Calcutta High Court (Appellete Side)
Abdul Odud vs State Of West Bengal & Ors on 4 September, 2023
25
04.09.2023
Court No. 35
I.T (p.a) WPA 57 of 2021
Abdul Odud
Vs.
State of West Bengal & Ors.
Mr. Uday Sankar Chattopadhyay,
Mr. Santanu Majhi,
Ms. Snigdha Saha.
... for the Petitioner
Mr. Prosenjit Mukherjee,
Mr. Nirmalya Kr. Das.
Ms. Madhurim Sarkar.
...for Madrasah Service
Commission
Writ petitioner is aggrieved with non-
consideration of his prayer by the respondent
authorities in his representation dated
15.12.2020 addressed to respondent no.4/West
Bengal Madrasah Service Commission.
The crux of the matter and the said
representation of the petitioner is that the
respondents have allowed petitioner's prayer for
appointment on compassionate ground and
accordingly he was issued letter of appointment
dated 22.06.2020, to the post of Group-C
against regular vacancy. The writ petitioner
joined and worked for a few months. Thereafter
he is said to have gathered knowledge that other
candidates who were similarly placed like him,
were given appointment on compassionate
ground in accordance with their qualifications
only, to the post of Assistant Teachers. That
espoused the grievance of the petitioner that he
also being qualified to be appointed to the post
of Assistant Teacher, the authority, while
granting him appointment on compassionate
ground, instead of appointing him as an
Assistant Teacher, allowed him to be appointed
as Group-C clerical staff only, which is not in
accordance with the qualification, he possessed.
Mr. Chattopadhyay appearing for the
petitioner has stated that the glaring
discrimination happened to his client as the
authorities made him to join in a post, much
inferior than to one he is eligible to be
appointed, particularly when other similarly
placed candidates have been accommodated in
the posts commensurate to their qualification
only. The petitioner has urged violation of
Article 14 and 16 of the Constitution, in his
case.
Mr. Chattopadhyay has also submitted
that from the letter dated 11.08.2011
transmitted in the process of appointment
between the officers of the respondent, it would
be evident that the better qualification of the
present petitioner to be appointed as an
Assistant Teacher was known to the respondent
authorities. He has submitted that
unfortunately inspite of the same and in
derogation of the right of equity under the law,
his client has been provided a post of Group-C
staff in school, inferior to one, of which he is
qualified for. By filing the present writ petition
the petitioner has prayed for necessary direction
to be issued upon the respondent authorities for
appointing him in an appropriate post, pursuant
to his qualification.
Mr. Chattopadhyay has relied on the
following judgments:-
(i) Surya kant Kadam vs. State of Karnataka
& Ors., reported in (2002) 9 SCC 445,
(ii) National Institute of Technology & Ors. vs.
Niraj Kumar Singh, reported in (2007) 2 SCC
481.
He has submitted that in the case of
Surya Kant Kadam (supra), the Hon'ble Supreme
Court has held in a similar circumstance the act
of the authorities to be discriminating and in
violation of the provisions of the Constitution of
India and also set aside the same.
In the case of Niraj Kumar Singh (supra),
the Hon'ble Supreme Court has held that any
appointment in violation of the constitutional
scheme would be rendered as a nullity.
By referring to these two judgments and
the facts as stated above Mr. Chattoapadhyay
has submitted that the case of his client should
also be considered and necessary directions be
issued, in the light of the decision of the Hon'ble
Supreme Court as stated above.
Mr. Mukherjee has however vehemently
contested the contentions and prayer of the
petitioner, in this writ petition. It has been
stated that the writ petitioner, after accepting
the offer of appointment in the post of Group-C,
cannot agitate the same afterwards.
Mr. Mukherjee representing the
respondents has relied on a judgment of State of
Rajasthan vs. Umrao Singh reported in (1994) 6
SCC 560, to submit that on a similar fact, the
Supreme Court has directed that it cannot be a
case of compassion for all time. After
consummation of right to consider for
appointment of compassionate ground by the
candidate, by joining the post no further
consideration on compassionate ground would
ever arise. The Court opined that otherwise it
would be a case of "endless compassion". The
Court has rejected claim of the respondent there
on the ground that once the right has been
consummated, any further or second
consideration for a higher post on the ground of
compassion would not arise.
The facts that the petition has joined to
the post of Group-C upon being appoint on
compassionate ground, is an undisputed fact in
this case. Therefore the ratio in the decision of
the Hon'ble Supreme Court in the case of Umrao
Singh (supra) as mentioned above would
squarely apply to the case of the present
petitioner also. Further it can be said that in
accordance with the law of the land the right for
compassionate appointment of the petitioner
was never a vested right for him. The
authorities have been satisfied about all the
relevant factors including his indigence and
immediate necessity for a source of sustenance
and has afforded opportunity to him for
appointment under a specified scheme, so that
he and his family, can survive, with the aid of
that source, as the sole bread winner of the
family has passed away only untimely. For an
appointment on compassionate ground
excepting the considerations as above, there are
no other relevant factors for the authorities, to
consider and implement. There are plethora of
judgment of the Hon'ble Apex Court as well as
this Court and other constitutional Courts of the
country, regarding availability of no vested right
for this mode of appointment, which is a
departure from the general rules in furtherance
of the policies of a welfare state.
Under such circumstances, as it is found
that the ratio of the decision of Umrao Singh
(supra) would squarely apply to the case of the
present petitioner, in the considered opinion of
this Court his writ petition merits no success.
Hence, writ petition being WPA 57 of 2021
is dismissed, however, without any cost.
(Rai Chattopadhyay, J.)
