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2004 DIGILAW 93 (CAL)

SWAPNA LAHIRI v. STATE OF WEST BENGAL

2004-02-11

MAHARAJ SINHA

body2004
MAHARAJA SINHA, J. ( 1 ) THE writ petitioner herein, has essentially sought for a mandatory order in the form of is writ directing the respondents concerned to approve the appointment of the petitioner as lower-division-clerk in Rishi Bankim chandra College, at Naihati, in the District of North 24-Parganas. ( 2 ) THE said approval has been sought for in favour of the petitioner from the date of her jqining as a lower-division-clerk in the post in question. The petitioner has, needless to mention, sought for an order of payments of salary on the basis of the Pay Scale mentioned in the letter of her appointment. ( 3 ) A restrained order by way of an interim protection has also been sought for against the concerned respondents restraining them from interferring with the service of the petitioner as the lower-division-clerk in the said College. The facts of this case are as follows : the husband of the petitioner, Late Amit Kumar Lahiri, was a lecturer in Physics of the said Rishi Bankim Chandra College, in the District of North 24-Parganas, hereinafter referred to as the 'said college". ( 4 ) MOST unfortunately, however, on, 10 January, 1992, the husband of the petitioner died. The husband was, however, suffering from prolonged illness leaving behind the petitioner herein and a son and a daughter. As a natural consequence of the most unfortunate death of the husband the petitioner faced a severe financial burden for maintaining the family namely, herself and her unfortunate children. ( 5 ) AFTER having lost her husband the petitioner made an application to the said College authority in the month of February, to be precise, on 28 february, 1992, for her appointment in a suitable post in the said College on compationate ground. ( 6 ) ONE Latika Devi, who was an employee of the said College died and because of her demise a vacancy was created in the said College of a lower-division-clerk and for filling in the said vacancy the said College authority sought for permission from the Education Deptt. of the government for filling in the said post and accordingly, such permission was given to the authority of the said College by its order dated 15 May, 1991. of the government for filling in the said post and accordingly, such permission was given to the authority of the said College by its order dated 15 May, 1991. ( 7 ) FOR the sake of consideration of the said application of the petitioner for appointment on compassionate ground, the Governing Body of the said College, on 1st August, 1992, took a resolution for appointment of the petitioner as a lower-division-clerk in the said vacant post and the scale of Pay of the petitioner was also mentioned in the letter of appointment of the petitioner. The Scale of Pay was rs. 1040-25-1215-30-1435-35-1590-40-1670-50-1920/- and admissible allowances from time to time were to be paid as provided in the relevant provision of the Calcutta university First Statute, 1979, with the said appointment, however, the matter was also referred to the Government of West Bengal with all necessary papers for approval of the said appointment of the petitioner. ( 8 ) IT was also resolved that the salary and the allowances would be received by the petitioner when the College authority received the same from the Government. The Teacher-in-Charge of the said College, however, was requested to place the petitioner in a suitable Office whenever her placement was justified according to the Teacher-in-Charge of the said college. ( 9 ) THE petitioner, thereafter, joined the said College as lower-division- clerk on 11 August, 1992. After the joining of the petitioner the Authority of the said College approached the Government of West Bengal, Education department, by letters and representations to the concerned Authority of the Education Department for approval of the appointment of the petitioner as a lower-division-clerk in the said College on compassionate ground. All necessary papers and certificates' true copies showing her qualifications were also sent for approval of the appointment of the petitioner herein. ( 10 ) SINCE the post of the petitioner was not approved, the College authority sanctioned a consolidated amount in favour of the petitioner. ( 11 ) DURING the course of hearing of this application the learned counsel for the petitioner and the learned Senior Counsel Mr. Bidyut Kiran mukherjee, appearing on behalf of the said College authority submitted that the said letter of appointment was issued in favour of the petitioner for the post of lower-division-clerk in terms of the provisions of Rule 6 (a) under Chapter XIII of the Calcutta University First Statute, 1979. Bidyut Kiran mukherjee, appearing on behalf of the said College authority submitted that the said letter of appointment was issued in favour of the petitioner for the post of lower-division-clerk in terms of the provisions of Rule 6 (a) under Chapter XIII of the Calcutta University First Statute, 1979. ( 12 ) THE said Statute, submitted the learned Senior Counsel, Mr. Mukherjee, on behalf of the College authority, gave the power for recruitment of non-teaching employees of an affiliated College on compassionate ground and such appointment should be given precedence over others in the matter of employment or placement as the case might be. ( 13 ) THE relevant portion of the said Rule 6 (a), however, is Annexure P/4 to the writ petition appearing at page 36 thereof. ( 14 ) AS the concerned respondents rather the State-respondents did not take any step to approve the said appointment of the petitioner as lower-division-clerk in the said College or rather since