Mrinal Kanti Kumbhakar vs The State Of West Bengal & Ors
2022 Latest Caselaw 6473 Cal

11 12.9.2022                       WPA 18551 OF 2022
Sc Ct. no.22                              --------------



                                   Mrinal Kanti Kumbhakar
                                               Vs.
                               The State of West Bengal & Ors.


                     Mr. Dilip Kumar Sinha
                                                           .... For the Petitioner
                     Mr. Swapan Kumar Datta
                     Mr. Pradyot Kumar Das.
                                                           .... For the State



                     Affidavit-of-service filed in Court today, is taken on

               record.

                     The    petitioner    sought           for   compassionate

               appointment. The petitioner was the son of the deceased

               college employee namely, Mohanlal Kumbhakar, who

               was employed as a "Cashier" at the Mahatma

               Gandhi College, Purulia (for short "the College").

                     The father of the petitioner died on January 29,

               2022 during his employment.           On May 25, 2022, the

               necessary   application   was      submitted       by   the    writ

               petitioner son to obtain the compassionate appointment.

               The appointing authority failed to consider the prayer of

               the petitioner at that relevant point of time in the year

               2002 and the same was kept pending.

                     Two rounds of writ litigations had happened

               previously at the instance of the writ petitioner in support

               of his claim for obtaining compassionate appointment.
                               2




The first writ petition was filed in 2003. The second one

was filed in 2005. The said second round of writ petition

of 2005 had arrived at its finality by a Judgment and

Order dated March 29, 2022, Annexure-P3 to the writ

petition, passed by an Hon'ble Division Bench of this

Court.

      The Hon'ble Division Bench directed the second

respondent    in   the   appeal,   also   being   the   second

respondent herein, to decide the issue with his reasoned

order after hearing the parties. Pursuant to such

direction, the reasoned order dated June 14, 2022,

Annexure-P4 to the writ petition was passed by the

second respondent in the writ petition.

Being aggrieved with the said reasoned order dated

June 14, 2022, the instant writ petition, being the third

round of writ litigation, was instituted by the petitioner.

Mr. Dilip Kumar Sinha, learned advocate appearing

for the writ petitioner submitted that, the petitioner was

through out diligent and had pursued his right to obtain

the necessary compassionate appointment in place and

stead of his father's employment, after the unfortunate

and untimely demise of his father.

There was no laches on the part of the petitioner.

The petitioner also pursued his remedy before this Court

simultaneously and contemporaneously. Referring to the

impugned order dated June 14, 2022, learned advocate

for the petitioner submitted that, on the teeth of a

notification issued by the Labour Department dated June

6, 2005 (for short 'the 2005 notification'), the respondent

no.2 rejected the prayer for compassionate appointment

as claimed by the petitioner. Referring to the said 2005

notification, Mr. Sinha, learned advocate for the petitioner

submitted that the claim of the petitioner seeking

compassionate appointment was lodged immediately after

the demise of his father and was pending since 2002

before the College authority.

The said notification was published by the Labour

Department in 2005 which was much subsequent to the

claim raised by the petitioner before the relevant

employer, namely, the College authority. Further,

drawing attention to the relevant provisions of the said

2005 notification, the learned counsel submitted that, the

petitioner's father died before completing 20 years of

service, though at the time of demise, his father was aged

about 57 years. Learned counsel for the petitioner

further submitted that, though there would be no

application of the 2005 notification at all, in the facts of

this case, even if for the argument sake, if the same was

taken into account, then also the petitioner was eligible to

receive the compassionate appointment in the year 2002,

when his application was submitted as his father could

not complete his service tenure for 20 years but died.

Mr. Sinha, learned advocate for the petitioner

further submitted that, the long pendency of the writ

petition would not be taken into account, as the petitioner

had duly and with due diligence pursued his remedy in

law simultaneously and contemporaneously without any

delay or laches. He prayed for necessary direction be

made by this Court upon the relevant employer being the

College authority for granting compassionate appointment

to the petitioner forthwith without any further delay. The

writ petition may be allowed as prayed for.

Mr. Swapan Kumar Datta, learned senior counsel

appearing for the State opposed the said writ petition. He

submitted that the employee died in 2002, today in

2022, after about 20 years no compassionate

appointment can be granted to the petitioner. Mr. Datta

further drew attention of this Court to the grounds for

rejection mentioned in the said impugned order dated

June 14, 2022 and submitted that the petitioner was

disqualified at the threshold in terms of the said 2005

notification, as the father of the petitioner died after 50

years of age and at 57 years of his age. Mr. Datta further

submitted that, at present there is no comprehensive

scheme prevailing for giving appointment to the

dependent member of an employee in a Government

Aided College on compassionate ground in died-in-

harness cases.

