Abharani Pal vs The State Of West Bengal & Ors
2023 Latest Caselaw 3844 Cal

32   13.6.2023
Sc   Ct. no.22
                                       WPA 6481 OF 2018

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Abharani Pal Vs.

The State of West Bengal & Ors.

Mr. Malay Bhattacharyya ....For the Petitioner

The petitioner claimed compassionate appointment.

The mother of the petitioner was a Class-IV staff of

one Jagadalla Garabari, M. G. S. Vidyalaya (HS),

Bankura (for short the school).

The petitioner is the married daughter. The

petitioner admittedly got married prior to the demise of

her deceased mother. The mother of the petitioner died

on October 30, 2016 as would be evident from the

Death Certificate at page 24 to the writ petition. The

married daughter of the petitioner then on February 6,

2017 applied for compassionate appointment at page 26

to the writ petition. The State authority did not take any

step.

The petitioner then filed the first round of writ

litigation being W.P. No. 21661 (W) of 2017. The said

first writ petition was disposed of by a coordinate Bench

by its order dated November 3, 2017 directing the

respondent no.3 to decide the issue after granting an

opportunity of hearing to the parties.

Pursuant to and in terms of the said direction made

by the coordinate Bench the impugned order dated

March 12, 2018, Annexure-P6 at page 34 to the writ

petition was passed by the respondent no.3. The

respondent no.3 rejected the claim of the petitioner for

compassionate appointment with the following

observation :

"01. Khanika Kumbhakar mother of the Petitioner was an approved Gr. D staff of Jagadalla Gorabari M.G.S. Vidyalaya (HS), Bankura.

02. Khanika Kumbhakar mother of the Petitioner died-in-harness on 30.10.216.

03. The Petitioner got married before the date of death of her mother who was a Gr. D staff Jagadalla Gorabari M.G.S. Vidyalaya (HS), Bankura.

04. The Petitioner submitted a representation dated 06.02.2017 to the District Inspector of Schools (SE), Bankura for appointment under died-in-harness category wherein she stated that she is the married daughter of Late Khanika Kumbhakar, ex Gr. D staff of the said school and presently she resides with her husband at Vill- Sairi, PO-Puipal, Bankura. Hence at the time death of her mother, she belongs to her husband'' family. As the Petitioner got married before the date of her mother so at that material point of time she was not the member of her deceased mother's family.

05. Para 1 of SCHEDULE-V (Procedure, manner of application and preparation of panel for appointment on compassionate ground) as per provision of Rule 20 & 21 under The West Bengal School Service Commission (Selection of persons for appointment to the post of Non Teaching staff) Rule, 2009 vide School Education Department, Secondary Branch's memo no. 697-ES/S/1S- 189/08 dated 09.07.2009, vividly states as : - "when a teacher or non teaching staff dies-in harness before the date of his superannuation i.e. at the age of 60 years leaving a family which is in the opinion of the District Inspector of Schools (Secondary Education) in such extreme 'financial hardship' that it fails to provide two square meals and other essentials to the surviving members of the deceased teacher's family the i.

Spouse ii. Son iii. Daughter of the deceased teacher or non teaching staff's family who is possessing required educational qualification as laid down in SCHEDULE-I for the post of Clerk or Gr. D staff and unemployed and not below 18 years of age and not above 45 years of age may within two years from the date of such death, make an application in writing to the District Inspector of Schools (SE) for appointment as non teaching staff on compassionate ground. As per the above stated rule the surviving members of the deceased teacher or non teaching staff's family, the i. Spouse ii. Son iii. Daughter of the deceased teacher or non teaching staff is eligible for appointment to the post of non-teaching staff on compassionate ground. In this instant case as the Petitioner got married before the date of death of her mother and as she is residing with her husband's family at Vill- Sairi, PO- Puipal, Bankura so she does not belong to her deceased mother's family. Accordingly she cannot be treated as a surviving member of her deceased mother's family.

Hence as per the above stated rule, the petitioner should not get appointment on compassionate ground under died-in-harness category and thus her representation dated 06.02.2017 should be rejected.

Accordingly in the light of the above stated observations and in compliance with the order dated 03.11.2017 passed by His Lordship the Hon'ble Justice Tapabrata Chakraborty in WP No.21661 (W) of 2017, Abharani Pal -vs.- The State of West Bengal & Ors. it is ordered that the petitioner is not entitled to get appointment on compassionate ground and the petitioner's representation dated 06.02.2017 is thus rejected.

The matter is thus disposed of. All concerned be informed accordingly."

Mr. Malay Bhattacharya, learned counsel appearing

for the writ petitioner referring to the said impugned order

dated March 12, 2018 submitted that, the earlier order of

the coordinate Bench dated November 3, 2017 took note

of the decision of the Larger Bench rendered In the

matter of : State of West Bengal and Ors v. Purnima

Das & Ors., FMA 1277 of 2015 along with other writ

petitions.

The judgment of the Larger Bench, inter alia,

decided that the married daughters were eligible to

receive compassionate appointment subject to following

other relevant criteria under the scheme for

compassionate appointment framed by the State.

