Calcutta High Court (Appellete Side)
Kongkon Mondal vs The State Of West Bengal & Ors on 25 February, 2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
WP.ST 65 of 2021
Kongkon Mondal
Vs.
The State of West Bengal & Ors.
and
WP.CT 99 of 2021
Bappa Karmakar & Anr.
Vs.
Union of India & Ors.
Appearance:
For the Petitioners : Mr. Dilip Kr. Samanta, Adv.
Mr. Biswapriya Samanta, Adv.
Mr. Debapriya Samanta, Adv.
Mr. Debanshu Ghorai, Adv.
Mr. Md. Ashraful Haque, Adv.
For the State : Mr. Tapan Kr. Mukherjee, Adv.
Mr. Biswabrata Basu Mallick, Adv.
Mr. Sayan Ganguly, Adv.
For the Union of India : Mr. Debopriya Gupta, Adv.
Mr. Arijit Majumdar, Adv.
Judgment On : 25.02.2022
Harish Tandon, J.:
These two writ petitions are taken up together as the
common point of law was raised and argued by the appearing
Page 1 of 38
counsels. A question which is involved in the aforesaid writ
petitions is whether an application for compassionate
appointment at the behest of a dependent shall be considered
on the rules prevalent at the time of the death of the employee
or at the time of consideration of an application.
There has been a divergent opinion on the above and in
fact, the matter was referred to a larger Bench and we have
given to understand by the appearing counsels that the larger
Bench has not decided as yet. However, in course of the
hearing we have been taken to various judgments rendered by
the Supreme Court even prior in time of the reference having
made and/or thereafter.
Mr. Samanta, appearing for the writ petitioner in WPCT
99 of 2021 was persistently insisting for adjourning the matter
sine die till the larger Bench decides the matter but we should
not detain ourselves in comprehending the law as the
Supreme Court consisting of three Judges have elucidated and
analysed all the conflicting judgments and reinstated the law
as it stands. To have more clarity we decided to succinctly
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elucidate the principle behind the concept of compassionate
appointment.
The compassionate appointment is neither a vested right
nor a constitutional right but based on concession with an
avowed object to succour the family facing sudden financial
jerk/crisis on untimely death of the bread earner. Articles 14
and 16 of the Constitution of India provide equal opportunity
in employment to all eligible candidates and, therefore, the
concept of compassionate appointment is an exception
thereto. The dependent of the family who suffered penury
because of untimely death of the sole earner may be provided
with sustenance by way of compassionate appointment in
order to tide over the crisis but the same is dependent upon
scheme to be framed by the nodal employer in this regard. In
other words, in absence of any scheme or the rules framed by
the employer with regard to the compassionate appointment,
no right is vested upon the dependent of such family to claim
appointment on compassionate ground. It is thus dependent
upon the nature of the scheme - the modalities for
consideration of the application, eligibility criteria and the
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financial stability of the family and so on and so forth. All
these schemes framed for compassionate appointment have
predominantly projected the financial crisis as a pivotal tool
keeping in mind that the family having sufficient means to
sustain in absence of the deceased employee should not be
extended the benefit of such scheme. Predominantly, the
financial status including the income of the family who lost
the earning member has to be seen and such income is not
sufficient enough to sustain the family. The reason for saying
that it is not a vested right can be visualised from the core fact
that none of the Schemes or Rules provide that the moment
the employee dies in harness the dependent shall
automatically be absorbed without looking into any other
criteria on compassionate ground. The appointment on
compassionate ground is an exception to a normal rule of
employment enshrined in the constitutional provision. The
same has to be construed strictly in the light of the provisions
contained therein. Equally while construing the provisions of
the Schemes/Rules, the approach should not be pedantic but
pragmatic keeping in mind the object and purpose of such a
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Scheme because of the exception that the recruitment to
public service is to be based on merit by making open
invitation and providing equal opportunities to all eligible
participants. The source of the compassionate appointment
can be traced only from the Scheme or the Rules framed by
the employer and the applications are to be decided within the
four corners thereof. Such being the object and the purpose
the Government as well as the statutory bodies framed
Schemes pertaining to the compassionate appointment
reserving various criteria and it is axiomatic to record that
each case has to be considered on a particular scheme
applicable thereto.
The object and purpose of a compassionate appointment
having succinctly adumbrated herein above, the counsels for
the respective parties took us to various judgments of the
Supreme Court touching upon the principles whether an
application of such nature should be decided on the Rules
prevalent at the time of the death of the employee while in
service or on the date of consideration of such application by
the employer. The counsels for the writ petitioners uniformly
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relied upon a judgment of the Supreme Court in case of State
Bank of India & Ors. vs. Jaspal Kaur, reported in (2007)
9 SCC 571, for the proposition that such application shall be
decided on the basis of the Scheme/Rules prevalent at the
time of the death of the employer in service and not beyond
that.
