Payel Bhattacharya vs Kolkata Municipal Corporation & ...
2023 Latest Caselaw 1209 Cal

                IN THE HIGH COURT AT CALCUTTA
                 CIVIL APPELLATE JURISDICTION
                        (APPELLATE SIDE)


Present:
The Hon'ble Justice Arijit Banerjee
             &
The Hon'ble Justice Rai Chattopadhyay


                          MAT No. 698 of 2020
                                 With
                           CAN No. 1 of 2022

                        Payel Bhattacharya
                                Vs.
                Kolkata Municipal Corporation & Ors.


For the Appellant                       : Mr. Raghunath Chakraborty,
                                        : Ms. Amrita De.

For the K.M.C                           : Mr. Aloke Kr. Ghosh,
                                        : Mr. Swapan Kr. Debnath.


Hearing concluded on: 05/07/2022

Judgment on: 17/02/2023


Rai Chattopadhyay, J.

(1) Appellant/writ petitioner has challenged the order of the Hon'ble

Single Judge dated 15th September, 2020 in this appeal. The

impugned order dated 15th September, 2020 was delivered by the

Hon'ble Single Judge in WPA No. 6785 (W) of 2020 (Payel

Bhattacharya vs. Kolkata Municipal Corporation &Ors.). Appellant's

prayer in the said writ petition was rejected and the writ petition was

dismissed by the Hon'ble Single Judge.

(2) The appellant/writ petitioner has come up before this court to

challenge the impugned judgment of the Hon'ble Single Judge on the

grounds argued on her behalf by Mr. Raghunath Chakraborty,

Learned Advocate. It is submitted at the outset that appellant's father

died while serving the respondent/Corporation. The said person

having been the sole bread earner of the family, his death has left the

family at a very hapless and vulnerable condition. This would evince

a dire necessity for the family to be supported, more so economically,

for its sustenance and thus the appellant's prayer for compassionate

appointment was unquestionably justified.

(3) It is further submitted that she possesses de-rigueur qualification for

appointment with the respondent/Corporation.

(4) To add to the grounds favourable for the appellant, Mr.Chakraborty

has further submitted that so far as the daughter of the deceased

employees are concerned, like the appellant in this case, the

applicable rules have been changed to include daughters in the array

of dependent legal heirs of such an employee irrespective of their

marital status, as regards the appointment on compassionate ground.

On this he has relied on the judgment of the Full Bench of this court

reported in 2017 (4) CHN (CAL) 362 (Arpita Sarkar vs. State of West

Bengal). It is submitted that in the said judgment the Court has

revisited the existent law at that point of time and after appreciation of

the practical and legal infirmities therein, the Court has been pleased

to change the law to the effect that language of the concerned rules

enumerating "unmarried daughter" should be replaced with the word

"daughter", without being qualified with any specification as to the

marital status of the person. The reason as to why this argument has

been advanced is that the first application of the appellant was

rejected by the respondent/Corporation on the ground of her being

married at that point of time, and the rules prevalent then would not

allow a married daughter to be accredited as a dependent of the

deceased employee to be entitled for appointed on compassionate

ground after untimely death of her father.

(5) Mr. Chakraborty would also say that the Courts of the country have

time and again held as to the requirement and importance of

immediate appointment of the dependent of a deceased employee,

even to the extent that in an appropriate case the court shall not look

into the possibility of probable litigation blast in case it finds that

such a valuable right of the citizen touching his viands and very

survival is about to be taken away by any inaction of the authorities.

On this he has relied on judgment of the Hon'ble Apex Court reported

in (2007) 9 SCC 625 (Coal India Limited and Ors. Vs. Saroj Kumar

Mishra).

(6) Mr. Chakraborty has also stressed upon the point that it has been a

well spelt out policy set in place by the Courts through its verdicts,

that having considered the gravity of the situation where the life of the

dependents of a deceased employee is wrecked with the very basic

question of sustenance, the authorities have been directed for creation

of the supernumerary post in order to effect compassionate

appointment of the dependent of the deceased employee. On this

Mr.Chakraborty has relied on the judgment of the Hon'ble Supreme

Court reported in (1989) 4 SCC 468 (Sushma Gosain & Ors. Vs. Union of

India & Ors.)

