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2009 DIGILAW 685 (CAL)

Radharani Shit v. STATE OF WEST BENGAL

2009-08-31

Dipankar Datta

body2009
JUDGMENT 1. THE petitioner's husband Rampada Shit (since deceased) was a Group-D staff of Rambhadrapur High School (hereafter the school). On his death on 16.7.08, the petitioner being his widow, applied for appointment on compassionate ground. It is noticed that at the time of his death Rampada, the deceased staff, had 22 years of service left and had left behind him, inter alia, the petitioner and a son of 2 years. 2. IN terms of orders passed by this Court from time to time the District Inspector of Schools (SE), Paschim Medinipur has provisionally entered the name of the petitioner in the roster maintained for died-in-harness category candidates. Acting in compliance with the order dated 27.7.09 passed by this Court, the District Inspector had filed a report. IN such report was annexed a copy of memo dated 6.8.2009 addressed to the Headmaster/Secretary of the school. The addressee was requested to comply with the requisitions mentioned therein which, inter alia, includes particulars on the following items: "1. Actual No. of dependent family members of the deceased staff. 5. Whether deceased family lives own house or not. If not, how the family resides. 7. If there any land property, if so, amount of annual income. 8. Any other source of income and state she amount. 9. One attested photocopy of age proof certificate of Late R.P.Shit". The petitioner shall furnish information on the items mentioned above to the District Inspector within ten days from date so as to treat entry of her name in the roster maintained for died-in-harness category candidates as final. 3. A dispute has arisen in view of amendments incorporated in the West Bengal School Service Commission Act, 1997 with effect from 14.1.2009 regarding the procedure for consideration of the petitioner's candidature for appointment on compassionate ground while Mrs. Roy, learned Counsel appearing for the State contends that the Rules framed under the said Act which have been given effect from 9.7.2009 should be applicable, Mrs. Maity, learned Counsel appearing for the petitioner contends that the Rules which were prevailing at the time of death of her husband would be relevant for the purpose of considering her candidature for appointment on compassionate ground. In support of her submission, Mrs. Maity placed reliance on a Division Bench decision of this Court dated 18.9.2007 in F.M.A. No. 898 of 2007 (.State of West Bengal and Ors. In support of her submission, Mrs. Maity placed reliance on a Division Bench decision of this Court dated 18.9.2007 in F.M.A. No. 898 of 2007 (.State of West Bengal and Ors. vs. Bina Debnath and Ors.) wherein the Division Bench noted the decision of the Apex Court in Abhisekh vs. State of Haryana, reported in 2007(2) Supreme 509, to hold that 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. 4. IN view of the decisions referred to above, there cannot be any manner of doubt that the petitioner's claim for appointment on compassionate ground must be guided by the West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005 and more particularly Rule 8 thereof. Pertinently, Rules 8(3)(a) and (b) provides as follows: "(3)(a) When a vacancy in a post occurs, the school authority shall make an application with relevant papers to the District Inspector of Schools. (b) The District Inspector of Schools shall, on receipt of the application from the school authority, sponsor, in accordance with the seniority from the date of entry of names of the candidates in the roster, as many candidates as may be available in the roster: but the total candidates so sponsored shall not be more than three: Provided that in case of vacancy in a post in a school where a deceased teacher or non-teaching staff had been working at the time of his death, name of a member of the family of the deceased teacher or non-teaching staff who suits the qualifications for the post, shall, irrespective of the seniority in the roster, be sponsored by the District Inspector of Schools: Provided further that, even if permission for change of the preference is given, the seniority shall be reckoned from the date of entry of the original name in the roster: Provided also that the District Inspector of Schools shall not sponsor the name of a candidate, unless there is a Government Order, for the time being in force, authorizing an appointment in the death-in-harness category". In terms of the aforesaid Rule, the petitioner is entitled to preference the matter of sponsoring of name particularly when the vacancy in the post of Group-D staff in the school caused due to death of her husband is vacant till now. 5. In terms of the aforesaid Rule, the petitioner is entitled to preference the matter of sponsoring of name particularly when the vacancy in the post of Group-D staff in the school caused due to death of her husband is vacant till now. 5. IN view of the above, it is directed that the school authority shall make prayer for necessary permission from the District Inspector for the purpose of filling up the post in question in accordance with law within a fortnight from date of receipt of a copy of this order. On receipt of such prayer, the District Inspector while granting permission shall forward the name of the petitioner for consideration to the Managing Committee provided she complies with the requisitions mentioned in memo dated 6.8.2009 referred to hereinabove. IN the event the school finds that the petitioner is suitable for appointment as Group-D staff, it shall prepare panel in terms of Rule 8(3)(d) of the Rules and forward the same to the District Inspector for approval. On approval of the panel being granted by the District Inspector in accordance with law the petitioner shall be offered appointment. 6. KEEPING in mind the submission of Mr. Das, learned Counsel appearing for the school that the petitioner's husband while in service had obtained house building loan and could not repay the same during his lifetime resulting in an amount of Rs.1,34,084/- lying outstanding on this account. Mrs. Maity has very fairly suggested that the said amount may be adjusted with the terminal benefits due and payable to the petitioner on account of her husband's service as well as from her future salary, in equal shares. Accordingly, it is directed that out of the total dues payable to the petitioner on account of terminal benefits of the deceased staff, 50% shall be apportioned and paid to the school by the District Inspector. The remaining amount shall be adjusted from the petitioner's salary by deducting a sum of Rs,2,000/- each month till such time the entire amount of loan is liquidated. So far as the petitioner's entitlement to family pension is concerned, the same is not disputed by Mrs. The remaining amount shall be adjusted from the petitioner's salary by deducting a sum of Rs,2,000/- each month till such time the entire amount of loan is liquidated. So far as the petitioner's entitlement to family pension is concerned, the same is not disputed by Mrs. Roy, and hence the District Inspector is directed to take necessary steps in this behalf for ensuring that the petitioner receives such pension as well as 50% of the terminal benefits as early as possible but not later than six months from date of receipt of a copy of this order. The petitioner and the school authority shall co-operate with the District Inspector to secure compliance of this order. 7. THE writ petition stands disposed of with these directions, without order for costs. 8. PHOTOCOPY of this order duly countersigned by the Assistant Registrar (Court) be given to learned Advocate for the petitioner on the usual undertaking.