In Jaspal Kaur (Supra) the employee died on 1.8.1999,
an application was taken out by his widow for compassionate
appointment on 5.2.2000. The said application was rejected on
7.1.2002 in view of the subsequent amendments having
brought into the scheme. The subsequent scheme laid down
the various criteria to ascertain the penury suffered by the
family including the payment of ex-gratia extended to the
family. In the backdrop of the above, it was held that such ex-
gratia payment under the scheme of 2005 framed after the
death of the employee cannot be imputed for an application
taken out immediately on the death of the employee and
directed the authorities to consider the said application
keeping in mind the scheme prevalent at the time of the death,
in these words:
Page 6 of 38
"14. Also we are of the view that the specially constituted
authorities in the rules or regulations like the competent authority in
this case are better equipped to decide the cases on facts of the case
and their objective finding arrived on the appreciation of the full
facts should not be disturbed. Both the Benches of the High Court
that heard this present matter have erred in entertaining the claim
of the respondent and allowing the claim of the respondent. This
was the view taken in a recent decision of this Court in Union Bank
of India and Ors. V. M.T. Latheesh (supra), where the court
observed that, "Learned Single Judge and the Division Bench by
directing appointment has fettered the discretion of the appointing
and selecting authorities. The Bank had considered the application
of the respondent in terms of the statutory scheme framed by the
Bank for such appointment". Finally in the fact situation of this
case, Sri.SukhbirInder Singh (late), Record Assistant (Cash &
Accounts) on 01.08.1999, in the DhabWasti Ram, Amritsar branch,
passed away. The respondent, widow of Sri.SukhbirInder Singh
applied for compassionate appointment in the appellant bank on
05.02.2000 under the scheme which was formulated in 2005. The
High Court also erred in deciding the matter in favour of the
respondent applying the scheme formulated on 04.08.2005, when
her application was made in 2000. A dispute arising in 2000
cannot be decided on the basis of a scheme that came into place
much after the dispute arose, in the present matter in 2005.
Therefore, the claim of the respondent that the income of the family
of deceased is Rs.5855/- only, which is less than 40% of the salary
last drawn by Late Shri. SukhbirInder Singh, in contradiction to the
2005 scheme does not hold water."
The judgment of Jaspal Kaur was taken into
consideration by the Co-ordinate Bench in case of State Bank
of India & Ors. vs. Rajkumar, reported in (2010) 11 SCC
661. The Co-ordinate Bench held that in Jaspal Kaur (Supra)
the widow in course of the hearing relied upon the new
scheme dated 4.8.2005 and sought an additional payment in
terms thereof. The observation made in Paragraph 14 was
relatable to the claim of the additional benefit under the new
scheme and in such backdrop it was held that such
observation cannot be made applicable for consideration of an
application for compassionate appointment under the old
scheme in these words:
"18. The said observations are read out of the context by the
Respondent. In that case the Bank employee died on 1-8-1999.
Application was filed by the widow on 5-2-2000. The case of the
widow was considered twice and the request for appointment on
compassionate grounds was declined by taking into consideration
the financial position/capacity of the family. The High Court
allowed the writ petition filed by the widow in 2004 on the ground
that the terminal benefits of Rs. 4,57,607 received by the family
were not sufficient for the sustenance of the family. In an appeal by
the Bank, it was contended before this Court that in addition to
Rs.4,57,607 paid as terminal benefits, the widow was getting
Rs.2055 per month as family pension and that was not considered
by the High Court. During the hearing before this Court, the widow
relied upon the new Scheme dated 4-8-2005 and sought additional
payment in terms of the scheme.
19. The above observations were made in the context of
rejecting, the widow's request for additional payment under the
2005 Scheme. In fact, this Court allowed the Bank's appeal and
dismissed the writ petition filed by the widow for additional
benefits. The said observations, cannot therefore, be of any
assistance to consider the applicability of the old Scheme for
compassionate appointment vis-à-vis the new Scheme for ex gratia
payment."
Ultimately, the Bench held:
"21. We, therefore, allow this appeal in part as follows:
(i) The orders of the learned Single Judge and the
Division Bench are set aside.
(ii) The Respondent and/or his family may file a fresh
application under the new Scheme, as directed by the Bank in
its letter dated 31-1-2006.