(7) Mr.Chakraborty has further submitted that at the time when the

appellant has preferred her second application before the authorities

for compassionate appointment, law governing the field had already

taken a distinct form pursuant to the Full Bench decision of this High

Court as referred to above. Accordingly, the respondent/Corporation

could have not bypassed or flawed the same by rejecting appellant's

prayer for the second time. Mr.Chakraborty has relied on the

judgment of this court reported in 2007 (3) CHN 476 (Asian Leather

Ltd. & Anr. Vs. K.M.C & Ors.). The Division Bench of this Court in the

said judgment was pleased to narrate the well-known proposition of

law that a natural person has the capacity to do all lawful things

unless his capacity has been curtailed by some rule of law. It is

equally fundamental principle that in case of a statutory corporation it

is just the other way. The corporation has no power to do anything

unless those powers are conferred on it by the statutes, which creates

it. The Hon'ble Division Bench relied on an old judgment reported in

40 CWN 17 (Maniruddin Bepari vs. Chairman of the Municipal of Decca).

(8) Mr. Chakraborty has urged that his client's case may be directed to be

suitably considered by the respondent/Corporation.

(9) Per contra, the contentions, arguments and prayers of the appellant

are vehemently opposed to by the respondent/Corporation in this

appeal. The points of argument as envisaged by Mr. Aloke Kr. Ghosh

on behalf of the Corporation may be summarised in the way as

follows, firstly, that much before the date of coming into being of the

Full Bench judgment of this court in the year 2017, which is said to

have changed the law to hold the field, the application of the appellant

(that is her first application) was duly considered and disposed of by

the Corporation. That decision of the Corporation was accepted and

never challenged by the appellant, for years together. It is submitted

that the appellant's right to apply for compassionate appointment

cannot be held to be subsisting in perpetuity. The law or the policy

may change. However, in case an application has been determined in

accordance with the prevalent laws at a particular point of time prior

to any change in the same and has reached finality, the same should

not be allowed to be reopened at a subsequent time on any other

pretext or else, there may arise an anarchical situation to the

prejudice and detriment of interest of the body Corporation.

(10) Mr.Ghosh submits that appellant's first application for compassionate

appointment was duly considered and disposed of, though not in her

favour. The same has been accepted by the appellant who has never

challenged the same. That the Corporation pursuant to its public

welfare policy and bona fide, has even indicated about its intention for

appropriate appreciation of prayer of the wife of said employee, since

deceased, if applied for. Mr.Ghosh has further pointed out to the fact

that subsequently in some other case in a court of law, the appellant

has stated on affidavit to be employed elsewhere. He says that

appellant has suppressed this fact from the municipal authorities.

Therefore, according to him the appellant has not come up with clean

hands and bona fide intention, to claim for compassionate

appointment. The fact as above according to Mr.Ghosh would render

the claim of the appellant for appointment on compassionate ground

to combat immediate indegency of the family to be only false and

unsustainable.

(11) Mr. Ghosh has relied on the following judgments:-

i. Union of India &Ors. Vs. S. Srinivasan with Union of India &Ors.

Vs. Saroj Kumar &Ors reported in (2012) 7 SCC 683,

ii. Calcutta Municipal Corporation vs. Motilal Naresh Kumar reported

in 2000 (2) CHN 349,

iii. Mafatlal Industries Ltd. &Ors. Vs. Union of India &ors. reported in

(1997) 5 SCC 536,

iv. Gokaraju Rangaraju vs. State of Andhra Pradesh reported in (1981)

3 SCC 132,

v. Vinod Somani vs. Calcutta Municipal Corporation &Ors, reported

in 2007 (4) CHN 416.

(12) The father of the appellant died-in-harness on 22nd January, 2015,

while he was in service in the respondent/Corporation. The family has

been said to have emerged into acute financial indigence and was not

in a position to secure two ends meal for the dependents of the

deceased. Such untimely death of the sole bread earner of the family

espoused right of the dependent family members of the said deceased

employee, i.e, the appellant and her mother to claim for appointment

of any of them on compassionate ground with the

respondent/Corporation. Accordingly, the appellant applied for the

same. The application of the appellant is annexed with the stay

petition in this appeal though an undated one. Be that as it may, the

appellant by filing the same had prayed for consideration of her prayer

for appointment with the respondent/Corporation, according to her

qualification, mentioned therein. The application of the appellant as

above was disposed of by the respondent/Corporation and

communication dated 6th February, 2016, was made to her. This

communication was to inform her about rejection of her application,

she being a 'married' daughter of the deceased employee, as a married

daughter was excluded from the purview of grant of any benefit of

compassionate appointment in view of department's Circular

No.47/VIII/2008-09 dated 17th January, 2009. The

respondent/Corporation noted in the said letter regarding absence of

any scope to provide the appellant appointment under KMC. In the

said letter it was also mentioned that such a right and opportunity for

being appointed on compassionate ground is available to the wife of

the ex-employee.

