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Showing contexts for: compassionate in (Gobinda Hazra vs State Of W.B. & Ors.) on 26 June, 2018Matching Fragments
Reading 301‐Emp. to 303‐Emp., together, the irresistible conclusion is that, the State Government had formulated a scheme for grant of compassionate appointment in the died‐in‐harness category. The notifications are of the Labour Department. The question is whether such notification applies to employees of the Municipalities or not.
The next notification is 97‐Emp. dated June 6, 2005. This notification is in exercise of the powers conferred under Section 3(c) of the Act of 1999. It specifies that, the criteria which a person seeking appointment on the ground of compassionate appointment in the died‐in‐harness category must fulfil. It requires the Labour Department, on receipt of the recommendation of the Nodal Committee considering the grant of compassionate appointment, to forward such application to any of the six committees noted therein. It does not require the approval of the Appointment Committee of the Cabinet for offering appointment in terms of such notification. The department governing Municipality is not specified in the notification dated June 6, 2005.
The subsequent notification is 251‐Emp. dated December 3, 2013 by which, the State promulgates a scheme for compassionate appointment for Government employees. It is called the West Bengal Scheme for Compassionate Appointment, 2013. There is no ambiguity in such notification, as it confines itself to a government employee only. 96‐Emp. dated April 28, 2015 addresses the question whether the provisions of 142‐Emp. dated November 1, 2007 should continue to be in effect consequent upon introduction of the West Bengal Scheme for Compassionate Appointment, 2013 introduced by 251‐ Emp. dated December 3, 2013 or not. It goes on to state that, there is no bar in implementing the provisions of 142‐Emp. dated November 1, 2007 for the purpose of extending compassionate appointment to the dependents of employees who died‐in‐harness or are permanently incapacitated.
In view of the discussions above, the second and the third issues are answered in the negative and against the petitioners.
Jaitra Acharya (supra) concerns an employee of West Bengal Essential Commodities Supply Corporation Limited. It notes that, in a reply to a query under the Right of Information Act, 2005, as to what rules are followed to govern employees of the corporation, the answer was that, the Government rules are followed by the corporation. Since the stand of the corporation was that the Government rules are applied to its employees, a scheme for compassionate appointment governing employees of the corporation was found. Consequently, the petitioner was found to be entitled to compassionate appointment since there was a scheme for grant of compassionate appointment for State Government employees. The fact scenario in the present case is absolutely different. The municipalities do not have a scheme for grant of compassionate appointment for their employees.
Sampa Podder (supra) is of the view that, there is no scheme for compassionate appointment for employees of municipalities. It considers some of the circulars governing the field. In AST 276 of 2014 (supra) did not consider the issues that fall for consideration in the present writ petitions. It is silent as to whether there subsists any scheme for grant of compassionate appointment to employees of a municipality. It directs grant of compassionate appointment upon receiving necessary order from the Directorate of Local Bodies, West Bengal. It does not decide any ratio. An order cannot be considered as a binding precedent. Ratio decidendi of a judgment is binding. It is the contention of the petitioners that, the State not having taken the point of absence of a scheme of compassionate appointment in AST 276 of 2014, the issue is no longer available to be raised on behalf of the State as the same is barred by the principles of constructive res judicata. Sha Shivraj Gopalji (supra) is a decision rendered in an execution proceeding of a decree. In the facts of that case, the point that the property is liable to attachment by reason of a statue was not taken in the earlier execution proceeding and, therefore, it was found that, it was not open to the decree holder at a later execution proceeding to question and plead that, under such statute, the property is liable to attachment. Res judicata is defined in Section 11 of the Code of Civil Procedure, 1908. Although the Code of Civil Procedure, 1908 is not attracted in a proceeding under Article 226 of the Constitution of India, the principles enunciated therein can be applied. For the principles of res judicata to apply, there must be identity of matter in issue and parties; the parties must be litigating under the same title; there must be concurrence of jurisdiction of the Court in seisin of the two proceedings and a final decision must be rendered in one of the two proceedings, for it to apply in the other proceeding. In the facts of the present cases, although the State is a party respondent in AST 276 of 2014 (supra) the same parties as that of the present writ petitions are not parties therein. It cannot be said that, the issues raised here are barred by the principles of constructive res judicata. Moreover, the petitioners cannot rely upon the decision of AST 276 of 2014 (supra) on the principles of negative equality. The petitioners cannot be allowed to obtain benefit of something which they are not entitled to receive, in law, on the foundational basis that, the State had granted compassionate appointment on earlier occasions either voluntarily or under orders of Court. It is the contention of the petitioners that, the State should be directed to formulate a scheme for compassionate appointment governing the municipal employees. Such a consideration is in the realm of executive action. A Writ Court need not enter therein.