Calcutta High Court (Appellete Side)
Avishek Mahato vs The State Of West Bengal And Ors on 20 March, 2019
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Moushumi Bhattacharya
W. P. No. 5417 (W) of 2018
Avishek Mahato
Vs.
The State of West Bengal and Ors.
For the petitioner : Mr. Lal Ratan Mondal, Advocate
Mr. Dilip Kumar Sadhu, Advocate
Mr. Deb Sankar Das, Advocate
For the State : Mr. Joytosh Majumder, Advocate
Mr. Avishek Prosad, Advocate
Heard on : 06.02.2019, 21.02.2019, 26.02.2019,
28.02.2019, 05.03.2019, 07.03.2019.
Judgement on : 20.03.2019
Moushumi Bhattacharya, J.:
The petitioner has prayed for an appointment under the exempted category on compassionate considerations.
2. The basis of such prayer is the demise of the petitioner's father on 7th April, 2005, one Pasupati Mahato, who was the teacher-in-charge in Bandwan Banjora High School, Purulia during his service. Immediately upon Pasupati Mahato's demise, his wife (the petitioner's mother), Kanika Mahato, submitted an application dated 14th May, 2005 before the District Inspector (DI) requesting that her name be empanelled in the relevant category until her sons attain majority for being considered for an appointment to the post. This application was forwarded by the school along with relevant documents to the DI on 5th June, 2005 for necessary action. The petitioner's mother also submitted other documents including a legal heir certificate issued by the Panchayat which indicated that as in May/June 2005, the petitioner was a minor. Upon attaining majority, the petitioner made a representation to the District Inspector on 11th August 2017 and to the Additional District Inspector (ADI) on 14th July 2017 requesting that the petitioner be empanelled under the exempted category for appointment. Similar letters were sent by the petitioner to the District Magistrate, Purulia on 13th October 2017 and 4th December, 2017. Since the petitioner did not get any response from the authorities the petitioner made an application under The Right to Information Act, 2005 on 18th January, 2018 for ascertaining whether his application has been considered for the exempted category. In response to such application, the District Magistrate, Purulia requested the DI on 31st January, 2018 to supply the required information directly to the petitioner within the time frame as stipulated under the Act. By a letter dated 23rd February, 2018, the DI informed the petitioner that the former is not in a position to determine whether an application for appointment in "die- in-harness" category will be treated as exempted category or not.
3. Learned counsel appearing for the petitioner relies on a notification of the Department of Labour, Government of West Bengal published on 21st August 2002 issued by the Principal Secretary to the State Government under the West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999, under which, according to counsel, the petitioner is entitled to be employed under "exempted category".
4. The main objection taken by learned Government Pleader appearing for the State is that the petitioner applied for appointment in the exempted category on 11th August 2017, which is twelve and half years from the death of the petitioner's father. Counsel submits that the petitioner attained majority in 2009 which would be evident from the date of birth of the petitioner indicated in the Admit Card for the West Bengal Board Madhyamik Parikha (Secondary Education) for the year 2006 which is 11th June, 1991. It is also submitted that the notification dated 21st August, 2002 applies to the labour department and has no relevance for appointments in relation to Education matters. Counsel relies on a Notification dated 9th July 2009 under the provisions of the West Bengal School Service Commission Act, 1997 Chapter-IV Schedule 5 of which provides for the selection, procedure and manner of application for appointment on compassionate ground. The relevant part of Rule 1 of Schedule 5 is set out below:-
"1. When a Teacher or non-teaching staff dies in harness before the date of his superannuation, i.e. the age of 60 years, leaving a family which is, in the opinion of the District Inspector of Schools (Secondary Education), in such extreme financial hardship that it fails to provide two square meals and other essentials to the surviving members of the deceased teacher's family, the-
(i) Spouse;
(ii) Son;
(iii) Daughter
of the deceased Teacher or non-teaching staffs family who is possessing required educational qualifications as laid down in Schedule I for the posts of Clerk or Group 'D' staff and unemployed and not below 18 years of age and not above 45 years of age may, within two years from the date of such death, make an application in writing to the District Inspector of Schools (Secondary Education) for appointment as non-teaching staff on compassionate ground:
Provided that only one member of the family of the deceased teacher may be appointed under the provisions of this sub-rule."
