Sri Partha Sarathi Manna vs The State Of West Bengal & Ors
2021 Latest Caselaw 4317 Cal

                          IN THE HIGH COURT AT CALCUTTA
                            Constitutional Writ Jurisdiction
                                    Appellate Side

Present :-   Hon'ble Justice Amrita Sinha

                               W.P.A. No. 5112 of 2019

                               Sri Partha Sarathi Manna

                                          Vs.

                            The State of West Bengal & Ors.


For the writ petitioner         :-    Mr. Balai Lal Sahoo, Adv.
                                      Mr. Kaustav Mishra, Adv.

For the College Authority       :-    Mr. Uttam Kr. Bhattacharyya, Adv.
                                      Mr. Ardhendu Nag, Adv.

For the State                   :-    Mr. Swapan Kr. Datta, Adv.
                                      Ms. Debjani Mitra, Adv.

Hearing concluded on            :-    11.08.2021

Judgment on                     :-    19.08.2021



Amrita Sinha, J.

The petitioner seeks compassionate appointment in the died in harness

category. The father of the petitioner was an employee of Pingla Thana

Mahavidyalaya who died in harness on 16th December, 2007. Due to non-

consideration of his prayer for being appointed on compassionate ground, the

petitioner approached this Court for relief by filing writ petition being WP 28816 (W)

of 2008, which was disposed of by order dated 21st December, 2009. The Court

directed the College to forward all the papers of the petitioner to the Director of

Public Instruction (DPI for short), who was directed to take a decision in accordance

with law. The DPI considered the prayer of the petitioner and observed that the

prayer for appointment of the petitioner on compassionate ground may be

considered if all criteria for appointment is duly fulfilled. The DPI directed the

College to scrutinise the educational certificates of the petitioner and to assess the

financial condition of the petitioner. The petitioner was directed to apply before the

College with all educational testimonials and the income statement as well as no

objection certificate from the other heirs of the employee. The petitioner was directed

to cooperate with the College.

In terms of the aforesaid direction of the DPI, the petitioner forwarded all his

educational testimonials before the College. Pending consideration of the petitioner's

prayer as steps were taken by the College for filling up the Group D post, he

approached this Court once again by filing writ petition being WP 16987 (W) of

2010. The aforesaid writ petition was disposed of on 18th April, 2017 by directing

that the College shall carry forward the prayer of the petitioner for being appointed

on compassionate ground to a logical conclusion and the College was further

directed to communicate its finding to the DPI. The DPI was directed to take a

reasoned view in the matter within a specified time. It was ordered that if the

findings are not adverse, the DPI shall take necessary consequential steps. One post

in the Group D category was directed to be kept vacant for a period of two weeks

from the date of receipt of a communication from the DPI.

In terms of the direction passed by the Court an Enquiry Committee was

formed by the College to assess the financial status of the petitioner. The Enquiry

Committee consisting of three members, was of the unanimous opinion that there is

no substantial income of the family. The case of the petitioner for being appointed

on compassionate ground was recommended by the College to the DPI.

The DPI on 1st February, 2019 passed a reasoned order rejecting the prayer of

the petitioner primarily on the ground, that, there is no existing scheme of the

department under which the benefit of compassionate appointment can be extended

to the legal heirs of a deceased non-teaching employee of a government aided college

and that the petitioner's economic conditions does not justify feasibility of his claim.

The order of the DPI dated 1st February, 2019 is under challenge in the

instant writ petition. When the matter was taken up for consideration by the Court

an order was passed on 8th March, 2019 directing that the operation of the

impugned decision shall remain stayed till disposal of the writ petition and the

respondents were directed to keep one Group D post vacant until further order.

According to the petitioner, as the Statute under which the employee was

governed has a provision for providing appointment on compassionate ground, there

is no requirement for any further scheme of the Government for providing such

appointment. Reliance has been placed on Statute 163 of the Vidyasagar University

First Statutes, 1983. The said provision relates to recruitment and promotion. The

First Statutes was framed with the approval of the Chancellor in exercise of the

power conferred under the Vidyasagar University Act, 1981. Statute 163(a) first

proviso lays down that "Provided that the provisions relating to recruitment of non-

teaching employees of affiliated colleges as laid down in the foregoing Statute shall

not apply in cases where, on compassionate ground, a wife, son, daughter or

dependent of any employee both teaching and non-teaching - dying in harness is to

be offered a job consistent with his/her qualifications. He/she shall have

precedence over others in the matter of appointment or placement, as the case may

be".

It is the specific case of the petitioner that as the Statute under which the

College is running has a separate independent provision for providing appointment

on compassionate ground, there is no requirement of any further scheme of the

Government for providing employment to a dependent member of the aided college.

