Calcutta High Court (Appellete Side)
Bahauddin vs The State Of West Bengal & Ors on 12 July, 2021
04 12.7.2021 WPST 31 of 2020
Ct-16
Bahauddin
Vs.
The State of West Bengal & Ors.
ar
Mr. Anirban Roy, Ld. G.P
Mr. Biswabrata Basu Mallick
Ms. Kakuli Samajpati
...For the State
The writ petitioner is not represented.
However, we have heard the writ petition as the
State is represented.
This writ petition is directed against an order
passed by the West Bengal Administrative
Tribunal on 24th September, 2019 in connection
with an application filed by the writ petitioner for
setting aside the order passed by Micro Small &
Medium Enterprises and Textiles Department on
7th July, 2015 whereby the said authority
rejected the prayer of the applicant for
compassionate appointment to a Group-C or D
post on merit.
The State did not file any affidavit before the
Tribunal. Learned Government Pleader has
argued before us that the application for
compassionate appointment was not filed within
time. Accordingly, the Tribunal was justified in
rejecting the application of the petitioner and
affirming the order passed by the concerned
authority.
It is submitted that since the application for
compassionate appointment was filed beyond
two years from the date of death of the
petitioner's father, the case of the writ petitioner
could not have been considered.
In absence of any affidavit filed before the
2
Tribunal, we have to proceed with the petition
filed by the petitioner before the Tribunal and
accept the said facts as true for the purpose of
determination of the issue raised before the
Tribunal.
The following are the admitted facts:-
The father of the writ petitioner died on 29th
April, 2009 leaving behind his wife, two sons,
one daughter (all the children being minor at the
time of death of their father). Subsequently, the
mother of the applicant filed an application
before the authority concerned for
compassionate appointment in favour of the
applicant, who was admittedly minor at the time
of death of his father.
It appears that the application was made in
or about September 2010 and the said
application was processed by the authority
concerned on 4th May, 2011. Admittedly, the
said application was filed within the period of
two years from the date of death. The concerned
authority rejected the said application on the
ground that at the time of submission of the
application, the applicant was under age as per
para 6(c) of Labour Department's Notification No.
251-Emp dated 3rd December, 2013 and
Notification No. 38 Emp dated 9th June, 2015 of
Labour Department.
Admittedly, the said two Notifications were
not applicable as the father of the applicant died
on 29th April, 2009 much prior to the date when
such notifications came into force. The order
rejecting the said application did not take into
consideration the fact that the application for
compassionate appointment was filed within two
years as applicable and the rejection was based
on the said notifications that came into operation
much after the application was being processed
3
for consideration. No material was produced
before the Tribunal to show that the applicant
was not eligible to be considered for appointment
as per the existing norms. Moreover, the fact
that the application of the petitioner was
processed by the Deputy Director (Textile) on 4th
May, 2011, shows that the applicant was eligible
for consideration for compassionate appointment
at the time when such application was being
considered by the authority.
In absence of any such record being
produced before the Tribunal, we do not accept
the argument of the State that the application of
the petitioner for compassionate appointment is
a belated one and the applicant does not come
within the eligibility criteria for consideration for
compassionate appointment.
The Tribunal has merely referred to few
decisions without understanding the implication
of such decisions and without trying to find out
the applicability of such decisions to the facts of
the present case. The judgments cannot be read
as statute. The Tribunal ought to have found
out whether in the facts and circumstances of
the case the said judgments are at all applicable
in the present case.
The State respondents are directed to follow
up the matter in terms of the decision they have
taken on 4th May, 2011 and provide suitable
employment to the petitioner, if he is otherwise
eligible.
The order of rejection by the State authorities
is set aside.
We make it clear that Notifications dated 3rd
December, 2013 and 9th June, 2015 cannot be
made applicable to the case of the writ petitioner.
Since the learned counsel for the petitioner is
reluctant to appear before us, let this order be
communicated to the writ petitioner by the
department concerned within one week from date
by speed post with acknowledgement due.
Learned Registrar General is directed to
ensure compliance of this order in so far as the
communication of this order to the writ
petitioner is concerned.
The State respondents to comply with our
order within twelve weeks from date.
WPST 31 of 2020 accordingly succeeds.
Urgent photostat copy of this order, if applied
for, be given to the parties upon compliance of all
undertakings.
(Hiranmay Bhattacharyya,J.) (Soumen Sen, J.)