5. Counsel further relies on a decision of a larger Bench of this Court in Piali Saha Vs. The State of West Bengal reported in (2013) 1 CHN CAL 13, where one of the questions framed for the reference was whether an applicant seeking appointment on compassionate ground under the death in harness category who was a minor at the time of death of the concerned teacher or was a minor at the time of making the application within the statutory time frame of two years, has a legal right to be considered for such appointment as a minor. The second question framed was whether on attaining majority, a subsequent application can be held as a continuing process notwithstanding the fact that such application was made after the statutory period of two years? Referring to several authorities of this court and the Hon'ble Supreme Court, the Court was pleased to answer the questions in the following manner;
"If the period which has not been contemplated in the Rule intending to create a right cannot be extended by the Court. In other words when the legislature has fixed a time limit in relation to substantive law the Court cannot taking the task of legislature extends time limit, simply it amount to amendment of Rule. The Court cannot have any amending power of the legislation.
Under those circumstances as Supreme Court has been pleased to observe in the case quoted above the aforesaid rule is a mandatory in character, we answer the aforesaid questions in the manner as follows:
The time fixed in the said Rule is a rigid, subsequent application after attaining majority is not a lawful application and the same cannot be said to be a continuing process. Now we send down the writ petition for assigning finally taking note of our decision."
6. Counsel further relies on Sanjay Kumar Vs. State of Bihar reported in (2000) 7 SCC 192 for the proposition that a vacancy cannot be kept reserved till such time a petitioner becomes a major unless there are specific provisions and further that the very basis of compassionate appointment is to see that the family gets immediate relief.
7. At this point, a brief narration of the law as settled by several decisions on appointment on compassionate grounds may be relevant to understand the considerations which weighed with the courts in such matters. In Shreejith L. Vs. Deputy Director (Education) Kerala reported in (2012) 7 SCC 248, the father of the respondent who had been working as the headmaster of a school died in harness on 27th of April 1995. The respondent no.1 was a minor at that time and attained majority on 8th May, 1995 and got married after that. On 21st of July 2007, the appellant before the Supreme Court was appointed as a peon in the concerned school and on 10 September 2007, the respondent claimed compassionate appointment. A Single Bench of the High Court directed the manager of the school to appoint the writ petitioner/respondent to the concerned school. The manager of the school filed an appeal before the Division Bench which was dismissed. Before the Supreme Court, the appellant argued that the application filed by the respondent was belated inasmuch as the application was made twelve years after the respondent attained majority and that the respondent had even got married which shows that the family did not face any real financial hardship which called for an appointment on compassionate grounds. The Supreme Court held that the application should have been made by the respondent within the time stipulated regardless of whether there was a vacancy and further that there was nothing on record to show that the family was in penury.
8. In Santosh Kumar Dubey Vs. State of Uttar Pradesh reported in (2009) 6 SCC 481, the Supreme Court considered whether employment on compassionate grounds could be asked for in a case of deemed death under Section 108 of the Evidence Act and held that the very concept of giving a compassionate appointment is to tide over the financial difficulties faced by a family for the sudden demise of the earning member of the family. The benefit is given so that the family can tide over the unexpected financial setback and the request for appointment should be reasonable and proximate to the time of the death of the bread earner. The Supreme Court made it clear that compassionate appointments cannot be treated as a right to get an appointment in Government service. In that case, the father of the appellant became untraceable in 1981 and the Supreme Court was of the view that the right to seek employment on compassionate ground could have been exercised in 1988, seven years after the petitioner's father became untraceable.
9. In General Manager, State Bank of India Vs. Anju Jain reported in (2008) 8 SCC 475, the Supreme Court explained that appointment on compassionate ground cannot be considered as a matter of right since such appointments are violative of the rule of equality guaranteed under Article 14 of the Constitution. The mandate of Article 14 is that appointment to a government or semi- government public office must be made on the eligibility criteria of all the candidates who are to be considered on an equal footing. Appointment on compassionate ground of a dependant of the deceased employee, on the other hand, is made so that the family of the deceased employee does not starve. It is thus an exception to the principle of equality and a concession in favour of the dependants of the deceased employee. In this case, the Supreme Court considered the question whether charges levelled against the deceased employee would be a relevant consideration for extending the benefit to a dependant of such employee.
10. In Food Corporation of India Vs. Raja Ram reported in (2010) 15 SCC 366, the Supreme Court considered the case of the family of a worker whose wife had predeceased him with a married daughter who was no longer dependent on the worker. Since the son was living separately and the workman died on 17th February 2001, the necessity of giving a compassionate appointment ceased to exist. The Supreme Court reiterated that appointment on compassionate grounds is a deviation from the normal rules of recruitment with the sole object of providing immediate financial relief to the dependents of a person who dies during his employment. The Supreme Court was of the view that compassionate appointments were conceived as a beneficial measure and not as a means of obtaining employment as a matter of course by avoiding the rules of recruitment which are applicable to others.
