Calcutta High Court (Appellete Side)
Purnima Das vs The State Of West Bengal & Ors on 19 March, 2014
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Biswanath Somadder
W. P. 33967 (W) of 2013
Purnima Das
Vs.
The State of West Bengal & Ors.
For the petitioner : Mr. Anjan Bhattacharya
For the State : Mr. Sadhan Roychowdhury
Mr. Aniruddha Sen
Heard on : 19.3.2014.
Judgment on : 19.3.2014.
Biswanath Somadder, J.
Let the affidavit filed in Court on behalf of the respondent nos. 1 to 8 be taken on record.
A rather unique issue, which falls for consideration in the facts and circumstances of the instant case is whether a prayer for compassionate appointment can be rejected by the concerned respondent authority, solely on the ground that the applicant happens to be a "married daughter".
In the instant case, the petitioner, being a "married daughter", applied for compassionate appointment under the 'died-in-harness' category. Her prayer was rejected solely on the ground that she, being a "married daughter", was not eligible for compassionate appointment, as per memo no. 433/PN/O/III/2E-70/07 (Pt-1) dated 3rd February, 2009. This memo, which contains the relevant notification that seeks to exclude "married daughters" from being considered as eligible for compassionate appointment, is now sought to be challenged by the petitioner in the instant matter.
Earlier, this Court had directed the State to file an affidavit stating therein specifically the rationale or logic behind exclusion of a "married daughter" from being considered eligible for compassionate appointment under the 'died-in-harness' category, notwithstanding the fact that financial hardship of the surviving family members being the most important criteria for such eligibility. The State was further directed to state in the affidavit as to whether a financially dependent daughter suddenly and automatically becomes financially independent, the moment she gets married and whether, likewise, such rationale or logic applies in case of a financially dependent son, upon his marriage.
An affidavit-in-opposition has been filed on behalf of the concerned State respondents and it is quite disappointing to note - upon perusing the same - that this Court's specific query has remained unanswered.
There cannot be any manner of doubt that 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).
The question, however, in the instant case is whether there is any rationale or logic behind exclusion of a "married daughter" from being considered eligible for compassionate appointment under the 'died-in-harness' category, notwithstanding the fact that financial hardship of the surviving family members being the most important criteria for such eligibility.
The State, in its affidavit, has merely stated that the Panchayats and Rural Development Department had issued the memo dated 3rd February, 2009, in pursuance of two notifications dated 6th June, 2005 and 2nd April, 2008, both issued by the Chief Secretary of Government of West Bengal in Labour Department, which were binding at the material point of time when the memo dated 3rd February, 2009, was issued.
So far as the notification dated 6th June, 2005, is concerned, its relevant portion is quoted hereinbelow: -
" ...For the purpose of appointment on compassionate ground in terms of this notification, a dependant shall mean spouse, a son or an unmarried daughter who was solely dependant on the earnings of the deceased or the retired employee."
Relevant portion of the notification dated 2nd April, 2008, is also quoted hereinbelow: -
"... 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 dependent on the Government employee."
No rationale or logic as to why the State seeks to exclude a "married daughter"
from being considered eligible for compassionate appointment under the 'died-in- harness' category is, however, revealed from a plain reading of the above. It is also noticed that the State has adopted a queer view while discriminating daughters of deceased employees vis-a-vis their sons. In case of a son, it does not matter to the State whether he is married at the time of making a prayer for compassionate appointment. However, in the case of a daughter, the State makes an unreasonable discrimination by excluding a married daughter from seeking appointment on compassionate ground.
As discussed hereinbefore, it is quite well settled in law that a sudden financial hardship/crisis engulfing dependent family members of a deceased employee is the most important criteria for consideration of a proposal for compassionate appointment. However, how a marital status of a dependant daughter could be a reason for her exclusion from seeking compassionate appointment, has not been spelt out, either in the notifications dated 6th June, 2005 and 2nd April, 2008, or in the affidavit filed on behalf of the State.
At this juncture, therefore, it is necessary to test the rationale or logic of such exclusion by way of an illustration.
Let us suppose that a male employee of the State dies today leaving behind an illiterate widow and two daughters, one of whom is a minor and the other, an educated adult, who is 21 years old and has just got married. If the intention of the State is to help the family of the deceased employee tide over the immediate financial crisis that has suddenly fallen on them upon death of the sole bread winner, it will have no option to engage either the illiterate widow or the minor daughter of the deceased employee. That leaves behind the adult elder daughter of the deceased employee who may have the requisite educational qualification. However, her only disadvantage would be that of her marital status. In such a factual scenario, if the concerned State authorities rely on the two notifications dated 6th June, 2005 and 2nd April, 2008, issued by the Labour Department, Employment Cell, Government of West Bengal, the very purpose for introduction of the scheme for compassionate appointment will get defeated. The only way out in such a factual scenario would be to give compassionate appointment to the married daughter of the deceased employee, who, upon being provided such compassionate employment, can easily look after her minor sister and her widowed mother.
It is also rather strange to take notice of the fact that while both the notifications dated 6th June, 2005 and 2nd April, 2008, seek to exclude a married daughter of a Government employee from being considered eligible to apply for appointment on compassionate ground, in case of a son, his marital status has been made inconsequential. In today's world, this is not only a chauvinistic and archaic approach towards the issue, it is also indicative of a gender insensitive and inflexibly myopic mindset of the draftsmen of the two notifications dated 6th June, 2005 and 2nd April, 2008. There is simply no rationale or logic for applying such dual standards. It is as if it has been taken for granted that only a son, irrespective of his marital status, can look after his parental family. That a married daughter can contribute in equal measure, if not more, to support her parental family, has simply been ignored or forgotten.
As such, there is an immediate need to revisit the issue, as sought to be highlighted above.
The writ petition is, therefore, disposed of with a direction upon the Chief Secretary, Government of West Bengal, to revisit the matter, in the light of the observations made hereinabove and issue an appropriate notification, which shall enure to the benefit of married daughters of deceased employees of the State - such as the writ petitioner - so that they can also be considered eligible to apply as dependant of a deceased employee, provided, of course, they fulfil all other eligibility criteria, as laid down.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) ap