Sri Tarjan Ghosh vs The State Of West Bengal & Ors
2023 Latest Caselaw 5507 Cal

Form No. J(2)
                 IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                         APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
           And
The Hon'ble Justice Md. Shabbar Rashidi


                                     WP.ST 122 of 2014

                                      Sri Tarjan Ghosh
                                             Vs.
                               The State of West Bengal & ors.



For the Writ petitioner          :     Mr. Tulshi Das Ray, Advocate
                                       Mr. Tapan Ray, Advocate


For the State                    :     Mr. Tapan Kr. Mukherjee,
                                                 Senior Advocate & A.G.P.
                                       Ms. Sangeeta Roy, Advocate



Hearing on                 :     24.08.2023

Judgment on                :     24.08.2023


DEBANGSU BASAK, J.:-

1.

The writ petition is directed against an order dated October 1,

2013 passed in O.A.484 of 2011 by the West Bengal Administrative

Tribunal, negating the claim for compassionate appointment of the writ

petitioner.

2. Learned advocate appearing for the writ petitioner submits that,

the writ petitioner applied for compassionate appointment subsequent to

the death of his father. He refers to the Memo dated March 29, 2010. He

submits that, the authorities took into consideration financial conditions

of the family of the deceased in rejecting the claim of the writ petitioner.

He contends that, since the date of death was on March 28, 2007, the

relevant notification governing the date of death of the deceased

employee should be taken into consideration. He submits that, on the

date of death, there was no notification of the State empowering the State

to disallow an application for compassionate appointment on the ground

of financial condition.

3. Learned advocate appearing for the writ petitioner relies upon

2012 (1) Calcutta Law Journal 279 (Smt. Angurbala Maity & anr. vs.

State of West Bengal & ors.) and submits that the financial condition of

the family of the deceased employee was wrongly made a ground to reject

an application for compassionate appointment. He relies upon (2000) 6

Supreme Court Cases 493 (Balbir Kaur and another vs. Steel

Authority of India Ltd. And others) and submits that, in that case also,

receipt of the death benefits was kept out of the purview of the

consideration for grant of compassionate appointment.

4. Learned Senior Advocate appearing for the State submits that, the

date of birth of the deceased employee was October 2, 1947. The

deceased employee expired on March 28, 2007. On the date of death the

deceased employee was aged in excess of 50 years. He refers to a

notification bearing no. 97-Emp dated June 6, 2005 as also a notification

bearing no.133-Emp dated October 1, 2007. He contends that, the

notification dated June 6, 2005 was issued in exercise of powers under

Section 3(c) of the West Bengal Regulation of Recruitment in State

Government Establishments and Establishments of Public Undertakings,

Statutory Bodies, Government Companies and Local Authorities Act,

1999 which prescribes that, the death of the employee, inter alia, must

occur before attaining age of 50 years for the family of the deceased

employee to apply for compassionate appointment. He contends that, the

notification dated June 6, 2005 was subsequently modified on October 1,

2007.

5. Relying upon (2012) 11 Supreme Court Cases 307 (Union of

India and another vs. Shashank Goswami and another), learned

Senior Advocate for the State submits that, an application for

consideration of compassionate appointment is required to conform with

the rules of employment governing the deceased employee. In the facts

and circumstances of the present case, he submits that, family members

of the deceased employee are not entitled to compassionate appointment

even going by the notification dated June 6, 2005. The application for

compassionate appointment was evaluated on the basis of notification of

2008 which required fulfillment of a financial criteria also. Therefore, on

such ground also the writ petitioner is not entitled to compassionate

appointment.

6. Learned Senior Advocate appearing for the State points that the

deceased left behind surviving his widow, a daughter and the writ

petitioner. The widow and daughter were adults on the date of death of

the deceased employee. They did not apply for compassionate

appointment. The application for compassionate appointment was made

by the writ petitioner. His date of birth is May 4, 1990. Such application

was made on April 21, 2009 after a period of two years from the date of

death. Therefore, according to him, there was no immediate need of

financial assistance for the family of the deceased.

7. Learned advocate appearing for the petitioners draws attention of

the Court to a notification bearing no.114-Emp dated August 14, 2008

where, the period of employment was waived.

8. From the materials made available on record, it is established that,

the date of birth of the deceased employee was October 2, 1947. The date

of death was March 28, 2007. On the date of death, therefore, the

deceased employee was aged in excess of 50 years.

9. Taking into consideration, the notification prevailing on the date of

death of the deceased employee, that is, the notification dated June 6,

2005 the family of an employee who attained the age of 50 years, is not

entitled to grant of compassionate appointment.

10. The notification dated August 14, 2008 was issued in clarification

of the notification bearing no.30-Emp dated April 2, 2008. The

notification dated August 14, 2008 only waived the requirement of period

of two years being left for the deceased employee for the family of the

deceased employee to apply for compassionate appointment. The

notification dated August 14, 2008 does not assist the writ petitioner

since, age of the deceased employee was in excess of 50 years, on his

date of death. Therefore, the family of the deceased employee was

disqualified for compassionate appointment on the strength of the

notification bearing no.97-Emp dated June 6, 2005.

11. Shashank Goswami and another (supra) is of the view that, grant

of compassionate appointment is an exception to the rule of public

service where appointment should be made strictly on the basis of the

open invitation of applications and merit. It noted that, compassionate

appointment can be granted only where there was an existing scheme or

rules governing the deceased employee at the time of the death granting

compassionate appointment.

12. Balbir Kaur and another (supra) is also of the same view as that

of Ahashank Goswami and another (supra). In the facts of that case,

there was a tripartite agreement between the employer and other parties

whereby it was agreed that, death-cum-retirement benefit will not be

taken into consideration for the purpose of considering the financial

criteria for compassionate appointment.

13. Smt. Angurbala Maity & anr. (supra) is also of the same view

that, there must exist a scheme or a rule for compassionate appointment

governing the deceased employee. In the facts of that case Principal

Secretary was directed to take a sympathetic view of the situation after

returning the finding that there was a rule for compassionate

appointment governing the deceased employee.

14. In the facts of the present case, there exists a rule for

compassionate appointment. The rules requires certain criteria to be

fulfilled for family members of the deceased employee to receive

compassionate appointment. One of them is the age qualification of the

deceased employee. Family members of person in excess of 50 years of

age at the time of his death was disqualified to apply for compassionate

appointment. In the facts of the present case, the deceased employee was

far in excess of 50 years of age on the date of death.

15. There is one further aspect to be taken into consideration. On the

date of death, the deceased employee left behind him surviving his widow

and daughter apart from the writ petitioner. None of them applied for

compassionate appointment immediately on the death of date of the

deceased employee. The date of birth of the writ petitioner is May 4,

1990. He was a minor on the date of death of the deceased employee. He

chose to apply on April 21, 2009 after he attained the age of a major.

Compassionate appointment is not to be treated as a hereditary right. It

is meant to facilitate a family who falls into financial distress upon the

death of the employee to tide over the same. In the facts of the present

case, it is apparent from the records that, the family was not in need of

immediate financial assistance as they waited for a minor son to attain

the age of major in order to apply for compassionate appointment.

16. In such circumstances, we find no merit in the present writ

petition.

17. WP.ST 122 of 2014 is dismissed without any order as to costs.

(Debangsu Basak, J.)

18. I agree.

(Md. Shabbar Rashidi, J.)

CHC