recruitment. Exception to the mandate of Article 16 must be made permissible grounds. The Apex Court made clear that if the appointments are confined to the son/daughter or widow of the deceased Government employee who died in harness and who needs immediate appointment on grounds of immediate need of assistance in the event of there being no other earning member in the family to supplement the loss of income from the " bread winner to relieve the economic distress of the members of the family, it is unexceptionable. But in other cases it cannot be a rule to take advantage of the memorandum to appoint the person to these posts on the ground of compassion. It is, therefore, clear that the Apex Court has clearly held that appointment on compassionate ground may be made to the son/daughter or widow of the deceased Government] employee who died in harness. The question as to whether the writ-petitioner No.2's father is in a position to undertake the job or not is not required to be considered in this appeal inasmuch as even if the said assertion of the appellant No. 2 is correct, no relief can be granted to the petitioner in view of the aforementioned Supreme Court decision. Mr. Roy further submitted that in the said decision of the Supreme Court there did not exist any relaxation clause which exists in Clause 7 of the said circular. Clause 7 of the said circular has to be read along with other provisions thereof as also the provisions of the Constitution of India. If in view of the decision of the Supreme Court of India, a person other than widow, son or daughter cannot be given appointment as such an appointment would be violative of Article 16 of the Constitution of India, relaxation clause embodied in an executive instruction cannot override such an unsurmountable difficulty. In State of Haryana and Ors. v. 1. Umesh Kumar Nagpal and 2. Anil Malik. reported in (1995-I-LLJ-798) (SC) it was clearly held that mere death of an employee does not entitle his family to compassionate appointment and the authority concerned must consider as to whether the family of the deceased employee is unable to meet financial crisis resulting from the employee's death. It is also well known that the appointment on compassionate ground must be made in consonance of the Rule and not is deviation thereof. Reference in this connection may be made to and . Thus as no appointment can be given except in accordance with rules and except to the persons who are entitled thereto, an appointment cannot be granted to a grandson who does not come within the purview of the definition of the ward. It is now well settled that no appointment can be made in violation of the Recruitment Rules See 1995 (2) CLJ 255. At this stage it may be useful to refer to another decision of Hon'ble Supreme Court in LIC of India v. Asha Ramchandra Ambekar (1994-II-LU-173)at p 175 where Hon'ble Supreme Court observed as follows:-
"Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot confer benediction impelled by Sympathetic consideration. No doubt Shakespeare said in Merchant of Venice:
"The quality of mercy is not strain'd; it droppeth, as the gentle rain from the heaven upon the place beneath it is twice blessed; it blessth him that gives, and him that takes."
These words will not apply to all situations.Yielding to instinct will tend to ignore the cold logic of law. It should be remembered "law is the embodiment of all wisdom". Justice according to law is a principle as old as the hills. The Courts are to administer law as they find it, however, inconvenient it may be". The purpose and object of such appointment is not required to be reiterated as the same have been stated in Retail recently in 1995 Lab. IC 2549 (Dr. Sanan Kumar Johri v. Aligarh Muslim University and Anr.) and 1995 Lab IC 1598 (State of Orissa and Ors v. Joy Prakash Panda and Anr.).
11. In view of the aforementioned decisions of the Supreme Court of India as also of this Court, we cannot accept the submissions of Mr Roy that in the special facts and circumstances of this case, this Court can lay down a different connotation of the word, 'ward'.
12. It is true that the circular letters issued by the State of West Bengal have been issued for the prupose of conferring benefit upon the dependents but the same does not mean that a beneficient provision can be extended to a person who is not entitled thereto. If the intention of the legislature is clear and unequivocal, the Court, cannot give a different meaning only because the situation differs.
13. There cannot be any doubt whatsoever that a Court in a given situation may legislate, and thus, step into the shoes of the legislature. In Directorate of Enforcement v. Dipak Mahajan reported in AIR 1994 SC 1795, such an observation has been made, but the question of legislation by the Court would arise only where the legislation is obscure. In other words, the Court in a given situation, may interpret a statute in such a way so as to fulfill the object and intention of the legislature. It is now well known that the Court cannot re-write the statute, but; certainly can iron out the creases. There cannot' further be any doubt that in a case where two interpretations are possible, the Court should avoid an interpretation which would lead to hardship.
