Calcutta High Court (Appellete Side)
Samim Ahmed vs The State Of West Bengal & Others on 13 July, 2015
Author: Ishan Chandra Das
Bench: Ishan Chandra Das
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10 13.07.2015. M.A.T. 1033 of 2014
BD with
CAN 5986 of 2014
Samim Ahmed
Vs
The State of West Bengal & Others
Mr. Ekramul Bari,
Ms. Tanuja Basak.
... For Appellant
Mr. Kamalesh Bhattacharya.
... For DPSC
Mr. Sadhan Halder,
Mr. K. M. Hossain.
... For State
Re: Application for Stay (CAN 5986/2014).
This application has been filed in connection with
the appeal preferred from the judgment and order dated
15th July, 2013 whereby a learned Judge of this Court
dismissed the writ petition filed by the appellant herein
on merits upon rejecting the claim for compassionate
appointment.
From the records it appears that the mother of
the appellant died in harness on 5th January, 2004
leaving behind her aged husband, one daughter and
two sons including the appellant herein. There is no
dispute that the mother of the appellant was sole
earning member of the family and the entire family was
completely dependent on the income of the deceased
teacher, namely, the mother of the appellant herein.
Immediately after the death of the teacher concerned,
namely, the mother of the appellant herein, a
representation was submitted on 3rd March, 2004 by
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the appellant to the Chairman, District Primary School
Council, North 24 Parganas claiming employment on
compassionate ground.
The said application was thereafter processed by
the concerned authority and after a lapse of almost
three years, i.e. on 1st August, 2007 the Chairman,
District Primary School Council, North 24 Parganas
asked the appellant/petitioner to submit family
particulars and the same was duly supplied by the said
appellant. The appellant/petitioner herein submitted
one income certificate issued by the local panchayat
pradhan wherein it has been mentioned that the total
income of the family of the appellant/petitioner from all
sources was Rs. 1,08,000/- per annum. The Sub-
Inspector of Schools, Swarupnagar Circle, North 24
Parganas by the written communication dated 26th
August, 2010 informed the appellant/petitioner about
the rejection of his prayer for appointment on
compassionate ground by the Director of School
Education concerned. Challenging the said decision a
writ petition was filed earlier before this Court by the
appellant/petitioner herein and a learned Judge of this
Court ultimately quashed the earlier decision of the
Director of School Education and remand the matter to
the said Director of School Education, Government of
West Bengal for taking a de novo decision in accordance
with Rules and guidelines governing the appointment
on compassionate ground under died in harness
category within a prescribed time limit. Ultimately, the
Director of School Education, Government of West
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Bengal decided the matter afresh and communicated
the same to the appellant/petitioner by the memo dated
16th November, 2011 rejecting the claim of the
appellant/petitioner for appointment on compassionate
ground, inter alia, on two grounds, firstly, the income of
the family is higher than the salary of Group-D
employee, which is not permissible as per Rule 14 of the
West Bengal Primary Teachers Recruitment Rules, 2001
and secondly, the financial hardship of the family was
not accepted on the basis of the income certificate
issued by the Sabhapati of panchayat samity.
Another writ petition was filed by the
appellant/petitioner herein challenging the aforesaid
decision of the Director of School Education in W.P.
3998 (W) of 2012 and the said writ petition was
ultimately disposed of by a learned Judge of this Court
on 22nd March, 2012 whereby the said learned Judge
directed the Director of School Education, Government
of West Bengal to take a decision on the application for
compassionate appointment submitted by the
appellant/petitioner herein on the basis of Rule 14 as it
existed in the year 2004 and for such purpose an
enquiry was also directed to be conducted in
accordance with law.
The Commissioner of School Education,
Government of West Bengal by the reasoned order
dated 2nd November, 2012 again rejected the prayer of
the appellant/petitioner for compassionate appointment
upon holding that the family of the appellant/petitioner
cannot be said to be financially distressed upon
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considering the financial condition of the said family.
The relevant extracts from the aforesaid order passed
by the Commissioner of School Education, Government
of West Bengal, Government of West Bengal are set out
hereunder :
"From the 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)/- = 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 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."
Challenging the aforesaid order of rejection
passed by the Commissioner of School Education again
a writ petition was filed before this Court being W.P.
17245(W) of 2013 which was finally decided by the
impugned judgment and order under appeal passed by
the learned Single Judge on 15th July, 2013. The
learned Single Judge approved the impugned decision
of the Commissioner of School Education placing
reliance on the following decisions of the Hon'ble
Supreme Court:
(1) Mumtaz Yunus Mulani vs. State of
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Maharashtra & Others reported in (2008)
11 SCC 384 and
(2) Union of India & Another vs. Shashank
Goswami & Another reported in AIR 2012
SC 2294.
