Tanusree Mazumdar vs The State Of West Bengal & Ors
2023 Latest Caselaw 6120 Cal

19   13.9.2023                            WPA 16525 OF 2017
Sc   Ct. no.22
                                                 ---------

Tanusree Mazumdar Vs.

The State of West Bengal & Ors.

Mr. Biswarup Biswas Md. Majnu Sk.

....For the petitioner Mr. Sabyasachi Mondal ....For the Respondent

This is a hearing matter.

The office note dated January 17, 2018 shows that

despite there being a direction for filing affidavits on

August 16, 2017, no affidavit-in-opposition was filed.

Considering the issue involved in this writ petition

and considering the fact that, the writ petition is pending

since 2017, this Court is of the view that, no fruitful

purpose will be served by keeping the writ petition

pending. Hence, this Court proceeds to consider and

dispose of the writ petition on the available records.

Through this writ petition the writ petitioner has

challenged the impugned decision of the respondent no.3

dated February 27, 2017, Annexure-P16 at page 51 to

the writ petition under which the claim of the petitioner

for compassionate appointment was rejected.

The petitioner claimed to be the unmarried

daughter of one Dhaneswar Mazumdar who was a Non-

Teaching staff of Amarun Station Sikshaniketan

(H.S.), District - Burdwan. Due to his incapacitation,

he retired on March 31, 2011. The petitioner

submitted her application being the unmarried daughter

of the incapacitate employee. The petitioner and her

mother were the dependents of the said teacher.

The petitioner seeking a compassionate

appointment in the post of "Group - C" as a Clerk, filed

a previous writ petition being W.P. 29029 (W) of 2015.

The said writ petition was disposed of by a coordinate

Bench by its order dated December 21, 2015, Annexure

- P12 at page 40 to the writ petition. The coordinate

Bench directed the respondent no.3 to consider the case

of the petitioner by passing a reasoned order within a

time-frame.

Pursuant to the said direction the case was

considered and the impugned order was passed on

February 27, 2017 whereby the claim of the petitioner

for Compassionate Appointment was rejected.

Mr. Biswarup Biswas, learned counsel for the

petitioner referring to the impugned order, Annexure -

P16 at page 51 to the writ petition submits that, the

reasons provided for rejection thereunder were cryptic

and without any details and particulars as required to be

mentioned in the impugned order of rejection, in

accordance with law.

Mr. Biswas then refers to the West Bengal School

Service Commission (Selection of Persons for

Appointment to the post of Non-Teaching Staff)

Rules, 2009 (for short the said 2009 Rules). With

specific reference to the Procedure, Manner of

Application and Preparation of Panel for

Appointment on Compassionate Ground (for short the

said Procedure) as provided under Schedule V to the said

2009 Rules and Rules 20 and 21 of the said 2009

Rules, learned counsel submits that, the case of the

petitioner since in place of an incapacitate non-teaching

staff, who was compelled to retire due to his

incapacitance, shall be governed under Clause 2 of the

said Procedure.

Referring to Clause 1 from the said Procedure Mr.

Biswas submits that, a specific provision has been made

for calculating the "Financial Hardship" suffered by the

family members of a deceased employee who died-in-

harness. Similarly, for calculating the "Financial

Hardship" for an incapacitate employee for granting

compassionate appointment is also specified under

Clause 2 of the said Procedure and the respondent

no.3 while passing the impugned order has proceeded

without complying the provisions laid down under Clause

2 of the said Procedure. He submits that, the

dichotomy in said two provisions are also not permitted in

law, while assessing the Financial Hardship.

Referring to the said impugned decision of the

respondent no.3 Mr. Biswas submits that, merely a

statement that, the family income of the incapacitate staff

was not less than the Group - D staff of the State

Government would not do but the same must provide for

the detailed and break up of the family income of a

Group - D staff of the State Government and then the

comparison would have to be shown whether the family

income of the incapacitate staff is higher than that.

