Calcutta High Court (Appellete Side)
Bireswar Manna vs The State Of West Bengal & Ors on 20 March, 2017
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
1
2017
W.P. 1132(W) of 2017
Bireswar Manna
Vs.
The State of West Bengal & Ors.
Mr. Piush Chaturvedi,
Mr. Ardhendu Sekhar Biswas
... For the Petitioner.
Mr. Pantu Deb Roy,
Mr. Subrate Guha Biswas
... For the State.
The petitioner files the present writ petition for a direction upon the respondent authorities to
give appointment to the petitioner on compassionate ground.
Mr. Chaturvedi, learned Advocate appearing for the petitioner submits that the petitioner's father died on 19th August, 2002 when he was working as a Secretary under the respondent No.7, the Prodhan, Bargachia-II Gram Panchayat. Immediately, thereafter the petitioner made an application in the year 2003 for giving appointment to the petitioner on compassionate ground but that was not entertained by the respondent authority on the ground that the application has not been made in proper form. Thereafter on 16th March, 2010, the petitioner filed an application in proper form for giving appointment on compassionate ground. Since the respondent authorities were sitting tight over the petitioner's application, therefore, earlier the petitioner approached before this Hon'ble Court thereby filing a writ petition being W.P. No. 18653(W) of 2015 for giving appointment on compassionate ground. That writ petition was disposed of by the Hon'ble Court on 26th July, 2016 thereby directing the O.S.D. and Ex-Officio Deputy Secretary, Panchyat to enquire about the vacancy position in respect of the post and to ascertain the vacancy position for the concerned District and to take all possible steps so that the petitioner can be accommodated. Ultimately, by the impugned order dated 20th October, 2016, the respondent authority, Special Secretary to the Government of West Bengal, Panchayats and Rural Development Department rejected the petitioner's prayer on the following grounds: 2
"It is pertinent to note that appointment on compassionate ground is offered in favour of a dependent & adult family member of the deceased employee of PRI who is in need of immediate financial assistance. It appears that the deceased employee had served for about 36 years 04 months and received full salary benefits in his service life. The service tenure completed by the employee was quite substantial and well over average service life of a Government employee. The quantum of death benefits amounting to Rs.3,53,465.00 received by the legal heir of the employee should have been adequate to overcome immediate financial distress and strain occurring at the material point of time. The offer for appointment on compassionate ground can never be a matter of right and such appointments are made without rigours of any competitive process. This is further worth noting that the total monthly interest @ 8% per annum on amount of death benefit is Rs.2356/-. It is seen that the total monthly income of the deceased family is Rs.11944.00(Pension : Rs.5588/- + Interest Rs.2356/- + Income of elder brother : Rs.4000 which is greater than the last salary drawn by the deceased employee, so it does not make him eligible for compassionate appointment in terms of the provisions as laid down in this department's Notification No.433/PN/OIII/2E-70/07(Pt-I) dated 03.02.2009."
Mr. Chaturvedi further submits that the petitioner's prayer for giving appointment on compassionate ground has been rejected by the respondent authority with a baseless ground that the total monthly interest at the rate of Rs.8 per cent per annum on the amount of death benefit that is to say Rs.2,356/-. Therefore, the total monthly income of the deceased family is Rs.11,944/- (pension Rs.588 + interest that is to say Rs.2,356/-) and the income of the elder brother is Rs.4,000/- which is higher than the last salary drawn by the deceased employee. So the petitioner does not make him eligible for appointment on compassionate ground. Mr. Chaturvedi further submits that wherefrom the authority got information that the elder brother of the petitioner is enjoying Rs.4,000/- is not clear to the petitioner. The petitioner's case is this that the elder brother is living separately from the petitioner's family. The petitioner being the younger son of his deceased father, he is looking after his mother. Moreover, both the petitioner and his mother are living together. Mr. Chaturvedi further submits that the pension as well as interest on pension is not a charity shown to the petitioner's family by the State authority. The pension is a property described under Article 300A of the Constitution of India and the interest accrued from the pension only the pension holder or the family pension holder can enjoy. The respondent being the authority have no right to enjoy the interest or the pension of the 3 petitioner's mother. Mr. Chaturvedi further submits the enjoyment of the pension shall not debar the petitioner to get the appointment on compassionate ground. If he is otherwise eligible that is to say by qualification as well as age. In support of his contention Mr. Chaturvedi relies on a Supreme Court's decision reported in (2015) 7 Supreme Court Cases page 412, paragraphs 20 and 21. Paragraphs 20 and 21 are quoted below:
"20. In Balbir Kaur v. SAIL, while dealing with the application made by the widow for employment on compassionate ground applicable to the Steel Authority of India, contention raised was that since she is entitled to get the benefit under Family Benefit Scheme assuring monthly payment to the family of the deceased employee, the request for compassionate appointment cannot be acceded t. Rejecting that contention in para 13, this Court held as under/SCC p.503) "13. ... But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by 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 is 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 that would undoubtedly bring some solace to the situation."