The further case of the petitioner is that his financial condition is very poor

and he needs the job for his survival.

The petitioner relies upon the following judgments in support of his stand:

1) Unreported judgment delivered by a learned Single Judge of this Court

on 2nd February, 2016 in WP 29281 (W) of 2015 (Pallabi Banerjee -vs- State of

West Bengal & Ors.) wherein the Court took into consideration the provisions of

the First Statutes of the Calcutta University and directed the DPI to decide the issue

with a rider that the prayer of the petitioner for appointment on compassionate

ground in the died in harness category should not be rejected solely on the ground

of lack of scheme and policy for such purpose.

2) Unreported judgment by a learned Single Judge of this Court dated 14th

February, 2020 in WP 4228 (W) of 2019 (Prakash Ch. Ghosh -vs- State of West

Bengal & Ors.) wherein similar order was passed taking into consideration the First

Statutes of the Calcutta University. The order of the DPI rejecting the prayer of the

petitioner on the ground of non-availability of a scheme was set aside by the Court.

3) Swati Chatterjee -vs- State of West Bengal & Ors. reported in 2010

(1) CHN (Cal) 665 (paragraphs 8, 9 and 10)

4) Rupali Chowdhury -vs- State of West Bengal & Ors. reported in

2000 LAB.I.C 3794 (paragraph 3)

5) Tapan Kumar Barman -vs- State of West Bengal & Ors. reported in

2009(1) CHN 23 (paragraphs 9, 10 and 11)

6) Swapna Lahiri -vs- State of West Bengal & Ors. reported in (2004)

1 Cal LT 541 (HC) (paragraphs 44 - 48 and 55)

7) Director of Public Instruction, West Bengal & Ors. -vs- Swapna

Lahiri reported in 2007(1) CLJ (Cal) 304 (paragraphs 10, 11 and 15)

8) Commissioner of Central Excise, Bolpur -vs- Ratan Melting and

Wire Industries reported in (2008) 13 SCC 1 (paragraph 7)

9) Govind Prakash Verma -vs- LICI & Ors. reported in (2005) 10 SCC

289.

The learned advocate for the petitioner prays for a direction upon the DPI for

providing appointment to him on compassionate ground.

The learned senior advocate representing the State respondents vociferously

opposes the prayer of the petitioner. It has been submitted that irrespective of the

fact that the Statute of the University provides for giving appointment on

compassionate ground, but in the absence of a Scheme specifying the manner in

which the said appointment will be given effect to, the prayer of the petitioner for

being appointed on compassionate ground cannot be allowed.

It has been contended that the Statute of the affiliating University is not akin

to a Scheme. The Statute of the University cannot bind the Government. Without a

specific Scheme in accordance with which appointment is to be allowed, the

provision of the Statute cannot be implemented. It has also been submitted that the

service of the employees of the College is governed by the Government circulars.

It has been submitted that the provision of Statute 163 relates to recruitment

and promotion. The same does not provide for giving appointment on compassionate

ground. Distinction has been sought to be made with respect to the expression

"recruitment" and "appointment".

According to the respondents the letter of appointment may be issued only

after recruitment process is initiated by the respondents in accordance with the

Scheme framed by the Government. It has been argued that appointment cannot be

offered to the petitioner till a Scheme to that effect is framed by the Government.

The argument of the respondents is that appointment on compassionate

ground cannot be claimed as a matter of right. Consideration of such prayer flows

from a Scheme which is absent in the present case.

It has also been submitted that the financial condition of the applicant is also

a valid factor which is required to be enquired into at the time of consideration of

the prayer for being appointed on compassionate ground. Since providing

appointment on compassionate ground is an exception to the normal rule,

accordingly, the provisions of the Scheme is required to be strictly followed,

otherwise the same will amount to violation of the provisions of Articles 14 and 16 of

the Constitution of India.

The respondents have relied upon the following judgments in support of their

case:

1) National Institute of Technology & Ors. -vs- Niraj Kumar Singh

reported in (2007) 2 SCC 481 (paragraph 14).

2) Bhawani Prasad Sonkar -vs- Union of India & Ors. reported in

(2011) 4 SCC 209 (paragraph 20(i)).

3) State of Gujarat & Ors. -vs- Arvindkumar T. Tiwari & Anr.

reported in (2012) 9 SCC 545 (paragraph 8).

4) Union of India & Anr. -vs- V. R. Tripathi reported in (2019) 14 SCC

646 (paragraph 13).

5) State of Madhya Pradesh -vs- Narmada Bachao Andolan & Anr.

reported in (2011) 7 SCC 639 (paragraph 64).

The respondents pray for dismissal of the writ petition.

I have heard and considered the rival contentions of the parties.

The father of the petitioner died in harness on 16th December, 2007.