Mr. Datta, learned senior counsel for the State

further submitted that, the principle for granting

compassionate appointment rests on the immediate

requirement for survival of the employee's family, who

suffered untimely and premature death in-harness. The

facts in this writ petition, is not such. The family of the

concerned employee could survive for 20 years, so the

case for compassionate appointment in terms of the

prayers made by the petitioner cannot be considered by

this Court at this stage. He further submitted that,

compassionate appointment is not an alternative mode of

employment. It is the State policy. Since there is no

such policy prevailing at the present point of time, the

question of granting compassionate appointment can not

arise.

Mr. Datta also prayed for time to file affidavit-in-

opposition in this writ petition.

After considering the submissions and rival

contentions of the appearing parties and on perusal of the

materials on record, at the threshold this Court, in its

considered view, rejects the prayer of the learned senior

State counsel for filing an affidavit in the matter

considering that the issue relating to compassionate

appointment of the petitioner is pending for more than 20

years.

The college authority chose not to be represented at

the time of hearing. Since 2002 the representation made

by the petitioner was pending before the college authority

and the said college authority in arbitrary exercise of its

discretion failed and neglected to pay its attention

thereupon and to consider the same. The issue involved

in the writ petition relating to the compassionate

appointment of the petitioner had already received the

attention of the Hon'ble Division Bench of this Court and

on the basis of the direction made by the Hon'ble Division

Bench, the issue was decided by the State Executive

Authority, namely, the second respondent herein by its

impugned order dated June 14, 2022. The said

impugned order dated June 14, 2022 is under challenge

in this writ petition. This Court in exercise of its

jurisdiction in judicial review shall access the said

impugned order. This Court is of the firm view that,

considering the fact of long pendency of the petitioner's

case, this writ petition can be proceeded in absence of

any representation of the relevant college authority.

Accordingly, this Court proceeds.

To appreciate the grounds for rejection of the

compassionate appointment under the impugned order,

the relevant portion from the impugned order dated June

14, 2022 is quoted below :

"DECISION WITH REASONS

There is no dispute that the father of the Petitioner was the Cashier of the Mahatma Gandhi College, Lalpur which was then affiliated to Burdwan University and that his father died on 21.01.2002 and the Petitioner applied before the College Authority on 25.01.2002. So there was no delay on the part of the applicant in making the application

before the College Authority for appointed on compassionate ground.

From the materials available in the file, it appears that the Directorate wrote to the Higher Education Department vide Memo No.1462- UGC dated 02.12.2004 on the instant matter, which was subsequently forwarded to the Finance Department. The Finance Department did not accept the Petitioner's prayer in terms of Labour Department's Order No.97 Emp dated 06.06.2005 which stated that no appointment on compassionate ground would be offered to the dependent of an employee who died-in- harness after completing 20 years' service on after attaining 50 years of age.

From the materials available in the file, it appears that Late Mohan Lal Kumbhakar, the father of the Petitioner Mrinal Kanti kumbhakar, Ex-Cashier of Mahatma Gandhi College, Lalpur, Purulia died-in-harness on 21.01.2002 at the age 57 years after rendering 19 years one month's service in that College. Since the father of the petitioner died-in- harness after attaining the age of 57 years, the Petitioner was not entitled to appointment on compassionate ground in view of the Labour Department's Order No.97 Emp dated 06.06.2005.

In addition to that, there is at present no comprehensive scheme of giving appointment to the dependent member of an employee of any Government Aided College on compassionate ground in death-in-harness cases.

In view of what are discussed above, it is decided that the Petitioner Mrinal Kanti Kumbhakar5 is not entitled to any appointment

on compassionate ground in "died-in-harness" category. Hence his prayer is rejected on proper consideration. The matter is thus disposed of.

Let this decision be communicated to Sri Mrinal Kanti Kumbhakar forthwith and all other concerned immediately."

(emphasis supplied)

On a careful scrutiny of the said impugned order, it

appears that the grounds on which the respondent no.2

rejected the compassionate appointment for the petitioner

were two folds which were : -

(a) The father of the petitioner died-in-harness

on January 21, 2002 at the age of 57 years. Since

the father of the petitioner died-in-harness after

attaining the age of 57 years, the petitioner was not

entitled to appointment on compassionate ground

in view of the Department's Order no.97 Emp.

Dated June 06, 2005 and;

(b) There is at present no comprehensive scheme

of giving appointment of dependent of an employee

on any Government Aided College on

compassionate ground in death-in-harness cases.

The facts stated above are not disputed. The said

impugned order dated June 14, 2022 was passed

pursuant to the direction of the Hon'ble Division Bench

as mentioned above.

This Court in exercise of its high prerogative writ

jurisdiction, in a judicial review, has a very limited

authority to assess the said impugned order. This Court

can only visit upon the decision making process of the

said impugned order. The facts recorded by the hearing

authority, namely the second respondent herein, while

passing the said impugned order are showing with that of

the facts stated above without any dispute. Thus, this

Court does not find any necessity to discuss those facts

once again while accessing the said impugned order.