21. Referring to SAIL case, the High Court has rightly held that the grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The High Court also observed that it is not the case of the Bank that the respondents' family is having any other income to negate their claim for appointment on compassionate ground.
Before parting with his argument Mr. Chaturvedi submits that the impugned order cannot be sustained in the eye of law as well as in the facts and circumstances of the case. Accordingly, the impugned order should be set aside thereby directing the respondent authority to give appointment to the petitioner on compassionate ground.
Per contra, Mr. Deb Roy, learned Advocate appearing for the State respondents submits that since the monthly income of the petitioner's family is higher than the actual monthly salary of the deceased employee, therefore, the petitioner is not entitled to get any benefit under compassionate ground that is to say compassionate appointment. He further submits that the petitioner filed an application for compassionate appointment in proper form only in the year 2012 but the petitioner's father died-in-harness on 19th August, 2002 which clearly shows that the family was not in financial distressed condition. Mr. Deb Roy further submits that being the scenario, the petitioner is not entitled to get appointment on compassionate ground. Mr. Deb Roy 4 further submits that there is no infirmity or illegality and/or ambiguity in the impugned order dated 20th October, 2016 passed by the Special the Secretary to the Government of West Bengal, Panchayats and Rural Development Department which deserves interference by this Hon'ble Court.
Considering the submissions as advanced by the learned Advocate appearing for the parties and after perusing the records as well as the grounds taken in the impugned order dated 20th October, 2016 passed by the Special Secretary to the Government of West Bengal, Panchayats and Rural Development Department rejecting the petitioner's prayer to give appointment on compassionate ground, in my considered view cannot be sustained because it is the case of the petitioner that his elder brother never earned Rs.4,000/- per month which has been wrongly mentioned in the impugned rejection order. I also do not find any substance in the argument of Mr. Chaturvedi that the elder brother of the petitioner is living separately because from the document appears at page 40 of the writ petition wherefrom it reveals that the petitioner's mother on 12th September, 2013 wrote a letter to the District Panchayat and Rural Development Officer, Howrah thereby stating that she is having two sons and both sons are living with her. That being the scenario and considering the observations made above and also considering the decision of the Hon'ble Apex Court as relied on by Mr. Chaturvedi, in my considered view the grounds taken in the impugned order are not at all good ground to reject the petitioner's prayer for giving appointment on compassionate ground. Therefore, the impugned order dated 20th October, 2016 passed by the Special Secretary to the Government of West Bengal, Panchayats and Rural Development Department cannot be sustained in the eye of law as well as in the facts and circumstances of the case. Accordingly, the impugned order dated 20th October, 2016 passed by the Special the Secretary to the Government of West Bengal, Panchayats and Rural Development Department is hereby quashed and set aside. I direct the West Bengal, Panchayats and Rural Development Department to revisit the issue in the light of the observations as made above and also in the light of the Hon'ble Apex Court's decision as referred to above within eight weeks from the date of communication of this order after giving an opportunity of hearing to the petitioner or 5 his authorised representative and thereafter communicate the decision to the petitioner within one week.
With these directions, this writ petition is disposed of.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
( Samapti Chatterjee, J. ) s