Mallika Das vs The State Of West Bengal & Ors
2023 Latest Caselaw 3064 Cal

01.05.2023 Item No.06 Court No.6.

S. De M.A.T. 75 of 2023 with I.A. No. CAN/1/2023 I.A. No. CAN/2/2023

Mallika Das.

Vs The State of West Bengal & Ors.

Mr. Arindam Chattopadhyay, Ms. Lipika Chatterjee, Mr. S. Dey, ...for the appellant.

Mr. Pinaki Dhole, Mr. Avishek Prasad, ..for the State.

Affidavit-of-service filed in Court today, be kept

on record.

The State is represented.

The Murshidabad Zilla Parishad is not

represented.

In re : I.A. No. CAN/1/2023

This is an application for condonation of delay of

102 days in filing this appeal. Causes shown being

sufficient, the delay is condoned.

I.A. No. CAN 1 of 2023 is, accordingly, disposed

of.

In re : MAT 75 of 2023 & I.A. No. CAN/2/2023

A judgment and order dated September 7, 2022,

whereby the appellant's writ petition being WPA 13015

of 2021 was in effect dismissed, is under challenge in

this appeal. The writ petitioner's case before the

learned Single Judge was that her father was an

employee of Sujgram Zilla Parishad who died-in-

harness in the year 2001. In 2010, her brother

applied for compassionate appointment in died-in-

harness category with No Objection Certificate from

the other legal heirs of the deceased employee.

Unfortunately, her brother died in a road accident on

July 15, 2010. The writ petitioner submitted a

handwritten letter to the Additional Executive Officer,

Murshidabad Zilla Parishad, on March 19, 2020,

seeking appointment on compassionate ground as her

father had died-in-harness in 2001. With the

grievance that her representation was not being

considered, the writ petitioner approached the learned

Single Judge.

The learned Judge noted that the writ

petitioner's application was not in prescribed form.

The writ petitioner made the application for

compassionate appointment about nineteen years after

her father's demise. Even after the unfortunate death

of her brother in 2010, for ten years she did not apply

for compassionate appointment. The learned Judge

rightly observed that compassionate appointment is

not a matter of right. Such appointment is given to

enable the family of the deceased employee to tide over

immediate financial crisis particularly when the

deceased employee was the sole bread earner of the

family. The learned Judge referred to paragraphs 11,

12 and 13 of the judgment of the Hon'ble Supreme

Court in the case of Santosh Kumar Dubey Vs. State

of U.P., reported in (2009) 6 SCC 481. In that

judgment, the Hon'ble Apex Court observed that the

request for appointment on compassionate ground

should be reasonable and proximate to the time of the

death of the bread earner of the family, inasmuch as

the very purpose of giving such benefit is to make

financial help available to the family to overcome

sudden economic crisis that the family of the deceased

may be faced with. However, compassionate

appointment is not another source of recruitment nor

can it be treated as a bonanza or as a right to get an

appointment in Government service.

The learned Judge finally observed that the writ

petitioner has been able to sustain herself for almost

twenty years since the death of her father. There is

also no reference in the writ petition as to whether

there are other dependents who are being looked after

by the writ petitioner. The learned Judge disposed of

the writ petition without passing any order thereon.

Hence, this appeal at the instance of the writ

petitioner.

We have heard Mr. Chattopadhyay, learned

advocate appearing for the appellant/writ petitioner, at

length. We have also heard Mr.

Dhole, learned advocate for the State.

Mr. Chattopadhyay submitted that whether the

delay in applying for compassionate appointment is

unreasonable or not will depend on the facts of each

case. In any event, ours is a welfare State. Social

justice requires that the writ petitioner be considered

for compassionate appointment as otherwise the

family would be in distress. Mere delay in applying

should not stand in the way of doing substantive

justice. He relied on three decisions of the Hon'ble

Supreme Court :-

i) 2000, Supreme Court Cases Volume-6,

Page-493 (Balbir Kaur, T.K. Meenakshi Vs. Steel

Authority of India Ltd.)

