Calcutta High Court (Appellete Side)
Samar Roy vs The State Of West Bengal & Ors on 11 September, 2024
Author: Amrita Sinha
Bench: Amrita Sinha
14
11.09.2024
d.p.
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
W.P.A 11554 of 2024
Samar Roy
-versus
The State of West Bengal & Ors.
Mr. Duke Banerjee.
...For the Petitioner.
Mr. Pradyut Kumar Das.
...For the State.
Mr. Bhaskar Prasad Vaisya,
Mr. Gourav Das.
...For DPSC, South 24-Parganas.
The reasoned order dated 12th December, 2022
rejecting the prayer of the petitioner for providing
compassionate appointment on the ground that he is
over aged is impugned in the instant writ petition.
The wife of the petitioner was a primary school
teacher. She died-in-harness on 22nd April, 2021. The
petitioner applied for compassionate appointment on
7th July, 2021. His prayer stood rejected as he exceeded
45 years on the date of death of his wife.
Reliance has been placed on G.O. 57-SE (Pry.)
dated 15th January, 2002 as amended vide G.O. No.
418-SE (Pry.) dated 11th May, 2004 to reject the claim
of the petitioner.
The petitioner submits that as his wife died of
Covid which is a special case, accordingly, the
notification of the Labour Department, Government of
2
West Bengal being No. 251-Emp. dated 3rd December,
2013 ought to have been applied for condoning the age
of the petitioner and appointment ought to have been
given to him.
Clause 6 (c) Note (a) of the Notification dated 3rd
December, 2013 has been relied upon which mentions
that condonation of excess age in case of eligible cases
will be made by the respective head of the department
or their subordinate officer who are competent to make
the compassionate appointment as per existing
provision.
Prayer has been made to set aside the impugned
rejection order and to treat the petitioner as eligible for
appointment on compassionate ground by condoning
his age.
The prayer of the petitioner has been opposed by
the respondents.
The District Inspector of Schools (P.E.), South 24-
Parganas has filed a report.
It has been submitted that the case of the
petitioner will be governed by the West Bengal Primary
School Teachers Recruitment Rules, 2001. Rule 14
thereof mentions that employment may be given to
candidates not below 18 and not above 45 years of age.
In the instant case as the petitioner is above 45 years of
age, accordingly, his case cannot be considered.
It has been submitted that the notification of the
Labour Department will not be applicable in the facts
and circumstances of the instant case.
The respondents rely on the decision of this
Court in the matter of Badra Mandi -vs- West Bengal
State Electricity Distribution Company Limited
reported in (2018) 3 LLJ 342 wherein the Court held
that it is trite law that compassionate appointment is
always a scheme related one. There cannot be any
appointment on compassionate ground de hors the
scheme.
While passing the aforesaid order the Court took
into consideration the judgment of the Hon'ble Supreme
Court in the matter of State Bank of India & Anr. -
vs- Raj Kumar reported in (2010) 11 SCC 661 wherein
the Hon'ble Supreme Court observed that the claim for
compassionate appointment is traceable only to the
scheme framed by the employer for such appointment
and there is no right whatsoever outside such scheme.
I have heard the submissions made on behalf of
both the parties.
Admittedly, the provision for providing
compassionate appointment is clearly indicated in the
West Bengal Primary School Teachers Recruitment
Rules, 2001. It clearly lays down that for the purpose of
compassionate appointment the applicant must not be
below 18 years of age and not above 45 years of age.
In the present case, the petitioner is over aged. As
the law relating to compassionate appointment does not
specify any provision for condoning the age bar,
accordingly, it will be improper for the Court to direct
the authority to consider the case of the petitioner by
condoning his over age.
It is settled law that compassionate appointment
can be made only in accordance with the scheme of the
employer. The applicant does not have a vested right to
be appointed de hors the prevailing law. As the scheme
under which the petitioner made the application
prescribes an age limit for making the application and
as the petitioner does not fall within the said prescribed
age limit, accordingly, the Court is not inclined to
exercise jurisdiction in this matter.
The Court does not find any reason to interfere
with the impugned order.
The writ petition fails and is hereby dismissed.
Urgent certified photocopy of this order, if applied
for, be supplied to the parties expeditiously on
compliance of usual legal formalities.
( Amrita Sinha, J.)