the State-respondents failed and neglected to take any step to approve the appointment of the petitioner, she, being highly aggrieved thereby, had to move the present writ application against such utter wrongful and/or arbitrary action or inaction on the part of the State-respondents, inter alia, praying for approval of the appointment of the petitioner as lower-division-clerk in the said College, at Naihati, in the District of North 24-Parganas, submitted both the learned Senior Counsel on behalf of the College authority and the petitioner. ( 15 ) BOTH the learned Senior Counsel, on behalf of the writ petitioner and for the College authority, emphasised during the course of hearing in their respective submissions in support of the writ application that in the facts and circumstances of the present case the appointment of the petitioner as lower-division-clerk in the said College should be approved and the concerned State-respondents should have approved the appointment but they deliberately failed and neglected to approve the appointment of the petitioner in an utter illegal and arbitrary manner. Because of such deliberate failure and negligence on the part of the State-respondents, the petitioner had been deprived of receiving her monthly salary and other allowances since the date of her appointment from the concerned respondents, submitted the learned Counsel for the College authority and for the petitioner as well. Because of such deliberate failure and negligence on the part of the State-respondents, the petitioner had been deprived of receiving her monthly salary and other allowances since the date of her appointment from the concerned respondents, submitted the learned Counsel for the College authority and for the petitioner as well. ( 16 ) BOTH the learned Counsels on behalf of the petitioner and in particular the learned Senior Counsel, Mr. Mukherjee, on behalf of the college authority, while making submissions in support of the writ application, also dealt with the affidavit-in-opposition used on behalf of the State-respondents namely, the 1st, 2nd and the 3rd respondents herein and submitted the followings : ( 17 ) FIRSTLY, according to the State-respondents, since the writ petitioner was getting a family pension month by month, apart from the fact that she was paid Rs. 50,000/- on account of Death-cum-Gratuity of her deceased husband, the writ petitioner was not entitled to be appointed on compassionate ground in view of the provisions under Article 14 of the constitution. ( 18 ) SECONDLY, the concerned respondents relied on a Government memorandum, being No. 1130-F. B. , dated 2. 7. 1992 being Annexure-R/1 to the affidavit-in-opposition and in terms of Clause (D) of Paragraph 2 of the said Memorandum the petitioner, according to the State-respondents, did not come within the exception envisaged therein and as such the appointment of the writ petitioner was illegal and the State-respondents could not take any financial responsibility or liability for such illegal appointment. ( 19 ) THIRDLY, since there was no allegation in the present writ petitioner that the petitioner had no source of income to maintain herself and her family, her claim for appointment on compassionate ground should and could not be treated as an exception to the equality clause provided in article 14 of the Constitution of India. ( 20 ) ON the basis of the above grounds, submitted Mr. Mukherjee, the concerned respondent or rather the State-respondents did not approve the appointment of the petitioner herein and deliberately failed and neglected to approve the said appointment though the appointment of the petitioner on compassionate ground should have been approved by the state-respondents much before. ( 21 ) IN order to deal with the case of the respondents in their affidavit-in-opposition and affidavit-in-reply was also used by the 4th respondent herein namely, the Governing Body of the said College. ( 21 ) IN order to deal with the case of the respondents in their affidavit-in-opposition and affidavit-in-reply was also used by the 4th respondent herein namely, the Governing Body of the said College. The said affidavit-in-reply was affirmed by the Teacher-in-Charge of the said College on 11 march, 2003. ( 22 ) THE said Government Memorandum dated 2 July, 1992, being annexure-R/1 to the affidavit-in-opposition of the concerned State-respondents, had no application to the present case at all. The said memorandum was a Govt. Circular given to the District Magistrate, bankura, General Deptt. The said Circular was issued giving instructions or measures to economise on Govt. expenditure. A case of the present nature was not and could not be covered by the said Circular submitted both the learned Counsel on behalf of the petitioner and on behalf of the college authority. ( 23 ) ON a plain reading, however, it is extremely difficult to appreciate i the applicability of the said Circular dated 2 July, 1992, to the facts and circumstances of the present case, in the first place. ( 24 ) IN my opinion, the said Circular, however, does not have any application to the facts of the present case or rather to the case of the appointment of the petitioner on compassionate ground and on the question of the approval of the said appointment of the petitioner herein. ( 25 ) IN making submissions, in support of the writ petition the learned counsel also pointed out that there was another Govt. Circular dated 31 october, 1995, that Circular was, however, suppressed by the State-respondents in their affidavit-in-opposition. The said Circular dealt with the policy in cases of appointments of a non-teaching staff in non-Govt. Colleges where an exception for recruitment on compassionate ground in died-in-harness category was also provided. ( 26 ) THE College authority, however, acted absolutely legally in terms of the proviso to Rule 6 (a) under Chapter XIII of the Calcutta University first Statute, 1979 and also in terms of the said Circular dated 31 October, 1995, being No.