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2011 DIGILAW 1381 (CAL)

Arup Kumar Khan v. State of West Bengal

2011-09-29

BISWANATH SOMADDER

body2011
JUDGMENT : Biswanath Somadder, J. The writ petitioner is essentially seeking appointment on compassionate ground under the died-in-harness category upon the death of his mother who died on 15th July, 2007, while rendering service as a Head Teacher of Baragagangohali Primary School, situated in the district of South 24 Parganas. 2. Initially, the writ petitioner approached this Court challenging the decision taken by the concerned authorities not to approve such appointment upon taking into consideration a Government Order of the Education Department, bearing no. 85 SE(Pry), dated 15th February, 2008. By an order dated 15th September, 2009, passed in W.P. 12019(W) of 2009, Soumitra Pal, J., was pleased to quash a memo bearing no. 249/2, dated 1st December, 2008, issued by the Director of School Education, West Bengal, whereby the proposal of appointment of the writ petitioner on compassionate ground stood disapproved in view of the aforesaid Government Order. The Court directed the Director of School Education, West Bengal, to consider the matter afresh by passing a reasoned order after giving an opportunity of hearing to the petitioner and after making necessary enquiry and after taking into consideration the report and/or proposal prepared by the concerned District Primary School Council. Pursuant to the said order dated 15th September, 2009, the Director of School Education, West Bengal, by a memo dated 12th November, 2010, considered the matter afresh and rejected the prayer of the petitioner for appointment on compassionate ground for reasons stated therein. 3. The said memo dated 12th November, 2010, is now the subject matter of challenge in the present writ proceeding. 4. The learned advocate for the petitioner submitted that the facts of the instant case are identical to that of W.P. 19745 (W) of 2010 (Partha Sarathi Sarkar v. State of West Bengal & Ors.), wherein this Court had rendered a decision in favour of the writ petitioner on 04th July, 2011. He further submitted that very recently a judgment has been rendered by a Division Bench of this Court on 25th August, 2011 in A.S.T. No. 117 of 2011 (Samik Dandapath v. State of West Bengal & Ors.), wherein the subject matter for consideration was a similar issue as sought to be raised in the instant writ petition. He further submitted that very recently a judgment has been rendered by a Division Bench of this Court on 25th August, 2011 in A.S.T. No. 117 of 2011 (Samik Dandapath v. State of West Bengal & Ors.), wherein the subject matter for consideration was a similar issue as sought to be raised in the instant writ petition. Learned advocate for the petitioner submitted that both judgments are squarely applicable and the Government Order dated 15th February, 2008, which was relied on by the Director of School Education in the impugned memo dated 12th November, 2010, was not applicable and in such circumstances, the impugned memo is liable to be set aside and/or quashed. 5. On the other hand, learned advocate appearing on behalf of the District Primary School Council, South 24-Parganas, submitted that the impugned memo dated 12th November, 2010, was issued by the Director of School Education, West Bengal, pursuant to and in conformity with the order of the Court dated 15th September, 2009, passed in W.P. 12019 (W) of 2009 and therefore, it is not open for this Court to reconsider the same issue once again. He further submitted that the two judgments relied on by the learned advocate for the petitioner have no manner of application at all in the facts of the instant case. He also submitted that the impugned memo containing the order of the Director of School Education, West Bengal was issued upon taking into consideration the relevant Rule as applicable for the purpose of determining eligibility of compassionate appointment under the died-in-harness category and though the Director of School Education, Government of West Bengal, also took into consideration the Government order dated 15th February, 2008 - wherein financial hardship has been explained - the Director did not decide the question of eligibility solely on the basis of the said Government order. Other grounds, which have been stated in the impugned memo, were also taken into consideration wherefrom it would appear that the Director came to a positive finding that the family was not in "so financial distressed condition". Learned advocate for the council has also relied on the following judgments of the Supreme Court: 1. Umesh Kumar Nagpal v. State of Haryana & Ors. reported in (1994) 4 SCC 138 , 2. Life Insurance Corporation of India v. Asha Ramchhandra Ambekar (Mrs.) & Anr. reported in (1994) 2 SCC 718 . 3. Learned advocate for the council has also relied on the following judgments of the Supreme Court: 1. Umesh Kumar Nagpal v. State of Haryana & Ors. reported in (1994) 4 SCC 138 , 2. Life Insurance Corporation of India v. Asha Ramchhandra Ambekar (Mrs.) & Anr. reported in (1994) 2 SCC 718 . 