(iii) The Appellant Bank is directed to process such
application under the new Scheme, if and when made, and
pay the lump sum ex gratia amount due in terms of that
Scheme, to the beneficiaries, within four months of the receipt
of the application."
The judgment of Rajkumar (Supra) was noticed by
another Co-ordinate Bench in a subsequent judgment
rendered in case of MGB Gramin Bank vs. Chakrawarti
Singh, reported in (2014) 13 SCC 583. It was a case where
the Class-III employee of the Bank died on 19.4.2006 while in
service and an application for compassionate appointment was
made on 12.5.2006. In the meantime, a new scheme dated
12.6.2006 came into force with effect from 6.10.2006 wherein
it provides that all applications pending as on the date of the
commencement of the scheme shall only be considered for ex-
gratia payment to the family instead of compassionate
appointment. Naturally, the application for compassionate
appointment was rejected on the basis of the new scheme and
the challenge was thrown against such order of rejection that
the application filed prior in time should be considered as per
the then existing scheme prevalent at the time of the death.
The High Court disposed of the writ with the view that since
the cause of action arose at the time the death i.e. prior to the
commencement of the new scheme, the same is required to be
considered as per the old scheme and further proceeded to
direct the authorities not only to consider the application for
compassionate appointment but directed the appointment to
be made immediately. The said order was assailed before the
Supreme Court and the Apex Court after taking into
consideration the observations made in Rajkumar (Supra)
held:
"15. The court considered various aspects of service
jurisprudence and came to the conclusion that as the appointment
on compassionate ground may not be claimed as a matter of right
nor an applicant becomes entitled automatically for appointment,
rather it depends on various other circumstances i.e., eligibility and
financial conditions of the family, etc. the application has to be
considered in accordance with the scheme. In case the scheme does
not create any legal right, a candidate cannot claim that his case is
to be considered as per the scheme existing on the date the cause of
action had arisen i.e., death of the incumbent on the post. In SBI,
this Court held that in such a situation, the case under the new
scheme has to be considered."
In Canara Bank & Anr. vs. M. Mahesh Kumar,
reported in (2015) 7 SCC 412, the two Judges Bench of the
Apex Court faces the identical question where an application
was made by the dependent of the family member of the
deceased employee under the Dying in Harness Scheme
passed vide Circular no. 154 of 1993 replaced by a subsequent
scheme dated 14.2.2005 which totally eroded the concept of
the compassionate appointment and instead provided an ex-
gratia payment, was rejected by the bank on the ground that
the financial position does not show indigent circumstances
providing for an employment on compassionate ground. An
argument was advanced that the application for
compassionate appointment must be decided on the basis of
the scheme in vogue at the time of the death and the payment
of ex-gratia in lieu thereof under the subsequent scheme has
no manner of an application. However, in course of hearing it
was brought to the notice of the Apex Court that such scheme
of 2005 stood superseded by another scheme of 2014 which
revived the original scheme of providing appointment on
compassionate ground. Taking into consideration the earlier
judgment of the Co-ordinate Bench rendered in case of Jaspal
Kaur, Rajkumar and MGB Gramin Bank (Supra) The Apex
Court held:
"21. Referring to SAIL case, the High Court has rightly held
that the grant of family pension or payment of terminal benefits
cannot be treated as a substitute for providing employment
assistance. The High Court also observed that it is not the case of
the Bank that the respondents' family is having any other income to
negate their claim for appointment on compassionate ground.
22. Considering the scope of the scheme "Dying in Harness
Scheme 1993" then in force and the facts and circumstances of the
case, the High Court rightly directed the appellant Bank to
reconsider the claim of the respondent for compassionate
appointment in accordance with law and as per the Scheme (1993)
then in existence. We do not find any reason warranting
interference."
However, the divergent views expressed in case of
Rajkumar and MGB Gramin Bank (Supra) the coordinate
Bench in case of State Bank of India vs. Sheo Sankar
Tewari, reported in (2019) 5 SCC 600 referred the matter to
be decided by a larger Bench in the following:
"7. In these decisions, the original scheme under which
appointment on compassionate grounds could be made, was
substituted by one under which only ex gratia payment would be
made our the dependants. The decisions relied upon by the
petitioner proceed on the premise that there is no vested right to
have the matter considered under the former scheme and the
governing scheme would be one which was in force when the
applications came up for consideration. On the other hand, the
decision relied upon by the respondent proceeds on a different
principle and stipulates that the governing scheme would be the
former scheme and any subsequent scheme that came into force
after the claim was raised would not be applicable. The decision of
this Court in Canara Bank did notice the earlier two decisions in SBI
and MGB Gramin Bank.