Learned counsel for the petitioner also relied upon

another judgment of the Hon'ble Division Bench of this

Court In the matter of : Antara Banerjee v. The State

of West Bengal and Others, WPST 80 of 2022 and

submitted that, following the ratio decided by the Larger

Bench in the matter of Purnima Das & Ors. (Supra), the

Hon'ble Division Bench also directed for compassionate

appointment of a married daughter.

Mr. Bhattacharyya, learned counsel for the

petitioner submitted that, while passing the impugned

order dated March 12, 2018 the respondent no.3 had

failed to consider both the law laid down by the Larger

Bench in the matter of Purnima Das & Ors. (supra). The

later Division Bench judgment was of 2022 and was not

there when the impugned order was passed.

Learned counsel further submitted that, the claim

of the petitioner for compassionate appointment was

solely rejected on the ground that, she was a married

daughter and she was not eligible to claim compassionate

appointment in terms of the scheme framed by the State

but had failed to consider the law laid down by the Larger

Bench in the matter of Purnima Das & Ors. (supra).

Mr. Bhattacharyya further submitted that, no inquiry was

ever made by the respondent no.3 which is his obligation

to cause before considering the case for compassionate

appointment as to whether the petitioner being the

married daughter was otherwise eligible to receive the

claim for compassionate appointment fulfilling the

'financial distress' criterion as mentioned under the

scheme.

Learned counsel for the petitioner submitted that,

the impugned order passed by the respondent no.3

rejecting the claim of the petitioner was illegal, wrongful

and dehors the provision of law and as such, is liable to

be and should be set aside. He further submitted that,

necessary direction be made for granting compassionate

appointment to the petitioner in the facts of this case.

None appeared for the respondents.

Considering the submissions made on behalf of the

petitioner and considering the materials on record, this

Court first proceeded to assess the impugned order dated

March 12, 2018, Annexure-P6 at page 34 to the writ

petition passed by the respondent no.3. This Court in

exercise of its power under judicial review has a limited

jurisdiction to assess the decision making process of the

respondent no.3 while passing the said impugned order.

Accordingly, after due scrutiny of the said impugned

order it is apparent that, the law laid down by the Larger

Bench in the matter of Purnima Das & Ors. (supra),

which is holding the field till today after the SLP (C)

17638-17639/2018 being dismissed by the Hon'ble

Supreme Court by its order dated July 23, 2019, was

not at all considered by the respondent no.3 while

passing the said impugned order dated March 12, 2018.

Inasmuch as, it is further ex facie apparent from a

reading of the said impugned order passed by the

respondent no.3 that, no inquiry was conducted by the

respondent no.3 as required to be done in law for

considering the case for compassionate appointment in

the facts of the instant case as to whether the petitioner

being the married daughter is otherwise eligible to receive

the claim for compassionate appointment after fulfilling

the 'financial distress' criteria in terms of the prevailing

scheme for such appointment.

In view of the above, this Court is of the firm view

that, the said impugned order dated March 12, 2018,

Annexure-P6 at page 34 to the writ petition suffers from

serious infirmities and cannot sustain in law.

For the foregoing discussions and reasons the

impugned order dated March 12, 2018, Annexure-P6

at page 34 to the writ petition stands set aside and

quashed.

The respondent no.3 is further directed to revisit

the issue after causing necessary inquiry in accordance

with law as to whether the petitioner being the married

daughter is eligible to receive the claim for compassionate

appointment in the facts and circumstances of the case

after fulfilling the 'financial distress' criteria of the family

of the deceased employee in accordance with the

prevailing scheme and then shall decide the issue by

passing a reasoned order on the basis of the existing

materials before it in the light of the ratio as laid down by

the Larger Bench in the matter of Purnima Das & Ors.

(supra) and the ratio decided by the Hon'ble Division

Bench in the matter of Antara Banerjee (supra).

The entire exercise shall be carried out and

completed by the respondent no.3 positively within a

period of eight weeks from the date of communication of

this order.

The petitioner and all other relevant parties shall

render assistance to the respondent no.3 for causing the

necessary inquiry in the manner and mode the

respondent no.3 shall require.

It is further made clear that, this order shall not

create any equity or right in favour of the petitioner if

after conducting the necessary inquiry, the respondent

no.3 finds that the petitioner does not qualify with the

'financial distress' criteria of the family of the deceased to

receive a compassionate appointment strictly in

accordance with law and the scheme prevailing on the

issue.

In the event the reasoned decision goes in favour of

the petitioner then the respondent no.3 and all other

appropriate State authority shall take all consequential

steps in accordance with law positively within a further

period of four weeks from the date of communication of

the reasoned order.

It is further made clear that this Court has not gone

into the merits of the claim of the petitioner in any

manner and the respondent no.3 shall be free to decide

the issue without being influenced by the observation

made by this Court, if any.

Since affidavits are not called for, the allegations

made in the writ petition are deemed not to have been

admitted by the respondents.

On the above terms this writ petition, WPA 6481 of

2018 stands disposed of, without any order as to costs.

Photostat certified copy of this order, if applied for,

be furnished expeditiously.

(Aniruddha Roy, J.)