We fail to understand how the aforesaid
decisions would be relevant in the facts of the present
case. In the case of Mumtaz Yunus Mulani vs. State of
Maharashtra & Others (Supra) the Hon'ble Supreme
Court refused to grant any relief upon considering the
special facts which have been summarised in the
aforesaid decision as hereunder :-
"16. In this case, the respondent is a
charitable institution. It is run on government aid. It cannot afford to appoint persons in a post which has not been sanctioned. It has not been denied or disputed that one Arun Uttareshwar has already been appointed in place of the deceased husband of the appellant. It does not matter as to whether the said appointment has been approved by the State or not inasmuch as it it has not been done, on the basis of the policy decision contained in its Resolution dated 21-12-2002 the same cannot be considered to be of much significance, particularly, in view of the fact that the appellant's husband died as far back as on 6-9- 1996 and the vacancy had been filled up in the year 1997.
17. Furthermore, about twelve years have passed. The appellant's son is aged about 20 years and daughter is aged about 16 years. Therefore, they have become major. The appellant herself would be aged about 38 years now. She cannot be given any appointment at this age."
In the case of Union of India & Another vs. Shashank Goswami & Another (Supra) the Hon'ble Supreme Court approved the refusal of the claim for 6 compassionate appointment for receiving retiral/terminal benefits exceeding Rs. 3 lakhs which made the claimant ineligible for any compassionate employment under the scheme. The relevant paragraph of the aforesaid decision is set out hereunder :
"5. In view of the fact that, in the instant case the retiral/terminal benefits has been received by the family exceeding Rs. 3 lakhs, respondent No. 1 is not eligible to be considered for the Group 'C' post."
Therefore, the aforesaid decisions of the Hon'ble Supreme Court are clearly distinguishable in the facts of the present case.
Mr. Bari, learned counsel representing the appellant/petitioner relies on a decision of the Hon'ble Supreme Court in the case of Balbir Kaur & Another vs. Steel Authority of India Ltd. & Others reported in (2000) 6 SCC 493.
In the case of Balbir Kaur & Another (Supra), the Hon'ble Supreme Cout has specifically held :
"8. ...... The socialistic pattern of society as envisaged in the Constitution has to be attributed its full meaning. A person dies while taking the wife to a hospital and the cry of the lady for bare subsistence would go unheeded on a certain technicality."
"13. ... The sudden jerk in the family be reason of the death of the breadearner can only be absorbed by some lump-sum amount being made available to the family - this is rather unfortunate but this a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the breadearner, but 7 that would undoubtedly bring some solace to the situation."
Undisputedly, the aforesaid decision of the Hon'ble Supreme Court is still valid and operative since the same has not been overruled by any subsequent decision of the Hon'ble Supreme Court.
In view of the aforesaid decision of the Hon'ble Supreme Court in the case of Balbir Kaur & Another (Supra), we are of the opinion that the claim of the appellant/petitioner for compassionate appointment should not be rejected only on the ground of disbursement of terminal benefits and pension to the family members of the deceased employee. The learned Single Judge, in our opinion, has committed an error by not following the decision of the Hon'ble Supreme Court in the case of Balbir Kaur & Another (Supra).
For the aforementioned reasons, we set aside the impugned judgment and order under appeal passed by the learned Single Judge on 15th July, 2013 in W.P. 17245 (W) of 2013 and direct the respondent authorities to take appropriate decision with regard to the claim of the appellant/petitioner for compassionate appointment without taking note of the disbursement of the terminal benefits and/or pension to the family members of the deceased employee.
Since a considerable time has passed, we direct the respondent authorities specially the respondent no. 2 to pass appropriate order upon considering the claim of the appellant/petitioner for appointment on compassionate ground without any further delay and 8 positively within a period of three weeks from the date of communication of this order and communicate the same to the Chairman, District Primary School Council, North 24 Parganas, the respondent no. 4 herein immediately thereafter. The said respondent no. 4 will thereafter issue the formal appointment letter to the petitioner within two weeks from the date of receiving the order of approval from the respondent no. 2 herein.
With the aforesaid observations and directions, we dispose of both the application as well as the appeal upon treating the said appeal as on day's list.
In the facts of the present case, there will be no order as to costs.
(Pranab Kumar Chattopadhyay, J.) (Ishan Chandra Das, J.)