The main question which fell for determination

in that case pertained to the interpretation of the

Family Benefit Scheme as introduced in the NJSC

Tripartite Agreement of 1983. In that context, the

Hon'ble Supreme Court, at paragraph 19 of the

judgment, observed as follows :-

"The concept of social justice is the yardstick to

the justice administration system or the legal justice

and as pointed out, the greatest virtue of law is in its

adaptability and flexibility and thus it would be

otherwise an obligation for the law courts also to apply

the law depending upon the situation since the law is

made for the society and whichever is beneficial for the

society, the endeavour of the law court would be to

administer justice having due regard in that direction".

ii) 2007, Volume-8, Supreme Court Cases

Page-549 (Mohan Mahto Vs. Central Coal Field

Ltd.)

In this case, the Hon'ble Supreme Court after

discussing various other decisions, observed that :-

"What should be a reasonable period would

depend upon the rules operating in the field".

In other words, the Honble Supreme Court held

that no doubt an application for compassionate

appointment would have to be made within a

reasonable period from the death of the employee who

died-in-harness, but, what the reasonable period will

be, will depend on the facts of each case and vary from

case to case.

iii) All India Reporter (Supreme Court

Weekly), 2015 Page-3212 (Canara Bank Vs. M.

Mahesh Kumar.)

The question that fell for determination in that

case was whether the dependent family members of

the deceased employee of the appellant/Canara bank

were entitled to seek compassionate appointment on

the basis of a 'Dying in Harness Scheme' which was

passed vide a particular Circular. In that facts of that

case, the Supreme Court noted that after the

respondent's father died in harness, the respondent

applied timely for compassionate appointment as per

the 1993 Scheme which was in force at that time. The

appellant/Bank rejected the respondent's claim on

30.06.1999 recording that there were no indigent

circumstances for providing employment to the

respondent. Again on 07.11.2001, the appellant/bank

sought for particulars in connection with the issue of

the respondent's employment. The bank thereafter

again rejected the respondent's case holding that the

2005 Scheme that had come into operation did not

permit granting compassionate appointment to a legal

heir of an employee who dies in harness but provides

for only ex-gratia payment. The Hon'ble Supreme

Court held that the Circular of 2005 being an

administrative or executive order, the same cannot

have retrospective effect so as to take away the right

accrued to the respondent as per the Circular of 1993.

In the judgment, however, the Hon'ble Supreme

Court referred to its earlier judgments on

compassionate appointment which are all to the effect

that it is well-settled that compassionate employment

is given solely on humanitarian ground with the sole

object of providing immediate relief to the deceased

employee's family to tide over the sudden financial

crisis. Such appointment cannot be claimed as a

matter of right. The request is to be considered strictly

in accordance with the governing scheme and no

discretion is left with any authority to make

compassionate appointment de hors the scheme. An

application for such employment must be made

without undue delay. An appointment on

compassionate ground is to meet the sudden crisis

that the family may be faced with on account of the

death or medical invalidation of the bread earner while

in service.

None of the above three decisions advances the

case of the appellant. On the contrary, the said

decisions affirm that an application for compassionate

appointment has to be made without undue delay.

In the present case, as the learned Single Judge

has noted, the writ petitioner/appellant survived for

nineteen years after her father's death in-harness

before applying for compassionate appointment. Such

a long unexplained delay, in our opinion, is definitely

unreasonable. The appellant is not entitled to even an

order directing the Zilla Parishad to consider her

appointment. After nineteen years of the death of an

employee who died in service, his legal heirs are not

entitled to be considered for compassionate

appointment.

While we may have full sympathy for the writ

petitioner, sympathy cannot be the ground or basis for

passing judicial orders. The principle of law laid down

by the Hon'ble Supreme Court in relation to

compassionate appointment, disentitle the appellant to

any order in the present proceedings.

We find no infirmity in the order under appeal.

The appeal being MAT 75 of 2023 is dismissed

along with the application being I.A. No. CAN 2 of

2023.

There will be no order as to costs.

Urgent certified photostat copy of this order, if

applied for, shall be given to the parties as

expeditiously as possible on compliance with all the

necessary formalities.

(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)