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2011 DIGILAW 593 (CAL)

Bikash Chandra Das v. STATE OF WEST BENGAL

2011-04-28

ASHOKE KUMAR DASADHIKARI

body2011
Judgment 1. THE writ petitioner being the petitioner Nos. 1 and 2 questioned the letter dated 8th March, 2006 issued by the Joint Secretary, Department of Power and Non conventional Energy, Government of West Bengal, wherein the prayer of the writ petitioner No.2 for appointment of his son being the petitioner No. 1 on compassionate ground was rejected. 2. THE fact of this case reveals that the petitioner No.2 was an employee of the respondent authority and he became permanently incapacitated on medical ground and he applied appointment of his son, the petitioner No.1, in a suitable post on compassionate ground on the basis of Circular dated 26th February, 1997. It appears from the record that the concerned authorities recommended the case of the petitioner No.2's son being the petitioner No. 1 for appointment and which was admitted by the answering respondent Nos.2, 4, 5 and 6 in their opposition wherein it was clearly stated that an Enquiry Committee was constituted to enquire into the matter about the genuineness of the claim for voluntary retirement of Tarapada Das, being the petitioner No.2 herein, against an employment of his son on compassionate ground and on financial condition of the family. THE statement made in the affidavit-in-opposition which is very important in this case is quoted herein "the Committee supported the claim and they commented that the claim was genuine and recommended the claim of employment of Bikash Chandra Das, son of Tarapada Das on compassionate ground.", Even in spite of the fact that a recommendation was made by the Committee constituted under Office Order No.53 dated 13th March, 1999 the petitioner No. 1 was not given employment on compassionate ground. It appears from the record that the respondent authorities also appointed at least seven persons as would appear from the letter dated 27th February, 2006 issued by the Joint Secretary to the Government of West Bengal, Department of Power and Non-conventional Energy Sources. But unfortunately, the case of the petitioner No. 1, although recommended by the Committee constituted in that regard have not been considered and no appointment was given. But unfortunately, the case of the petitioner No. 1, although recommended by the Committee constituted in that regard have not been considered and no appointment was given. It also appears from the Notification dated 6th June, 2005 that the cases which are pending consideration under the 1997 Circular would not be guided by the present Circular but the appointment as recommended by the Committee would govern the relevant Circular which was applicable at the relevant point of time that is the Circular of 1997. Clause 15 of the said Notification dated 6th June, 2005 reads as follows: "15. Notwithstanding anything contained in para 13 and para 14 of this notification, cases in which verification rolls had been issued before the issue of this notification, to a dependant of an employee who died in harness or who retired on being declared permanently incapacitated from service, after due processing in accordance with the policy and procedure which was applicable to such cases prior to the date of coming into force of this notification, shall continue to be dealt with in accordance with the pre-existing policy and procedure." 3. IT appears from the records that only after few days from the date of giving appointment to the said seven candidates the impugned letter rejecting the claim of the petitioner No.2 was issued by the concerned respondents on 8th, March, 2006 leaving a gap of about nine days. The plea taken in the impugned letter that the petitioner No.2, being the employee, concerned did not have two years of service or more left to reach the age of superannuation when he retired/was not examined by the Government Medical Board as required under G.O. No.303-EMP/1M-10/2000 dated 21st August, 2002. Although two alternatives are there but on what ground the rejection was made is not clear from the said letter because both the clauses are kept intact without erasing or striking out any one of the same. 4. MR. Pal, learned senior counsel appearing for the petitioner submits that when it is the case of the answering respondents that the petitioner No.2 having a genuine case and on similar prayers the concerned respondents have issued letter of appointment and/or allowed appointment to seven candidates, the case of the petitioners was rejected on flimsy ground which is of course not specified in the impugned letter dated 8th March, 2006. He further submits that the Committee has recommended after scrutinizing everything but the concerned respondents did not appoint the petitioner No. 1 and waited and after waiting for quite sometime that is from 1997 to 2006 refused such appointment although 2002 Circular do not have any application either. It is not only unfair but also illegal and discriminatory on the part of the respondent authorities. The respondent authorities deliberately did not give employment to the petitioner No. 1 in spite of having all requisite qualifications and recommendation made by the Enquiry Committee constituted in that regard. 5. MR. Pal submitted further that there is no doubt and/or dispute as regards claim and contention of the petitioner No.1 which has already been admitted by the answering respondents and therefore, the petitioner No. 1 is entitled to get an appointment on compassionate ground. 