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2007 DIGILAW 284 (CAL)

Nazrul Islam v. STATE OF WEST BENGAL

2007-04-11

ARUNABHA BASU, PRANAB KUMAR CHATTOPADHYAY

body2007
JUDGMENT 1. This appeal has been preferred at the instance of the writ petitioners from the judgment and order dated 29th March, 2004 passed by the learned Single Judge in W.P. No. 19672(W) of 2003, whereby and whereunder the said learned Single Judge dismissed the writ petition. 2. The appellant No.1 herein was an approved Primary Teacher of Baroghoria Primary School in the District of Malda. The said appellant No.1 became permanently disabled before attaining the age of superannuation as he lost the vision and became completely blind. Since the respondent authorities did not take appropriate steps for declaring the appellant No. 1 as permanently disabled on account of his loss of vision, a separate writ petition was filed by the said appellant No.1 before this Court on the earlier occasion which was numbered as W.P. 4782(W) of 2000. The aforesaid writ petition was finally disposed of by the learned Single Judge of this Court as hereunder : "In those circumstances, it should be deemed that the petitioner became 100% visually invalid much prior to his attaining the age of 58 years and, accordingly the writ petition is allowed. The respondent Council is directed to treat that the petitioner has been declared by Medical Board on 29th April, 2000 to have been permanently disabled of incapacitated for life, for he became completely blind. The Council is thus directed to allow the petitioner to retire on the ground that the petitioner has become permanently incapacitated on 29th April, 2000 forthwith. The Council is also directed to make an enquiry as quickly as possible as but not later than two months from the date of service of a copy of this order to ascertain whether the family of the petitioner is in extreme economic hardship after such retirement of the petitioner, In the event it finds that the family of the petitioner is not in extreme economic hardship, the Council shall communicate the same to the petitioner in writing within 15 days from the date of taking such decision indicating the reasons to support such decision. In the event the Council is of the view that the family of the petitioner is in extreme economic hardship then the Council shall within 15 days from the date of such decision forward the name of the son of the petitioner to the Director of School Education (P.E.) seeking permission to give appointment to him. In the event the Council is of the view that the family of the petitioner is in extreme economic hardship then the Council shall within 15 days from the date of such decision forward the name of the son of the petitioner to the Director of School Education (P.E.) seeking permission to give appointment to him. In the event such request is made by the Council, the Director is directed to decide the said request within 15 days from the date of making such request. In the event the Director refuses to accede to such request, he shall give reasons in support thereof and communicate the same to the petitioner." 3. Pursuant to the aforesaid order passed by the learned Single Judge of this Court, the Chairman Malda District Primary School Council ascertained the financial condition of the family of the appellant No.1 and found that the said family was not in economic hardship after the retirement of the appellant No. 1. 4. For the aforementioned reasons, the Chairman, Malda District Primary School Council refused to consider the prayer of the appellant No. 1 for providing employment to his son, namely, the appellant No.2 herein on compassionate ground and communicated the decision to the appellant No.1 by the Memo dated 10th November, 2003. 5. The relevant text of the said Memorandum dated 10th November, 2003 issued by the Chairman, Malda District Primary School Council set out hereunder : 'To: Nazrul Islam, S/o. Hafizuddin Ahmed. Vill-Panchla, P.O. Borai Dist. Malda. Ref.: W.P. No. 4782(W) of 2000 Nazrul Islam vs. State of W. B. & Ors. Sub: Pursue the solemn order dated 25.07.2003 passed by the Hon'ble Justice Mr. Barin Ghosh. The undersigned would like to inform him that in pursuance of the solemn order dated 25.07.2003 passed by the Hon'ble Justice Mr. Barin Ghosh in respect of W.P. No. 4782(W) of 2000 this Council heard the matter on 13.10.2003 giving opportunities to the petitioner for placing documents about the economic hardship of the family of the petitioner as per Hon'ble Court's order. The petitioner submitted that he has only wife as his dependent and two adult son. The petitioner will be provided pensionary benefit and he received Rs. 94,926/- (Rs. Ninety-four thousand and nine hundred twenty-six) from P.F. In addition to that he possessed his own residential house and 1.04 acre of land. The petitioner submitted that he has only wife as his dependent and two adult son. The petitioner will be provided pensionary benefit and he received Rs. 94,926/- (Rs. Ninety-four thousand and nine hundred twenty-six) from P.F. In addition to that he possessed his own residential house and 1.04 acre of land. According to the above facts and circumstances I find no economic hardship of the petitioner's family after such retirement and the prayer of the petitioner can't consider. Chairman Malda District Primary School Council,' 6. Challenging the aforesaid decision of the Malda District Primary School Council, the appellants herein filed a writ petition which was dismissed by the learned Single Judge by the impugned judgment and order under appeal. 