Learned counsel for the petitioner submits that, on

a plain reading of the said impugned order it would be

evident that, the respondent no.3 while passing the same

has not applied its mind and did not follow the procedure

laid down under Clause 2 of the said Procedure for

compassionate appointment.

Mr. Biswas further submits that, the said

impugned order should be set aside and the petitioner

shall be granted the compassionate appointment as

claimed by her.

In support of his contention, Mr. Biswas has relied

upon a judgment of the Hon'ble Division Bench of this

Court In the matter of : State of West Bengal & Ors.

-vs.- Tania Ghosal & Ors. rendered in MAT 511 of

2019 with CAN 4310 of 2019 and also a judgment of

the Hon'ble Supreme Court In the matter of : Malaya

Nanda Sethy -vs.- State of Orissa & Ors. rendered in

Civil Appeal No.4103 of 2022 (Arising out of S.L.P.

(Civil) No.936 of 2022).

Mr. Sabyasachi Mondal, learned State counsel

appearing for the respondent nos. 1, 2 and 3 referring to

the said 2009 Rules and with a specific reference to

Clause 2 of the said Procedure submits that, the

impugned order clearly specifies the reason for

rejection being the monthly earning of the family of

the incapacitate staff was more than Rs.10,200/-

being the gross initial salary of a Group - D staff at

that material point of time. Mr. Mondal submits that,

no further detail was required to be mentioned in the

impugned order while rejecting the claim of the petitioner.

He submits that, compassionate appointment is the

result of the benevolent policy of the State and such

policy is required to be considered in its strict sense and

application.

Referring to Column 11 and the sub-Clauses

thereunder from the impugned order dated February 27,

2017, Annexure-P16 to the writ petition learned State

counsel submits that, the reasons are amply clear in the

impugned order of rejection and no further clarification is

required to be there in the impugned order for rejection.

He submits that, the writ petition is devoid of any merit

and should be dismissed.

Mr. Biswas, learned counsel for the petitioner in

reply places much stress upon the judgments referred by

him and submits that, the consistent view of the Court is

that, the detailed reasons are required to be furnished

while rejecting the claim for compassionate appointment.

Respondent nos. 4 and 5 are not represented.

After considering the rival contentions of the parties

and upon perusal of the materials on record, at the

outset, this Court reiterates the principle of law already

settled that in exercise of power in judicial review under

Article 226 of the Constitution of India, this

Constitutional Court has a limited authority and

jurisdiction to assess the impugned order. The

Constitutional Court shall only look into the decision

making process of the authority while passing the

impugned order and whether there is any glaring

perversity on the face of the impugned order.

The facts are admitted insofar as the claim for

compassionate appointment made by the petitioner.

Compassionate appointment for a non-teaching

staff is governed under the said 2009 Rules. Rules 20 and

21 of the said 2009 Rules deal with such an appointment.

Therefore, there is a clear policy of the State for

compassionate appointment to the post of non-teaching

staff. The policy has to be followed in its strict

compliance.

On a harmonious reading of Clause 1 and Clause

2 from the said Procedure as laid down under Schedule

V in pursuance of Rules 20 and 21 of the said 2009

Rules, this Court is of the firm opinion that, there are

two sets of independent modes and manners laid

down under the said Schedule V to the said 2009 Rules.

Clause 1 deals with compassionate appointment in case

of a died-in-harness situation and the Clause 2 of the

Procedure deals with compassionate appointment in

place of an Incapacitate Non-teaching staff. The said

two procedures are independent of each other with their

respective separate and independent applications.

Clause 2 of the said Procedure under Schedule V is

applicable in the fact of this case. Clause 2 of the said

Procedure under Schedule V is very explicit and clear.

The writ petitioner has not raised any challenge to

the validity of such clause in any manner neither

has she contended in her writ petition that, the

provisions under Clause 2 is in conflict with Clause 1

of the of the said Procedure under Schedule V. In any

event the two clauses being independent of each other in

their respective independent field of application, there

cannot be any conflict.