------------------ -. The State-respondents, therefore, were under a legal obligation to regularise or approve the said appointment of the petitioner herein, submitted both the learned Counsel for the College authority and for the writ petitioner herein. The State-respondents, therefore, were under a legal obligation to regularise or approve the said appointment of the petitioner herein, submitted both the learned Counsel for the College authority and for the writ petitioner herein. ( 27 ) DURING the course of hearing, however, it was submitted that the husband of the petitioner was suffering from a prolonged illness since the year 1985. The said illness, however, continued till the husband died in the year 1992. Because of this unfortunate departure of the husband the wife, namely, the petitioner had to take loan from her relatives for the purpose of maintenance of her family and for the purpose of bearing the educational expenses of her children with great financial hardship, the petitioner received Rs. 50,000/- by way of Death-cum-Gratuity benefit. The said amount of Rs. 50,000/- was not and could not be regarded as sufficient to mitigate the extreme financial hardship faced by the writ petitioner and her family in a situation as this, the appointment of the petitioner on compassionate ground could not and was not hit by the provisions of Article 14 of the Constitution, submitted the learned Counsel on behalf of the petitioner and the said College authority. ( 28 ) ON behalf of the authority of the said College, Mr. Mukherjee, learned Senior Counsel made the following submissions : the College authority while considering the case of the petitioner for appointment on compassionate ground, the financial hardship of the petitioner and her family had to be regarded as a primary consideration keeping it mind the necessity of saving the family of the deceased employee who was the employee, Lecturer in Physics of the said College. ( 29 ) THE petitioner herein, was given appointment in the said College in the vacancy of the Officer Superintendent, being an upper-division-clerk, by mistake. The said mistake, however, was pointed out though verbally by the Office of the Director of Public Instructions, West Bengal, and the same was immediately rectified and the appointment in question was regularised as an appointment against. the vacancy of the said Latika Devi since deceased, a Group-C staff of the said College. The. . . . . . . . . appointment of the writ petitioner was, in fact, an appointment of Group-C post or lower- division-clerk in the said College. the vacancy of the said Latika Devi since deceased, a Group-C staff of the said College. The. . . . . . . . . appointment of the writ petitioner was, in fact, an appointment of Group-C post or lower- division-clerk in the said College. ( 30 ) THE vacancy in question in the said College, however, was permitted to be filled in by the Education Department of the Government by its Memo, dated 15 May, 1991. Admittedly, there was no time limit in filling in the vacancy then. The said Group-C post in which the writ petitioner was appointed by the College authority had not been abolished by any authority and as such the legal existence of the said post could not be questioned. ( 31 ) THE said appointment of the petitioner herein as the lower-division-clerk in the said College was made in compliance with all relevant provisions of the Calcutta University First Statute, 1979 or rather in terms of the provisions namely, Rule 6 (a), under Chapter XIII of the Calcutta university First Statute, 1979. ( 32 ) THE application for appointment on compassionate ground was made on 28 February, 1992 and the process of consideration of such application started immediately thereafter, the appointment in favour of the petitioner was given after consideration of the said application and having been satisfied about the genuineness of such application for appointment of the petitioner. The said Memo, mentioned in the affidavit-in-opposition of the concerned State-respondents dated 2 July, 1992, was not even communicated or brought to the notice to the College authority in any manner whatsoever. The College authority was not in the know about the existence of the said memorandum at the time of consideration of the said application for appointment on compassionate ground. In any event, since the appointment of the petitioner was made in terms of the statutory provisions namely, Rule 6 (a) of the said 1979 statute, the Memorandum dated, 2 July, 1992, could not and did not affect the said appointment at all. ( 33 ) THE existence of the post in question in the said college was, however, never disputed and the State-respondents could not dispute such existence in the first place. ( 33 ) THE existence of the post in question in the said college was, however, never disputed and the State-respondents could not dispute such existence in the first place. The State Government, during all these years right from August, 1992, when the petitioner made the said application for appointment till the 5 December, 2002, being the date of affirmation of their Affidavit-in-Opposition to the writ petition, never raised any question nor could they raise any objection regarding the filling in the said vacancy in question, by appointing the petitioner as the State-respondents had the knowledge of the above facts through out. ( 34 ) THE governing body of the said college, being the employer, was the proper authority to assess the merits