7. On examination of the impugned Memorandum dated 10th November, 2003 issued by the Chairman District Primary School Council, we find that the said Chairman came to the conclusion that the family of the appellants did not suffer any economic hardship after retirement of the appellant No. 1 since the appellant No. 1 has been provided with the pensionary benefits and the said appellant No. 1 also received Rs.94,926/- from provident fund. It has also been mentioned in the said Memorandum that the appellant No.1 owns residential house and 1.04 acres of land. The Chairman, Malda District Primary School Council however, did not mention anything about the income of appellants out of the aforesaid 1.04 acres of land. 8. There was no subjective satisfaction on the part of the respondent Council to arrive at a conclusion that the family of the appellants is not facing economic hardship in view of any other income from any source. Although the appellants have only 1.04 acres of land, the same however, does not generate any fund to mitigate the economic hardship of the family. The Chairman, Malda District Primary School Council also did not refer to any income out of the said land of the appellants. 9. From the records, we find that the Sabhapati, Harishchandrapur-1 Panchayat Samiti, Malda issued a certificate in favour of the appellant No.1 wherein it has been mentioned that the annual income of the family of the appellant No.1 is below Rs. 10,000/-. It has also been mentioned in the said certificate that the domestic house of the appellant No.1 is 'kancha'. From the records, we find that the Sabhapati, Harishchandrapur-1 Panchayat Samiti, Malda issued a certificate in favour of the appellant No.1 wherein it has been mentioned that the annual income of the family of the appellant No.1 is below Rs. 10,000/-. It has also been mentioned in the said certificate that the domestic house of the appellant No.1 is 'kancha'. The said Sabhapati has categorically mentioned in the aforesaid certificate that the appellant No. 1 has only 1.04 acres of land and no other income although the family of appellant No.1 consists of wife and two sons. 10. The said certificate issued by the Sabhapati, Harishchandrapur-1 Panchayat Samity is set out hereunder : 'Certified that the family of Nazrul Islam is in grip financial crisis. He has only 1.04 acres of land and no any other income. The annual income of his family is 10,000/- (Rupee ten thousand only). His domestic house is kancha to live in. The marketing value is maximum Rs. 25,000/-. To relief the family from great financial crisis, I do hereby request to the department authority to provide his eldest son Mostad Hossain. I hope that the family of above disabled employee (Nazrul Islam) should draw sympathy, of the department. Sd/- Illegible, 22.10.03 Sabhapati, Harishchandrapur-1 Panchayat Samity" 11. The appellant No.1 herein produced the aforesaid certificate and other supporting documents including the affidavit before the Chairman, Malda District Primary School Council and in the said affidavit appellant No.1 also specifically mentioned that apart from 1.04 decimal of land he has no other source of income. The appellant No.1 also mentioned in the said affidavit that his domestic house is "Kancha" one. 12. The Chairman, Malda District Primary School Council unfortunately did not consider that the family members of the appellant No.1 could have hardly any income from the said 1.04 acres of land. Furthermore, the Sabhapati of the local Panchayat Samity categorically mentioned in the certificate that the annual income of the family of the appellant No. 1 is below Rs. 10,000/- which is much below the poverty level. 13. Furthermore, the Sabhapati of the local Panchayat Samity categorically mentioned in the certificate that the annual income of the family of the appellant No. 1 is below Rs. 10,000/- which is much below the poverty level. 13. The learned Single Judge of this Court while deciding the earlier writ petition, bearing No. W.P. 4782(W) of 2000 specifically directed the respondent Council to the effect that if the said Council is of the opinion that the family of the appellant No.1 herein is not in extreme economic hardship, then such decision should be communicated to the appellant No.1 herein indicating the reasons in support of such decision. 14. In the present case, the Chairman, Malda District Primary School Council only considered that the appellant No.1 herein will be receiving the pensionary benefit and Rs. 94,926/- from the Provident Fund account. No other income has been referred to in the said impugned decision of the Chairman, Malda District Primary School Council. The said Chairman did not indicate anything about the income available to the appellants out of the said 1.04 acres of land. The payment of the admissible retirement dues by itself cannot mitigate the economic hardship of the family of the appellant No. 1. 15. Mr. Ekramul Bari, learned Counsel of the appellants referred to a decision of the Division Bench of this Hon'ble Court in the case of Rupali Chowdhury vs. State of West Bengal & Ors., reported in 2000 Lab IC 3794, wherein it has specifically been held as hereunder : "3. It appears that the learned Tribunal has not considered the policy decision adopted by the State for grant of appointment on compassionate ground in its proper perspective. It is true that recruitment should be made in terms of the recruitment rules; but one of the exceptions to clause (2) of Article 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 immediate hardship of the members of the deceased family, but the law nowhere contemplate that only because a family pension would be payable the same by itself mitigate the claim of the petitioner to obtain appointment on compassionate ground. On what basis the learned Tribunal has arrived at a finding that a family pension of Rs. On what basis the learned Tribunal has arrived at a finding that a family pension of Rs. 2700/- per month will serve the financial requirement of the family is not clear." 