Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 346 (CAL)

Sraban Kumar Choudhury v. STATE OF WEST BENGAL

2011-03-10

AMIT TALUKDAR, PRABHAT KUMAR DEY

body2011
JUDGMENT Talukdar, J. 1. AGAIN delay. 2. SCEPTRE of delay seems to haunt this unfortunate appellant in fortuitous sequences. After crossing hurdle of limitation, he now faces delay in staking his claim for compassionate appointment beyond the period of two years, as found by the respondent No. 2 (Director of School Education) {SEE: Page 52 of the Stay Petition} . This was the governing factor before the Hon'ble Trial Court, which recused itself from the prayer on the aforesaid premises. 3. PUSHED to a point of no return where the appellant Sraban Kumar Choudhury, who has in the meantime suffered the distraught pain of losing opted out in favour of the appellant coupled with the responsibility of maintaining his Mother and three siblings-has made it in appeal. 4. JINXED circumstances have cobbled up the life's journey of the appellant from its inception, which are required to be traced for a better grasp in this appeal. The Father of the appellant Late Ganesh Chandra Choudhury was the Head Teacher of Jote Kastury Primary School. He was born on 31.01.1944. He joined his service on 01.04.1973. Suffering from a lurking apprehension that his mortal frame is betraying him, he chose to opt for declaring himself to be permanently incapacitated and have seen that in his place, his Elder Son the appellant Sraban Kumar Choudhury be appointed. For this purpose he took steps as known to Law on 31.03.2000 (Page 34 of the Stay Petition). 5. SINCE nothing fructified, he approached this Court in W.P. 22235(W) of 2000 arising out of A.S.T. No. 4058 of 2000 whereupon, on 20.12.2000 a learned Single Judge of this Court directed "..........in this application is that well ahead of attaining the age of 58 years, he applied before the concerned authority seeking retirement on the ground of physical disability in the month of March, 2000. His grievance is that no action has been taken on the basis of his application." 6. THE said Writ Petition was disposed of with a direction on the concerned Authority to "............consider the case of the petitioner (that is the Father of the appellant) as to whether his case can be recommended for medical examination in accordance with the Rules.........." (Page- 38 of the Stay Petition). THE said Writ Petition was disposed of with a direction on the concerned Authority to "............consider the case of the petitioner (that is the Father of the appellant) as to whether his case can be recommended for medical examination in accordance with the Rules.........." (Page- 38 of the Stay Petition). Thereafter, the father of the appellant was put up before the Medical Board and he was found to be permanently incapacitated, as reflected from the Order dated 06.06.2001 passed by the respondent No. 3 (See : Page 40 of the Stay Petition). 7. ON 01.06.2003, the respondent No.3 send proposal before the respondent No. 5 (S.I. of Schools) for appointment of the ward of Father of the appellant (See : Page 42 of the Stay Petition). 8. ON 15.06.2003, the Father of the appellant prayed before respondent No. 2 to induct the appellant in his place after he was declared permanently incapacitated. (See : Page 43 of the Stay Petition). Death claimed the Father of the appellant on 14.09.2007 (See: Page 50 of the Stay Petition). 9. ON 17.06.2003 the siblings and the Mother of the appellant gave a No Objection Certificate before the respondent No.2 that they had no objection in the compassionate appointment of the appellant in place of the late bread earner of the family (See : Page 44 and 45 of the Stay Petition). 10. THE Prodhan and Sabhapati of the local Panchayat by their Certificate dated 16.06.2003 and 17.06.2003 respectively stated that the total income of the family is Rs.1,000/- per month and was in need of dire financial assistance (See : Page 46 and 47 of the Stay Petition). A technical hitch was brought by the respondent No. 2 on 11.08.2006 raising a query as to why the subject was examined before the District Medical Board at Malda and not before the Zonal Medical Board, North Bengal (See : Page 48 of the Stay Petition). 11. THE appellant thereafter, again approached the respondent No. 2 absorption in the place of his late Father on the category, for which he had applied on 05.10.2007 declaring that he had requisite qualification (See : Page 49 of the Stay Petition). 12. SILENCE. Nothing moved except time. 13. MULTIPLYING the agony of the family, the said silence on the part of the authorities simply compounded distress of the appellant, his siblings and his defence less widow Mother. 12. SILENCE. Nothing moved except time. 13. MULTIPLYING the agony of the family, the said silence on the part of the authorities simply compounded distress of the appellant, his siblings and his defence less widow Mother. What could have been the most 'unkindest cut' of all, was a communique by the respondent No.2, which was perhaps the last straw on the Camel's back to break it. Broken as they were, it was simply a further touch in the said direction (See : Page 52 of the Stay Petition). 14. THE respondent No.2 informed the respondent No.3 vide Memo No. 1148-SL/P dated 14.08.2009 that the proposal of appointment of the appellant Sraban Kumar Choudhury along with three others ".........have not been approved as per existing G.O. since all the four wards had applied for apptt. on compassionate ground after two to three years from the date of disablement of the teachers." We have seen the same was the sheet- anchor before the Hon'ble Trial Court, which felt that the grievance of the writ petitioner has been adequately addressed in view of the said Memo. 15. IN this intra Court appeal, we are required to perform a function of an amplified Judicial Review. Unless the Order is wholly wrong, the Appellate Court should be tardy in containing the same. Here, we find that we have to step in as the appellant has been successful in carving out a legal right to claim a writ in the nature of Mandamus, for which he had entered the forecourts of Justice. 