8. All the aforesaid three decisions as well as the one in
Jaspal Kaur were rendered by the Benches of two Hon'ble Judges
of this Court. The principles emanating from these two lines of
decisions, in our considered view are not consistent and do not
reconcile. The matter, therefore, requires consideration by a larger
Bench of at least three Hon'ble Judges of this Court. We, therefore,
request the Registry to place the papers of this case before the
Hon'ble the Chief Justice of India for constituting a Bench of
appropriate strength to dispose of the present petition."
Even those points were referred to be decided by a larger
Bench yet, the two Judge Bench of the Apex Court in case of
Indian Bank & Ors. vs. Promila & Anr., reported in (2020)
2 SCC 729 accepted the view expressed by the Co-ordinate
Bench in case of Canara Bank & Anr. vs. M. Mahesh
Kumar, reported in (2015) 7 SCC 412 (Supra) in these
words:
"20. We have to keep in mind the basic principles applicable
to the cases of compassionate employment i.e. succour being
provided at the stage of unfortunate demise. Coupled with
compassionate employment not being an alternate method of public
employment. If these factors are kept in mind, it would be noticed
that the respondents had the wherewithal at the relevant stage of
time, as per the norms, to deal with the unfortunate situation which
they were faced with. Thus, looked under any Schemes, the
respondents cannot claim benefit, though, as clarified aforesaid, it is
only the relevant Scheme prevalent on the date of demise of the
employee, which could have been considered to be application, in
view of the judgment of this Court in Canara Bank. It is not for the
courts to substitute a Scheme or add or subtract from the terms
thereof in judicial review, as has been recently emphasised by this
Court in State of H.P. v. Parkash Chand."
In N.C. Santhosh vs. State of Karnataka & Ors.,
reported in (2020) 7 SCC 617 even after noticing that the
point whether an application for compassionate appointment
should be considered on the basis the rule prevalent at the
time of the death of the employer or at the time of
consideration of an application, the court proceed to decide
such point taking into consideration the earlier judgments
opining differently and held that the rule which was
applicable at the time of consideration of an application and
not the rule prevalent at the time of the death shall apply in
these words:
"18. In the most recent judgment in State of H.P v. Shashi
Kumar the earlier decisions governing the principles of
compassionate appointment were discussed and analyzed.
Speaking for the Bench, Dr. D.Y. Chandrachud, J. reiterated that
appointment to any public post in the service of the State has to be
made on the basis of principles in accord with Articles 14 and 16 of
the Constitution and compassionate appointment is an exception to
the general rule. The dependants of a deceased government
employee are made eligible by virtue of the policy on compassionate
appointment and they must fulfil the norms laid down by the State's
policy.
19. Applying the law governing compassionate appointment
culled out from the abovecited judgments, our opinion on the point at
issue is that the norms, prevailing on the date of consideration of the
application, should be the basis for consideration of claim for
compassionate appointment. A dependant of a government
employee, in the absence of any vested right accruing on the death
of the government employee, can only demand consideration of
his/her application. He is, however, disentitled to seek
consideration in accordance with the norms as applicable, on the
day of death of the government employee."
It now take us to another judgment of a three Judge
Bench rendered in case of State of Madhya Pradesh & Ors.
vs. Amit Shrivas, reported in (2020) 10 SCC 496. The said
case relates to a death of driver in the Tribal Welfare
Department, Bhind, Madhya Pradesh who died on 11.12.2009
while in service. An application was taken out by the son
under the Compassionate Appointment Scheme which was
rejected on 19.8.2010 placing reliance upon the policy dated
18.8.2008 issued by the General Administration Department,
Madhya Pradesh Government. The said policy provided that
where a government servant died in service and was earning
salary from a work-charged/contingent fund then there will be
no provision for grant of such appointment but a
compassionate grant of Rs. 1 lakh shall be disbursed to the
nominated dependents of such family. However, the
clarification was made to such scheme from time to time and it
was stipulated that any contingency paid employee or work-
charged employee who completed 15 years or more in service
on and after 1.1.1974 shall be treated as a permanent
employee. The Relevant Pension Rules define the work-charged
employee and the permanent employee and in the backdrop of
the above, the question which fell for consideration was
whether the employee who died in service and admittedly
employed as a work-charged/contingency employee in the
Tribal Welfare Department, upon his death the dependent's
son is entitled to compassionate appointment as per the
existing policy on the date of such demise. The Court held that
the deceased employee was undoubtedly a work-charged
employee and, therefore, attained the status of a permanent
employee having completed 15 years of service in these words:
"17. In our view, the aforesaid plea misses the point of
distinction between a work-charged employee, a permanent
employee and a regular employee. The late father of the respondent
was undoubtedly a work-charged employee and it is nobody's case
that he has not been paid out of work-charged/contingency fund.
