Calcutta High Court
Dipankar Banik vs The State Of West Bengal & Ors on 23 May, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Rai Chattopadhyay
WPO 531 of 2021
Dipankar Banik
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Debdutta Basu
For the Respondent Corporation : Mr. Niladri Bhattacharjee
: Ms. Deblina Chattaraj
: Ms. Angana Dutta
Judgment on : 23/05/2025
Rai Chattopadhyay, J. :-
(1) The petitioner's father has been a permanent employee of the
respondent Corporation, who died in harness on April 24, 2017.
Hence an application dated June 5, 2017 was filed by his
mother to seek appointment of the petitioner, being the first son
of the deceased, on compassionate ground. The same was
followed by another application by the petitioner himself, that is
dated April 17, 2019.
(2) In this regard the Enquiry Committee [in short "the EC"] has
made decision vide its report [in short "the ER"] dated December
11, 2020 and the Managing Director of the Corporation [in
short "the MD"] has passed its order on the basis of the said
report on February 3, 2021. Both the above are challenged by
the writ petitioner in this case.
(3) According to the finding of the EC in its report, the MD has
passed an order that the family of the said deceased person,
consisting of his wife and two sons shall be paid an amount of
Rs. 3,66,386/- as one time compensation due to death of the
sole earning member of the family in-harness, following the
provisions under the notification No. 144-WT/1E(D)-1/2008
dated January 13, 2011 [in short "No.144"]. The writ
petitioner's challenge is with regard to the said decision and
order of the respondent Corporation.
(4) Mr. Basu has represented the writ petitioner in this case. The
petitioner has made out a case that the respondent, after
having found the family of the deceased to be in need of
immediate financial assistance after death of the sole earning
member of the family, should have considered the writ
petitioner for being appointed permanently against a sanctioned
vacant post on compassionate ground. According to Mr. Basu
the scheme of compassionate appointment as provided vide
notification No.144, is only the same. He says that the scheme
has provided for "appointment or one time financial assistance
on compassionate ground". Hence, in case the dependent legal
heir of the person died in-harness is otherwise eligible and there
are suitable vacancies available against which appointment can
be made, it is the mandate of the scheme itself that the
Corporation should appoint such legal heir of the deceased
person. He says that the petitioner is duly eligible for being
appointed in a suitable post and also that ample vacancies are
available with the respondent Corporation to accommodate him.
In such circumstances and following the scheme as provided in
the notification No.144, he should have been given
appointment. It is submitted that the Corporation, by not doing
that and in stead granting the family of the petitioner a meagre
and insufficient amount of money as one time compensation
has violated the very essence and purpose of the scheme itself.
(5) The petitioner's further grievance is that he has been
dissimilarly treated with the other persons, similarly situated
like him, thereby jeopardizing and violating his constitutionally
protected right of equality. Mr. Basu has elaborated that since
long the respondent Corporation has been giving contractual
and casual appointments on compassionate ground. In this
regard he has referred to a 'Notice' issued by the MD on
September 1, 2005, by dint of which the MD invites
applications for compassionate appointment. He has also
referred to the 'Note-sheet' of the MD dated November 2, 2010
in which names of the contractual appointees were mentioned
who were appointed on compassionate ground. According to the
writ petitioner some of these contractual appointees were
regularized subsequently. In this regard Mr. Basu has referred
to letters issued by the Chief Operating Manager dated
February 8, 2016, thereby regularizing some of those
contractual appointees. According to Mr. Basu, this clearly
shows two things, firstly that, persons who are on similar
footing like that of the writ petitioner have been given
appointment and regularization in service and secondly that
there exist sanctioned vacant posts against which the writ
petitioner should have been appointed. Otherwise dissimilar
treatment of the petitioner and treating him to be a separate
class within the class of similar persons would not be
maintainable in the eye of law, said Mr. Basu. He says that after
the financial indigency of the family having been found, grant of
one time financial assistance to the family of the deceased is not
only irrational and disproportionate but also being in
contravention of the spirit and object of notification No.144, is
also illegal and not maintainable.
(6) An order of MD dated May 25, 2023 has also been mentioned
by Mr. Basu for the petitioner, by dint of which the MD has
granted appointment to one person on compassionate ground,
in compliance with the order of this Court dated May 19, 2023
in WPO No. 1240 of 2021. The petitioner has sought for a
similar order.
(7) Strong objection has been raised by the respondent
Corporation, represented by Ms. Chattoraj learned advocate.
