Calcutta High Court (Appellete Side)
Mr. Rammohan Chatterjee ... For The vs Raj Kumar on 15 May, 2013
1
15.05.2013 F.M.A. 49 of 2013
41 with
skc/sd C.A.N. 8213 of 2012
Mr. Bhaskar Mitra
Mr. Rammohan Chatterjee ... for the appellants
Mr. Ashok Kumar Janah ... for the respondents
We have decided to dispose of the present appeal with the consent of the parties by dispensing with all the formalities.
We have heard the learned counsel appearing on behalf of the parties at length.
Heard on the question of facts.
The intra-court appeal has been preferred questioning the legality of the order passed by the Single Bench directing compassionate appointment to be made to the married daughter, Swati Bose (Ghosh), of the deceased employee.
The father of the writ petitioner, Swati Bose, was an employee of West Bengal State Electricity Board. He died on 13th March, 2004. On his death, his son applied for the post on compassionate ground and when he was called for interview, he declined the appointment and at the same time the married daughter i.e. the petitioner prayed for compassionate appointment. The prayer had been turned down on 16th October, 2008 by the West Bengal State Electricity Board. The said order was questioned by filing the writ application in the year 2010. The writ application has been allowed by the Single Bench by the impugned order. It has been held that the married daughter was also entitled to have the compassionate appointment on the basis of her qualification and the respondents/employer had been directed to consider the case of the petitioner and to give appointment to her within a period of ten weeks from the date of communication of the order.
Aggrieved by this order, the intra-court appeal has been preferred. The learned counsel appearing on behalf of the appellants has submitted that Annexure 'P-8' was the policy which was in vogue on the date of the consideration of the case of the petitioner. The policy was framed on 4th April, 2008 and for cases prior to 6th June, 2005 it was specifically decided in the aforesaid policy decision that with respect to appointment on compassionate ground prior to 6th June, 2005, the same shall be dealt with as per provisions laid down in the Government Notification No.301-303 dated 21st August, 2002 subject to availability of vacancies only as well as subject to provisions of restrictions made in A and B hereinafter based on enquiry report and recommendations already available otherwise on fresh enquiry. Rider 'B' provides that the term 'dependant' under the aforesaid purpose shall be prior to 6th 2 June, 2005 cover widow, son, unmarried daughter, widow daughter, dependant brother, unmarried/widow sister who are economically dependant on the earning of the deceased/the affected employees. It did not cover the cases of the married daughter.
The learned counsel appearing on behalf of the appellants has relied upon the decision of the Hon'ble Apex Court in the case of State Bank of India and another vs. Raj Kumar, (2010)11 Supreme Court Cases 661 and the Division Bench decision of this Court in the case of Durgapur Project Limited and another vs. Kumari Purnima Bhui and another.
The learned counsel appearing on behalf of the respondent no.1 has submitted that the case was required to be considered in terms of the notification dated 21st August 2002. Considering the same, the expression 'daughter' was used in the policy and as such married daughter was also included within the purview of the dependants and the Single Bench is right in directing the compassionate appointment to be made as directed. He has also relied upon the preamble of the Constitution that "economic justice" should not be deprived and the appeal should be dismissed on humanitarian ground and the order providing compassionate appointment be upheld. In view of the subsequent event of divorce which had taken place in the year 2010, it was submitted there is no support available to the daughter now, as such the learned counsel prayed that no case for interference is made out in the facts of the instant case.
After hearing the learned counsel appearing on behalf of the parties, the first question for consideration is whether the rider imposed in the policy dated 4th April, 2008 of the West Bengal State Electricity Distribution Company Limited would regulate the policy of compassionate appointment which was issued on 21st August, 2002 by the Labour Department, Government of West Bengal. Rider 'B' had been introduced in the policy of the compassionate appointment vide order dated 4th April 2008, which is as follows:
"B. No employment would however be considered in the following circumstances:
i) if the death or permanent incapacitation occurs within the preceding two years of scheduled date of retirement on superannuation;
ii) Where any dependant of the deceased/affected employee is already in employment under this organization irrespective of mode of securing such employment; and
iii) Where dependant have already been paid monetary compensation in lieu of employment.3
The term "dependant" for the above purpose shall prior to 06.06.2005 cover widow, son, unmarried daughter, widow daughter, dependant brother, unmarried/widow sister who are economically dependant on the earning of the deceased/the affected employees."(emphasis supplied) The term dependant had been re-defined as exclusively to unmarried daughter. The policy, which prevailed in the year 2002, defined dependants as thus:
"Dependants of employees dying in harness: A solely dependant wife/son/daughter/near relation of an employee who dies in harness leaving his family in immediate need of assistance.
A near relation of the deceased employee may be considered for employment on compassionate ground only when the son/daughter/wife of the deceased employee cannot be considered for employment owning to minor age or other disabilities. In such a case the employment of a near relation of the deceased employee may be considered only for providing assistance immediately needed by the family left behind by the deceased"..