(13) After this letter, some time had elapsed when the appellant was

enervated. The appellant again submitted her application (the second

application) on 11th January, 2018, requesting the

respondent/Corporation to consider her candidature for

compassionate appointment in place of said deceased employee. The

same was replied by the corporation vide letter dated 24 th March,

2018 in the following manner:-

"Your application seeking for a KMC job under Special Regulation was submitted by you on 11/01/2018 is not considered as per existing DMC (P)'s Circular No.47/VIII/2008-09 dt. 17/01/2009 & there is no scope to entertain your prayer at present as informed by Personnel Department recently.

This is for your information please."

(14) The rejection of her second application in the manner as mentioned

above has prompted the appellant to move the writ court by filing writ

petition no. WPA 6785 (W) 2020. The said writ petition was disposed of

by the Hon'ble Single Judge, vide the impugned order dated 15th

September, 2020.

(15) That compassionate appointment is not a regular source of

recruitment, that it is an exception to the general rule of recruitment

and cannot be claimed as a matter of right, that it is not a heritable

property and that a claim for compassionate appointment has to be

considered confined to whatever is provided for in the relevant scheme

and not beyond are propositions of law which are too well settled.

Under Clause (1) and (2) of Article 16 of the Constitution, all citizen of

India are guaranteed equality of opportunity in the matters relating to

employment or appointment to any office under the State, and no

citizen can be discriminated against or be ineligible for any

employment or office under the State on the grounds of religion, race,

caste, sex, descent, place of birth or residence. Clauses (3) (4) (5),

however, provide for three exceptional situations where departure can

be made from the general rule of equality of opportunity. In this

respect the Hon'ble Supreme Court has stated in the judgment of

Umesh Kumar Nagpal vs. State of Haryana & Ors. reported in (1994) 4

SCC 138. The Hon'ble Supreme court has held that

"the question relates to the consideration which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither government nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, 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 and without any means of livelihood. In such cases, out of pure humanitarian consideration, taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post held by the deceased."

(16) On the date of appellant's application, i.e, 11th January, 2018, the

laws to govern the field was already revamped vide the Full Bench

judgment of this Court, reported in 2017 (4) CHN (CAL) 362. The Full

Bench had set the question at rest. The pedantic, erudite and

academically highbrowed judgment of the Full Bench of this Court has

in-depth discussions as regards all dimensions and facets on the

point and contrived that discriminating daughter on the ground of her

marital status in case of grant of a benefit pursuant to a public

welfare policy, should only be violative of constitutional guarantee and

right of equality. Thus the arrangements resulting into such inequality

and discrimination was struck off and daughter's rights were enfolded

irrespective of her marital status.

(17) The Corporation has cited DMC (P)'s Circular No.47/VIII/2008-09 dt.

17/01/2009 to turn down appellants prayer. Relevant portion thereof

may be noted for clarity of discussion :

*********** ********** **********

Sub :Amendment of existing Special Regulations for employment on compassionate ground of the dependants of Corporation employees who die-in-harness or retire prematurely on being declared permanently incapacitated for service.

*********** ********** **********

1. The municipal commissioner shall appoint a dependent of an employee of the Corporation who dies in harness or retires prematurely on being declared permanently incapacitated for active service leaving his/her family in immediate need of assistance to a post not requiring recommendation of the Municipal Service Commission.

*********** ********** **********

2. (B) For the purpose of appointment on compassionate ground, a dependent of a Corporation employee shall mean wife/ husband/ son/ un-married daughter of the employee, who is/ was solely dependent on the Corporation employee.

*********** ********** **********

(18) As discussed in the 2017 judgment of the Full Bench of this Court,

has held that

"although application on compassionate grounds can only be made following the laid down policy, a given case may require examination of the point as to whether an employer has unfettered, unbridled and uncontrolled authority to specify who shall be eligible for compassionate appointment. Putting it differently, can the employer be given a free hand and allowed to act arbitrarily and specify a particular class of persons as entitled to apply for compassionate appointment?"