On the previous rounds of writ petitions after

considering all the factual aspect, the Hon'ble Division

Bench directed the authority concerned to dispose of the

case of the petitioner for compassionate appointment with

a reasoned order. In this third round of writ petition it is

only the said impugned order dated June 14, 2022 needs

to be assessed by this Court with its limited jurisdiction

in judicial review. So the presence of the college authority

would not improve anything on fact or otherwise in

adjudicating the said impugned order in this writ petition.

The impugned order needs to be assessed only on its

decision making process only.

From the decision and the reasons stated in the

said impugned order it appears to this Court that, the

sole basis for rejection was the said Labour Department's

2005 notification. The said notification was issued in

2005 whereas the petitioner had applied before the

relevant College authority seeking compassionate

appointment immediately after the death of his father in

2002 and since then the issue was kept pending. The

2005 notification did not provide for any retrospective

application thereof. The same should not and cannot be

construed in any manner having any retrospective effect.

Thus, this Court is of the firm view that, this 2005

notification would have no application in any manner

whatsoever in the facts of this case when the petitioner

claimed the compassionate appointment in 2002.

To consider the argument as contended and argued

by the learned senior State counsel that, the petitioner at

no point of time was eligible to avail of the said

compassionate appointment in terms of the said 2005

notification, the relevant portion fixing the eligibility

criteria for compassionate appointment under the said

2005 notification is quoted below :

"2. One of the dependants of an employee who dies in harness or who retires prematurely on being declared permanent incapacitated may be offered appointment on compassionate ground subject to the fulfilment of the following conditions :-

             (i)      the    employee    has      died,   or
             retired        on   being     permanently
             incapacitated before completing 20

yers of service or before attaining the age of 50 years, whichever is earlier,

(ii) the family of the deceased or the retired employees as the case

may be, is in need of immediate assistance and appointment of a dependent of the employee is absolutely essential for survival of the family.

              For    the   purpose        of   appointment           on
       compassionate        ground        in    terms     of        this

notification, a dependant shall mean spouse, a son or an unmarried daughter who was solely dependant on the earnings of the deceased or the retired employees."

From the above provisions of the said 2005

notification it clearly show that, one of the dependent of

an employee who dies in-harness may be offered

appointment on compassionate ground subject to the

fulfillment of the conditions, inter alia, when the employee

has died before completing 20 years of service or

before attaining the age of 50 years, whichever is

earlier.

The admitted facts show, as also the same was also

recorded in the said impugned order that the father of

the petitioner died on January 21, 2002 at the age of

57 years after rendering 19 years one month's

service in the College. The provisions of the said 2005

notification, though not at all applicable in the facts of

this case as discussed above but to address the point of

defence taken by the learned senior State counsel, it

would be further evident that the petitioner did qualify

the eligibility criteria for obtaining compassionate

appointment as his father died before completing 20

years of service.

It is settled that compassionate appointment is not

a matter of right. It is equally true and well settled that

compassionate appointment is not a mode of an

alternative employment. It is equally true that

compassionate appointment is a benevolent and

beneficial State policy. In the light of the said settled

principles of law, it is equally well settled that, if a bona

fide claimant claims for compassionate appointment who

fulfills all the qualification and criteria or for the same

and is not disqualified on any ground whatsoever and is

otherwise eligible for the same, such a candidate in

exercise of the said beneficial State policy, should not be

deprived from receiving compassionate appointment.

In such a case, the employer shall exercise its

discretion judiciously, lawfully and fairly and grant the

compassionate appointment to the eligible one.

From the materials on record it is equally

established that the petitioner was diligent in pursuing

his claim since immediately after the death of his father

both before the employer and also before the court of law.

So the plea for any delay or laches could not be attributed

to the petitioner at all.

In view of the foregoing discussions and reasons,

this Court is of the considered view that, in the year 2002

itself the petitioner was eligible to receive the said

compassionate appointment and his claim was arbitrarily

and illegally negated by the relevant employer being the

College authority. The impugned order also suffers from

serious infirmities as discussed above. Thus, the

impugned order dated June 14, 2022 stands set aside

and quashed.

The respondent no.4 and/or the appropriate

College authority is hereby directed to give appointment

to the petitioner forthwith but positively within a period of

six weeks from the date of communication of this order

and shall take all further necessary steps to issue the

Appointment Letter and to allow him to join

simultaneously without any delay.

The petitioner shall be eligible and entitled to

receive whatever service benefits he will be entitled to and

eligible for in accordance with law attached to his

employment regularly and without any disruption.

Since the College authority in arbitrary exercise of

its discretion had kept the issue pending and idle since

2002 which resulted the petitioner to be dragged into the

three rounds of writ litigations for about last twenty

years, the College authority must compensate the

petitioner in the facts of this case.

The College authority is directed to pay a cost of

Rs.2 lakh (Rupees two lakh only) to the petitioner

forthwith and positively within a period of fifteen days

from the date of communication of this order.

On the aforesaid terms, this writ petition, WPA

18551 of 2022 stands allowed.

Photostat certified copy of this order, if applied for,

be furnished expeditiously.

(Aniruddha Roy, J.)