The provision relevant in the instant case under

Clause 2 of the said Procedure is quoted below :

"Explanation. - The expression "financial hardship", in relation to income of a deceased Teacher or non-teaching staff consisting of up to five members in his family for consideration of appointment under the sub Rule, shall mean an amount of income less than the entire gross salary of Group - D staff of the State Government at the material point of time. For computation of income of such family, an income of an amount earned from any other source by each family member than Provident

Fund, Gratuity at the material point of time, shall be taken into account:

Provided that if the family of the Teacher or non-teaching staff exceeds five members, the income so computed under this expression shall be reduced by 20% for each member exceeding five and the amount so arrived at shall be taken into consideration in computing the income for the purpose of comparing it with the gross salary income of Group 'D' staff at the entire stage at the material point of time."

Admittedly, the family members of the incapacitate

staff was not beyond five individuals. The expression

"Financial Hardship" in relation to income of non-

teaching staff consisting of up to five members in his

family for consideration of appointment under the said

2009 Rule, shall mean an amount of income less than the

initial gross salary of Group 'D' staff of the State

Government at the material point of time. For

computation of income of such family, an income of an

amount earned from any other sources by each family

member other than Provident Fund, Gratuity at the

material point of time shall be taken into account subject

to provisions made thereunder.

In the fact of the instant case, the respondent no.3

in the impugned order has disclosed under Column 11(B)

that, the amount of gross family pension on the date of

retirement due to incapacitation of the employee was

Rs.17,121/-. Under Column 11(C) in the impugned order

the income earned by family members from sources other

than Provident Fund and Gratuity was also shown as

Rs.17,121/-, meaning thereby, the only source of income

of the family was the gross pension amount. Clause

11(D) in the impugned order mentioned that, the gross

initial salary of a Group 'D' staff at that material point of

time was Rs.10,200/- as on March 31, 2011. Such

disclosure in the reasoned order would sufficiently

suggest that, the income of the family being

Rs.17,121/- was higher than the gross initial salary

of a Group 'D' staff being Rs.10,200/-. There was no

requirement of any further disclosure of any reason or

material or particular disclosing the niceties or break up

of the gross initial salary of a Group 'D' staff. Inasmuch

as, the petitioner has not confronted the said factual

findings of the respondent no.3 by disclosing any material

on record.

In the matter of : Tania Ghosal & Ors. (supra) a

specific observation of the Hon'ble Division Bench was

that, "A mere statement by an authority that the

income of the family exceeds the initial pay is not a

sufficient disposal of the prayer of the writ

petitioner." The Hon'ble Division Bench further

observed that, "One whose application for

compassionate appointment has been rejected on the

ground of income status of the family has certainly a

right to know the items of income which have been

taken into consideration by the authority and based

upon which the calculation has been made. The

order impugned is not only an unreasoned one but is

verily an incomplete one. The reason for rejection

has been mentioned without giving the basis for the

calculation." In the instant case, the impugned order,

Annexure-P16 at page 51 to the writ petition clearly

speaks of the details of income of a Group 'D' staff and

then the comparison was made with the family income of

the incapacitate staff and on the basis thereof applying

the provisions of the said 2009 Rules, the application

was rejected. Hence, the ratio decided by the Hon'ble

Division Bench has no application in the fact of this case.

In the matter of : Malaya Nanda Sethy (supra),

the Hon'ble Supreme court has mandated a time-frame

within which the authority must consider and decide the

application for compassionate appointment as per the

policy prevalent. The ratio decided in the said judgment

has no application in the facts of this case, as the

impugned order rejecting compassionate appointment is

in question before this Court.

In view of the foregoing reasons and discussions

this court is of the firm view that, there is no infirmity

nor any perversity in the said impugned order dated

February 22, 2017, Annexure- P16 at page 51 to the

writ petition. The said order passed by the respondent

no.3 stands affirmed.

The writ petition being WPA 16525 of 2017 being

devoid of any merit stands dismissed, without any order

as to costs.

Photostat certified copy of this order, if applied for,

be furnished expeditiously.

(Aniruddha Roy, J.)