Sri Atinmoy Ghosh vs Sri Mrinal Kanti Singha Roy
2023 Latest Caselaw 172 Cal

                            CPAN No.632 of 2018
                             Sri Atinmoy Ghosh
                                    Versus
                        Sri Mrinal Kanti Singha Roy
06.01.23                              in
 Sl-04                       WPA 14597 of 2017
 Ct.32
 (S.R.)  Dr. Debabrata Karan
         Mrs. Sabita Khutia (Bhunya)
         Mr. Debopriyo Karan                   ... for the petitioner.

        Mr. Supriyo Chattopadhyay, Sr. Govt. Adv.
        Mr. Sabyasachi Mondal
                                 ... for the alleged contemnor.



              The      present   contempt   application   has    been

        preferred by the petitioner alleging violation of an order

        dated 23rd August, 2017 passed by this Court in WPA

        No.14597 (W) of 2017.

              The writ petition was preferred by the petitioner

        alleging inaction on the part of the authorities to consider

        his application dated 14th July, 2016 for grant of

        compassionate appointment in place and stead of his

        father, who died-in-harness on 29th February, 2012, while

        working in the post of a Clerk in Alaipur Manorama

        Sikshaniketan.     Initially, the petitioner's mother applied

        for grant of compassionate appointment in place and

        stead of her husband on 3rd February, 2014. At that

        juncture, the petitioner was a minor since he was born on

        23rd November, 1997. The application submitted by the

        petitioner's    mother    was   kept   pending     and    she
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unfortunately expired on 23rd March, 2016. The petitioner

attained majority on 23rd November, 2015, i.e. prior to the

death of his mother.

      In the order dated 23rd August, 2017, the Court

after observing inter alia that 'in the backdrop of such

peculiar facts, the petitioner's claim needs to be considered

and it also needs to be determined as to whether there is

any source to provide two square meals for survival',

disposed of the writ petition directing the respondent no.3

consider the petitioner's representation dated 14th July,

2016 and to pass a reasoned order.

The respondent no.3 thereafter passed an order on

30th November, 2017 rejecting the petitioner's prayer.

Alleging that the said order had not been passed in

consonance with the order passed by this Court on 23rd

August, 2014, the petitioner preferred the contempt

application.

The Court directed the parties to exchange their

affidavits in the contempt application. The alleged

contemnor filed an affidavit-in-opposition annexing a

memo dated 19th July, 2022. In the said memo it was

observed that 'as the other source of income was not

reported. So, family income assumed Rs.7353/- which is

less than the income of a Gr-D staff of the state Govt., WB,

So financial hardship existed in the family at the material

point of time.' Considering the said memo, this Court

passed an order in the contempt application on 2nd

September, 2022 observing, inter alia, that 'it appears that

the alleged contemnor did not consider the issue of

financial hardships, as directed by this Court while

passing the order dated 30th November, 2017 and that as

such the said order has been passed in violation of the

order passed by this Court in the writ petition'. By the said

order, the alleged contemnor was directed to close the

breach by taking a fresh decision in the light of the

observations made in the order dated 23rd August, 2017.

Pursuant to such direction, an order dated 26th

September, 2022 has been passed by the alleged

contemnor observing, inter alia, that 'there was financial

hardship in the family at the time of death of the father of

the petitioner at the material point of time and the financial

hardship is still existing in one man family but there is no

expressed provision in the existing rule for appointment of

the petitioner only on the basis of financial hardship during

the minority of an incumbent petitioner. As rule abiding

government official, it is hardly possible for the

undersigned for consideration of appointment of the

petitioner on compassionate ground though the petitioner is

in dire financial hardship'.

Dr. Karan, learned advocate appearing for the

petitioner submits that it had been admitted by the

authorities that there was financial hardship in the

petitioner's family at the time of death of his father and

that such hardship is still existing. In view of such

finding and the observations made in the order of this

Court dated 23rd August, 2017, the authorities ought to

have granted compassionate appointment to the

petitioner. By refusing to grant such appointment, the

alleged contemnor had acted in wilful and deliberate

violation of the order passed by this Court.

He further argues that the order dated 23rd August,

2017 has attained finality and as such, the authorities, in

compliance with the said order, ought to have granted

compassionate appointment to the petitioner. The

recruitment rules do not stand in the way towards grant

of compassionate appointment to the petitioner in view of

the peculiar facts that he attained majority prior to

consideration of her mother's application for

compassionate appointment and prior to the death of her

mother. By not considering such facts, the alleged

contemnor had acted in deliberate violation of this Court's

order. In support of his argument Dr. Karan has placed

reliance upon the judgement delivered in the case of

Prithawi Nath Ram v. State of Jharkhand & Ors., reported

in (2004) 7 SCC 261 and in the case of T.R. Dhananjaya v.

J. Vasudevan, reported in AIR 1996 SC 302.

Mr. Chattopadhyay, learned advocate appearing for

the alleged contemnor submits that the petitioner's

mother at the time of submission of application was age

barred having exceeded 45 years of age and at that

material point of time, the petitioner was also a minor.

The issue of age bar was not decided by this Court in the

order dated 23rd August, 2017. In terms of the

recruitment rules, they were ineligible to be considered for

compassionate appointment and that as such, the

allegation that the alleged contemnor had acted in

violation of the order of this Court is unfounded. The

alleged contemnor, however, tenders his unqualified

apology for any unintentional violation of the order passed

by this Court.

Heard the learned advocates and considered the

materials.

The alleged contemnor has considered the

petitioner's claim and even after arriving at a finding that

the deceased's family was suffering from financial crisis

could not grant compassionate appointment since in

terms of the relevant rules, the petitioner could not fulfil

the age criterion at the material point of time.

In the said conspectus, I am of the opinion that

there had been no deliberate or wilful violation of the

order dated 23rd August, 2014 passed by this Court in the

writ petition. The judgments upon which reliance has

been placed on behalf of the petitioner are also

distinguishable on facts.

From the contents of the memoranda dated 19th

July, 2022 and 26th September, 2022, it is clear that there

was financial hardship in the family at the time of the

death of the petitioner's father and such financial

hardship is still existing. Existence of such financial

crisis is of paramount importance in cases of

compassionate appointment. Unless there is a financial

crisis in the family arising out of the death, there can be

no valid claim requiring examination. It is only after such

financial crisis is established, it needs to be scrutinized

whether the applicant falls short of any other rider,

particularly, in a case like the present one involving

peculiar facts where the petitioner's father expired after

prolonged treatment of cancer, for which a huge amount

was expended and the initial application of the deceased's

widow was submitted within 2 years of her husband's

death but prior to consideration of such claim, she

expired on 23rd March, 2016 and the petitioner herein

attained majority prior to the death of her mother and

applied for compassionate appointment. However, the

Court, in exercise of contempt jurisdiction, cannot

conduct such scrutiny and give any additional direction

or travel beyond the four corners of the order alleged to

have been flouted. It is also well-settled that once an

order has been passed by a party to a proceeding on the

basis of the direction issued by the Court, there arises a

fresh cause of action to seek redressal in an appropriate

forum.

For the reasons discussed above, the contempt

application is dismissed. However, it will be open to the

petitioner to assail the correctness of the order passed by

the alleged contemnor before the appropriate forum.

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

Urgent certified photocopy of this order, if applied

for, be supplied as expeditiously as possible.

(Tapabrata Chakraborty, J.)