16. Mr. Bari, learned Counsel of the appellants referred to another decision of the Supreme Court in the case of Govind Prakash Verma vs. Life Insurance Corporation of India & Ors., reported in 2005(10) SCC 289 , wherein the Hon'ble Supreme Court also held as hereunder : "6. In our view, it was wholly irrelevant for the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according to the appellant, has now been reduced to half) and other amounts paid on account of terminal benefits under the Rules. The scheme of compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased employee as benefits of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules." 17. The Hon'ble Supreme Court also considered the issues relating to compassionate appointment in the case of Balbir Kaur & Anr. Vs. Steel Authority of India Ltd. & Ors., reported in 2000(6) SCC 493 , which is also very much relevant in deciding the claims of the appellants in the instant appeal. 18. Mr. Deb Barman, learned Counsel appearing on behalf of the respondent Council, however, submits that the Chairman, Malda District Primary School Council arrived at a reasonable finding on the basis of the relevant records produced by the appellant No.1 herein and the learned Single Judge has rightly refused to interfere with the aforesaid decisions of the Malda District Primary School Council as mentioned in the impugned order Memorandum dated 10th November, 2003. 19. Mr. Deb Barman also cited the decision of the Supreme Court in the case of Union Bank of India & Ors. vs. M. T. Latheesh, reported in 2006(7) SCC 350 . 20. The aforesaid decision of the Hon'ble Supreme Court is not at all applicable in the facts of the present cuse. 21. 19. Mr. Deb Barman also cited the decision of the Supreme Court in the case of Union Bank of India & Ors. vs. M. T. Latheesh, reported in 2006(7) SCC 350 . 20. The aforesaid decision of the Hon'ble Supreme Court is not at all applicable in the facts of the present cuse. 21. In the aforesaid decision, the Hon'ble Supreme Court refused to consider the claim of the compassionate appointment on the ground that a family of the deceased employee was not only getting pension but had other monthly income which taken altogether exceeded the last pay drawn by the deceased. The Hon'ble Supreme Court in the aforesaid decision specifically held that the dependant of the deceased employee was not eligible for compassionate employment on the financial parameter. 22. In the present case, on examination of the available record, we find that the total income of the appellants' family is less that Rs. 10,000/- per annum which is below the poverty level. The Chairman, Malda District Primary School Council also did not refer to any other source of income of the appellants apart from the admissible pensionary benefits. The payment of admissible pensionary benefits by itself cannot mitigate the economic hardship of the family of the appellants herein. Furthermore, the appellants cannot earn any substantial amount from the aforesaid 1.04 acres of land. The Chairman, Malda District Primary School Council also did not hold that the appellants herein had any income out of the said 1.04 acres of land. 23. For the aforementioned reasons, we are of the opinion that the findings of the Council about the economic hardship of family of the appellants is not based on any reasonable basis and/or criteria. We are really shocked to note that the Chairman, Malda District Primary School Council failed to take into consideration that the appellant No. 1 herein had to leave the job before attaining the age of superannuation being permanently blind and in absence of any other source of income apart from the admissible pensionary benefits the family of the appellants must suffer tremendous economic hardship. In any event, this Court cannot be a silent spectator in the matter of denial of relief to the tremendous sufferings of a Primary School Teacher and his family members on account of premature retirement due to complete blindness. In any event, this Court cannot be a silent spectator in the matter of denial of relief to the tremendous sufferings of a Primary School Teacher and his family members on account of premature retirement due to complete blindness. The Malda District Primary School Council specially the Chairman of the said Council did not adopt humanitarian approach while dealing with the claims of the appellant No.1 herein. 24. Having heard the learned Counsel appearing for the parties and considering the available records including the affidavit of the appellant No.1 and also the certificate issued by the Sabhapati, Harishchandrapur-1 Panchayat Samity, we are satisfied that the family of the appellant No.1 is in exterme economic hardship, and therefore, the decision of the Council as communication by the Chairman, Malda District Primary School Council by Memo. dated 10th November, 2003 cannot be sustained and the same is set aside. 25. For the aforementioned reasons, the impugned judgment and order under appeal passed by the learned Single Judge also cannot be sustained and the same is accordingly, set aside. 26. In the aforesaid circumstances, the respondent Nos. 4 and 5 are directed to forward the name of the son of the appellant No.1 namely, the appellant No.2 herein together with relevant papers and documents to the Director of School Education, West Bengal within two weeks from the date of communication of this order seeking permission/ approval for giving appointment to the said appellant No.2 herein. 27. The respondent Director of School Education, West Bengal is also directed to grant necessary permission and/or accord approval for appointment of the said appellant No. 2 on compassionate ground within two weeks from the date of receiving the necessary papers and documents from the respondent Nos. 4 and 5 herein. 28. Needless to mention that the respondent Nos. 4 and 5 will issue formal letter of appointment in favour of the appellant No.2 immediately upon receiving the necessary permission and/or order of approval from the Director of School Education, West Bengal. 29. With the aforesaid directions, this appeal thus stands allowed. 30. There will, however, be no order as to costs. 31. Let urgent xerox certified copy of this order, if applied for, be given to the respective parties as early as possible. P. K. Chattopadhyay & A. Basu, JJ.: Appeal allowed with directions.