The respondent has put forth a reason of extreme financial
crunch of the same disabling it any further to afford fresh
appointment on permanent basis. It is submitted that as a
matter of policy, the respondent appoints contractual or casual
employees to discharge its functions. It has further been
submitted that the scheme of compassionate appointment
followed by the said respondent that is, vide notification
No.144, has provided for grant of one time compensation.
Therefore, in case of the writ petitioner, neither any improper
nor illegal decision has been taken by the same, which could
have been termed as in contravention or violation of the
prevailing notification. According to the said respondent the
letter of the MD dated September 1, 2005, inviting applications
or regularization of any other employee, should bear no
relevance with the case of the writ petitioner and the same is to
be adjudicated in accordance with its own merit. And the merit
of the case the respondent has pleaded that in terms of
notification No. 144, there has not been any error, impropriety
or illegality in the report of the EC and the order of the MD,
which are impugned in this case. The respondent has also
denied the allegation of the petitioner about the insufficiency of
the compensation proposed to be paid to his family. It is
submitted that the quantum of compensation has been
determined in accordance with the rules as prescribed in this
regard. Ms. Chattoraj has very strenuously argued that the
respondent is no further so financially viable to take up the
liability of additional employee than are presently on roll or
appointment of more permanent employees.
(8) According to the respondent the impugned order has been
passed after affording opportunity of hearing to the writ
petitioner and in accordance with the policy frame work of the
respondent. Hence the same is in accordance with law and not
violative of either the constitutional rights of the writ petitioner
or the comparatively weak right of him to be appointed on
compassionate ground. The respondent has sought for
dismissal of the writ petition.
(9) The respondent firstly tries to justify the ground of its financial
stringency. The Court finds that financial stringency is not a
valid reason to withhold benefits that are already owed,
especially when those benefits are considered a means of
sustenance. Simply stating that the state is facing financial
difficulties is not a valid reason to deny what accrues in favour
of a person as per law. If a benefit is legally or contractually
obligated, the state cannot use financial constraints to avoid its
obligations, excepting fraud practice or misconduct being
proved.
(10) The importance of upholding the constitutional, statutory or
contractual right of a person over and above the economic
health of a state instrumentality have time and again been
propagated by the Supreme Court in various judicial
pronouncements.
(11) In All India Imam Organization and others v. Union of India and
others (1993) 3 SCC 584, the Supreme Court has held :
" ... Much was argued on behalf of the Union and the Wakf
Boards that their financial position was not such that
they can meet the obligations of paying the Imams as they
are being paid in the State of Punjab. It was also urged
that the number of mosques is so large that it would entail
heavy expenditure which the Boards of different State
would not be able to bear. We do not find any correlation
between the two. Financial difficulties of the institution
cannot be above fundamental right of a citizen. If the
Boards have been entrusted with the responsibility of
supervising and administering the Wakf then it is their
duty to harness resources to pay those persons who
perform the most important duty namely of leading
community prayer in a mosque the very purpose for which
it is created."
(12) In State of H.P. v. H.P. State Recognized & Aided Schools
Managing Committees and others (1995) 4 SCC 507, it was
opined :
"16. The constitutional mandate to the State, as upheld by
this Court in Unni Krishnan case - to provide free
education to the children up to the age of fourteen -
cannot be permitted to be circumvented on the ground of
lack of economic capacity or financial incapacity."
(13) In Kapila Hingorani v. State of Bihar reported in (2003) 6 SCC
1 the Supreme Court has observed as follows :-
"65. Financial stringency may not be a ground for not
issuing requisite directions when a question of violation
of fundamental right arises."
(14) Therefore in this regard we find the law to be well settled that
financial stringency would not be a cogent or forceful ground for
the respondent, to deny the petitioner his right in terms of the
Rules. In this regard the respondent has submitted that the
right of the petitioner for being appointed on compassionate
grounds is not a vested right but is subject to proof of various
contingencies. In case of the petitioner, it is submitted that the
petitioner has not been able to prove with sufficient evidence
regarding those contingencies, particularly with regard to the
indigence of the family, it's ardent need for financial assistance,
in so far as the petitioner himself is engaged in some job, which
earns him income. The respondent has also contended that the
petitioner has not been deprived altogether, but the family has
been provided with the financial assistance in the form of
compensation, which is the other alternative of one person of
the family being appointed in the Corporation on compassionate
grounds, as provided in the Rules.
(15) Clause 4. of the notification No.144, is important in this
regard. Let that be extracted as herein bellow:
"4. One of the dependants of an employee, who
dies-in-harness or who retires prematurely on being
declared permanently incapacitated may be offered
appointment or one time financial assistance on
compassionate ground if the family of the deceased or the
retired employee, as the case may be, is in need of
immediate assistance."