14. The aforementioned principle evidently has been evolved as it is presumed that by reason of an enactment the Parliament intends to do justice and avoid injustice. There cannot be any doubt that in a given case as has been submitted by Mr. Roy that the interpretation should subserve social and economic justice. However, reliance placed by Mr. Roy in the decision reported in 1993 Suppl. (4) SCC 100 is not applicable to the facts of the case. The Court while considering a matter relating to the grant of appointment on compassionate ground is primarily concerned with the policy decision of the State read in the context of the constitutional mandates as contained in Articles 14 and 16 of the Constitution of India. The Constitution has got to be given its due recognition. Where a statute or a policy decision of the State conflicts with and/or not in consonance with the principles embodied in the Constitution, the latter shall prevail, in as much as, in terms of Article 13 of the Constitution of India, Parliament is denuded from enacting any law, which would be violative of Part III of the Constitution of India and consequently, the executive is debarred from is suing any executive instruction in exercise of its jurisdiction under Article 162 of the Constitution of India which would not be in consonance with the provisions thereof. As indicated hereinbefore, the right relating to appointment is governed under Articles 14 and 16 of the Constitution of India. An appointment on compassionate ground is one of the exceptions as has been carved out by the Apex Court while interpreting Article 16 of the Constitution. Such a policy decision, therefore, must pass the test of reasonableness. According to the Apex Court itself, in the decisions referred to herein before, the doctrine of reasonableness would be satisfied only when the appointment on compassionate ground is confined only to wife, son and unmarried daughter, this Court in terms of the provisions laid down under Article 141 of the Constitution of India is bound by the decisions of the Supreme Court, as much decisions lay down the law of the land.
15. In view of the fact that the Supreme Court in the decision (supra)clearly held that apart from the wife, son and daughter, any other relative of the deceased employee would not be entitled to obtain appointment on compassionate ground, keeping in view the provision under clause (2) of Article 16 of the Constitution of India, the decision of the Supreme Court cannot be avoided only in a different fact situation. This aspect of the matter has been considered by me in Biswajit Sarkar v. State of W.B. and Ors. (C.O. No.4475(W)/95) disposed of on May 19,1995 wherein it was categorically held that a grandson is not entitled to appointment on compassionate ground. In that case I had taken into consideration the decision of the Supreme Court in Yogender Pal Singh v. Union of India , Shankar Motiram Nale v. Shiolal Sing Gamming Rajput reported in 1994(2) SCC 752 (supra) and . Moreover, no case has been made out by the petitioners that the father of the petitioner No. 2 is not in a position to do any work at all. As a matter tact, the nature of handicap, the extent thereof, have not been stated in the certificate appended to the writ application. Handicapped persons are also in a position to work and, therefore, in absence of such dates, it is not possible for this Court to come to a finding that the father of the petitioner No. 2 is not in a position to work at all.