Application was made for providing employment on compassionate ground in

February, 2008, that is, immediately after the death of the employee.

The impugned order mentions that in matters of appointment on

compassionate ground in Government aided colleges adherence to GO No. 690

EDN(CS) dated 22nd August, 2014 is necessary. The DPI failed to understand that

the father of the petitioner died long prior to the issuance of the Government Order

on 22nd August, 2014, accordingly there will be no manner of application of the

aforesaid Government Order in the facts of the present case. The aforesaid

Government Order does not have any retrospective operation and cannot be made

applicable in case of the petitioner.

When the case of the petitioner was initially taken up for consideration by the

DPI, an order was passed on 9th June, 2010 wherein the DPI mentions that the

College should scrutinise all the certificates of qualification and income of the

petitioner and furnish the details in the prescribed format as laid down by the

Labour Department, Government of West Bengal followed by the guidelines and

directions provided in GO No. 301 EMP dated 21st August, 2002 and 30 EMP dated

2nd April, 2008. As the father of the petitioner expired while the aforesaid two

Government Orders were in vogue, the DPI may, at best, place reliance on the

aforesaid two Government Orders, but cannot rely upon the subsequent

Government Order which came into effect long after the death of the employee.

The aforesaid Government Orders dated 21st August, 2002 and 2nd April, 2008

contains the provisions for giving appointment on compassionate ground to the

dependents of the deceased employee. Accordingly, the ground of rejection of the

prayer of the petitioner on account of non-availability of a Scheme is certainly bad in

law and liable to set aside.

It is settled law that a case has to be considered on the basis of the law that

was available on the date when the cause of action arose. In the instant case, the

cause of action arose in the year 2010 when the notification being 30 EMP dated 2nd

April, 2008 was in force. The DPI committed gross error in considering the case of

the petitioner in accordance with the subsequent Government Order.

The decision relied upon by the petitioner in the matter of Prakash Ch. Ghosh

(supra), Pallabi Banerjee (supra) are squarely applicable in the facts of the present

case. The First Statues of the University of Calcutta are pari materia with the First

Statues of the Vidyasagar University qua the principles relating to appointment on

compassionate ground.

In Swapna Lahiri (supra) the Hon'ble Division Bench held that the circular

issued by the Department cannot override the substantial Statute provision

regarding appointment on compassionate ground. The matter related to

compassionate appointment under the Calcutta University First Statutes which is

pari materia to the Vidyasagar University First Statutes. The Hon'ble Division Bench

directed the State respondents to approve the appointment of the petitioner and to

pay all other service benefits including arrear salaries to her.

The other reason mentioned in the impugned order is that the family has

received a considerable amount of money as death-cum-retirement benefit, enough

to maintain a decent standard of living. It has been indicated that the petitioner's

economic condition does not justify feasibility of his claim.

The aforesaid contention, in my opinion, appears to be absolutely mechanical

without proper application of mind. The fact that the family of the petitioner

maintains a decent standard of living is completely based on surmises and

conjectures. It appears from records that in compliance of the order passed by this

Court an Enquiry Committee was set up by the College. Three members of the

Enquiry Committee unanimously opined that there is no substantial income of the

family and recommended consideration of the application of the petitioner for

getting employment on compassionate ground. The said report of the Enquiry

Committee was duly forwarded to the DPI by the Teacher in Charge of the College by

a communicating memo dated 24th April, 2018. The DPI came to the conclusion with

regard to the financial status of the petitioner without taking into consideration the

proper facts and figures.

The Court, in Tapan Kumar Barman (supra) relied upon the judgment

delivered by the Hon'ble Supreme Court in the matter of Balbir Kaur & Anr. -vs-

Steel Authority of India Ltd. & Anr. reported in (2000)6 SCC 493 and clearly held

that the payment received on account of provident fund and gratuity is an earned

and assured amount of the deceased. As far as family pension is concerned, it is one

kind of deferred payment. The payment on account of terminal benefit cannot be

equated with the scheme of compassionate appointment. The Court was pleased to

pass mandatory order directing the authority to take lawful steps to give

compassionate appointment to the applicant. Swati Chatterjee (supra) is also on the

same line.

The Hon'ble Supreme Court in Govind Prakash Verma (supra) clearly laid

down that it was wholly irrelevant for the departmental authorities to take into

consideration the amount which was paid as family pension to the widow of the

deceased and other amounts paid on account of terminal benefits under the rules.

The scheme to provide compassionate appointment is over and above whatever is

admissible to the legal representatives of the deceased employee as service benefits

which one gets on the death of the employee. It was categorically held that

compassionate appointment cannot be refused on the ground that any member of

the family received the amounts admissible under the rules.

