Ashis Das & Anr vs The State Of West Bengal & Ors
2021 Latest Caselaw 5294 Cal

Item No.6


                        In The High Court At Calcutta
                       Constitutional Writ Jurisdiction
                            (via video conference)

01.10.2021
  Ct-24
                                   WPA 6708 of 2017
                                 Ashis Das & Anr.
                                         v.
                          The State of West Bengal & Ors.


                   Mr. Siddhartha Sankar Mondal
                   Mr. Tirthapati Acharyya
                   Mr. S.N. Chattopadhyay
                                   ... for the petitioners.

                   Mr. Amitava Chaudhiri
                   Ms. Monoleena Chaudhuri
                   Mr. N. Roy
                                 ... for the University of Kalyani.


                   None appears on behalf of the State respondents

despite service.

The notices served upon the learned advocate of

the State respondents by the learned advocate for the

petitioners are retained with the records.

The prayer of the petitioner no. 1 for being

appointed on compassionate ground stood rejected by

order dated June 9, 2016 passed by the Director of

Public Instruction.

The reasoned order dated June 9, 2016 was

passed allegedly in compliance of the order dated

January 11, 2016 passed by this Court in WP 30009(W)

of 2015 (Ashis Das & Anr. v. The State of West Bengal &

Ors.).

The Director of Public Instruction was of the

opinion that the claim of the petitioner no. 1 for job on

compassionate ground be rejected as there is no scheme

or policy of Government from which a job can be

provided to the respective candidates who claim jobs on

compassionate ground in died-in-harness category in

Government aided colleges.

The petitioners rely upon a communication dated

March 30, 2011 made in connection with WP 15762(W)

2010 (Tusu Bayen & Anr. -vs- State of West Bengal &

Ors.) whereby the Director of Public Instruction upon

consideration of the report of the Enquiry Committee

regarding financial condition of the deceased employee

at the time of his death as well as those of the

petitioners duly resolved by the Governing Body of the

College sought for relevant documents for providing

compassionate appointment to one Bani Bayen whose

father, a Group-D staff, died-in-harness in Kandi Raj

College, Murshidabad.

The subsequent order dated April 23, 2012 passed

by the Director of Public Instruction has been produced

in Court wherefrom it appears that the Director of Public

Instruction directed the Kandi Raj College to give

appointment to Smt. Bani Bayen on compassionate

ground.

It is the specific case of the petitioner no. 1 herein

that his father was an employee of Kandi Raj College,

Murshidabad. The Director of Public Instruction offered

compassionate appointment to the heir of another

employee of the self-same college, whereas the case of

the petitioner no. 1 has been rejected citing absence of a

scheme of the State Government.

It has been submitted that Kandi Raj College is

affiliated to the Kalyani University and the Statute of the

Kalyani University being State 5(CNTE)(4)(a) contains the

provision relating to recruitment of non-teaching

employees of affiliated colleges, which mentions that the

said rules shall not apply in cases where dependant of

any employee dying in harness is to be offered a job on

compassionate ground consistent with his qualification.

He shall have preference over others in the matter of

appointment or placement, as the case may be.

The petitioners rely upon a further reasoned order

dated May 12, 2015 issued by the Director of Public

Instruction in the matter of Debabrata Ghosh v. The

State of West Bengal & Ors., passed in WP No. 3928(W)

of 2015 wherein the Director of Public Instruction

specifically mentioned that the College comes within

Kalyani University and as the College is governed by the

Statute of Kalyani University where there is a provision

for appointment on compassionate ground, accordingly,

the prayer of Debabrata Ghosh for being appointed on

compassionate ground stood allowed.

The petitioners rely upon an unreported judgment

dated August 19, 2021 passed by a learned Single Judge

of this Court in WPA No. 5112 of 2019 ( Sri Partha

Sarathi Manna v. The State of West Bengal & Ors.)

wherein the Director of Public Instruction was directed

to take prompt necessary steps for providing

appointment to the petitioner on compassionate ground

in died-in-harness category and the reason for rejecting

the prayer of the petitioner for being appointed on

compassionate ground was set aside.

