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2007 DIGILAW 727 (CAL)

STATE OF WEST BENGAL v. Bina Debnath

2007-09-18

KALIDAS MUKHERJEE, PRANAB KUMAR CHATTOPADHYAY

body2007
Judgment : CHATTOPADHYAY, J. (1.) Both the appeals bearing F.M.A.No.898 of 2007 and F.M.A. No.900 of 2007 are directed against the same order passed by the learned Single Judge on 15th March, 2006 while deciding the writ petition bearing W.P.No.4451(W) of 2006. The appeal bearing F.M.A. No.900 of 2007 has been preferred at the instance of the W.B.S.E.B. authorities and the appeal bearing F.M.A. No. 898 of 2007 has been preferred at the instance of the State of West Bengal. Since both the aforesaid appeals have been preferred on identical grounds, the same are heard analogously and disposed of as hereunder: (2.) The writ petition was filed claiming compassionate appointment for the writ petitioner No. 2 as her father died-in-harness in the year 2000. This Honble Court on the earlier occasion by the order dated 30th August, 2005 disposed of another writ petition filed previously by the present writ petitioners by directing the Secretary of the Power Department, Government of West Bengal to consider the claim of the writ petitioners for appointment on compassionate ground on account of the sudden death of the concerned employee, namely the father of the writ petitioner No. 2. Pursuant to the said order of this Honble Court, Principal Secretary, Department of Power, Government of West Bengal considered the said prayer of the Writ petitioners for compassionate appointment and ultimately disallowed the same by the order dated 22nd December, 2005 on the basis of the principles and procedures laid down in the Notification No. 97-Emp dated 6th June, 2005. (3.) Challenging the said order dated 22nd December, 2005 passed by the Principal Secretary, Department of Power, Government of West Bengal, subsequent writ petition was filed by the writ petitioners which was disposed of by the learned Single Judge on 15th March, 2006 by the order under appeal whereby and where under the said learned Single Judge directed the concerned authority to decide the aforesaid claim for compassionate appointment afresh in terms of the rule prevailing at the time when the concerned employee died. The learned Counsel of the respondent/writ petitioners submits that the concerned employee, namely the father of the writ petitioner No. 2 died in the year 2000 and, therefore, the principles and procedures laid down in the subsequent Notification dated 6th June, 2005 cannot be made applicable in deciding the claim of the writ petitioners for appointment on compassionate ground as the dependent family member of the deceased employee. (4.) The learned Single Judge specifically held that the matter relating to the appointment of a dependent family member of a deceased employee should be guided by the rules prevailing at the time of the death of the concerned employee. The learned Counsel representing the appellants, however, submits that the rule prevailing at the time of consideration of the claims of the writ petitioners should govern the field and not the rule prevailing at the time of death of the concerned employee. (5.) Mr. Bikash Ranjan Bhattacharyya, learned Senior Counsel appearing on behalf of the W.B.S.E.B. authorities urged before this Court that the learned Single Judge committed a mistake in law by directing the concerned authority to consider the claim of the writ petitioners in terms of the rules prevailing at the time of the death of the concerned employee ignoring the fact that the said rules had already been repealed. According to Mr. Bhattacharyya, administrative authorities should not be directed to act on a repealed law. Mr. Bhattacharyya further submits that the order passed by an administrative authority cannot be upset unless the same is void and not in accordance with law. Mr. Bhattacharyya also submits that the learned Single Judge should not have directed the authorities to consider the claim of the writ petitioners for appointment on compassionate ground in violation of the existing scheme specially when several applicants are in the queue. Mr. Bhattacharyya referred to and relied on the following decisions in support of his arguments:-(1) 1998 (9) SCC 398 , A.P.S.R.T.C. and Ors. v. Kaiser Begum (Paras 4, 5 and 6), (2) 2007(2) SCC 481 , National Institute of Technology and Ors. v. Niraj Kumar Singh, (3) 1998 (9) SCC 87 , Cochin Dock Labour Board v. Leenamma Samuel and Ors. (6.) Mr. Joydeep Kar, learned Counsel representing the State of West Bengal submits that the compassionate appointment cannot be made contrary to the rules framed by the employer. Mr. v. Niraj Kumar Singh, (3) 1998 (9) SCC 87 , Cochin Dock Labour Board v. Leenamma Samuel and Ors. (6.) Mr. Joydeep Kar, learned Counsel representing the State of West Bengal submits that the compassionate appointment cannot be made contrary to the rules framed by the employer. Mr. Kar further submits that the Principal Secretary, Department of Power, Government of West Bengal in the order dated 22nd December, 2005 has correctly applied the principles and procedures laid down in the Notification dated 6th June, 2005 since the said notification was governing the field at the time of consideration of the claim of the writ petitioners. (7.) Undisputedly, on 13th December, 2000, the State Government issued a Memorandum imposing several restrictions on bodies/ agencies/ corporations receiving financial assistance/grant from the Government which include the W.B.S.E.B. authorities. It has been submitted on behalf of the appellants that in view of issuance of the aforesaid Memorandum dated 13th December, 2000, vacant posts irrespective of the duration of vacancy could not be filled up without obtaining prior approval and/or clearance from the finance department of the State Government. Subsequently, the aforesaid restriction was modified on 7th February, 2002 only to the extent that if the post in question was lying vacant