He attained the status of a permanent employee on account of
having completed 15 years of service, which entitled him to certain
benefits including pension and krammonati. This will, however, not
ipso fact give him the status of a regular employee."
Therefore, the Court held that even if an employee is paid
out of a work-charged/contingency fund yet, it does not ipso
facto give him a status of a regular employee and such
distinction has been lost sight of by the High Court. However,
taking note of the judgment rendered in Promila (Supra) and
the scheme which was prevalent and applicable in this regard.
The Bench held:
"24. We had the occasion of examining the issue of
compassionate appointment in a recent judgment in Indian Bank v.
Promila. We may usefully refer to paras 3, 4 and 5 as under: (SCC
p. 731)
"3. There has been some confusion as to the scheme
applicable and, thus, this Court directed the scheme
prevalent, on the date of the death, to be placed before this
Court for consideration, as the High Court appears to have
dealt with a scheme which was of a subsequent date. The
need for this also arose on account of the legal position being
settled by the judgment of this Court in Canara Bank v. M.
Mahesh Kumar, qua what would be the cut-off date for
application of such scheme.
4. It is trite to emphasise, based on numerous judicial
pronouncements of this Court, that compassionate
appointment is not an alternative to the normal course of
appointment, and that there is no inherent right to seek
compassionate appointment. The objective is only to provide
solace and succour to the family in difficult times and, thus,
the relevancy is at that stage of time when the employee
passes away.
5. An aspect examined by this judgment is as to
whether a claim for compassionate employment under a
scheme of a particular year could be decided based on a
subsequent scheme that came into force much after the claim.
The answer to this has been emphatically in the negative. It
has also been observed that the grant of family pension and
payment of terminal benefits cannot be treated as a substitute
for providing employment assistance. The crucial aspect is to
turn to the scheme itself to consider as to what are the
provisions made in the scheme for such compassionate
appointment.
25. We are, thus, unable to give any relief to the respondent,
much as we would have liked under the circumstances, but are
constrained by the legal position. The family of the late employee
has already been paid the entitlement as per applicable policy."
However, taking note of the subsequent circular issued
by the authority when the matter was pending which provides
the compassionate grant instead of compassionate
appointment the Apex Court held that the expression "pending
cases" must be construed as the case pending before the
authority and not pending before the court in the following:
"27. We, however, are of the view that we can provide some
succour to the respondent in view of the Circular dated 21-3-2017,
the relevant portion of which reads as under:
"2. In this regard, it is clarified that the compassionate
appointment for the employees of work-charge and
contingency fund is in force also w.e.f. 31.8.2016. And the
cases pending before this date, will be decided only in
accordance with the directions issued for compassionate
grant and not 29-9-2014 i.e. they will be eligible only for
compassionate grant and not the compassionate appointment.
The proceedings be ensured accordingly."
28. The aforesaid circular records that pending cases will be
decided in accordance with the directions issued for compassionate
appointment on 29-9-2014. The present case is really not a pending
case before the authority, but a pending lis before this Court."
In a most recent unreported judgment delivered by the
Supreme Court in case of Secretary to Govt. Department of
Education (Primary) & Ors. vs. Bheemesh alias
Bheemappa (Civil Appeal no 7752 of 2021 decided on December
16, 2021) the Apex Court was poised with the identical points
concerning the Karnataka Civil Services (Appointment on
Compassionate Ground) Rules , 1996. In the said case the
sister of the applicant who was unmarried, died in harness on
08.12.2010. The application was rejected by the competent
authority on 17/21.11.2012 on the ground that amendment
made in the aforesaid rules on 20.6.2012 extending the benefit
of compassionate appointment to an unmarried dependent
brother will not be applicable. The respondent before the
Supreme Court moved a tribunal application before the State
Administrative Tribunal which was eventually allowed on
10.11.2017 on the ground that the amended provision would
apply retrospectively and, therefore, the benefit was given to
the said respondent pertaining to a compassionate
appointment. The State of Karnataka challenged the said order
before the High Court by filing a writ petition which was
dismissed on 20.11.2019 holding that such amendment is
retrospective in nature. The Bench noticed that at the time of
the death of sister of the respondent, the said rule does not
provide an appointment on compassionate ground to the