(16) The provision for offering appointment to the dependent
of an employee precedes the provision for offering one time
financial assistance to the family of the deceased, in the Rules.
Hence, there can be no scope of any doubt that while providing
for those Rules, the makers had kept in mind the necessity for
providing a support system to the dependent family of the
deceased, the sole bread earner of which has left for heavenly
abode and only untimely and suddenly. According to Mr. Basu,
the vacancies being available and the dependent legal heir of
the deceased person being eligible for being appointed in the
said vacancy, that should be the first and foremost option
undertaken by the Authorities, while supporting the family in
need of immediate assistance, after death of the predecessor.
The Court finds force in such submission. One time financial
assistance may not always be equivalent of the dependent being
appointed, as in the later case the family is supported for its
sustenance whereas in case of the former, it is only a measure
for the time being.
(17) It is pertinent to note that the EC in its report dated
December 11, 2020, has recorded its finding that the family of
the deceased person is in need of immediate financial
assistance. The result of fact finding enquiry by the EC and its
decision is that in spite of the same, the petitioner's family
would be eligible for grant of one-time compensation instead of
any appointment. The reason has been said to be that the
petitioner himself is engaged in a job, which earns him a per
day remuneration to the tune of ₹200. Also that since after
2014, there has not been any appointment made in the
respondent Corporation on compassionate ground and the
respondent only appoints on contractual basis through the
outside agency.
(18) Firstly, that a job, if any, which earns a per day
remuneration, cannot be held to be sufficient for financial
assistance of a family, which has lost its bread earner untimely.
It is of temporary nature and not sufficient to fulfil the need of
the family for sustenance in a coherent manner. Hence, this
cannot be considered as a substantive source of earning of the
dependant or the family of the deceased.
(19) Further, the Court notices that there are vacancies
available in the respondent Corporation. This fact, as
established by the petitioner in the affidavit-in-reply, has not
been confronted or defied by the respondent with adequate
material. It is also necessary that note-sheet of the MD dated
November 2, 2010 thereby appointing persons temporarily on
compassionate ground and subsequent order of the Chief
Operating Manager dated February 8, 2016, may also be
mentioned, by dint of which service of those persons have been
regularised. Hence, the petitioner cannot be discriminated on
these grounds particularly when financial stringency of the
respondent would not be a valid ground in accordance with law,
not to give appointment to an eligible person, who is also
entitled under the Rules. Reasons assigned by the
respondent/Corporation to deny the petitioner appointment and
instead to grant him one time compensation, that the
respondent has not been appointing persons on compassionate
ground for years together, is found to be baseless, irrational,
unreasonable, and of course without any sanction of law. A
State instrumentality, has to act as per the settled principles of
law and within the bounds of the statute. Its decision cannot be
the result of its whims and without foundation. The respondent
has cited the reason as to why it may not have appointed any
person on compassionate ground to be the financial ill health of
the Corporation, which would also not be maintainable in the
eye of love as discussed earlier in this judgment.
(20) Lastly, the Court is inclined to referred to the earlier order
passed in WPO 1240 of 2021 and the follow-up order passed by
the MD dated May 25, 2023, as referred to on behalf of the writ
petitioner. Pursuant to order of the Court passed in the said
writ petition, the Corporation, by dint of the said order, has
appointed the incumbent as against a sanctioned vacant post
as regular employee of the Corporation. There is no ground for
which the petitioner may not be treated similarly by the
respondent Corporation.
(21) For the reasons as discussed above, the impugned report
by EC dated December 11, 2020 as well as order of the MD
dated February 3, 2021 are found to be based on
unreasonableness and irrationality. Therefore, those are not
eligible to be sustained. Hence, this writ petition is allowed with
the directions as follows:-
i) The impugned report of EC dated December 11,
2020 is set aside excepting the finding of
requirement of immediate financial need of the
petitioner and his family;
ii) The impugned order of MD dated February 3, 2021
is set aside;
iii) The petitioner is eligible for being appointed on
compassionate ground in terms of provisions in
Notification No. 144;
iv) Hence, respondent no. 2 is directed to issue an
order of appointment of the writ petitioner as a
regular employee of the Corporation immediately
and positively within a period of 4 weeks from the
date of communication of copy of this order.
(22) This writ petition is disposed of.
(23) Urgent certified website copy of this judgment, if applied
for, be supplied to the parties upon compliance with all
requisite formalities.
RAI Digitally signed
by RAI
CHATTOP CHATTOPADHYAY
Date: 2025.05.23
ADHYAY 13:27:05 +05'30'
(Rai Chattopadhyay, J.)