In Ratan Melting and Wire Industries (surpa) the Hon'ble Supreme Court held

that a circular which is contrary to the statutory provision has no existence in law.

In the instant case the Scheme of the Government as well as the First Statutes

under which the employee's service was covered, contains the provision for

providing employment on compassionate ground.

The decisions cited by the respondents in my opinion are time tested, well

settled propositions of law. It is no denying the fact that compassionate appointment

cannot be claimed as a matter of right and the same flows from the Scheme. It is

certainly an exception to the normal rule of employment.

The decision referred by the respondents in the matter of Narmada Bachao

Andolan (supra) deals with the concept of precedence doctrine. The same is also a

very settled proposition of law and does not require any comments.

The judgments cited by the petitioner, in my opinion, are very much in favour

of the order prayed for by him.

It will be profitable to take note of an unreported order passed by this Court

on 29th July, 2015 in WP 17159 (W) of 2015 (Manas Das -vs- State of West

Bengal & Ors.) wherein a learned Single Judge of this Court relied upon the

judgment delivered by the Hon'ble Supreme Court in the matter of Abhishek

Kumar -vs- State of Haryana & Ors. reported in (2006)12 SCC 44 and came to

the conclusion that the claim for compassionate appointment needs to be

considered on the basis of the rules and regulations which were operative on the

date of death of the employee. In the instant case on the date of death of the

employee there was a provision of the Government for providing appointment on

compassionate ground to the dependent of employees dying in harness. There was

and there still is a provision for providing appointment on compassionate ground to

the dependent of a deceased employee under the First Statutes of the Vidyasagar

University.

It appears that previously when the matter was referred to the DPI for

consideration by the Court, DPI was in favour of considering the case in accordance

with the prevailing Government Orders/ circulars/ notifications, but later on, DPI

applied the wrong test without proper application of mind and mechanically rejected

the case of the petitioner. The ground(s) for rejection or the objection against

consideration of the prayer ought to have been pronounced at the very first instance

and the same should not be permitted to come by way of instalments, one after the

other. The authority ought not to come up with fresh grounds of rejection each and

every time the matter is remanded to them for consideration. The same will result in

unending number of litigations. In such a case, an intending candidate will be left

running around the corridors of the Court, for years together, in pursuit of justice.

The candidate in the meantime loses valuable service years which in turn affects the

future prospects of an employee if he ultimately succeeds in getting a job on

compassionate ground.

The very purpose of providing appointment on compassionate ground gets

frustrated if the consideration is not made on emergent basis. By the time the

dependent lands up in Court, the matter is already delayed. The respondent tries to

scuttle the claim citing the ground of delay without realising that the delay was on

their part to consider the claim and not on the part of the dependant to approach

the authority with the prayer for providing appointment. Delay caused at the

employer's end ought not to be the ground for rejecting the case of the dependant

applicant.

In the present case, the petitioner is knocking the doors of justice since 2008

and his case has been dealt with by the DPI in an absolute illegal and arbitrary

manner. Had the case of the petitioner been dealt with promptitude, the question of

rejecting the claim relying on a memo which came into effect seven years after the

death of the employee would not have arisen at all.

The learned advocate of the College has submitted that the financial condition

of the petitioner is so poor that the College had to provide casual engagement to the

petitioner at a paltry sum of Rs. 5,000/- only per month so that the family may

survive. Bare survival of the petitioner would be at stake had such casual

engagement not been given to the petitioner.

Accordingly, the reasons mentioned for rejecting the prayer of the petitioner,

being wholly untenable in the eye of law, are liable to be set aside and are hereby set

aside. The matter is pending since 2007 and the petitioner was compelled to

approach this Court on repeated occasions. In the present facts and circumstances,

the Court thinks it fit to direct the Director of Public Instruction to take prompt

necessary steps for providing appointment to the petitioner on compassionate

ground in the died in harness category at the earliest, but positively within a period

of ninety days from the date of communication of a copy of this order.

The Director of Public Instruction shall keep in mind that the employee

expired on 16th December, 2007 and the Enquiry Committee as late as in the year

2018 certified that the financial condition of the petitioner is very poor. There is no

substantial income of the family and hence recommended his appointment.

In terms of the earlier order passed by this Court, one post has been kept

vacant for a considerable period of time. The recruitment process was initiated by

the College for filling up the Group D post way back in 2010 and the learned

advocate for the College has submitted that the College is facing huge problem due

to shortage of staff. Accordingly, the Director of Public Instruction shall provide

appointment to the petitioner in the said vacant post.

WPA 5112 of 2019 is disposed of.

No costs.

Urgent certified photocopy of this judgment, if applied for, be supplied to the

parties on compliance of usual legal formalities.

(Amrita Sinha, J.)