Chaitali Mitra vs The State Of West Bengal & Ors
2023 Latest Caselaw 3975 Cal

21.06.2023
(as/akd)
Ct.No.12
03
                                    MAT 667 of 2023
                                        with
                                    CAN 1 of 2023

                                    Chaitali Mitra
                                        -vs-
                            The State of West Bengal & Ors.

                                  Mr. Anjan Bhattacharyya,
                                  Ms. Anita Shaw,
                                  Ms. Taniya Khatun.
                                              ... for the Appellant.

                                  Mr. Avishek Prasad.
                                                ...for the State.


                  The appellant is the married daughter of one

             Gaur Chandra Dutta who died on 21.09.2013 while in

             service. Her father was an employee of West Bengal

             National Volunteer Force, 2nd (BK) BN, Kalyani. The

             mother of the appellant made an application dated 28th

             January, 2014 requesting compassionate appointment

             for the appellant. The said request was rejected by the

             respondents by the order dated 11.07.2016 on the

ground that married daughter is not entitled to

compassionate appointment.

The appellant challenged the said order by filing

a writ petition being WPA No.567 of 2023. This Court

by the order dated 16.01.2023 considered the

judgment of the Special Bench of this Court in FMA

1277 of 2015 (State of West Bengal & Ors. Vs. Purnima

Das & Ors.) wherein the word 'unmarried' before

'daughter' was struck down as violative of

Constitution. The Special Bench of this Court by the

said judgment held that married daughter is also

eligible for compassionate appointment provided she

satisfies the criteria for appointment on compassionate

ground. Considering the judgment of the Special

Bench, this Court set aside the order dated 11.07.2016

and directed the respondent no.4 to consider the claim

of the appellant taking into consideration the order of

the Special Bench in FMA 1277 of 2015 and

Government Notification dated 04.11.2022 vide

Memo.No.LABR/419/Law.

The respondent No.4 by the impugned order

dated 03.03.2023 rejected the request of the appellant.

The appellant challenged the said order by filing the

writ petition being WPA No.6499 of 2023. This Court

by the order dated 03.04.2023 dismissed the writ

petition.

Against the said order, appellant has come out

with the present appeal.

Learned Counsel for the appellant submitted that

the respondent no.4 did not consider the materials

produced by the appellant especially the certificate of

Murgram-Gopalpur Gram Panchayat stating the

appellant was dependent of her father and mother.

Learned Counsel for the appellant further contended

that no enquiry was conducted. The appellant did not

give any statement to the respondent no.4. The order

of the respondent no.4 dated 03.03.2023 does not

match with the materials on record. The respondents

have not produced any minutes of the meeting

conducted by them and produced the statement signed

by the appellant. Without considering the materials

the respondents erroneously rejected the prayer for

compassionate appointment of the appellant and

prayed for setting aside the order dated 03.04.2023 of

the learned Single Judge of this court in WPA 6499 of

2023.

Learned Counsel for the appellant relied on a

judgment of the Karnataka High Court dated

15.12.2020 in Writ Petition No. 17788/2018 (Smt.

Bhuvaneshwari V. Puranik vs. The State of Karnataka

& Ors.) which was affirmed by the Hon'ble Apex Court

in The State of Karnataka & Ors. vs. C. N. Apporva

Shree & Anr. (Special Leave to Appeal (C) No.

20166/2021) dated 17.12.2021. Learned Counsel for

the appellant also relied on a judgment of the Madurai

Bench of Madras High Court in State of Tamil Nadu &

Anr. vs. Ms. R. Parvathavarthini in W.A. (MD) No. 145

of 2022 and CMP (MD) No. 1417 of 2022 dated

13.03.2023 in respect of his contention.

Per contra, learned Counsel for the State

submitted that after order of this court dated

16.01.2023 the appellant was called for an enquiry on

20.02.2023 and the appellant attended the enquiry.