It is apparent from the policy dated 21st August, 2002 that the dependant of the employees dying-in-harness included the dependant daughter but married daughter could not be said to be dependant daughter on the earning of the deceased employee, neither she could be treated as member of the family of the deceased. She belongs to a completely separate family and apart from that the aforesaid Rider has been added excluding married daughter from the purview of the dependant in the cases of employees died before 6th June, 2005. In the instant case, the employee has died before 6th June, 2005. Thus, the Rider imposed vide order dated 4th April, 2008 cannot be ignored.
In the light of the decision of the Hon'ble Supreme Court in the case of State Bank of India and Another vs. Raj Kumar (supra) wherein the question has been taken into consideration on compassionate appointment, it has been held by Their Lordships that appointment under scheme can only be made if scheme is in force and not after it is abolished/withdrawn. Any pending application seeking appointment under abolished scheme will also cease to exist, unless saved. There can be no immediate or automatic appointment merely on an application. Further, where earlier scheme is abolished and new scheme only which replaces it specifically provides that all pending applications will be considered only in terms of new scheme, then new scheme alone will apply. Therefore, all pending applications will be considered under the new scheme and new scheme alone will apply even in respect of pending applications. It was held by the Hon'ble Supreme Court that the respondent 4 was not entitled to be considered for compassionate appointment as per his applications under the old scheme. The Apex Court has laid down thus:
8. It is now settled that appointment on compassionate ground is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant.
12. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, up to the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable.
16. In this case the employee died in October 2004, the application was made only in June 2005. The application was not even by the respondent, but by his mother.
Therefore, it was necessary to ascertain whether the respondent really wanted the appointment, whether he possessed the eligibility, and whether any post was available. Within two months of the application, the new Scheme came into force and the old Scheme was abolished. The new scheme specifically provided that all pending applications will be considered under the new Scheme. Therefore it has to be held that the new Scheme which came into force on 4-8-2005 alone will apply even in respect of pending application.
20. The respondent was not entitled to be considered for compassionate appointment. The High Court was not justified in quashing the communication dated 31- 1-2006 or in directing reconsideration of the case of the respondent for compassionate appointment.
21. We therefore allow this appeal in part as follows:
5(i) The orders of the learned Single Judge and he Division Bench are set aside.
(ii) The respondent and/or his family may file a fresh application under the new Scheme, as directed by the Bank in its letter dated 31.1.2006.
(iii) The appellant Bank is directed to process such application under the new scheme, if and when made, and pay the lump sum ex gratia amount due in terms of that scheme, to the beneficiaries, within four months of the receipt of the application.
The Division Bench of this Court has also taken a view in the case of Durgapur Projects Limited and Another vs. Kumari Purnima Bhui and Ors. ( Supra) decided on 22nd February, 2013. The decision of the Hon'ble Supreme Court in State Bank of India and Anr. vs. Rajkumar (Supra) has been followed. Further decision has also been referred to by the Apex Court in the case of State of Chhattisgarh & Ors. Vs. Dhirjo Kumar Sengar, (2009) 13 SCC 600 laying down that compassionate appointment is exception to the general rule and that can be provided only in terms of the scheme. The Apex Court has laid down the principles governing the compassionate appointment thus:
"13. The Government of Madhya Pradesh had adopted a scheme for appointment on compassionate ground which was circulated to all concerned in terms of a Letter dated 10.06.1994, stating:
If any government servant dies in harness then either his widow or his legal children (which includes the stepson/daughter also? Would be made available service. Service wouldn't be made available to any other member or relative'.
The nephew of the deceased employee, therefore, was ineligible for grant of such appointment. The appointment, however, was offered to the respondent without taking into consideration that he had not been able to establish his relationship with the deceased or that he was in fact totally dependant on him".
In the case of State of Haryana & Anr. vs. Ankur Gupta, (2203) 7 SCC 704, it has been held that the Court cannot rewrite the policy of compassionate appointment.
From the aforesaid decisions, it is apparent that the policy, which prevailed on the date of consideration i.e., 16th August, 2008 as notified on 4th April, 2008 did not include married daughter, as such compassionate appointment could not have been offered invoking compassion. Though the submission has been made for appointment on humanitarian/compassionate ground and on the ground as economic justice has 6 been done, we are not impressed by the submissions made by the respondents and it is not for the court to rewrite such policy of compassionate appointment and direct the appointment on compassionate ground, which is an exception to the general rule of appointment from the open market. Thus, the Court has to go by the policy only and it is not for the Court to direct compassionate appointment to be offered. The Court cannot frame policy and it is not for the Court to direct to give appointment, de hors the policy.
Accordingly, the impugned order cannot be allowed to sustain and is hereby set aside.
The appeal is, thus, allowed. Consequently, the application for stay is disposed of.
There shall be no order as to costs.
(Joymalya Bagchi, J) (Arun Mishra, Chief Justice)