The court held that "if the action of the employer is found to be arbitrary on a challenge being laid, the Court is not powerless to strike down the specification as a decision based on whims and caprices have no place in the system".

(19) In the said case the Court went on to state that

"a person dependent would be one who for his survival was entirely dependent on the earnings of the Government employee and should he/she be appointed, is likely to take care of the other family members by his/ her earning. It is permissible for the State to categorise persons to be comprised in 'dependent family member', however, in the exercise of making such categorisation, care must be taken to ensure that no class of dependents is excluded without there being a plausible justification. The exclusion, if challenged, must pass the test of reasonable classification. Passing of the 'dependency' test is therefore, no less important. Next, even the immediate need as well as dependency would not clothe the dependent so identified for being favoured with compassionate appointment unless he/she qualifies in terms of the eligibility criteria for such appointment, meaning thereby that he/she must be in the required age group and possess minimum educational qualifications for public employment. It is in the background of these three conditions that we are to consider whether the policy decision of the State Government to exclude 'married daughters' from the scope of compassionate appointment is constitutionally valid".

(20) By referring to an earlier decision of the Hon'ble Apex Court the Full

Bench held that

"In the celebrated decision of the Supreme Court reported in AIR 1952 SC 75 (State of West Bengal vs Anwar Ali Sarkar) Hon'bleS.R.Das (as His Lordship then was) probably, for the first time propounded that Article 14 prohibits class legislation but not reasonable classification".

The Court finally held, "Consequently, the offending provision in the notification dated April 28, 2008 (governing the cases of Arpita and Kakoli) and February 3, 2009 (governing the case of Purnima) i.e, the adjective 'unmarried' before 'daughter' is struck down as violative of the Constitution. It, however, goes without saying that after the need for compassionate appointment is established in accordance with the laid down formula (which in itself is quite stringent) a daughter who is married on the date of death of the concerned Government employee while in service must succeed in her claim of being entirely dependent on the earnings of her father/ mother (Government Employee) on the date of his/ her death and agree to look after the other family members of the deceased, if the claim is to be considered further".

(21) Such decision of the Full Bench came into being on 13th September,

2017, meaning thereby, that on the date of determination of

application of the appellant dated 11th January, 2018, the respondent

had no scope to consider and apply clause 2 (B) of the circular being

DMC (P)'s Circular No.47/VIII/2008-09 dt. 17/01/2009 in case of the

appellant, which had become non est in the eyes of law by that date.

Therefore, to reject the appellant's prayer, by exercise of the said

provision is only erroneous and not sustainable in the eyes of law.

That being so, the order of the respondent dated 6th February, 2016,

would be virtually an unreasoned and quashable one, being devoid of

any other reason to support the respondent's decision, to reject the

appellant's prayer.

(22) While rejecting the appellant's application dated 11th January 2018

vide its letter dated 24th March 2018, the respondent has not cited

any specific reason at all excepting that her case is covered under the

Circular No.47/VIII/2008-09 dt. 17/01/2009. It appears to be only an

honest but farfetched endeavor of Mr.Ghosh to take up a point in this

appeal that once rejected and after so called acceptance of the

decision of the respondent, the appellant could not have reiterated the

same prayer, which according to Mr. Ghosh has been answered with

certitude and reached its finality. Even if the argument of Mr. Ghosh

is taken on face value, that allowing a second application on self same

prayer by the appellant would result into opening of docket floodgate,

in that case we would only be guided by the findings of the Hon'ble

Supreme Court, in the judgment in Coal India Limited & Ors. as

mentioned earlier, that such possibility, if at all, should not deter the

court, from remedying any unjust or illegal act of the respondent.

(23) As per the three dimensional test propounded by the Full Bench in

the judgment mentioned above to determine the eligibility of the

appellant, the respondent should only had undergone an exercise to

ascertain whether, in the given case, those settled criteria were

fulfilled or not. That is, the appellant should have passed the

"dependency test'', the "requirement test" and the "qualification test",

in terms of eligibility criteria for such appointment regarding age,

minimum educational qualification etc required for public

employment.

