29.08.2 vs 3 Bank Of Baroda & Ors
2023 Latest Caselaw 5659 Cal

                            WPA 4010 of 2020
                                Pradip Das
29.08.2                             v.
   3                       Bank of Baroda & Ors.
 Sl-20
 Ct.11 Mr. Soumen Kumar Dutta
 (S.R.) Mr. Partha Sarathi Basu
        Mr. Sabyasachi Bhattacharjee          ... for the petitioner.

        Mr. Suchayan Banerjee
        Mr. S.K. Banerjee                     ... for the Bank.


              The writ petition has been preferred primarily

        praying for the following relief: -

              " a)   A Writ of and/or in the nature of Mandamus
        commanding and/or directing the respondent authorities

concerned and/or their men, agents, servants and/or assigns to forthwith give appointment to the petitioner on compassionate ground."

Mr. Dutta, learned advocate appearing for the

petitioner submits that the petitioner's father, namely,

Parimal Das, since deceased, happened to be an employee

of Bank of Baroda. While working as a Sahayak at

Kanchrapara Branch, his father died-in-harness on 26th

December, 2017 leaving behind the petitioner, his mother

and his sister. The deceased employee was the sole bread-

earner of the family and hence, the family plunged into

penury due to sudden demise of the deceased employee.

The petitioner's mother made an application praying for

appointment of the petitioner on compassionate ground.

The respondent no.3 vide. a letter dated 6th June 2018

made certain queries which were duly replied to by a

letter dated 8th June, 2018 and all the requisite

documents were submitted to the concerned respondents

and even the petitioner also made a representation dated

10th April, 2019 praying for his appointment on

compassionate ground but the authority concerned

maintained a deceptive silence. Consequently, the

petitioner was constrained to prefer a writ petition vide.

W.P. No.10217 (W) of 2009 which was disposed of By

Amrita Sinha, J. by an order dated 20th June, 2019

directing the respondent/bank to communicate the fate of

the application for compassionate appointment, if not

communicated in the meantime, within a period of three

weeks from the date of communication of a copy of that

order.

In deference to the order dated 20th June, 2019, by

a letter dated 18.07.2018, the Sr. Branch Manager, Bank

of Baroad, Kanchrapara Branch communicated the fate of

the application for compassionate appointment to the

mother of the petitioner. From the letter dated

18.07.2018, it would be explicit that the application was

rejected by the higher authority of the Sr. Branch

Manager , Kanchrapara Branch on the ground that the

petitioner's age had exceeded 26 years and the petitioner's

mother was advised to apply for 'Ex Gratia Financial

Relief' in lieu of appointment of the petitioner on

compassionate ground.

Mr. Dutta arduously contends that by a cryptic

order, the prayer for compassionate appointment of the

petitioner has been turned down on the plea that the

petitioner has crossed the age of 26 years but no

opportunity of hearing was given to the petitioner and

even no recruitment rule has been placed before the

petitioner showing that the upper age limit for any

employee of subordinate cadre would be 26 years. He

contends that the petitioner is a candidate belonging to

scheduled caste community and hence, the petitioner is

entitled to get relaxation of upper age limit up to 5 years

and the authority concerned has not taken into account

this fact while considering the application for

compassionate appointment.

Drawing my attention to clause 5.2 of the scheme for

compassionate appointment adopted by the bank, Mr.

Dutta submits that the bank authorities have been

empowered to relax the upper age limit wherever it is

found to be necessary.

He submits that the scheme of compassionate

appointment is a beneficial legislation and liberal

interpretation should be given to the scheme. He contends

that object underlying a provision for grant of

compassionate employment is to assist the family of the

deceased employee to tide over the sudden financial crisis

faced by the family on account of sudden demise of the

deceased employee. In support of his such contentions, he

placed reliance upon the judgments delivered in the case

of Bhawani Prasad Sonkar v. Union of India & Ors,

reported in (2011) 4 SCC 209, Directorate of Education

(Secondary) v. Pushpendra Kumar, reported in (1998 ) 5

SCC 192.

In response, Mr. Banerjee, learned advocate

representing the bank placed a circular issued by the

General Manager of the bank on 6th March, 2020 and

claimed that there is no iota of doubt that as per

recruitment rules of the bank the upper age limit for the

post of any subordinate cadre is 26 years.

He strenuously contends that appointment on

compassionate grounds cannot be claimed to be a vested

right and the financial crisis is not the only criterion to be

considered for grant of appointment on compassionate

grounds. According to him, the person seeking such

appointment must have the necessary qualifications

which include being within the prescribed age for entry in

the service. He submits that at the time of making

application for compassionate appointment, the petitioner

crossed the age of 33 years and before making the

application, the petitioner had tied matrimonial chord and

the petitioner submitted a scheduled caste certificate

which was issued in 2019 i.e. after the date of making

such application. He vehemently contends that

compassionate appointment can be given if the dependent

of the deceased employee fulfills the eligibility criteria laid

down in the scheme and/or in the recruitment rules. To

buttress his argument, he places reliance upon a

judgment delivered in case of N.C. Santhosh -vs- State of

Karnataka & Ors., reported in (2020) 7 SCC 617.