3. General Manager (D&PB) & Ors. v. Kunti Tiwary & Anr. reported in (2004) 7 SCC 271 , 6. After considering the submissions made by the respective parties it is pertinent to quote the relevant portion of the impugned decision, as contained in the Director of School Education's memo dated 12th November, 2010, which reads as follows: - "Perused the records as were available with this Directorate and consulted relevant Government orders and Rules. It appears that being a retired Secondary teacher, the petitioner's father has been drawing a sum of Rs. 10,000/- (as stated by the petitioner himself in the hearing). In addition to that his father, being the husband of his deceased mother, is drawing basic family pension with admissible Dearness Relief etc. As per relevant Government orders, appointment on compassionate ground may be considered in the event upon death of the incumbent concerned if the family of the deceased is fallen in so financially distressed condition that the family becomes unable to arrange for providing two square meals and other essentials for its members, then one member of the family of the offered employment. In terms of Government order issued under No. 855(Pry) dated 15-2-2008 "financial hardship" has been explained in relation to income of the family of the deceased teacher consisting up to five members as an amount of income less than the gross salary of Group D staff of the council at the material point of time. It the present case, the petitioner's father draws a monthly pension of Rs. 10,000/- and also family pension (which includes basic + Dearness Allowances). Upon death of petitioner's mother 60% of such family pension is to be added with the monthly pension drawn by the petitioner's father for computation of total income of the family of the deceased. Thus, it is clear that the total income of the family of the deceased is much higher than the initial salary of a Group D staff for the material period. Thus, it is clear that the total income of the family of the deceased is much higher than the initial salary of a Group D staff for the material period. It is also clear that on the grounds stated above, the family is not in so financially distressed condition" that the petitioner may be favoured with appointment on compassionate ground. Thus, I think that the prayer of the petitioner without having semblance of merit deserves no favourable consideration. The matter is thus disposed of." 7. It is evident from a plain reading of the portion of the impugned decision, as quoted above, that the Director of School Education, Government of West Bengal, has not come to a conclusion solely on the basis of the Government order dated 15th February, 2008, wherein financial hardship has been explained. Although it is true that the ratio of the two decisions relied on by the learned advocate for the petitioner makes it clear and unambiguous that there cannot be any retrospective effect given in respect of the Government order issued on 15th February, 2008, and it cannot be made applicable in a case where the concerned teacher had died on 15th July, 2007, it is equally true that the decision rendered by the Director of School Education, Government of West Bengal, was not based on the said Government order dated 15th February, 2008, alone. In fact, the Director of School Education, Government of West Bengal, has considered other grounds and has very clearly held that the family of the deceased teacher was not in "so financially distressed condition". While rendering the impugned decision, the Director categorically observed that such appointments could be considered in the event of death of the incumbent concerned if the family of the deceased had fallen in "so financially distressed condition" that it was unable to arrange for providing two square meals and other essentials for its members. This is one of the relevant factors that has to be taken into consideration while considering a case for appointment on compassionate ground under the died-in-harness category in terms of Rule 14 of the West Bengal Primary Teachers' Recruitment Rules 2001. 8. This is one of the relevant factors that has to be taken into consideration while considering a case for appointment on compassionate ground under the died-in-harness category in terms of Rule 14 of the West Bengal Primary Teachers' Recruitment Rules 2001. 8. It is further apparent that the decision of the Director of School Education, West Bengal, has been rendered in conformity and in terms of the specific direction given by this Court in the order dated 15th September, 2009, passed in W.P. 12019 (W) of 2009. It is beyond any doubt that the impugned decision is supported with cogent reasons. 9. At this stage, one may take notice of a recent judgment rendered by this Court in Amarendranath Mandal v. State of West Bengal & Ors., reported in AIR 2011 Calcutta 56, wherein it has been held, inter alia, state as follows:- "The writ Court ought not to transpose itself as an appellate authority when a particular authority has performed its obligation to abide by the specific directions given by this Court and rendered a decision in the matter supported with cogent reasons. The discretionary jurisdiction of this Court under Article 226 of the Constitution of India ought not to be invoked in such cases, unless of course, the decision so rendered by the concerned authority is palpably wrong or is arbitrary or perverse or smacks of mala fide motive or has been rendered without adhering to the specific directions given by the Court." 10. None of the exceptions, as laid down in the judgment referred above, which would enable this Court to interfere with the impugned decision, are present in the instant case. 11. That apart, the judgments rendered by the Supreme Court from time to time in matters relating to compassionate appointment throw light on a very consistent view taken by the Apex Court in respect of such appointments. The general rule for appointments in public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules relating to such public appointments. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules relating to such public appointments. This is in order to ensure transparency in the selection process and merit being the sole criterion for selection of a deserving candidate to a public post. However, to this general rule-which is to be followed strictly in every case-there are some notable exceptions carved out in the interest of justice and to meet certain contingencies. Such contingencies include sudden death of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such circumstances, out of pure humanitarian consideration, taking into consideration the fact that unless some source of livelihood is provided, the family of the deceased employee would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is certainly not to give a member of such family a post, much less a post for post held by the deceased. What is of utmost importance and has to be borne in mind that mere death of an employee in harness does not ipso facto entitle his family to a source of livelihood emanating through such compassionate appointment. This would simply result in totally frustrating the very object of introducing a provision for grant of compassionate appointment in the rules relating to appointments in public services. The Supreme Court, in Umesh Kumar Nagpal (supra), has gone ahead and observed that the Government or the public authority concerned has to examine the financial condition of the family of the deceased and only if it is so satisfied, that but for the provision for employment the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. This favourable treatment given to a dependant of a deceased employee has to have a rational nexus with the object sought to be achieved, viz., relief against destitution. 12. This favourable treatment given to a dependant of a deceased employee has to have a rational nexus with the object sought to be achieved, viz., relief against destitution. 12. In Umesh Kumar Nagpal, the Supreme Court, however, has also put in a word of caution by observing to the effect that it must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations consequent upon the change in status and affairs of the family engendered by the erstwhile employment having been suddenly upturned by an unexpected death. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. 13. The general principles for grant of compassionate appointment which have been laid down by the Supreme Court in Umesh Kumar Nagpal finds its place in Rule 14 of the West Bengal Primary Teachers Recruitment Rules, 2001. This Rule specifically provides for compassionate appointment and is reproduced here-in-below: - "14. Appointment on compassionate ground. 13. The general principles for grant of compassionate appointment which have been laid down by the Supreme Court in Umesh Kumar Nagpal finds its place in Rule 14 of the West Bengal Primary Teachers Recruitment Rules, 2001. This Rule specifically provides for compassionate appointment and is reproduced here-in-below: - "14. Appointment on compassionate ground. - The Council may appoint primary teachers, with the approval of the Director of School Education, West Bengal or his authorised officer, on compassionate ground in the following cases where in the opinion of the Council, the cases deserve compassionate consideration: - (1) when a teacher dies in harness before the date of his superannuation i.e. at the age of 60 years, leaving a family which, it the opinion of the Council, is in extreme financial hardship that is it fails to provide two square meals and other essentials to the surviving members of the deceased teacher's family, the following members of the deceased teacher's family, viz, the (a) widowed wife, or (b) widower, or (c) son, or (d) unmarried daughter, or (e) divorce dependent daughter-divorced before the date of death of the teacher, possessing required educational qualifications as laid down in clause (a) and (c) of sub-rule (1) of Rule 6 and unemployed, and not below 18 years of age and not above 45 years of age and found eligible to teach, may make within two years from the date of such death, a prayer in writing to the Council for appointment as primary teacher on compassionate ground, provided that only one member of deceased primary teacher's family may be appointed on compassionate ground. (2) When a primary teacher applies for being declared permanently incapacitated on medical ground, to the Council for appearing before the Medical Board set up according to the procedure laid down in the Government Order, before attaining 58 years of age and discontinues to attend the school for such incapacitation, he may be allowed by the Council to retire on and from the date of submission of such application, provided that the Council is satisfied with such incapacitation and other conditions through Enquiry Committee, and Provided further that, after receiving the report from the Council, the Medical Board set-up for this purpose declares him permanently incapacitated to continue in further service for a reasonable time and if his family is in extreme financial hardship after such retirement the (a) wife, or (b) husband, or (c) son, or (d) unmarried daughter, or (e) the divorce dependent daughter-divorced at least one year before submission of application for declaration of permanent incapacitation of the incapacitated prematurely retired primary teacher, possessing requisite qualifications as laid down in clause (a) and (c) of sub-rule (1) of rule 6 and unemployed, and not below 18 years of age and not above 45 years of age and found eligible to teach may be appointed as primary teacher on compassionate ground on submission of prayer in writing within three months from the date of issue of certificate by the competent Medical Board. Only one member of the family of the declared permanently incapacitated teacher may be appointed. Government orders issued from time to time for appointment on compassionate ground shall also duly be considered in making such appointment. But if the Medical Board does not declare the teacher to be permanently incapacitated to continue in further service the Council will allow him to rejoin duty: Provided he does not attain superannuation. In such a case the period of absence will be regularised as per existing leave rules." 