of the application of the petitioner for appointment on compassionate ground, the genuineness of such assessment of the governing body, being the employer in the instant case, could not be questioned by any authority in the absence of any specific allegation that the college authority in appointing the petitioner was not action bona fide or that the college authority appointed the petitioner by utter illegal means or manner or the like. ( 35 ) SINCE the learned Counsel, appearing on behalf of the State- respondents, was very seriously opposing the prayer of the petitioner for approval of her appointment in the said college, the so-called contentions in support of such opposition and/or objections to such approval are briefly mentioned and dealt with herein. ( 36 ) THE learned Advocate for the State-respondents said that since the writ petitioner was getting a family pension month by month on account of the death-cum-gratuity of her deceased husband, the writ petitioner was not entitled to be appointed on compassionate ground. ( 37 ) THE learned Counsel on behalf of the petitioner, however, referred to the decision in Rupali Chowdhury v. State of West Bengal and Ors. reported in 2000, Labour Industrial Cases 3794. It was held therein that just because a family pension was available or payable the same by itself would not mitigate the claim of the claimant to obtain appointment on compassionate ground. The said decision was rendered by the Division bench of this Court presided over by His Lordship Justice S. B. Sinha and his Lordship Justice Rishikesh Banerjee (as their Lordships then were ). The said decision was rendered by the Division bench of this Court presided over by His Lordship Justice S. B. Sinha and his Lordship Justice Rishikesh Banerjee (as their Lordships then were ). ( 38 ) AFTER having considered the said decision I am of the opinion that the concerned respondents could not and was and is not permitted to deny the prayer of the petitioner and the College Authority for approval of the appointment of the petitioner as Group-C staff in the said College. ( 39 ) AT this stage it would be useful to refer to the following observations of their Lordships in the said decision Rupali Chowdhury (supra) at page 3795 :". . . . . BUT one of the exceptions to Clause (2) of Art. 16 of the constitution of India is grant of appointment on compassionate ground. It is also true that the policy underlying the same is to mitigate the minimum hardship of the members of the deceased family, but the law nowhere contemplates that only because a family pension would be payable the same by itself mitigates the claim of the petitioner to obtain appointment on compassionate ground. " ( 40 ) THE alleged grounds upon which the learned Advocate for the concerned State-respondents placed his case in defence, have already been mentioned above in this judgment. ( 41 ) HAVING considered the entire affidavit-in-opposition and the submissions in support thereof, I am of the opinion that the learned advocate for the concerned respondents failed to appreciate the very policy on the basis of which the provision for appointment on compassionate ground was and/or is made. In my opinion, the whole object of providing employment to the member of the family of a person who dies while serving the employer or while in employment, is to provide relief or rather minimum relief to the family of an employee who dies in harness since as a result of such death normally, the family of the deceased employee faces financial hardship and in most cases acute financial hardships. It is to prevent or give relief to such financial hardships to the family of the deceased employee such a policy was and is adopted and the provisions are made in the Statute and / or Rules to implement such policy. It is to prevent or give relief to such financial hardships to the family of the deceased employee such a policy was and is adopted and the provisions are made in the Statute and / or Rules to implement such policy. ( 42 ) THE stand taken, in the instant case, on behalf of the respondents, was and is, in my opinion, and obstructive approach. The learned Counsel wanted to ensure that the appointment of the petitioner as Group-C staff in the said College was not approved or regularised. Such an approach, in my opinion, is a negative approach and against the fundamental policy of its maker or makers, in this case, the said College authority to provide employment to the family of the deceased employee in order to save the family from financial hardship or acute financial difficulties. ( 43 ) AT this juncture, however, it is extremely important to my mind to mention the provisions for appointment in the instant case on the compassionate ground, being Rule 6 (a) under Chapter XIII of the Calcutta university First Statute, 1979 : 6. (a) Whenever a permanent vacancy occurs in any of the posts referred to in sub-clause (i) of Clause (a) of Statute 3, such vacancy shall in the first instance be filled up by promotion from amongst the employees holding any of the posts referred to in sub-clause (ii) of Clause (a) of Statute 3. In the matter of such promotion, efficiency, seniority including academic qualifications, character rolls and attendance shall have to be taken into consideration. In case no suitable candidate for such promotion is available, such permanent vacancy shall be filled up by direct recruitment in accordance with the procedure laid down for the purpose : provided that the provisions relating to recruitment of non-teaching employees of affiliated colleges as laid down in the foregoing statutes shall not apply in cases where, on compassionate ground, a wife, son, daughter, or dependant of any employee-both teaching and non-teaching-dying