Heard the learned advocates appearing for the

respective parties. Perused the materials on record placed

before me.

There is a catena of judgments on the proposition of

law that the compassionate appointment is given solely on

humanitarian ground to provide immediate relief to the

family of the deceased to tide over the sudden crisis. As a

rule, appointment in public service should be strictly on

the basis of open invitations and merit. However, there

are some exceptions carved out in the interests of justice

and to meet certain contingencies. One such exception is

in favour of the dependents of an employee dying in

harness and leaving his family in penury. Needless to

observe that the scheme and the recruitment rules

containing provisions for compassionate appointment is

beneficial legislation and hence, such scheme and/or

rules must receive liberal interpretation.

In the given case, prayer for compassionate

appointment of the petitioner has been turned down only

on the ground that the petitioner crossed the age of 26

years. So, it can be presumed that the petitioner fulfilled

the other criteria.

The Circular issued in 2020 cannot have

retrospective operation. From the circular dated 18th

February, 2016 (Annexure -P-11 to the writ petition), it

transpires that the respondent/bank adopted a scheme

for compassionate appointment. The clause- 4.1 of the

circular dated 18. 02.2016 speaks that the compassionate

appointment shall be made in the clerical and sub-staff

cadre only and the clause 5.2(b) thereof prescribes that

for both the clerical and subordinate cadre, minimum age

limit would be 18 years and the bank authorities have not

been given liberty to relax lower age limit. Regarding

upper age limit Clause 5.2(b) makes following

prescription:

'the upper age limit will be as per the rules applicable from

time to time to direct recruitment in clerical cadre.

Where no dependent of the deceased employee within

the prescribed age limit is available for employment the

maximum age limit may be relaxed wherever found to be

necessary...

Note - In case of dependents belonging to Scheduled

Castes/Tribes/OBCs, the existing concession as per

government guidelines for Scheduled Castes/Tribes/OBCs

for upper age limit will continue to apply.'

So, it is clear as day that circular dated

18.02.2016 has given discretion to the bank authorities to

relax the upper age limit whenever found to be necessary.

Clause 16.5 of the circular dated 18.02.2016 lays down

that requests for compassionate appointment may be

considered with greater sympathy on applying relaxed

standards depending on the facts and circumstances of

the case.

Indisputably, the petitioner crossed the age limit of

26 years on the date of making the application. Form the

caste certificate annexed to the writ petition, it would be

explicit that the petitioner is a candidate belonging to the

scheduled caste community. Mr. Banerjee contends that

such certificate was issued after the petitioner made the

application for compassionate appointment. Suffice it to

observe that a candidate does not become a candidate

belonging to Scheduled caste or Scheduled Tribe or OBC

coomunity on the date of issue of certificate but on the

day he/she was born. By issue of certificate, it is only

certified that the candidate belongs to Scheduled Caste or

Schedule Tribe or OBC community, as the case may be.

The petitioner is entitled to get relaxation of upper

age limit up to 5 years and the petitioner's sister by giving

no objection declared that she will not accept the

compassionate appointment and hence, it is obvious that

there is no dependent in the family who has fulfilled the

eligibility criterion prescribed in clause 5.2(b) of the

circular dated 18th February, 2016. The authority

concerned has not taken into account such aspect say,

relaxation of upper age limit while considering the case of

appointment of the petitioner on compassionate ground.

Admittedly, the respondent no. 3 while

communicating the fate of application of the petitioner

only mentioned that his higher authority rejected the

petitioner's prayer for compassionate appointment and it

has not been mentioned who is the authority to consider

the case of appointment on compassionate ground.

Hence, taking stock of chronological events and

resume, I am inclined to dispose of the writ petition

directing the respondent no.2 to reconsider the case of

appointment of the petitioner on compassionate ground

as per the guidelines contained in clause 16.5 of the

circular dated 18.02.2016 and keeping in mind that the

petitioner is a candidate belonging to Scheduled caste

community. The authority shall consider whether or not

the petitioner can get benefit of relaxation of upper age

limit. While reconsidering the case of the petitioner, the

respondent no.2 shall afford an opportunity of hearing to

the petitioner and at the time of hearing, the petitioner

shall be at liberty to place all sort of documents in

support of his contention. Such exercise must be

completed within a period of 8 weeks from this date. If the

application of the petitioner is decided in favour of the

petitioner, the respondent no. 2 shall take next follow up

action and if the same is decided against the petitioner,

the respondent no. 2 shall pass a reasoned order and

communicate such order to the petitioner within two

weeks from the date of taking such decision.

It is clarified that despite having inter-

departmental circular or notification to the contrary, if

any, the reconsideration of the application of the

petitioner in terms of this order shall be deemed to be the

reconsideration by the competent authority of the bank.

With these observation and order, the writ petition

stands disposed of.

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

Urgent certified photocopy of this order, if applied

for, be supplied as expeditiously as possible.

(Partha Sarathi Chatterjee, J.)