Calcutta High Court (Appellete Side)
Uttam Kumar Barui vs The State Of West Bengal And Others on 7 April, 2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
MANDAMUS APPEAL
The Hon'ble Justice Arijit Banerjee
And
The Hon'ble Justice Kausik Chanda
F.M.A. No. 1173 of 2021
With
I.A. No. C.A.N. 1 of 2021
With
I.A. No. C.A.N. 2 of 2021
UTTAM KUMAR BARUI
-VERSUS-
THE STATE OF WEST BENGAL AND OTHERS
For the appellant : Mr. Pankaj Halder, Adv.,
Mr. Sanatan Panja, Adv.,
Ms. Rama Halder, Adv.,
Mr. Tapas Manna, Adv.
For the State : Mr. Anirban Ray, Adv.,
Mr. Biswabrata Basu Mallick, Adv.,
Mr. Sayan Ganguly, Adv.
Hearing concluded on : 23.03.2022
Judgment on : 07.04.2022
2
Kausik Chanda, J.:-
One Jadav Barui (since deceased) was a Gram Panchayat Karmee under
Nawpara Masunda Gram Panchayat, Ranaghat-I Development Block, Nadia. He
died-in-harness on October 16, 2009. At the time of his death, he was aged
about 54 years.
2. The petitioner, thereafter, being one of the adult sons of the deceased
employee, applied before the respondents for his appointment on
compassionate ground. The Joint Director, Department of Panchayats and
Rural Department, Government of West Bengal, by a memo dated October 19,
2010, recommended the proposal for his appointment on compassionate
ground to the Joint Secretary to the Government of West Bengal, Department
of Panchayat Rural Development.
3. Despite such recommendation, no appointment was given to the
petitioner which prompted him to file a writ petition before this Court being
W.P. No. 16393(W) of 2013 seeking his appointment on compassionate ground.
4. The said writ petition was disposed of by a learned Single Judge of this
Court on July 29, 2013, directing the Joint Secretary, Department of
Panchayat and Rural Development, West Bengal, to dispose of the matter by
passing a reasoned order within 18 weeks from the date of communication of
the said order and after calling for a fresh report from the three men committee
which had been constituted to enquire into the suitability of the appointment of
the petitioner. It was further directed that if the petitioner was found to be
3
entitled to an appointment, in accordance with law, which includes the
notification dated 3rd February 2009, an appropriate order should be passed
within four weeks from the date of passing of the reasoned order.
5. It appears that in compliance with the said order, the relevant Block
Development Officer forwarded a report vide Memo No.44/RGT-I dated
09.01.2015 to the District Panchayats and Rural Development Officer.
6. The finding in the said report is as follows:-
"It appears from the spot enquiry that:-
1. The Prayer of Sri Uttam Kumar Bauri, S /
O Late Jadav Bauri, Ex-Gram Panchayat
Karmee of Nawpara Masunda Gram
Panchayat, is genuine.
2. Pecuniary condition of the family: Smt.
Saraswati Bauri, W/o late Jadav Bauri
has received family pension. Smt.
Saraswati Bauri has received the following
amounts:--
a) Death Gratuity : 328738.00
b) Leave Salary : Not yet drawn (but in
the process of drawal
and the amount fixed as
Rs.104150.00.)
c) Group Savings
Linked Insurance : Rs.21135.00
d) P.F : Rs.48082.00
e) Total : -----------------
Rs.397955.00
-----------------
3. As per Order No.433/PN/O/III/2E-
70/07(Pt-1) Dt. 03/02/09 of Government
of West Bengal, Department of Panchayat
& Rural Development (Panchayat wing)
Jessop Building, Kolkata-1, the following
information is given below:
Present monthly income of the family
i) Rs. 2000.00 (income from mason)
ii) Rs. 321.00 (8% Interest on PF Rs.
48,082.00)
-----------------
Total Rs. 2321.00
-----------------
The Gross monthly Salary before death
was Rs.11,723.00
Hence present monthly income of the
family falls below 90% of Gross monthly
salary before death.
4. Applicant has given a declaration in
writing to look after of her widow mother
and affidavit for the same is enclosed.
5. Applicant is holding the assets: 02(Two)
decimal Land (approximate)
Particulars of Land: Mouza-
Bidyanandapur, P.S-Ranaghat
Plot No-143/258,Kh No-219/1
Area- 0.02 Acres(two decimal)
As per Patta Case No-60/82
Dt.30/09/1982
6. Residential Status:- Sri Bauri possesses a
Kachha house situated on 02 decimal
Land.
7. Any kind of financial assistance received:--
No other financial assistance has been
received by Smt. Saraswati Bauri
excepting Para no-2 mentioned above.
8. Any other relevant fact:-- Smt. Saraswati
Bauri is not serving in any concern. One
daughter is dependant upon her.
9. Applicant is maintaining livelihood as
mason and except that he has no other
income (Part-II & Part-III are verified and
fact).
10. Last total pay of deceased:
a) Basic Pay : Rs.6920.00
b) Grade Pay: Rs.1800.00
c) MA : Rs. 300.00
d) HRA : Rs.1308.00
------------------------------------
Total : Rs.11,723.00
-------------------------------------
Deduction: P.F------ Rs. 200.00
P.Tax--- Rs. 110.00
GSLI-----Rs. 15.00
------------------------------
Total----- Rs.325.00
-----------------------------
11. Death Benefit:
a) Pension (including D.A.) as on: Rs.7189.00
b) Monthly income from Salary : Nil
c) Death Gratuity : Rs. 328738.00
d) LIC : Not drawn
e) GSLI : Rs.21135.00
f) Leave Salary : Not drawn
g) P.F : Rs.48,082.00
Submitted to the Block Development Officer,
Ranaghat-I Development Block in terms of Memo No-
1409(9) Dated-11/06/2014 for kind perusal. Family of
the deceased Jadav Bauri is suffering from financial
hardship and employment may be recommended to Sri
Uttam Bauri, the applicant and the son of Late Jadav
Bauri."
7. Thereafter it appears that a second report was prepared by the same
committee, which was submitted on July 9, 2015, vide Memo No. 1760, to the
District Panchayat and Rural Development Officer through the said Block
Development Officer. This time the observations of the committee were as
follows:-
"The observations are noted below in the format of
Part-III of the above-mentioned order:
Part-III
1. Name of the deceased employee : Jadav Bauri
2. Designation of the ex-employee : Gram Panchayat
Karmee
3. Name of the Office with address : Nawpara
Masunda Gram Panchayat office
Vill:-Bidyanandapur, P.O.-Nawpara,
P.S.-Ranaghat Dist- Nadia
4. Date of birth of the deceased : 01.01.1955
5. Date of death of the deceased
(attested Copy of death certificate
to be enclosed) :16thOctober,2009
(Death certificate
enclosed
herewith)
6. Date of joining the Govt. service : 23-11-1976 as a
Chowkidar and
01-04-1994 as a
Gram Panchayat
Karmee
7. Total length of service rendered : 32 years, 10
Months, 23 days
8. Whether belonging to SC/ST/OBC
(Attested copy of certificate
to be enclosed) : No.
(i) Monthly salary drawn by the deceased
in the last month-Total emoluments
(Pay & other allowances) : Basic Pay-
Rs.6920, Grade
Pay:-
Rs.1800.00/-
Gross Total: Rs.
11,723 D.A.
Rs.1395,
Deduction p. Tax-
HRA: Rs.1308,
MA: 300,
GPF:200, GSLI-
Rs.15.00
9. Name of the candidate
praying for
Appointment on
Compassionate Ground :Sri Uttam Kumar
Bauri
11. His/Her relationship
with the ex-employee : Son
12. Date of birth of
the applicant : 06.03.1975
(Sixth March,
one thousand
nine hundred
seventy five)
13. Educational qualifications : VIII Passed
14. Whether fully dependent
on the Ex-employee. : Yes
15. Whether any other dependent
has been Appointed on
compassionate ground : No
16. Family Pension :Rs. 7800.00 as
on 28-02-2015
17. Other Payments Sanctioned
& Received so far by
the family of the deceased :-
(i) Family Pension : 7800.00 by the
family as on 28-
02-2015 (Gross)
(ii) GPF balance : Rs. 48,082.00
(received by the
family).
(iii) Group insurance : Rs. 21,135.00
(Rupees Twenty
one thousand
one hundred
thirty five) only
(Received)
(iv) Encashment of leave : Rs. 104150.00
(Rupees one lakh
four thousand
one hundred
fifty) only
(v) L.I. Policies
(including PLI) : Nil (Received)
(vi) Death gratuity : 3,28,738.00
18. Movable and immovable
Properties an annual income
there from by the family : 2.9 Decimal
(House), Income-
Nil
2. Brief particular of Liabilities
If any (Documentary evidence
to be Enclosed) : Specific
information not
available
3. Particulars of all dependents the deceased:-
Sl. Name Age Educational Relationship Living
No. Qualification with the separately
deceased or with
the family
1. 2. 3. 4. 5. 6.
1. Saraswati 59years nil Wife With the
Bauri Family
2. Jyostna 42years nil Daughter With the
Bauri Family
3. Uttam 39years VIII passed Son(Elder) With the
Kumar Family
Bauri
4. Dilip 37years V Passed Son(Younger) Living
Bauri Separately
Marital Status Particulars of Gross Salary (if
occupation/employment employed)
(if already employed)
Widow House Wife Nil
Married House Wife Nil
Married Mason 2800.00 P.M
Married Mason 2800.00 P.M
Comments of the members of the enquiry committee:-
The above-mentioned particulars are true on the
basis of various supporting documents, available office
records and spot-enquiry. All the members of the
family of Late Jadav Bauri, Ex-Gram Panchayat
Karmee, have been spending their days with financial
difficulties. It has been noticed during enquiry that the
present income of the family of Lt. Jadav Bauri, from
interest is approximately Rs.3500.00 only, excluding
the family pension. So the total income of this family
will be approximately Rs.14100.00 only after the
sanction of the family pension. Therefore, as per para-
3(a) or 3(b) of G.O. No. 4097/PN/O/III/2A-63/2014
dt. 29.09.2014, the monthly income of this family does
not fall below either of 90% of the gross monthly salary
last drawn by Lt. Jadav Bauri, Ex-GP Karmee of
Nawpara Masunda GP before his death, or of the
minimum salary of a Group-D employee.
Therefore, We, the undersigned, are of the
opinion that the claim of Employment of Sri Uttam
Kumar Bauri, S/O. Late Jadav Bauri, Ex-Gram
Panchayat Karmee of Nawpara Masunda Gram
Panchayat on compassionate ground cannot be
accepted as per para 3 of notification no.
4097/PN/O/III/2A-63/2014 dated 29/09/2014 of P &
RD Department.
Sl Name of the Designation Signature
No. Enquiring
Officer
1. Sri. Kishor Jt. B.D.O Sd/-
Ranjan Biswas Jt. Block Dev.
Officer
Ranghat-I Dev.
Block
2. Sri Nirupam P.D.O. Sd/-
Pal Panchayat
Development
Officer
Ranghat-I Dev.
Block
3. Sri Hirak P.A. & A.O. Sd/-
Chowdhury P.A. & A.O.
Ranghat-I Dev.
Block
Comments of the Controlling Officer:-
As per notification No. 97-EMP dt. 06.06.2005 &
G.O. No 433/PN/O/III/2E-70/07 (Pt-1) dt. 03.02.2009
and notification no. 4097/PN/O/III/2A-63/2014
dated 29.09.14, the undersigned is satisfied with the
report of the three-men enquiry committee formed as
per this office Memo No. 1409(9) Dated- 11/06/2014
of B.D.O., Ranaghat-I and the undersigned hereby
reject the claim for appointment on compassionate
ground of Sri Uttam Kumar Bauri, S/O. Late Jadav
Bauri, Ex-Gram Panchayat Karmee of Nawpara
Masunda Gram Panchayat."
8. Thereafter the case of compassionate appointment of the petitioner was
taken up by the relevant Joint Secretary of the said department (respondent
no.2). The petitioner was afforded a personal hearing before him and the claim
was rejected by an order dated September 17, 2015.
9. Challenging the said order dated September 17, 2015, the present writ
petition was filed in the year 2016. The learned Single Judge by his order dated
March 11, 2021, observed that compassionate employment itself is an
exception to the general rule of employment and recruitment. Compassionate
employment admittedly, aims at preventing the family of the deceased from
falling into destitution, penury, and starvation. The learned Judge, further,
found that the petitioner was about 47 years old as on the date of judgment
and he was a 37-year-old man in 2010. Therefore, the petitioner could not
claim that he was in starvation or was in utter destitution even at the age of 37
years. The learned Single Judge dismissed the writ petition observing that
compassionate appointment is not a matter of right.
10. Challenging the order of the learned Single Judge it has been argued by
the appellant before us that at the time of death, the gross salary of the
deceased employee was Rs.11,723/-(Rupees Eleven Thousand Seven Hundred
and Twenty Three). After the death of the employee, the family of the deceased
received a family pension of Rs.5,358/- and the other sources of income were
Rs.2,321/- and therefore, the total monthly family income was Rs.7,679/-.
11. As per the scheme of compassionate appointment under Clause 3 of the
notification dated February 3, 2009, compassionate appointment can be given,
if the monthly income of the family falls below 90 percent of the last drawer
gross monthly salary of the deceased employee.
12. It was argued that after the death of the father of the petitioner the
monthly family income having fallen below 90 percent of the gross monthly
salary of the deceased employee, the writ petitioner ought to have been
appointed on compassionate ground. Such rejection is not tenable in the eye of
law since the said respondent no.2 ought to have considered the income of the
deceased family at the time of death of the petitioner's father and the claim for
compassionate appointment should have been considered in the light of the
first enquiry report. It has, further, been suggested that the need for financial
assistance of the family of the deceased employee is very much existent till date
and the claim of the appellant cannot be denied on the ground that he is now
47 years old. It has been argued that compassionate appointment is a special
appointment on humanitarian ground and admittedly when the appellant
applied for appointment on compassionate ground, he was about 37 years old.
13. The appellant placed reliance upon a judgment reported at (2006) 12
SCC 44 (Abhishek Kumar v. State of Haryana) to suggest that appointment
on compassionate ground should be considered in terms of the rules which
were in existence when the application for such appointment was made.
Further reliance was placed on the judgments reported at (2014) 3 Cal HCN
313 (Amit Kumar Roy v. State of West Bengal), (2010) 1 CHN Cal 665
(Swati Chatterjee v. State of West Bengal) and (2019) 1 CHN Cal 343
(State of West Bengal v. Lakshman Let) to argue that the unreasonable
delay to take decision cannot frustrate the scheme of compassionate
appointment.
14. The learned advocate representing the State reiterated the stand of the
respondents in the impugned memo and argued that compassionate
appointment is given to overcome immediate financial crisis. Such appointment
is not a matter of right and it is an exception to the right of equality under
Article 14. The claim of the petitioner was rejected on the basis of the report of
the three-member committee and, therefore, there is no wrong on the part of
respondent no.2 in rejecting the claim of the petitioner.
15. Before we delve into the factual aspect of the matter, we wish to clear the
air by saying that the compassionate appointment is also a benefit attached to
the service of an employee flowing from the relevant statutes, rules, or from the
statutory scheme like any other benefits or rights. The right of compassionate
appointment should be examined in the light of statutory rules, regulations or
scheme by the Court provided such rules, regulations, or scheme themselves
are not unconstitutional. A family member of a deceased employee can claim
such appointment as a matter of right if he satisfies the conditions provided in
such rules, regulations, or scheme. Looking from this angle it may not be
necessary to view a compassionate appointment on the anvil of Article 14 for
this kind of appointment is made without following regular recruitment rules.
16. In the present case, there is no dispute that there was a scheme dated
February 3, 2009, in place for compassionate appointment when the writ
petitioner made his application. There is also no dispute that the petitioner
applied within the time period prescribed in the said scheme and his case was
recommended for appointment on October 19, 2010 as he was otherwise found
to be eligible.
17. Clause 3 of the said scheme provides for the following terms and
conditions to be eligible to be appointed on compassionate ground:-
"3. One of the under noted conditions that needs to
be fulfilled for offering appointment on compassionate
ground is that the family of the deceased or
prematurely retired employees is in need of immediate
financial assistance.
The family of a deceased or prematurely retired
employee shall be considered to be in need of
immediate financial assistance, if any of the two under
noted conditions are satisfied.
a) The monthly income of the family falls below 90
percent of the gross monthly salary of the employee
before death or premature retirement.
b) The monthly income of the family falls below the
minimum salary of a Group - 'D' employee (in ease of
Group - 'D' employees) or the minimum salary of a
Lower Division Clerk (in case of employees other than
those belonging to the Group - D).
The gross monthly salary, for this purpose shall
mean basic pay along with dearness pay, dearness
allowance, house rent allowance & medical allowance.
Again, the monthly income of the family shall mean
the aggregate of:
(i) Total family pension per month (Basic, Dearness
Pension & relief etc.).
(ii) Monthly interest income @ 8% p.a. on the total
amount received by the family after death of the
employee or retirement of the incapacitated employee
(Gratuity, Leave Encashment, any other payments
excepting G.P.F.). Provided that where an ex-employee
had to incur medical expenses as indoor patient prior
to and leading to his death/incapacitation, such
expenses may be deducted from the amount received.
All such expenses must be supported by original
receipt/cash memo, hospital discharge certificates.
(iii) Monthly income from movable and immovable
properties (the family members are expected to submit
a declaration on the matter).
(iv) Monthly income of the dependents of the ex-
employee named in the application (the family
members are expected to submit a declaration on the
matter)."
18. It is quite curious that the three-member committee report which was
forwarded on January 9, 2015, by the Block Development Officer, Ranaghat-I
Development Block, recommended the appointment in favour of the petitioner
observing that at the time of the report, the monthly income of the family was
below 90 percent of the gross salary before the death of the deceased employee.
The same committee comprising the same members, within a few months, in
the report forwarded by memo no.1760 dated July 9, 2015, declined to accept
the prayer of the petitioner holding that the monthly income of the family did
not fall below 90 percent of the gross salary. Significantly, the order impugned
in the writ petition dated September 17, 2015, indicates that another three-
member enquiry was held on earlier occasion, and a report dated January 12,
2010, was submitted recommending the appointment of the petitioner. The
respondent no.2 chose to rely upon the latest enquiry report submitted on July
9, 2015, and found that the interest income of the family of the deceased was
approximately Rs.3,500/- only. The family received a pension of Rs. 7,800/-
per month as on February 28, 2015, and therefore, the total income of the
family was approximately Rs.14,100/-. The order goes to show that the said
respondent no.2 referred to Para-3(a) and 3(b) of a Government G.O. No.
4097/PA/O/III/2A-63/2014 dated September 29, 2004, and held that monthly
income of the family does not fall below 90 percent of the gross monthly salary
last drawn by the deceased employee (Rs.11,723/-) before his death. He noted
that the following benefits were given to the members of the deceased family.
"Pension--------------------Rs. 7,8000=00
Gratuity ------------------ Rs 3,28,738=00
GI ------------------------- Rs. 21,135=00
Encashment of Leave----Rs. 1,04,150=00"
The claim of the writ petitioner was rejected thereafter with the following
observations:-
"It is pertinent to note that appointment on
compassionate ground is offered in favour of a
dependent & adult family member of the deceased
employee of PRI who is in need of immediate financial
assistance. It appears that the deceased employee had
served for about 32 years 10 months 23 days and
received full salary benefits in his service life. The
service tenure completed by the employee was quite
substantial and well over average service life of a
Government employee. The quantum of death benefits
amounting to Rs. 4,54,023=00 received by the legal
heir of the employee should have been adequate to
overcome immediate financial distress and strain
occurring at the material point of time. The offer for
appointment on compassionate ground can never be a
matter of right and such appointment are made
without rigours of any competitive process. This is
further worth mentioning that the Three Men
Committee has not recommended the case of the
petitioner as if does not satisfy the criteria as set in
extent memorandum of the Labour Department."
19. We are of the opinion that the approach of the respondent no.2 in
deciding the claim of the petitioner cannot be accepted. The claim of the
petitioner for compassionate appointment should have been decided on the
basis of the income of the family when the petitioner immediately after the
death of his father, applied for the same in the year 2009. The approach is
erroneous as the proportion of 90 percent will increase over time, since the
family pension normally gets upwardly revised due to inflation or other
reasons, but the last gross salary of the deceased employee is a constant factor.
Therefore, delay in deciding the claim will eventually result in increase of the
proportion, thereby frustrating the very object of the scheme.
20. The right of compassionate appointment should be decided on the basis
of the relevant circular or scheme which was in vogue when a valid application
for the same was made in accordance with the said scheme or circular. In the
present case, even the enquiry report submitted on January 9, 2015 suggests
that the monthly income of the family was below 90 percent of the gross
monthly salary of the deceased employee before his death taking the family
pension to be Rs.7,189/- and income from other sources to be Rs.2,321/- in
the year 2015. Therefore, there cannot be any doubt that in the year 2009, the
monthly family pension was much lesser, and income of the family was well
below 90 percent of the gross last monthly salary of the deceased, particularly
when admittedly some retiral dues like provident fund, group insurance and
leave encashment were provided to the family at a much later point of time.
The petitioner was, therefore, eligible to be appointed in terms of the scheme
dated February 3, 2009.
21. We like to clarify that the right of compassionate appointment is in
addition to the terminal benefits received by the family. These two rights are
not mutually exclusive under the scheme dated February 3, 2009. The only
consideration under the relevant scheme is whether the monthly income of the
family from the retiral dues of the petitioner as well as from the other sources
falls below 90 percent of the last gross salary of the deceased employee. The
scheme dated September 29, 2004 also maintains the same condition.
22. No doubt that the right of compassionate appointment is aimed that
providing immediate financial assistance to the family of the deceased and as
such it is the obligation of the State also to ensure that such claim is decided
with utmost expedition. The petitioner had acquired a right to be appointed
under the scheme of February 3, 2009, and such right cannot be allowed to be
defeated by the sheer lethargy and indifference of the respondents in
appointing the petitioner in due time.
23. It was the inaction of the State that compelled the writ petitioner to
approach this Court to enforce his right under the said scheme and though
there was an order passed by this Court on July 29, 2013, to dispose of the
case of the compassionate appointment of the petitioner within 18 weeks, the
authority took about two years to decide the case finally. Because of the delay
on the part of the respondents in deciding the claim of the petitioner, the right
of compassionate appointment of the petitioner cannot be frustrated. If such
course of action is approved by this Court then in every case the State may
keep the claim of compassionate appointment pending for an indefinite period
and thereafter reject the same on the ground of delay. A considerable time has
been consumed over this litigation. We are of the view that the learned Judge
was not right in rejecting the claim of the petitioner on the ground that he was
about 47 years old at the time of the judgment, since the delay in the
appointment in the present case cannot be attributed to the petitioner
24. In view of the discussion above, this appeal stands allowed. The
respondents are directed to issue appointment letter in favour of the petitioner
to a suitable post within a period of four weeks from date.
25. The appeal being F.M.A. No. 1173 of 2021 and the connected
applications being I.A. No. C.A.N. 1 of 2021 and I.A. No. C.A.N. 2 of 2021 are,
accordingly, disposed of.
26. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite formalities.
I agree.
(Arijit Banerjee, J.) (Kausik Chanda, J.)