(24) So far as the test of dependency of the appellant is concerned, the

Corporation has tossed a challenge to the same, on the ground of the

appellant being employed elsewhere the dependency factor is not

fulfilled in her case. For this the Corporation has relied on the

appellant's affidavit filed in a competent court of law. The question of

dependency should bear a different connotation, from a question of

arranging somehow for own survival. To conceptualize the situation

for a family, bread earner of which has passed away suddenly and

untimely, one cannot but notice that it is the very urgent and

immediate need of money, that perturbs his immediate kin. Before a

Court in an affidavit, a person is required to declare true information

as to his/ her personal status to verify the contentions made by him

before the court. That cannot ipso facto defy the dependency factor of

him, the tenets there under standing on absolute different footings.

Affidavits are affairmed to provide proof that someone is, who they say

they are and to verify the accuracy of information. It is an attestation

to establish the truth of certain facts in a legal proceeding. Such

declaration by the appellant has never connoted that she has ceased

to be a dependent of a deceased father. The test of dependency would

depend on the answer of the question if the appellant is subject to the

provides of the deceased for her survival and sustenance or not. Her

separate income, even if taken for arguments sake, as accepted, does

not unfortunately grant her the financial freedom, unless proved

otherwise, to take her status to be not depending upon income of her

father for survival, more particularly in an unexpectedly distressful

time of sudden and untimely death of her father. One cannot ignore

the other very important aspect of the matter. That is after death of

the person, his ailing and incapable wife is also to be taken care of by

the appellant, in this case. To be eligible for compassionate

appointment, this is also a criteria as to whether the prospective

candidate is to take care of the other dependents of the deceased, in

this case, it is, for the appellant.

(25) Regarding this, one can also not ignore to notice the very wordings of

the said circular DMC (P)'s Circular No.47/VIII/2008-09 dt. 17/01/2009 ,

in clause (3) thereto, which is as follows:-

"3. One of the condition that needs to be fulfilled for offering appointment on compassionate ground is that the family of the deceased or prematurely retired employee is in need of immediate financial assistance.

It is here by clarified that the family of a deceased or prematurely retired employee shall be considered to be in need of immediate financial assistance, if any of the two conditions mentioned below is satisfied.

(a) The family of the deceased/prematurely retired employee will be considered to be in need of immediate financial assistance if the monthly income falls below 90% of the gross monthly salary of the employee before death or premature retirement.

(b) The monthly income of the family falls below the minimum salary of a Category-D employee (in case of Category-D employees) or the minimum

salary of a Junior Assistant (in case of employees other than those belonging to the Category-D).

The gross monthly salary, for the purpose of this definition shall mean basic pay along with dearness pay, dearness allowance, house rent allowance and medical allowance.

The monthly income of the family shall mean the aggregate of:

(a) Total family pension per month (Basis, Dearness Pension and Relief etc.)

(b) Monthly interest income @ 8% p.a. on the total amount received by the family after death of the employee or retirement of the incapacitated employee (Gratuity, Leave Encashment, any other payments) Since G.P.F. accumulation is entirely out of savings of the Corporation employee during his service period, the same shall not be reckoned for the purpose of computing the monthly interest income.

Provided that, where an ex-employee had to incur medical expenses as indoor patient prior to and leading to his/her death/incapacitation, such expenses may be deducted from the amount received. All such expenses must be supported by original receipt/cash memo, hospital discharge certificates.

(c) Monthly income from movable and immovable properties (the family members are expected to submit a declaration on the matter).

(d) Monthly income of the dependants of the ex-employee named in the application (the family members are expected to submit a declaration on the matter)."

Two things are apparent from the same. Firstly that no

classification or exclusion has been provided there on the basis of

having some income in the family, irrespective of the source and

means thereof. Secondly, that the determinants have been provided

therein by taking into account the monthly income of the family.

Hence the rule itself has not eradicated certain amount of family

income, even before any appointment is given on compassionate

ground. In such view of the rules, the argument advanced on behalf of

the respondent Corporation seems to be only misplaced and

unfounded.

(26) In Bhavani Prasad Sonkar vs. Union of India reported in (2011)

4 SCC 209, the Hon'ble Supreme Court has held that "the concept of

compassionate appointment has been recognised as an exception to the

general rule, carved out in the interest of justice, in certain exigencies,

by way of a policy of an employer, which partakes the character of the

service rules. That being so, it needs little emphasis that the scheme or

the policy, as the case may be, is binding both on employer and

employee. Being an exception the scheme has to be strictly construed

and confined only to the purpose it seeks to achieve". Thus the

respondents in this case shall also be duty bound to duly observe the

policy made out in the applicable circular, i.e, DMC (P)'s Circular

No.47/VIII/2008-09 dt. 17/01/2009, without any exception. Also

therefore, whether declared or not her individual income, if any, at the

time of making the application for compassionate appointment, the

appellant's rights to such an appointment shall not be affected,

subject to fulfilment of the criterion and tests of eligibility. No material

is available to show the so called income of the appellant to be her

primary source of sustenance. Her efforts to minimise loss of the

family during the period of pendency of her application cannot be

termed as her gainful employment to exclude any requirement of a

primary source of financial support, not only for her but for the

destitute family of the deceased employee. The succor is still strieved.