14. A mere glance above clearly reveals the object and scope of Rule 14. Grant of compassionate appointment to a member of a family of a deceased teacher of a primary school teacher in West Bengal cannot go beyond it under any circumstances. In such a case the period of absence will be regularised as per existing leave rules." 14. A mere glance above clearly reveals the object and scope of Rule 14. Grant of compassionate appointment to a member of a family of a deceased teacher of a primary school teacher in West Bengal cannot go beyond it under any circumstances. The expression of a family in distress, which manifests itself in the rule-book as ".............is in extreme financial hardship that is it fails to provide two square meals and other essentials to the surviving members of the deceased teacher's family............." is a clear indicator of what the lawmaker conceived while laying down the statutory yardstick for determining a fit case for grant of compassionate appointment under the died in harness category. The Director of School Education, Government of West Bengal, has considered this aspect of the matter carefully and has thus come to a conclusion that the family was not "in so financially distressed condition" that the petitioner could be favoured with an appointment on compassionate ground. 15. Both judgments relied on by the learned advocate for the petitioner are wholly inapplicable in the facts of the instant case. Subject matter of controversy in both cases revolved around the date of applicability of a notification which seeks to elaborately explain as to how financial distress/hardship is required to be computed. The Court, in both judgments, held that the notification would have no retrospective effect and that the date of death of the deceased teacher would be the relevant date for the purpose of determining eligibility of being considered for appointment on compassionate ground under the died in harness category. As observed hereinbefore, the Director did not render his decision relying solely on the Government Order no. 855 (Pry) dated 15th February, 2008. As such, it is wholly inconsequential as to whether the said Government Order would be applicable in the facts of the case or not. 16. This is not a case where a decision has been taken by an authority of the State dehors applicable law. On the contrary, the decision of the Director is based on a correct appreciation of the true object and scope of granting compassionate appointment to a family member of a deceased teacher and is in accordance and in conformity with Rule 14 of the West Bengal Primary Teachers' Recruitment Rules. 17. On the contrary, the decision of the Director is based on a correct appreciation of the true object and scope of granting compassionate appointment to a family member of a deceased teacher and is in accordance and in conformity with Rule 14 of the West Bengal Primary Teachers' Recruitment Rules. 17. It must always be remembered that grant of compassionate appointment is an exception carved out of the general rule of appointment which is invariably on the basis of open invitation of application and merit. Such exception is to be resorted only in cases of penury where dependants of an employee are left without any means of livelihood and unless some source of livelihood is provided, a family will not be able to make both ends meet. Consideration for such employment is never a vested right which can be exercised at any time in future. This principle of law as laid down by the Supreme Court in Umesh Kumar Nagpal has been restated in General Manager (D & PB) and Ors. (supra). 18. Before concluding, it may be apt to quote some observations made by the Supreme Court in Life Insurance Corporation of India (supra): - "......................................................................................................................................................... ....................... Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. No doubt Shakespeare said in "Merchant of Venice": "The quality of mercy is not strained; It dropped, as the gentle rain from heaven Upon the place beneath it is twice blessed; It blessed him that gives, and him that takes;" These words will not apply to all situations. Yielding to instinct will tend to ignore the cold logic of law. It should be remembered that "law is the embodiment of all Wisdom". Justice according to law is a principle as old as the hills. The courts are to administer law as they find it, however, inconvenient it may be. At this juncture we may usefully refer to Martin Burn Ltd. v. Corporation of Calcutta at page 535 of the Report the following observations are found: "A result flowing from a statutory provision is never an evil. A Court has not power to ignore that provision to relieve what it considers a distress resulting from its operation. At this juncture we may usefully refer to Martin Burn Ltd. v. Corporation of Calcutta at page 535 of the Report the following observations are found: "A result flowing from a statutory provision is never an evil. A Court has not power to ignore that provision to relieve what it considers a distress resulting from its operation. A statue must of course be given effect to whether a Court likes the result or not." The courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, it should never be done. ...................................................................................................................................................... ...................................................................................................." 19. For reasons stated above, this Court finds no merit in the instant writ petition, which is liable to be dismissed and is accordingly dismissed. 20. Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis.