Salimuddin Sheikh vs The State Of West Bengal & Ors
2022 Latest Caselaw 5593 Cal

S/L 3
18.08.2022
Court. No. 22
Sourav
                             WPA 7296 of 2015

                             Salimuddin Sheikh
                                     Vs.
                       The State of West Bengal & Ors.


                Mr. Shanti Ranjan Das
                Mr. Kshetra Prasad Mukhopadhyay

                                                         ... for the Petitioner.

                Mrs. Chaitali Bhattacharya
                Mr. Mrinal Kanti Biswas
                Mr. Kartik Chandra Kapat
                                                              ... for the State.


                      This writ petition has been filed challenging the

                vires of a portion of Rule 22 of The West Bengal

                Primary School Teachers Recruitment Rules, 2001

                praying, inter alia, for the following relief:

                                    "(a) A declaration to declare that
                             the relevant portion of impugned "Rule
                             22 of The West Bengal Primary School
                             Teachers Recruitment Rule, 2001" is
                             Unconstitutional       to    hit/attack      the
                             Articles 14, 16, 19 (1)(g) and 21 of the
                             Constitution of India and thereby to
                             declare ultra-vires to the Constitution
                             of India and thereupon to struck down
                             the same by this Hon'ble Court."


                      The    writ   petitioner   seeks    a   compassionate

                appointment in place and stead of his physically

                incapacitated        father       who         received      a

                premature/voluntary retirement from the post of

                Headmaster at Ram Krishnapur F.P. School at
                                2




Lakshmipur, Burdwan (for short, the School). The

respondent State authorities had approved such

voluntary/premature retirement of the father of the

petitioner with effect from July 1, 2006, on the prayer

of the father that he had suffered from paralyses and

became physically incapacitated to run the affair of

the school as Headmaster.

On a careful scrutiny of the records, it appears

that the relevant application by virtue of which the

father of the petitioner received such

voluntary/premature retirement was not made

available before this Court, so that, this Court can

ascertain what was the nature of the application

submitted by the Headmaster.

Mr. Shanti Ranjan Das, learned Advocate

appears for the writ petitioner drew attention of this

Court to "Annexure P-2" to the writ petition which

was a complaint dated June 28, 2006 lodged by the

father of the petitioner before the jurisdictional Police

Station contending that the father while applying for

the said voluntary/premature retirement from the post

of Headmaster of the School, the then Sub-Inspector of

School, Purbasthali Circle by way of coercion obtained

an undertaking in writing from the father that no legal

heir would claim the service in place and stead of the

father due to his said voluntary/premature retirement.

From the tenor of the said complaint, it was also

evident that the father of the writ petitioner, according

to him, became physically incapacitated and had

served the school as Headmaster with serious physical

disability. On the strength of this complaint and on

the basis of such plea of coercion, the petitioner

submits that a valuable right of the petitioner to

receive a compassionate appointment was taken away

by the respondent authorities in an arbitrary,

wrongful, illegal and capricious manner which also

was in violation of Articles 14, 16, 19 (1)(g) and 21 of

the Constitution of India.

In this backdrop, the writ petitioner filed a

previous writ petition which was disposed of by a co-

ordinate Bench by an order dated January 31, 2012

and the respondent no. 2 was directed to consider the

case of the petitioner and pass a reasoned

order/decision thereupon.

Pursuant to the said direction dated January

31, 2012, the respondent no. 3 passed its

decision/order on September 19, 2012.

Challenging the said impugned order dated

September 19, 2012, passed by the respondent no. 3,

the connected writ petition being WPA 6861 of 2013

was filed.

From a close scrutiny of the said order dated

September 19, 2012, it appears from the connected

writ petition that the relevant Rules governing the

issue was considered.

Rule 14 of the West Bengal Primary School

Teachers Recruitment Rules, 2001 (for short, the

Recruitment Rules) amended from time to time states

the provisions for Appointment on Compassionate

Ground. Rule 14(2) of the said Recruitment Rules,

inter alia, provides for that when a primary teacher

applies for being declared permanently incapacitated

on a medical ground to the council for appearing

before the Medical Board set up according to the

procedure laid down in the Government Order, before

attaining 58 years of age and discontinues to attend

the School for such incapacitation, he may be allowed

by the council to retire on and from the date of

submission of such application, provided that the

council is satisfied its such incapacitation and other

conditions through Enquiry Committee.

It was also provided further that, after receiving

the report from the council, the Medical Board set up

for this purpose must declare him permanently

incapacitate to continue in further service for a

reasonable time and if his family is in extreme

financial hardship after such retirement, then the legal

heirs as mentioned thereunder can seek for a

compassionate appointment subject to fulfilment of all

the conditions mentioned therein.

In the instant case, no such application was

disclosed on the record. The pre-conditions mentioned

under Rule 14(2) of the said Recruitment Rules was

also not satisfied. The father of the petitioner did not

apply for his medical test by constituting a proper

Medical Board in terms of the relevant Rules. On the

Contrary, the father died on February 22, 2007 and

within a period of two years from the date of death of

the father of the petitioner an application was filed by

the petitioner seeking an appointment on

compassionate ground, as would be evident from the

order dated January 31, 2012 passed in the previous

writ petition.

From a close scrutiny of the said impugned

order passed by the respondent no. 3 it appears that

the application seeking a compassionate appointment

was made by the petitioner in terms of Rule 22 of the

said Recruitment Rules. As stated above, the petitioner

had not disclosed the application of the father by

which he sought for and received the said

premature/voluntary retirement.

Learned Counsel appearing for the writ

petitioner placed much stress upon "Annexure P-4"

to the writ petition and submitted that from the said

document the nature of application submitted by his

father and the coercion practised upon him would

clearly be evident. On a close scrutiny of the said

document, this Court is of the considered view that,

the father of the petitioner did not avail of the

provisions laid down under Rule 14 of the said

Recruitment Rules. He availed of Rule 22 of the

Recruitment Rules which in any event, specifically

states that in case of a premature retirement of a

teacher no member of family of the retired teacher

shall be allowed any employment in this respect.

So even if, the contention of the petitioner is taken to

be accepted that the undertaking was extracted from

the father of the petitioner to the extent that his heirs

will not claim any service due to his premature

retirement by coercion, even then such an

undertaking was in sync with Rule 22 of the

Recruitment Rules.

Inasmuch as, the compassionate appointment is

not a matter of right. It is a matter of State policy for

the immediate benefit of the family members of a

permanent State employee, so that, immediately after

losing his job either by way of untimely death or due

to physical incapacitance, as in the instant case, the

family of the State employee can survive. From the

facts of this case, as would be evident from the order

dated January 31, 2012 passed in the previous writ

petition, the application was made by the petitioner

within a period of two years from the date of death of

his father seeking a compassionate appointment. It

was, therefore, evident that the family could survive

for two years after the death of the employee and there

was no immediate need of service for survival of the

family. The employer has discretion for granting

compassionate appointment, of course, such

discretion should be used fairly, judiciously and within

the frame work of law.

In support of his contention that, the rejection of

the prayer for compassionate appointment of the

petitioner by the respondent no. 2 through the said

impugned order, had violated both the fundamental

and legal rights of the petitioner, the learned counsel

relied upon the following decisions:

i) In the matter of: Ashok Kumar Vs.

Chairman, Banking Service Recruitment Board,

reported in (1996) 1 Supreme Court Cases 283;

ii) In the matter of: M/s. Dwarkadas Marfatia

and Sons Vs. Board of Trustees of the Port of

Bombay, reported in (1989) 3 Supreme Court Cases

293;

iii) In the matter of: B. P. Sharma Vs. Union

of India, reported in (2003) 7 Supreme Court Cases

309 and

iv) In the matter of: Narinderjit Singh Sahni

and Another Vs. Union of India and Others,

reported in (2002) 2 Supreme Court Cases 210.

The ratio decidendi of a judgment is the

declaration of law stands as a binding precedent. Such

ratio of a judgment must be understood in the facts

and circumstances of that particular judgment on

which it was rendered. Merely, what can be contended

on a given facts of a case will not be a binding

precedence unless such contention can be construed

from the facts of that particular precedent. The

judgments relied upon by the learned Counsel

appearing for the petitioner were all rendered on

different sets of facts and circumstance and none of

them relates to compassionate appointment. The

principle for grant of compassionate appointment is

already settled and much water has flown on the

subject. None of the said judgments are of any

assistance to the writ petitioner in the facts and

circumstances of this case and as such, this Court

does not think it fit to discuss them in detail. Refusal

to grant a compassionate appointment cannot amount

to violation of Article 21 of the Constitution of India

neither the same violates Article 14 or 16 of the

Constitution of India as the compassionate

appointment is not a matter of right. It depends upon

the State policy as also in terms of various rules and

procedures framed for the same. If a compassionate

appointment is rejected the same will also not violate

the provision under Article 19 (1)(g) of the Constitution

of India, if it is rejected within the parameter of law.

To consider whether a particular provision of a

rule or any part thereof stands to be ultra vires to the

constitutional provisions or not, the same needs to be

assessed in the light, whether a right of a citizen

guaranteed under the constitution is offended by such

rule or any part thereof. To obtain a Compassionate

Appointment is not a right. It is a matter of policy of

the State and/or the respective employer. An

employment under the Compassionate Appointment is

not a right within the meaning of Article 19(1)(g) of the

Constitution. To grant or not to grant such an

appointment also does not attract discrimination

within the meaning of Article 12 of the Constitution,

provided the relevant policy and/or Rules for the same

framed by the employer while exercising the discretion

does not cause any discrimination. In the facts of this

case as discussed in detail already, this Court is of the

considered view that, Rule 22 of the Recruitment

Rules, 2001 or any part thereof does not offend any

provision laid down under the Constitution. Therefore,

the instant writ petition is devoid of any merit. Rule 22

of the Recruitment Rules, 2001 in its entirety stands

within the provisions of the Constitution of India.

In view of the foregoing discussions and reasons,

this writ petition being WPA 7296 of 2015 stands

dismissed.

There shall, however, be no order as to costs.

(Aniruddha Roy, J.)