Based on the statement given by the appellant to the

respondent no.4, the respondent no.4 found that she

is not dependant on her father and mother and

rejected the request of the appellant. The

compassionate appointment is given only to meet the

indigenous circumstances of the family on the death of

the employee. In the present case, father of the

appellant died on 21.09.2013. Now, ten years have

lapsed and still the appellant survived and there is no

necessity for giving compassionate appointment. The

respondents considered the entire materials and found

that the appellant is not dependent on her father and

mother and rejected the request by giving reason. The

learned Single Judge after considering the entire

materials by the order dated 03.04.2023 rightly

dismissed the writ petition. There is no error in the

said order.

Learned Counsel for the State has relied on

judgment of the Hon'ble Apex Court in State of West

Bengal vs. Debabrata Tiwari and Others reported in

2023 SCC OnLine SC 219 and submitted that the

appellant survived for more than ten years and there is

no necessity for granting her compassionate

appointment and prayed for dismissal of the appeal.

Heard Mr. Anjan Bhattacharya, learned Counsel

for the appellant and Mr. Avishek Prasad, learned

Counsel for the State-respondents. Perused the

materials on record.

It is an admitted fact that the appellant was

married on the date when her father died on

21.09.2013 while in service. Her mother made first

application in the year 2014 and the first application

was rejected on the ground that married daughter is

not eligible. Whether married daughter is eligible for

compassionate appointment or not was considered by

the Special Bench of this Court on 13.09.2017 in FMA

1277 of 2015.

In paragraph 113 it is held as follows :-

"Consequently, the offending provision in the notification dated April 2, 2008 (governing the cases of Arpita and Kakoli) and February 3, 2009 (governing the cases 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 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 agreed to look after the other family members of the deceased, if the claim is to be considered further."

As per the above judgment, the married daughter is

also eligible for compassionate appointment if she

satisfies that she is dependent on the deceased employee.

In view of the said judgment, this Court by the order

dated 16.01.2023 made in the writ petition being WPA

567 of 2023 set aside the order of the respondent no.4

and remanded the matter for fresh consideration.

After remand, according to the learned Counsel for

the State, the appellant made statement before the

respondent no.4 and based on the said statement of the

appellant it was found that she is not dependent on the

deceased employee or her mother. Hence, the application

for appointment on compassionate ground was rejected.

Even though the learned Counsel for the appellant

disputes that no minutes of the meeting was produced

and no signature was obtained from the appellant on

20.02.2023 as alleged by the respondents, it is seen from

the impugned order dated 03.03.2023 that the appellant

was called for personal hearing at 11:30 A.M. on

20.02.2023 at the chamber of the respondent no.4. The

respondent no.4 had come to the conclusion based on the

alleged statement of the appellant. In any event, the

respondent ought to have conducted enquiry to find out

whether the appellant was dependent on her deceased

father and after his death is dependent on her mother.

This aspect is significant in view of the certificate of

Murgram-Gopalpur Gram Panchayat produced by the

appellant which shows that the appellant was dependent

on her deceased father and subsequently on her mother.

Further the appellant also produced documents to show

that her husband owns less than five bigha of land as

alleged to have been stated by the appellant in her

statement made on 20.02.2023.

The respondents have not verified the documents

produced by the appellant and having failed to conduct

independent enquiry, erroneously rejected the claim of

the appellant for compassionate appointment. This Court

in the order dated 03.04.2023 failed to consider that the

respondents have not conducted any enquiry to find out

the financial status of the appellant and her husband and

whether the appellant was dependent on her father or

mother.

The impugned order dated 03.03.2023 and order of

this Court dated 03.04.2023 in WPA 6499 of 2023 are set

aside.

      The        respondents   are        directed      to   grant

compassionate        appointment     to     the      appellant   in

consonance with her educational qualification within a

period of three months from the date of receipt of a copy

of this order.

With the aforesaid directions, the appeal is allowed.

In view of disposal of the appeal, the connected

application being CAN 1 of 2023 is also disposed of.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties on usual undertaking.

(V. M. Velumani, J.)

(Rai Chattopadhyay, J.)