The learned advocate representing Kalyani

University submits that the order impugned was passed

by the Director of Public Instruction and the University

does not have any role to play in the matter at this stage.

Kalyani University being the affiliating University only

grants affiliation to the colleges and the University does

not have any control over appointment of the employees

in the respective colleges.

An order of the Higher Education Department

dated May 19, 2014 has been placed before this Court.

The aforesaid order relating to the Rules and

Regulations in the matter of appointment on

compassionate ground was forwarded to the Registrar of

Kalyani University. The said communication mentions

that there is no contemplation on the part of the State

Government to extend the benefit to the employees of

non-government aided institutions and as such the

proposal for appointment on compassionate ground to

the employees of non-government aided institutions

cannot be entertained from this end.

It further mentions that the extant Rules and

Regulations for appointment on compassionate ground

are applicable in respect of State Government employees

and these are not automatically applicable for the

employees of State aided Universities or non-government

Institutions.

I have heard the submissions made on behalf of

both the parties.

It appears that the Director of Public Instruction is

adopting different stands in respect of different

applicants. Orders have been produced before this

Court, which show that in respect of employee of Kandi

Raj College, Murshidabad the Director of Public

Instruction accorded permission for appointment on

compassionate ground.

The father of the petitioner no. 1 was also an

employee of the aforesaid Kandi Raj College,

Murshidabad who died-in-harness.

If the Director of Public Instruction can provide

appointment to Smt. Bani Bayen on compassionate

ground in the self-same College, there is no reason why

the same rule cannot be made applicable in favour of the

petitioner. Kalyani University Statute also has provision

for providing appointment on compassionate ground.

The Director of Public Instruction provided

appointment to one Debabrata Ghosh relying upon

Statute 5(CNTE)(4)(a) of Kalyani University.

This Court in the case of Partha Sarathi Manna

(supra) noted that the Labour Department, Government

of West Bengal Guidelines and Directions provided in

GO Nos. 301 EMP dated August 21, 2002 and 30 EMP

dated April 2, 2008 were in vogue when the concerned

employee expired. In the present case, the father of the

petitioner no. 1 expired on September 28, 2011 when

the aforesaid memoranda were effective.

Kalyani University Statues have a provision for

providing employment on compassionate ground to the

heirs of the deceased employees.

Accordingly, the reason attributed for rejecting the

prayer of the petitioner no. 1 that there is no scheme or

policy of the Government to provide appointment on

compassionate ground is erroneous and not

maintainable in law.

In view of the above, the reasoned order dated

June 9, 2016 is set aside and quashed.

The Director of Public Instruction being the

respondent no. 3 herein is directed to reconsider the

prayer of the petitioners for providing appointment on

compassionate ground in the light of the observations

made in the matter of Partha Sarathi Manna (supra), the

reasoned order dated May 12, 2015 in the matter of

Debabrata Ghosh, the reasoned order dated April 23,

2012 in the matter of Tusu Bayen & Anr. and Kalyani

University Statute being Statute 5 (CNTE) (4)(a) at the

earliest, but positively within a period of eight weeks

from the date of communication of this order.

The learned advocate for the petitioners is directed

to forward a copy of the judgment dated August 9, 2021

passed in the matter of Partha Sarathi Manna (supra),

the reasoned orders dated April 23, 2012 and May 12,

2015 passed by the Director of Public Instruction and

the relevant Statute of Kalyani University at the time of

communicating the order of this Court.

The aforesaid respondent shall pass a reasoned

order and communicate the same to the petitioners

immediately thereafter.

The writ petition stands disposed of.

Urgent photostat certified copy of this order, if

applied for, be given to the parties after completion of all

legal formalities.

Sh                                    (Amrita Sinha, J.)