(27) The rule of exclusion of a married daughter, having been declared

constitutionally invalid, not having qualified to the test of reasonable

classification based on intelligible differentia, distinguishing those

that are grouped together from those left out, the Circular

No.47/VIII/2008-09 dt. 17/01/2009 has no manner of application in the

appellant's case, so far as Clause 2 (B) thereof is concerned. As a

matter of fact, the status of the appellant had changed from that of a

"married daughter" to that of a "divorced daughter" at the relevant

point of time. Even that would also bear no relevance, in view of the

Full Bench Judgment of this Court, mentioned earlier, by dint of

which the word 'daughter' has been doffed of any qualifying adjective

thereto.

(28) The appellant has withstood the "dependency test" in view of no

possible material being available to spurn of the fact of the family of

the deceased being unexpectedly put into extreme financial distress,

so much so that but for an appointment of the dependent on

compassionate ground the family members of the deceased employee

may not survive. Dependency factor is based on particular facts and

circumstances of an individual case. Dependent is a person, who

relies on another as a primary source of income. After death of the

bread earner of the family, a primary source of income is a sine qua

non, which would prevent a family from destitution and underwrite its

sustenance. Compassionate appointment is a form of State's

guarantee to the family members of a deceased employee who died

suddenly and untimely while in service, under its policy of welfare of

the citizens, to provide succor to a needy family. To support the

family, with a source of income, to prevent vagrancy and disquietude

is the moto. For all practical purposes the family of the deceased

employee of the respondent/Corporation is devoid of any primary

source of income to be self contained and sufficient for the need of

sustenance of the family. The "requirement test" is also accomplished.

As regards the eligibility of the appellant for appointment in a public

employment there is actually no challenge to the same, in this case.

Accordingly, the findings of the Hon'ble Single Judge that the family of

the deceased employee was not in destitution, is found to be

encumbered with infirmity and non-application of mind. The same

cannot be sustained and is liable to be set aside.

(29) If the appellant can establish that she was dependent on her father's

income as on the date of death of his father, the fact that she was

married as on that date or that she has been able to survive till date,

will not be grounds for rejecting her claim for compassionate

appointment. Her first application was rejected on the ground that the

concerned circular did not permit granting compassionate

appointment to a married daughter. This was a policy matter for the

Corporation. That policy was subsequently found to be

unconstitutional and not tenable in law by a Full Bench of this Court.

In our view, the appellant is entitled to have her claim reconsidered in

view of the changed law. Just because she has survived till now

without being granted appointment on compassionate basis, does not

mean that she is not in need of such appointment. It is quite possible

that she has struggled to barely survive in the teeth of severe financial

crunch. Right to life as guaranteed by Article 21 of the Constitution

contemplates right to live with minimum dignity and not mere animal

existence. Having earlier rejected the appellant's claim on the basis of

a policy which was subsequently struck down by a Full Bench of this

Court as being unconstitutional, it does not lie in the mouth of the

Corporation to say that not having challenged such earlier rejection,

the appellant is precluded from having her claim reconsidered in the

light of the change in policy.

(30) The order dated September 15, 2020, impugned in this appeal as well

as the order of the Corporation, dated January 11, 2018, rejecting the

appellant's application for appointment on compassionate basis, are

set aside. The respondent Corporation is directed to consider the

appellant's prayer for compassionate appointment afresh, in

accordance with law, and pass a reasoned order in that regard, after

giving an opportunity of hearing to the appellant or her authorised

representative. The entire exercise shall be completed within a period

of 2 months from the date of communication of this order to the

appropriate officer of the Corporation.

(31) With these discussions, findings and directions, the appeal is disposed

of.

(32) Connected application being CAN/1/2022 is also disposed of.

(33) Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

   I agree,



   (Rai Chattopadhyay, J.)                             (Arijit Banernee, J.)