for less than a year then the appointment can be approved by the Minister of the concerned department. Thereafter, the State Government by the Notification dated 6th June, 2005 as amended on 26th August, 2005 prescribed the principles and procedures to be followed in dealing with the cases of compassionate appointment. (8.) Following the aforesaid notifications, the Principal Secretary, Department of Power, Government of West Bengal considered the claims of the writ petitioners for appointment on compassionate ground under died-in-harness category and held that the writ petitioner No.2 is not eligible for appointment on compassionate ground. In the present case, we find that the concerned employee, namely the father of the writ petitioner No. 2 died-in-harness on 29th July, 2000 and after the death of the said employee an application claiming employment under the Board on compassionate ground was submitted in respect of the writ petitioner No. 2 in the prescribed proforma which was also forwarded by the Personnel and Administrative Officer, Bidhannagar Dist, Division-ll, W.B.S.E.B. to the Senior Personnel and Admn. Officer, I.R. Cell, Corporate, W.B.S.E.B. along with the forwarding letter dated 2nd September, 2000. Officer, I.R. Cell, Corporate, W.B.S.E.B. along with the forwarding letter dated 2nd September, 2000. The said letter is quoted hereunder:- (9.) The respondent authorities should have considered the aforesaid application submitted on behalf of the writ petitioners expeditiously. Admittedly, the memorandum imposing financial restrictions was issued by the State Government after a period of three months from the date of submission of the application by the writ petitioners claiming appointment on compassionate ground. Due to the laches and/or lapses on the part of the concerned authority, claim of the writ petitioners for compassionate appointment was not considered immediately after submission of the application by the dependent of the deceased employee, namely the writ petitioners herein. (10.) In any event, the claim of the writ petitioners for appointment on compassionate ground under the died-in-harness category cannot be decided in terms of the Notification dated 6th June, 2005 since the said notification was not in existence at the time of death of the deceased employee or even at the time of submission of the application by the writ petitioner No.2 claiming appointment on compassionate ground. Furthermore, Clause 13 of the aforesaid notification dated 6th June, 2005 specifically provides that the said Notification shall come into force from the date of issue. The said Clause 13 is set out hereunder:-"13. This notification shall come into force from the date of issue and shall have effect notwithstanding anything to the contrary contained in any previous notification, circular, order or memorandum on the subject." (11.) The Honble Supreme Court in the case of Abhishek Kumar v. State of Haryana and Ors., reported in 2007 (2) Supreme 519 specifically held that the claim for appointment on compassionate ground is to be considered in terms of the rules which were in existence at the time of death of the concerned employee. The relevant portions from the aforesaid decision are quoted hereunder:-"2. The appellants father expired on 10.2.2001 while in office................................................................................................ 5. Appellant herein had sought for appointment on compassionate grounds at a point of time when 2003 rules were not in existence. His case, therefore, was required to be considered in terms of the Rules which were in existence in the year 2001......................". The appellants father expired on 10.2.2001 while in office................................................................................................ 5. Appellant herein had sought for appointment on compassionate grounds at a point of time when 2003 rules were not in existence. His case, therefore, was required to be considered in terms of the Rules which were in existence in the year 2001......................". (12.) For the aforementioned reasons, we do not find any illegality and/or irregularity in the order under appeal passed by the learned Single Judge and, therefore, we are not inclined to interfere with the same. (13.) These appeals thus stand dismissed. The concerned authority is, therefore, directed to consider the claim of the writ petitioners afresh in compliance with the direction passed by the learned Single Judge without any further delay but positively within a period of three weeks from the date of communication of this order. (14.) There will, however, be no order as to costs. In Re : F.M.A. No.899 of 2007 (The Chairman, W.B.S.E.B. and Ors. v. Sk. Siddik Alam and Anr.) (15.) This appeal has also been filed on identical grounds from the similar type of order passed by the same learned Single Judge on 15th March, 2006 in another writ petition bearing W.P. No. 5317 (W) of 2006 whereby and whereunder the said learned Single Judge issued the similar direction for considering the claim for compassionate-appointment made by the writ petitioner following the rule, which was prevailing at the time when the concerned employee, namely the father of the writ petitioner died. (16.) The judgment delivered by us today while deciding the appeals bearing F.M.A. No. 898 of 2007 (State of West Bengal and Ors. v. Smt. Bina Debnath) and F.M.A. No. 900 of 2007 (West Bengal State Electricity Board and Ors. v. Smt. Bina Debnath and Ors.) will also govern this appeal as the facts are similar and the points of law are identical. (17.) Accordingly, this appeal also fails and the same is dismissed. (18.) The concerned respondent is, therefore, directed to comply with the directions passed by the learned Single Judge in the order under appeal without any further delay but positively within a period of three weeks from the date of communication of this order. There will, however, be no order as to costs.RAJENDRA.