unmarried brother within the definition of "dependent of the
deceased Government Servant" but it is only by a subsequent
amendment the unmarried brother was included within the
said definition. The Bench noticed the fact that because of the
conflicting decisions on the above aspect, the Co-ordinate
Bench has referred the matter to the Chief Justice of India for
constituting a larger bench yet proceeded to assimilate the
principles laid down in the conflicting judgments. It was found
that there are two apparent conflicts in those line of decisions
one pertained to a case concerning the difference between an
amendment by which the existing benefit was withdrawn
and/or diluted and secondly, an amendment by which the
existing benefits were enhanced and/or enlarged. The Apex
Court further held that despite the reference having made to
the larger Bench four cases have been decided by the Supreme
Court including N.C. Santhosh (supra) case delivered by
three-Member Bench. The bench ultimately succinctly
analysed the conflicting judgments and noticed two distinctive
features emerged therefrom. Firstly, the cases where the
benefit under the existing scheme was taken away or
substituted with lesser benefit, the Apex Court directed the
applicability of a new scheme. Secondly, the cases where the
benefits under the existing scheme were enlarged by a
modified scheme after the death of the employee, the Apex
Court applied the scheme which was in force on the death of
the employee. The Apex Court held that despite the conflict as
to whether the scheme in force at the time of death of the
employee would apply or the scheme came subsequently, but
before the date of the consideration of an application for
appointment for compassionate ground would apply, there is
no apparent conflict in the aforesaid decision. It was held:
"Wherever the modified Schemes diluted the existing benefits,
this Court applied those benefits, but wherever the modified Scheme
granted larger benefits, the Old Scheme was made applicable."
However, the conflict was resolved by giving a
hypothetical example of an employee dying on a same day and
application was made on a diverse date wherein a
modified/new scheme came in the interregnum of the
aforesaid two applications with the following:
"A rule of interpretation which produces different results,
depending upon what the individuals do or do not do, is
inconceivable. This is why, the managements of a few banks, in the
cases tabulated above, have introduced a rule in the modified
scheme itself, which provides for all pending applications to be
decided under the new/modified scheme. Therefore, we are of the
considered view that the interpretation as to the applicability of a
modified Scheme should depend only upon a determinate and fixed
criteria such as the date of death and not an indeterminate and
variable factor."
It was ultimately held that since on the date of the death,
the definition of the dependent of the deceased female
employee did not include the unmarried brother, the
application cannot be considered under the modified scheme.
The law emerged from the aforesaid decision, more
particularly, the distinction have been shown in a most recent
judgment delivered in case of Bheemesh (supra) is that the
modified scheme shall be made applicable provided it dilutes
the existing benefits but would not be applicable in the event it
enlarges such benefits. However, the applicability of the
modified scheme and for the purpose of interpreting the
provisions contained therein is dependent upon a determined
and fixed criteria such as the date of the death, and not
indeterminate and variable factor. It is obvious that no one
can claim compassionate appointment as vested right. Such
right emanates from the scheme or the rules framed by the
employer as a concession which cannot be construed as the
invoiable rights. The scheme fixing a definite and the fixed
criteria as on the date of the death shall be the factor for
interpretation as to the applicability of the modified scheme.
The logical conclusion which can be drawn from the aforesaid
decision of Bheemesh (supra) that the entitlement must be
created under the scheme prevalent at the date of death. Such
entitlement cannot fructify into a right in the revised, modified
or new scheme. Even a Three-Judge Bench in case of Amit
Shrivas (Supra) held that in case of compassionate
appointment, the policy or the rule existing on the date of
death of the demise of the employee in service shall be made
applicable unless the subsequent policy is expressly made
applicable with retrospective operation. The another three
bench judgment in case of N.C. Santhosh (supra) held
otherwise to the extent that since the compassionate
appointment is not a vested right but gives a right to demand
for consideration of an application and, therefore, the policy/
scheme prevalent at the time of consideration of the said
application would be applicable. However, the aforementioned
distinction and conflict has been ultimately resolved in
Bheemesh (Supra) we feel to proceed in deciding the aforesaid
appeals on the factual matrix in the light of the law expounded
therein.