11. In Phoolwati Vs. Union of India & Ors.reported in (1991) Supp 2 SCC 689, the Supreme Court relying upon an earlier decision in Sushma Gosain Vs. Union of India ((1989) 4 SCC 468), reiterated that the purpose of providing appointment on compassionate ground is to mitigate the hardship due to the death of the bread earner of the family and that such appointment should be provided immediately to give relief to the family in distress. In that case the Supreme Court directed the Union of India to take immediate steps for employing the second son of the appellant in a suitable post commensurate with his educational qualification within a stipulated period of time. In Commissioner of Public Instructions Vs. K.R. Vishwanath reported in (2005) 7 SCC 206, the Supreme Court held that the claim of a person for appointment on compassionate ground is based on the premise that he was dependent on the deceased employee. Although such a claim cannot be upheld on the touchstone of Articles 14 or 16 of Constitution, such claim is considered as reasonable and permissible on the basis of a sudden crisis occurring in the family of an employee who has served the State and dies while in service. The Supreme Court was further pleased to hold that appointment on compassionate ground cannot be claimed as a matter of right and such schemes cannot be made applicable to all types of posts as held in State of Haryana Vs. Rani Devi ((1996) 5 SCC 308). After discussing various decisions pronounced on the subject, the Court held that appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. The Supreme Court further held that such appointments should be made immediately to redeem the family in distress. In Sanjay Kumar Vs. State of Bihar and others reported in (2000) 7 SCC 192, the Supreme Court considered the case of a petitioner who was a minor when his mother died in harness. The petitioner's first application, soon after the death of his mother, seeking compassionate appointment was rejected as time- barred. A fresh application filed was also rejected for the same reason. Both the learned Single Judge as well as a Division Bench of the High Court rejected the application of the petitioner. The Supreme Court rejected the contentions of the petitioner that an applicant's right cannot be defeated on the ground of delay caused by authorities which was beyond the control of the applicant. The court held that compassionate appointment is intended to enable the family of the deceased employee to tide over the sudden financial crisis due to the death of the bread earner. The Supreme Court held that there cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years unless there are some specific provisions in the Rules to that effect since the very basis of compassionate appointment is to see that the family gets immediate relief. The Supreme Court relied on Director of Education (Secondary) and another Vs. Pushpendra Kumar and others reported in (1998) 5 SCC 192 for arriving at this view. In Pushpendra Kumar, it was held that compassionate appointments are an exception to the general provisions and cannot subsume the main provision by taking away the right conferred by the main provision. Care has to be taken to ensure that such employments do not interfere with the right of other persons who are eligible for appointment which would have been available to them. In Union of India Vs. Bhagwan Singh reported in (1995) 6 SCC 476, upon considering the case of the respondent who had made three applications in 1987, 1990 and 1991 after his father died in harness in 1972, the Supreme Court held that the plea for compassionate appointment is not to enable the family to tide over the sudden financial crisis which resulted long ago. The fact that the wife and the two sons of the deceased were capable of meeting the needs of the family and did not apply for any job on compassionate ground for almost twenty years without any difficulty weighed with the Supreme Court in coming to the conclusion that the Central Administrative Tribunal acted without jurisdiction in directing the authorities to consider the case of the respondent for appointment on compassionate grounds and to provide him with an appointment if found suitable.
12. From the above cases, the principles which emerge with regard to consideration of appointments on compassionate basis is that the decision whether to direct employment of a surviving family member of the deceased employee essentially flows from a place of sympathy for the sudden misfortune befalling a family which loses its financial mainstay. The court in such cases intervenes to lessen the impact of such misfortune by ensuring the continuity of financial security even in the absence of the bread earner. Since the origin of such considerations is from a place of compassion, this would entail a conflict with the principles of a level-playing field and meritocracy in areas of employment to government posts. Inducting a spouse, son or daughter of a deceased teacher or non-teaching staff in this category would mean that the proposed inductee would be spared the rigors of a selection process under the relevant rules which are mandatory for all candidates. The Supreme Court has therefore repeatedly held compassionate appointments to be an exception to the principles guaranteed under Articles 14 and 16 of the Constitution of India. Second, since the starting point is one of sympathetic concern for the financial distress of a family in bereavement, the object is that financial help must be given at a time when the family suffers the impact of the sudden demise of its earning member. This would be the time when the teacher dies in harness and the family of the deceased needs immediate help to tide over the crisis. The principal enunciated is one of effective financial assistance in the form of an appointment proximate to the time of demise and not an arbitrary conferment of benediction when a family has survived its darkest hour and managed to look after itself for a considerable length of time. Besides the decisions, one must also strive for a meaningful reading of the Rules framed by the School Education Department, Secondary Branch as published on 9th July 2009 (set out above). Although sub-rule 1 of Schedule V uses the expression "...............not below 18 years of age and not above 45 years of age may, within two years from the date of such death, make an application in writing....................", the Rule does not provide any window for enlarging the two years outer limit under any exceptions or special circumstances. This court is also bound by the decision of the larger Bench in Piali Saha where the court was of the view that a time limit fixed in relation to substantive law cannot be extended by a court since that would amount to an amendment of the concerned Rule. Without going into the other questions which were gone into by the court in that case, it was held that "if any particular member can surviving for a longer time without employment.........................we think that (the ) family does not deserve any employment on compassionate ground".
