Smt. Bebi Pal vs The State Of West Bengal & Ors
2021 Latest Caselaw 3913 Cal

23.07.2021
 (S/L-20)
   Ct.-24
(Susanta)

                           (Via Video Conference)

                             W.P.A. 7704 of 2021

                                 Smt. Bebi Pal
                                       -Vs-
                         The State of West Bengal & Ors.


                 Mr.   Soumyen Datta,
                 Mr.   Debsoumya Basak,
                 Mr.   Sunit Kumar Roy,
                 Mr.   Viswajit Dasgupta,
                                     ....... For the Petitioner.

                 Mr. Gangadhar Das,
                 Mr. Swarvanu Saha,
                                ... For the Respondent no.3.

Affidavit-of-service filed in Court is taken

record.

                 None     appears        on    behalf   of    the   State

             respondents despite service.

                 The     petitioner      prays    for   compassionate

appointment. Her husband was an employee of

Samsi College who died-in-harness on 7th

February, 2014. The petitioner immediately

applied for being appointed on compassionate

ground in the college under the died-in-harness

category. The petitioner gave reminder to the

college for providing appointment to her. The

case of the petitioner not being considered she

was compelled to approach this Court by filing a

writ petition being W.P. 25330(W) of 2016 (Smt.

Bebi Pal Vs. State of West Bengal & Ors.). The

Court by an order dated 21st November, 2016

directed the respondent authorities to consider

the case of the petitioner within a specified time.

The Directorate of Public Instruction

considered the case of the petitioner and rejected

her claim. The petitioner challenged the said

order of rejection by filing a further writ petition

being W.P. 28056(W) of 2017. This Court by an

order dated 4th June, 2018 set aside the order

passed by the Directorate of Public Instruction

and directed to reconsider the case of the

petitioner.

The prayer of the petitioner was once again

rejected by the impugned order dated 6th June,

2019 which is impugned in the present writ

petition.

The Directorate of Public Instruction

observed that there is no existing scheme of the

Higher Education Department under which the

benefit of appointment on compassionate ground

can be extended to the legal heir of a deceased

non-teaching employee of a government aided

college. Reliance has been placed on G.O. 690

Edn (CS) dated 22nd August, 2014 which directs

that the proposals for compassionate

appointment of deceased family members of non-

Government college employees should not be

referred either from Directorate Office to

department or from the college to the Directorate

Office until a policy in this regard is adopted by

the Government.

The impugned order further mentioned that

the family has received a considerable amount of

money as death-cum-retirement benefit, enough

to maintain a decent standard of living and

accordingly compassionate appointment ought

not to be allowed in the case of the petitioner.

The Directorate of Public Instruction,

however, recorded in the order that the Court

directed that the claim of the petitioner ought to

be considered in the light of the

rules/regulations prevailing at the time of death

of the petitioner's husband (wrongly recorded in

the impugned order as petitioner's father) and

particularly with reference to whether or not her

claim is covered by the scheme under the statues

of North Bengal University. Directorate of Public

Instruction admitted that the college where the

husband of the petitioner was affiliated was

governed by the Statutes of North Bengal

University on the date of death of the petitioner's

husband and the North Bengal University

statutes has a provision for appointment on

compassionate ground.

The learned advocate for the petitioner has

relied upon the Statues of the University of North

Bengal which clearly provides for compassionate

appointment to the dependent of employee dying-

in-harness and the same has also been admitted

by the Directorate of Public Instruction in the

order impugned.

The learned advocate representing the Samsi

College submits that the college is compassionate

towards the petitioner but until and unless the

Directorate of Public Instruction permits the

college to provide appointment to the petitioner

they are not in a position to take any step in the

matter.

Upon hearing the submission made on

behalf of both the parties and upon perusal of

the materials on record it appears that the

husband of the petitioner expired on 7th

February, 2014. On the said date the employer

college was affiliated to the North Bengal

University. The said University has a provision

for providing appointment on compassionate

ground to the heir of the deceased. The college

was affiliated to the West Bengal State University

long thereafter.

The Court specifically observed in the order

dated 4th June, 2018 passed in WP 28056(W) of

2017 that the position prior to 15th May, 2015

when the college got affiliated to the West Bengal

State University has to be considered in the case

of the petitioner. The Court categorically directed

to consider the claim of the petitioner

particularly with reference to whether or not the

claim is covered by the scheme under the

statutes of North Bengal University.

The Director of Public Instruction though

has admitted that the date on which the

husband of the petitioner expired there was a

scheme of the North Bengal University for

providing appointment on compassionate ground

but the Director of Public Instruction thereafter

misdirected himself and held that as there was

no scheme of the Higher Education Department

accordingly the case of the petitioner cannot be

considered.

The petitioner has relied upon a judgment of

this Court in the mater of Director of Public

Instruction, West Bengal & Ors. Vs. Swapna

Lahiri reported in 2007(1) CLJ (Cal) 304 wherein

the court specifically held that the circular

issued by the Finance Department, Government

of West Bengal cannot override the specific

statutory provision regarding appointment on

compassionate ground.

A co-ordinate Bench of this Hon'ble Court

by order dated 29th July, 2015 passed in W.P. No.

17159 (W) of 2015 (Manas Das Vs. The State of

West Bengal & Ors.) was of the opinion 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 concerned employee.

The Hon'ble Supreme Court in a catena of

cases laid down that a dispute arising on a

particular date ought to be decided on the basis of

the scheme which was prevailing at that point of

time and not on the basis of a scheme which came

into existence at a latter date.

In the instant case the Statute which

guided the service condition of the deceased

employee provides for compassionate appointment.

The respondent authority is precluded from relying

on the Government order which came into

existence later on, solely with the view to reject the

claim of the petitioner. Had the authority decided

the matter with promptitude, there would have

been no occasion on the part of the petitioner to

approach the Court and the issue of non-

availability of the scheme would not have arisen.

The Director of Public Instruction also

observed that the family has received considerable

amount of money as death-cum-retirement benefit,

enough to maintain a decent standard of living.

The entire statement is absolutely vague without

the necessary facts and figures. The actual

financial condition of the petitioner has not been

taken into consideration at all. It is only relying

upon the financial benefit extended to the family of

the deceased that the claim has been rejected.

Director of Public Instruction ought to have come

to a specific finding as to whether the financial

condition of the petitioner is such that

compassionate appointment was not necessary in

the case. It is true that compassionate

appointment cannot be claimed as a matter of

right, but at the same time the prayer of the

petitioner cannot be rejected without taking into

consideration the proper figures and solely based

upon surmises and conjectures.

In view of the observations made

hereinabove the impugned order of the Director

of Public Instruction dated 6th June, 2019 is

liable to be set aside and is accordingly set aside.

The matter is remanded back to the Director of

Public Instruction to reconsider the prayer of the

petitioner strictly in the light of the observations

made hereinabove and in accordance with the

rule prevailing at the time of death of the

employee, at the earliest, but positively within a

period of six weeks from the date of

communication of a copy of this order. The said

respondent shall pass a reasoned order and

communicate the same to the petitioner

immediately thereafter.

W.P.A. 7704 of 2021 is thus, disposed of.

Urgent photostat certified copy of this order,

if applied for, be given to the parties on

completion of usual formalities.

(Amrita Sinha, J.)