WPST 65 of 2021
Admittedly, the father of the petitioner namely, Sibapada
Mondal died on 31.7.2005 leaving behind his widow, one son
namely, the petitioner and a daughter as heirs and legal
representatives. Immediately, upon the death of the said
employee the mother of the petitioner made an application on
24.8.2015 seeking compassionate appointment on the basis of
her qualification. Indubitably, the petitioner was minor at the
time of death of his father and was a student of class IX. The
application filed by the mother of the petitioner was rejected
by the authority with categorical finding that the family is not
in penury and the income of the family is sufficient enough to
cater the need. After attaining the age of majority, the
petitioner made an application on 4.6.2008 seeking
appointment on compassionate ground. Though the petitioner
was called upon with the relevant documents by the Enquiry
Committee yet the said application was rejected on 21.5.2015
on the ground that at the time of death of the employee the
petitioner was minor and the recruitment rules came
subsequently in the year 2013 mandates the application to be
taken out within 6 months from the date of death. Having
communicated with the same order, the petitioner made
another application on 22.6.2015 for reconsideration of the
case and the concerned authority made requisition to his
subordinate officer to send all the relevant papers. It is
contended in the writ application that though no order has
been communicated to the petitioner taken upon the said
application for reconsideration yet the petitioner has come to
know that the same has been dismissed on the self-same
ground. The subsequent order has not been challenged but
the petitioner challenged the order dated 21.5.2015 by which
the earlier application seeking compassionate appointment
was rejected. The contention is raised that the rule which was
prevalent on the date of the death should be the sole criterion
for considering his application and the modified or new
scheme came in existence subsequent thereto shall not be
projected to deny the right which had accrued. Undoubtedly,
by notification dated August 21, 2002 which was prevalent at
the time of the death of the employee provides for an
employment on compassionate ground without reserving any
time limit within which such application is required to be
made. Paragraph 1 of the said notification dated August 21,
2002 postulates that an employment on compassionate
ground can be given to a solely dependent
wife/son/daughter/near relation who are in immediate need
of assistance. Since the near relations were also included
within the said scheme the clarification was also incorporated
therein to the effect that the claim of the near relation may be
considered for employment on compassionate ground only
when the wife/son/daughter cannot be considered for
employment because of the minor age or other disability. The
object and purpose behind the aforesaid clause having
inserted therein leaves no ambiguity in our mind that the
insertion of a near relation and creating his right in his/her
favour is to give immediate economical assistance by way of a
compassionate appointment so that the family of the deceased
employee may survive. It further exposes the object of
incorporation of the near relation when the immediate
dependent is disentitled because of the minor or other
disability which leads to invariable conclusion that the son or
daughter who was minor at the time of the death may not be
considered for employment. However, by a further notification
dated 6th June, 2005, the government laid down the procedure
to be followed on the issue of employment of compassionate
ground to the dependent providing an ex-gratia grant. The
option was also given to the family to opt for such ex-gratia
grant in lieu of the compassionate appointment. However, in
paragraph 11, the compassionate appointment was restricted
to the dependent of an employee who suffered death as a
result of the accident or permanently incapacitated in course
of the performance of the duties. By a notification dated 3 rd
December, 2013 an exhaustive scheme was further framed
which is called West Bengal Scheme for Compassionate
Appointment, 2013 re-imposing in the concept of the
employment on the compassionate ground empowering the
authority to condone the age in eligible cases as well as the
educational qualification for Group-D post but created a
deadline within which the dependant member should attain
the minimum age of recruitment. It is indicated that such
dependant must attain the age of recruitment within 6 months
from the date of death or incapacitation of the concerned
employee who died-in-harness. In view of the law expounded
in Bheemesh (supra) since the subsequent scheme dilutes the
existing benefits and does not enlarge such benefits, we do not
find any informity in the decision of the authority in rejecting
an application of the petitioner that he did not attain the
minimum age of employment within 6 months from the date of
death of the concerned employee. Hence, we do not find any
illegality in the order passed by the authority as well as the
Tribunal and, therefore, the writ petition is liable to be
dismissed and is accordingly dismissed.
WPCT 99 of 2021
The petitioner in the instant writ petition has been
subjected to several round of litigation before the Tribunal as
well as this Court challenging the order of the authority
rejecting an application for employment of compassionate
ground citing diverse reasons. The father of the petitioner
namely Sambhu Nath Karmakar, was a Group-D staff in
Geological Survey of India and died on August 18, 2004 while
in service. Since he left widow, the petitioner and a married
daughter an application was taken out by the widow praying
for appointment of the petitioner on compassionate ground
under died-in-harness category. The first application filed by
the petitioner was rejected by the respondent authorities on
November 29, 2007 citing a ground of unavailability of the
vacancy in terms of the DOPT, Government of India office
memorandum no 14014/19/2002-Estt dated May 5, 2003 and
finally closed the file. The said order dated 29 th November,
2007 was challenged by the petitioners before the Central
Administrative Tribunal, Kolkata Branch which gave rise to
registration of OA no. 240 of 2008. An argument was advanced
before the Tribunal that there is no fatter on the part of the
authorities to consider the case of the petitioner for
employment of compassionate ground for consecutive three
years and the authorities should not have finally closed the
file.