16. WE are now towards the end of the text of our Judgment. WE have in the process formed an opinion that the appellant has a say. But we have to again move on the reverse direction. It is borne out from the Record that the Late Father of the appellant was born on 31.01.1944. Even if we take it for argument's sake that the age of superannuation is sixty years- the father of the appellant would have been required to call it a day in 2004. He had applied for opting for the scheme of being declared permanently incapacitated in March 2000. That is well ahead of four years of his superannuation and the cut off period of two years in Section 14 was observed in a wholesome fashion. He had applied for opting for the scheme of being declared permanently incapacitated in March 2000. That is well ahead of four years of his superannuation and the cut off period of two years in Section 14 was observed in a wholesome fashion. In course of meddling with the prayer made by the appellant's Father, the labyrinth process of the respondents caught up and even though he was found to be incapacitated w.e.f. 26.05.2001............he could not see the fruition of the second part of his desire that is to place his Elder Son in the service as death intervened on 14.09.2007. 17. MECHANICAL chanting of the Rules by respondent No. 2 through his Memo No. 1148-SLP dated 14.08.2009 (supra) shows that the appellant had opted for compassionate appointment after two/three years delay. This is factually not tenable. Apart from non application of mind and simply clerical approach; it means nothing. 18. IF we see the twin prayer initially made by the Father of the appellant on 31.03.2000 (Page 34 of the Stay Petition), it would reveal that there was also a prayer for absorption of one of his wards. On 1.6.2003 the respondent No. 3, Chairmann, Malda District Primary School Council had taken steps before the respondent No. 4 (S.I. of Schools) "for appointment of wards of such incapacitated teachers. "This was in context of the incapacitation of the Father of the appellant on 26.05.2001. Already there was a specific prayer for absorption of the appellant way back on 15.06.2003 made by the Father of appellant, which was well within the cut off period of two years. (See : Page 43 of the Stay Petition). In the event we attach any credence to the Petition made before the respondent No. 3 on 05.10.2007 by the appellant (Page 49 of the Stay Petition)-we should read it as continuation of the other prayers, which were well within time. 19. RITUALISTIC view of respondent No.2 had resulted in such a terse situation, although the appellant had been successful in establishing his legal right. 20. WE find that Shri Bari has been successful in making out a case for compassionate appointment. As the entire stream of applications has to be read in a wholesome fashion and once the same is done, it would be found that one is a continuation of the other. 20. WE find that Shri Bari has been successful in making out a case for compassionate appointment. As the entire stream of applications has to be read in a wholesome fashion and once the same is done, it would be found that one is a continuation of the other. As such, we would not be inclined to accept the reasoning given by the respondent No. 2 with regard to the delay, which persuaded the Ronnie Trial Court to reach its conclusion. Now, the question of compassionate appointment being exceptional in nature. Shri Oli Mohammad was of the view that the appointments in such categories are exceptional and has to be decided with great caution and as the appellant has failed to establish his case, he has no claim for being appointed in the place of his Father. 21. APPOINTMENTS in such categories are de horse the normal Recruitment Rules and are exceptions in the field. There are some well- settled guidelines and procedure required to be followed in the strict sense of the term, but in the instant case we have found from the compensation of events that the appellant has been successful in making out a case in support of his claim. 22. BREADWINNER's scheme or compassionate appointment, by whatever name one calls it, it is provided for amelioration of the plight of the erstwhile employees and their families either on account of incapacitation of an employee or at the posterior stage of his death, which leaves a vacuum in the income of the family. Compassionate appointment, after all, is de horse the normal Recruitment Rules. Unless certain well-settled guidelines are observed, nobody can stake claim overriding the more meritorious in the queue. 23. IN other words, unless the articulated criteria governing the field in respect of this type of appointment are fulfilled claim in respect of the same cannot be staked. Yet, notwithstanding the recourse formulated by galaxy of decisions holding sway compassionate appointment should not be treated as a charity and is not to be given as a pittance to the members of the family of the Deceased. IN such event, it would be defeating the Legislative dream. 24. WHILE being cautious, the system cannot afford to be cruel. In the instant bundle of facts that have made up the fate of the appellant, we find the breadwinner's scheme has remained a teasing mirage for him. IN such event, it would be defeating the Legislative dream. 24. WHILE being cautious, the system cannot afford to be cruel. In the instant bundle of facts that have made up the fate of the appellant, we find the breadwinner's scheme has remained a teasing mirage for him. Leave alone the bread, the loaf-it is not even the crumbs of the same have been made available to this poor appellant and his family consisting of his siblings and a defence less widow, who have been showered with all apathy and indifference that an insensitive system can stretch itself. 25. ACCORDINGLY, we set aside the Order under appeal as also the Memo No. 1148-SL/P dated 14.08.2009 (supra) of the respondent No. 2 and allow the appeal. Respondents are directed to take steps to facilitate the process of absorption of the appellant in the compassionate category within four weeks from the date of communication of this Order. Appeal allowed. Parties to bear their own costs. In view of the disposal of this appeal, nothing remains in the application being CAN 353 of 2011 and the same is also accordingly disposed of. Dey, J.- I agree.