It may also be added that relaxing the time limit contemplated under Schedule V may result in an uncertain outer-limit within which such applications are to be made resulting in compassion becoming extremely subjective and peculiar to a case to case basis. Being an exception to the principles of equality and equal opportunity for all, the boundaries of compassion cannot be made dependent on the particular factual matrix and result in dilution of the framework of the Rules.
13. In the facts of this case, there are four important dates. The father of the petitioner died in harness on 7th April 2005; the mother of the petitioner submitted an application before the DI on 14th May 2005; the petitioner himself submitted a representation for registering the petitioner's name under exempted category on 11th August 2017. The petitioner was born on 11th June 1991. From the aforesaid, it is clear that the petitioner was 14 years old when his father died and attained majority in 2009. The petitioner, therefore, made the representation before the DI eight years after the petitioner became a major. It is evident that the family of the deceased including the petitioner, his mother and his brother managed to look after their financial needs for twelve years after the loss of their father. The issue is not one of adding the number of years beyond the two year limit as envisaged under the rule, but whether compassion should be shown in a case where a family makes no attempt to impress upon the authorities of an immediate need for financial help after the death of its sole earning member. This brings us to the letter written by the petitioner's mother to the DI on 14th May 2005 just over a month after the death of her husband. The request made in the letter is not that Kanika Mahato (the petitioner's mother) be given an appointment but that a post be kept reserved for one of her sons both of whom were minors at the time of writing the letter namely in 2005. This aspect was dealt with in Sanjay Kumar which concerned the case of a son of an excise constable who died in harness, making an application in 1988 for compassionate appointment. This application was rejected in 1996 as time-barred. A fresh application made sixteen days later was also rejected in 1997 for the same reason. The son (petitioner in that case) moved the High Court and then the Division Bench and approached the Supreme Court by way of a Special Leave Petition. The Supreme Court relying on Pushpendra Kumar, held that there cannot be reservation of a vacancy till such time that the petitioner becomes a major after several years, unless there are specific provisions to that effect. The court further observed that the very basis of compassionate appointment is to see that the family gets immediate relief. Although learned counsel for the petitioner has stressed on the fact of the application being made in 2005 by the petitioner's mother soon after the death of her husband and that this fact is relevant for the two years frame work under the relevant sub-rule, this court is unable to accept the said contention. It is evident from the representation made by the petitioner's mother that she had sought for a reservation of a suitable post till one of her sons attained majority and could be considered for compassionate appointment which was the very issue before the Supreme Court in Sanjay Kumar. What is relevant is that the petitioner waited for eight years after attaining majority, for reasons not explained in the writ petition. Moreover, reserving a place for future appointment of a minor son on compassionate grounds reinforces what the Courts have frowned upon; forcing an entitlement on a conferment of benediction which is an antithesis of sorts since a gift of kindness cannot be demanded as a right that is contingent on a future event.
14. This court is therefore of the view that the prayer of the petitioner for enlisting the petitioner's name under the exempted category under the relevant notification cannot be granted. It should also be noted that the communication dated 2nd January 1995 issued by the Joint Secretary of the School Education Department, relied upon by counsel for the petitioner, relates to "Primary Branch" with regard to appointment of wards of teaching and non-teaching employee of recognized non-government Primary / junior high secondary schools and the special circumstances provided under Clause 4 thereof, permitting applications beyond the expiry of two years from the death of the concerned teacher restricted to cases of serious illness or physical disability specifies the outer limit to be four years from the date of expiry of the concerned teacher. This communication therefore can be of no assistance to the petitioner.
15. W.P. 5417 of 2018 is accordingly dismissed without any order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Moushumi Bhattacharya, J.)