16. So far as the second submission of the learned counsel to the effect that the petitioner " having been appointed as far back as on December 11, 1989, is entitled to be regularized in service is stated to be rejected. This Court as also the Supreme Court of India in various decisions have categorically held that regularisation is not a mode of appointment. Reference in this connection may be made to the case of Jaga Krian Sinha v. Assistant Commissioner, Kendriya Vidyalaya Sangathan, reported in 1996 Lab. IC 231. Similar decision has been rendered by this Court in the cases reported in 1996 Lab IC 28, 1995(2) CLT 302, 1995(2) CLJ 255, 99 CWN 440; 1995 (2) SLR 670, SK, Jamalud-din v. State of West Bengal and Ors. reported in 1995 Lab IC 1853 and various unreported decisions of this Bench. This aspect of the matter has also been taken into consideration in the case of Ashok Kumar Pal v. State of West Bengal (C.O. No. 4244(W) of 1995) disposed of on. April 25,1995 reported in 1995 Lab. IC NOC 319. This aspect of the matter has been also considered recently by the Supreme Court in the case of Jammu & Kashmir Public Service Commission & Ors v. Dr. Narinder Mohan reported -in (1994-I-LLJ-780),
17. The Apex Court has further stated the law clearly that those who enter through the back door must go by that door. Reference in-this connection ,may also be made to the decision . The submission of Mr.Roy to the effect that the action of the respondents in terminating the service of the petitioner would be hit by the doctrine of acquiescence is stated to be rejected, in as much as, such procedural rules cannot have any application whatsoever when the same is against a mandatory provision of the statute. It is not in dispute that the Director of School Education in, exercise of his jurisdiction conferred upon him under the provisions of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided), 1969 have laid down the recruitment rules. A teaching or a non-teaching staff must be appointed in an aided school strictly in accordance with the provisions of the said recruitment rules. On the petitioner's own showing, he filed an application before the Managing Committee and the said Committee appointed him. This Court in a recent decision in Ram Saran Shastri v. State of West Bengal reported in 1995(1) CHN 419 categorically held that appointment de hors the stature is a nullity and no contract of employment can be enforced by taking recourse to the writ jurisdiction of this Court when the service of such a person granted to him by the Managing Committee of the school is not protected by any statute.
18. We are also not in a position to accept the submission of Mr. Roy to the effect that the petitioner has obtained a fundamental right to continue to work in view of Article 21 of the Constitution of India. The decisions referred to by the learned counsel in the cases reported in Olga Tellis v. Bombay Municipal Corporation (supra) and and have no application whatsoever in the instant case. There cannot be any doubt whatsoever that the word 'life includes an employment but such employment must be validly acquired. The Apex Court stated the law that a person who has been validly appointed cannot be subjected to the whims and caprice of he employer when such conditions of service are governed by statute. It is in those situations, it has been held that when a person is employed by a State, his service, being protected under Article 21 of the Constitution of India , cannot be taken away and/or terminated by taking recourse to hire and fire theory. The provision to terminate the service of an employee of the State must thus be governed in terms of a statute which passes the test of reasonableness. The third submission of Mr. Roy that even in equity, the petitioner is entitled to get an employment cannot be acceded to for more than one reason. Although we have all the sympathies for the petitioners in the event their assertions are correct, it is now well known that a sympathy cannot override the rule of law. In Latham v. Johnson & Nephew, reported in 1911-13 All E.R. Rep. 117 at page 123 it is stated:
"We must be careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will V the wisp to take as a guide in the search for legal principles."
19. The aspect of the matter has also been considered in G. Kalyanaundaram's case reported in 71 FLR 1013 at page 1021 and 1995 Lab. IC 2425. It is unnecessary to multiply decisions on this point, in as much as, it is now well settled that although a Court should impart ] justice keeping in view the dictum that ends of justice is higher than the law but justice must be administered in accordance with law, and not otherwise. It is pertinent to mention that recently the Superme Court while interpreting Article 142 of the Constitution of India which confers a very wide power has stated that even jurisdiction under Article 142 cannot be exercised in violation of the statue. Reference in this connection may be made to the decision (Bonkya v. State of Maharashtra).
20. For the reasons aforementioned, we do not find any merit in this appeal which is accordingly dismissed, but we will hope and expect that the case of the petitioner No. 2 in the event the vacant posts are to be filled up, shall be considered along with other eligible candidates strictly in accordance with law and in the event the petitioner is selected, his age bar; if any, shall be condoned. Before parting with this case, we may, however, observe that adhocism should come to an end in the event there exists two vacant posts as has been asserted by Mr. Roy we have no doubt in our mind that the concerned authorities including the District Inspector of Schools (SE), Burdwan and the Managing Committee of the school shall take early steps for filling up the posts in terms of the recruitment rules.
Satya Narayan Chakrabarty, J
21. I agree.