Samrat Das vs State Of West Bengal & Ors
2023 Latest Caselaw 1471 Cal

   62.
28.2.2023
   S.D.

                                  W.P.A. 19372 of 2022

                                       Samrat Das
                                          Vs.
                              State of West Bengal & Ors.

                  Mr. Balai Lal Sahoo
                  Mr. Amalakshya Jana
                  Ms. Barnali Jana
                  Mr. Chandan Chakraborty
                                      ... For the Petitioner

                  Mr. Amal Kumar Sen, A.G.P.,
                  Mr. Jaladhi Das
                                        ...For the State

                  Ms. Deblina Chattaraj
                                     ...For Respondent Corporation

The petitioner's father was an employee of the

erstwhile the Calcutta Tramways Company (1978) Limited

and present the West Bengal Transport Corporation (WBTC)

Ltd. The petitioner's father died-in-harness on April 16, 2011.

Upon the death of the petitioner's father, his mother was

advised to make an application in the prescribed format for

compassionate appointment. Upon receiving the said

communication, the petitioner made an application in the

prescribed format on October 18, 2014. Thereafter, several

representations have been made by the petitioner/his mother

from time to time asking about the fate of such application.

An application under Right to Information Act, 2005 was

made by the petitioner's mother on April 22, 2019 asking

about the fate of the application for compassionate

appointment. In response to the RTI application, it was

informed by a communication dated September 4, 2019 that

the name of the petitioner is on the list of candidates

prepared for compassionate appointment. Since the

Transport Undertakings owned by the State, namely, the

Calcutta Tramways Company (1978) Ltd., Calcutta State

Transport Corporation and the West Bengal Surface

Transport Corporation were in the process of amalgamation,

there was no sanctioned Scheme for compassionate

appointment. Until the process of amalgamation comes to

the final stage, it would not be possible for WBTC to furnish

any further information requested by the petitioner/his

mother.

The petitioner was again requested to make an

application to the Managing Director, WBTC. The said

application was made on October 16, 2019.

Mr. Sahoo, learned counsel appearing on behalf of the

petitioner submits that the petitioner's father died-in-harness

in 2011 and there was a Scheme for compassionate

appointment in 2011. The petitioner, therefore, should be

considered for appointment on compassionate grounds

pursuant to the 2011 Scheme.

Ms. Chattaraj, learned counsel appearing on behalf of

the WBTC submits that even though there was a Scheme for

compassionate appointment in 2011 pursuant to a

Notification dated January 13, 2011 issued by the Transport

Department, Government of West Bengal, the said Scheme

has been withdrawn by the Labour Department, Government

of West Bengal on December 3, 2013 and at present there is no

Scheme for consideration of appointments on compassionate

ground.

Furthermore, she submits that the petitioner's

application has been made at a belated stage, after passing of

six months from the date of death of the deceased employee

and, therefore, cannot be considered for compassionate

appointment.

Mr. Sen, learned Additional Government Pleader

appears on behalf of the State and submits that appointment

on compassionate ground is an exception to the general Rule

and if a dependant of a deceased Government employee

applies for appointment on compassionate ground then

he/she has to be eligible in accordance with the Policies

relating to such appointment and must fulfil the norms laid

down by the said policy. He relies on a judgment reported in

(2020) 7 SCC 617 (N.C. Santhosh vs. State of Karnataka &

Ors.) in support of such contention. He submits that

appointment on compassionate ground is a concession and

not a right.

Having considered the rival submissions of the parties

and the materials placed on record, this Court is of the view

that the application for compassionate appointment was

made in December 2012. Upon waiving its right of rejection

on the ground that an application has been made after more

than six months from the date of death of the deceased

employee, the employer/WBTC invited an application on

proper format on October 13, 2014 from the dependant of the

deceased employee.

The said application as made in proper format was

accepted by the employer in October 2014.

Pursuant to an application made under the RTI, the

employer also reiterated the fact on September 4, 2019 that

the name of the petitioner was kept on the list for

compassionate appointment.

From the report on affidavit, it appears that now the

WBTC is seeking to resile from its position. WBTC on relying

on a Notification passed by the Labour Department on

December 3, 2013 is now seeking to contend that since at the

time of consideration of the application for compassionate

appointment there was no Scheme, the petitioner has no right

to be considered for appointment. Such a shift in stand by

the WBTC cannot be accepted by this Court. This Court is of

the view that the Policy/Scheme that was applicable on the

date of death of the deceased employee pursuant to the

Notification dated January 13, 2011 is the applicable Scheme

for consideration of the petitioner's appointment. This Court

relies on a judgment of the Apex Court reported in (2022) 2

SCC 157 (State of Madhya Pradesh vs. Ashish Awasthi)

whereby, it has been categorically held that the applicable

Policy or Scheme is the Policy that is prevalent at the time of

the death of the deceased employee for consideration of

appointment of compassionate grounds. Reliance is also

placed on judgments reported in (2020) 2 SCC 729 (Indian

Bank & Ors. Vs. Promila & Anr.) and (2020) 10 SCC 496

(State of Madhya Pradesh & Ors. Vs. Amit Shrivas)

The decision cited by Mr Sen being N.C. Santhosh

(supra) is distinguishable on facts. In the said Case, the

dependants had not attained majority on the date of death of

the deceased employee. No application could have been

made within one year from the date of death of the deceased

employee as the dependants did not attain majority by that

time. Such a deficiency on the part of the dependent was not

condoned by the employer. No vested right accrued in

favour of the dependent of the deceased employee to be

considered for compassionate appointment as the dependent

did not attain majority on the date of death. The employer

did not waive its legal rights to reject the said application. On

such facts, it has been held that 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 or her application in accordance with the

norms as applicable and not in accordance with the norms on

the date of death of Government employee.

This Court is of the view that in the present case the

vested right of the petitioner to be considered for appointment

on compassionate ground crystallized on the date of death of

the deceased employee as per the applicable Scheme. The

said right could have been defeated had the employer not

waived its right of rejection of the application for not being

made within the stipulated time. Here, the employer chose to

waive its right of rejection and invite application in proper

format in October 2014 after the Labour Department's

Notification dated December 3, 2013. Therefore, the decision

in N.C. Santhosh (supra) does not come to the aid of the State

respondents for frustrating/rejecting the prayer of the

petitioner.

In the light of the discussions above, this Court directs

the application for compassionate appointment to be

considered by the authorities concerned within three months

from the date of the order in the light of the Apex Court's

judgment in (2022) 2 SCC 157 (State of Madhya Pradesh &

Ors. Vs. Ashish Awasthi) and keeping in mind the 2011

Policy.

The petitioner will be given a personal hearing and a

reasoned order shall be passed and communicated to the

petitioner within two weeks of passing thereof.

With the directions aforesaid, W.P.A. 19372 of 2022 is

disposed of.

All parties shall act on the server copy of this order

duly downloaded from the website of this Court.

Urgent photostat certified copy of this order, if applied

for, be given to the parties upon compliance of all the

formalities.

(Lapita Banerji, J.)