in harness is to be offered a job consistent with his/her qualifications. He/she shall have precedence over others in the matter of appointment or placement, as the case my be ; provided further that the provisions mentioned above shall also be applied in case of a College employee who is disabled permanently or otherwise incapacitated rendering him unfit to continue in service, provided this fact of disablement is certified by medical Officer authorised by the Director of Health Services. ( 44 ) FROM the above provisions, it is clear that in cases where on compassionate ground a wife, son, daughter or dependants of any employee applies for obtaining appointment, that case shall have precedence over others in the matter of appointment or placement as the case may be. This provision of treating the applicant for appointment on compassionate ground gives the applicant a very special status compared to the other applicants who apply for obtaining appointments in the normal or usual course. ( 45 ) IT is well known and long established that the powers and/or rights conferred by a statute or statutory rules cannot be curved or restricted or taken away or deviated from by issuing circulars or memorandums or notification etc. without amending or repealing, as the case may be, the statutory provisions or statutory rules by and under which such powers and/or rights are conferred on an authority or person or persons. ( 46 ) WHY the case or the cases of these applicants being the wife, son, daughter, dependants of an employee who dies in harness are diven the special status? The obvious answer to such query is that the policy of the employer or those who are responsible employers is to provide employment to the family members of an employee who dies or becomes physically incapacitated permanently, while in service, for saving the family and the dependants of the deceased employee from the financial hardship, which is the natural and probable consequence of such death of an employee or permanent physical inability or incapacitation of an employee. The Memorandum mentioned in the affidavit-in-opposition dated, 2 July, 1992, being Annexure R-1, to the affidavit-in-opposition has, thus, no role to play and is utterly inapplicable to the facts and circumstances of the present case in the first place. The said memorandum or the circular had and has nothing to do with a case of the present nature in the first place. The said memorandum or the circular had and has nothing to do with a case of the present nature in the first place. ( 47 ) REGARDING the objection of the concerned State-respondents that since the writ petitioner was getting family pension month by month and that she was paid Rs. 50,000/- on account of Death-cum-Gratuity of her deceased husband, in my opinion, are no grounds for refusing approval to the appointment of the petitioner herein. The said Rupali Chowdhury v. State of West Bengal and Ors. makes it quite clear that just because a family pension is payable that by itself cannot nullify the claim of an applicant to obtain appointment on compassionate ground. An applicant, in the instant case, who is a wife or son or daughter or dependant of an employee of the college concerned can apply for appointment on compassionate ground and the employer, being the College authority, is under an obligation to consider the case of such applicant and if the employer decides that the applicant should be appointed on compassionate ground then such decision cannot normally be questioned in the absence of utter illegalities or lack of bona fide on the part of the employer, in the present case the College authority, in making the appointment. ( 48 ) THE provision regarding appointment gives the employer the authority to treat the case of an applicant, who applies for appointment on compassionate ground, as special case and that is why an appointment on compassionate ground gets the precedence over others in the matter of employment or placement or gets the precedence over all other appointments. The special treatment is given to the applicant who applies for appointment on compassionate ground because of the policy of the employer and/or the authority concerned to provide relief to the family who faces economic hardship or ruination because of the death or physical incapacitation of an employee, in the instant case, of an affiliated College. ( 49 ) IN the present case, the State-respondents were well aware throughout that the members of the deceased family would be entitled to retiral benefits and the wife of the deceased employee would inevitably be entitled to family pension. Such family pension is paid by an employer for premature death of its employee in harness. ( 49 ) IN the present case, the State-respondents were well aware throughout that the members of the deceased family would be entitled to retiral benefits and the wife of the deceased employee would inevitably be entitled to family pension. Such family pension is paid by an employer for premature death of its employee in harness. The policy of providing employment to a member of the family of a deceased employee is to protect the family or the members of the family of the deceased employee from acute financial hardship which a family faces as a natural and probable consequence of the death of an employee or in the case of permanent physical incapacitation of an employee. ( 50 ) THE concerned State-respondents or their learned Counsel, in the instant case, in my opinion, utterly failed to perceive the intention of the policy makers in making such a policy for providing employment to a member of the family or families of the employees who die-in-harness or become permanently physically incapacitated because of illness, while in service. .