In the aforesaid perspective, the Tribunal application was
disposed of directing the petitioner to make a fresh
representation within a period of one month from date and the
corresponding direction was passed upon the respondent
authorities to consider the said representation in accordance
with law. Pursuant to the said order another representation
was made on 11.12.2008 by the petitioner which was rejected
on 20th April, 2009 citing a ground that since three years have
elapsed from the date of the death and in view of the said
office memorandum dated 5.5.2003, the prayer for
compassionate appointment cannot be acceded to and,
therefore, such representation stood rejected. Challenging the
aforesaid order another Tribunal application being OA no. 741
of 2009 was filed wherein it was categorically stated that the
blanket reliance upon the office memorandum dated 5.5.2003
for closure of the case after three years is not appropriate in
view of the judgment of the Tribunal, Ahmadabad Bench. The
said Tribunal application was disposed of on 3.1.2011 with the
categorical finding that the decision of the Co-ordinate Bench
of the Tribunal is binding on the other Co-ordinate Bench and,
therefore, the impugned order cannot be sustained, and
directed the respondent authorities to reconsider the
application of the petitioner in accordance with the DOPT and
office memorandum and the guidelines of the Ministry of
Mines/Geological Survey of India within three months from
the date of communication of the order. Pursuant to the said
direction, the application was reconsidered and by an order
dated 28/29-4-2011, the respondent authority again rejected
the application taking into consideration the office
memorandum dated 5.5.2003. The order of 28 th/29th April,
2011 was further challenged in OA 879 of 2011 primarily on
the ground that in the meantime the said office memorandum
dated 5.5.2003 should not have been taken as a pivotal
ground when the above consideration is required to be taken
into account. The Tribunal disposed of the said application on
1.10.2015 directing the authorities to place the application
once again before the compassionate appointment committee
for consideration in accordance with the law as and when the
committee meets. However, the matter was again reconsidered
in terms of the said order and stood rejected on the premise
that the petitioner scored lesser merit point then the other
recommended candidates and, therefore, in view of the office
memorandum dated 5.9.2016 he is not entitled to any benefit
as he is already married. The said order was further
challenged in OA 173 of 2017 before the Tribunal
subsequently. The Tribunal held that since the order of
rejection dated 23.11.2016 was passed before the filing of the
Tribunal application indicating that the petitioner could not
secure the requisite score no other relief can be granted except
directing the respondents to communicate the comparative
allotment of score points along with the break up and the
decision thereof to the applicant within a stipulated time.
Liberty was also given to the petitioner to make representation
to the authority if he otherwise felt aggrieved thereby. The said
order of Tribunal is challenged in the instant writ petition and
an argument is advanced that the entire decision of the
authority is based upon the office memorandum dated
5.5.2003 which was quashed and set aside by the Allahabad
High Court on May 7, 2010 in WP 13102 of 2010. There is no
findings returned by the Tribunal on the merit of the said
application as the Tribunal simply proceeded on the basis that
the order of rejection dated 23 rd November, 2016 had been
passed before the filing of the OA. The details thereof must be
communicated to the petitioner. There is no finding returned
on the applicability of a subsequent scheme or the office
memorandum nor on the proposition whether the scheme
which was prevalent at the time of the death of the employee
shall only be considered. The parties have not exchanged
affidavits in the instant writ petition in view of the nature of
the order passed by the Tribunal. Whether the ration laid
down in Bheemesh (Supra) would apply or not is a matter to
be decided in the Tribunal application on the basis of the
disclosure of the materials on affidavits and the Tribunal
should not have acted in slipshod manner as the very purpose
of the scheme for appointment of compassionate ground would
be frustrated. The order impugned is thus, set aside. We direct
the respondent authorities to file affidavit in opposition within
three weeks from date before the Tribunal; reply if any, shall
be filed within a week thereafter. The Tribunal is directed to
reconsider the application afresh upon recording its
independent finding on the basis of the material disclosed in
the affidavits by the respective parties and in accordance with
the law and in the light of the observation made herein before
within four weeks from the date of the expiration of period of
exchange of affidavits. None of the observations touching upon
the merit of the case shall be construed as persuasive effect
upon the Tribunal except the proposition of law as
enumerated hereinabove and the Tribunal shall be free to
decide the same on merit.
In view of the findings made hereinabove, both the writ
petitions are disposed of.
Urgent photostat certified copies of this judgment, if
applied for, be made available to the parties subject to
compliance with requisite formalities.
(Harish Tandon, J.)
I agree.
(Rabindranath Samanta, J.)