6. MR. Pal also submitted that the action on the part of the respondent authorities is violative of Articles 14 and 16 of the Constitution of India. In support of his contention Mr. Pal submitted that the case reported in 2010 (XI) SCC 661 [State Bank of India and Anr. v. Raj Kumar) wherein the Supreme Court clearly held that the concerned claimant is entitled to be considered for compassionate appointment on his application under the old scheme. He referred paragraph 10 of that judgment which reads as follows: "10. On the other hand, if a scheme provides that on the death of an employee, a dependant family member is entitled to appointment merely on making of an application, whether any vacancy exists or not and without the need to fulfil any eligibility criteria, then the scheme creates a right in favour of the applicant on making the application and the scheme that was in force at the time when the application for compassionate appointment was filed, will apply. But such schemes are rare and in fact, virtually nil." 7. HE further cited a judgment reported in 2008(XIII) SCC 730 (V. Sivamurthy v. State of Andhra Pradesh and Ors.) in paragraphs 18, 20, 27 and 29. Paragraph 29 of the aforesaid judgment reads as follows : "29. But such schemes are rare and in fact, virtually nil." 7. HE further cited a judgment reported in 2008(XIII) SCC 730 (V. Sivamurthy v. State of Andhra Pradesh and Ors.) in paragraphs 18, 20, 27 and 29. Paragraph 29 of the aforesaid judgment reads as follows : "29. When compassionate appointment of a dependant of a government servant who dies in harness is accepted to be an exception to the general rule, there is no reason or justification to hold that an offer of compassionate appointment to the dependant of a government servant who is medically invalidated, is not an exception to the general rule. In fact, refusing compassionate appointment in the case of medical invalidation while granting compassionate appointment in the case of death-in-harness, may itself amount to hostile discrimination. While being conscious that too many exceptions may dilute the efficacy of Article 16 and make it unworkable, we are of the considered view that the case of the dependants of medically invalidated employees stands on a equal footing to that of dependants of employees who die in harness for the purpose of making an exception to the rule. For the very reasons for which compassionate appointments to a dependant of a government servant who dies in harness are held to be valid and, permissible, compassionate appointments to a dependant of a medically invalidated government servant have to be held to be valid and permissible." 8. THE third judgment cited by Mr. Pal is reported in 2007(VIII) SCC 549 (Mohan Mahto v. Central Coal Field Ltd. and Ors.) in paragraphs 19, 20 and 22. In that judgment the Supreme Court considered the refusal on the ground of compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. It was held in that judgment that the object being to enable the family to get over the financial crisis which it faces at the time of death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time after the crisis is over and what should be a reasonable period would depend upon the rules operating in the field." Mr. Pal in this regard submitted that although the application was made in the year 1997 and the petitioner No.2's case was recommended by the Enquiry Committee specially constituted for examining the claim and contention of the petitioners, the respondent authorities sat tight over the matter till 2006 and issued an impugned letter in 2007 giving a purported plea that the petitioner No.2, being the employee concerned did not have two years of service or more left to reach the age of superannuation when he retired or was not examined by the Government Medical Board as required under G.O. dated 21st August, 2002. He submitted that this letter is totally an illegal one which is apparent on the face of it. He further submitted that even after giving appointment of seven applicants on 22nd February, 2006 the concerned respondents refused the claim of the petitioner No.2 on 8th March, 2006 after a gap of nine days only. 9. HE submitted that this type of highhanded action on the part of the respondent authorities is not only arbitrary but also discriminatory and not at all acceptable under any circumstances. 10. LEARNED counsel for the respondent Nos. 2, 4, 5 and 6 appeared and drew my attention that the Notification dated 6th June, 2005 puts a restriction on giving such employment where the concerned employee completed 20 years of service or after attaining age of 50 years. He further submits that in giving such type of appointment it requires sanctioning by the Finance Department as per the memorandum dated 13th December, 2000 under clause 2f which deals with casual appointment and it was clearly stipulates that no casual appointment be made without prior approval of Finance Department. He also refers a Memorandum dated 7th February, 2002 which relates to appointment in post lying vacant for less than one year and the appointment may be approved by the Minister in-Charge/Minister of State in-Charge of the respective Administrative Department after due observance of the guidelines for offering such employment. This memorandum again refers to clause 2f of the memorandum dated 13th December, 2000 which relates to casual employment only. According to the learned counsel for the respondents they have to get approval from the concerned Finance Department to give appointment to the petitioner No. 1. 11. This memorandum again refers to clause 2f of the memorandum dated 13th December, 2000 which relates to casual employment only. According to the learned counsel for the respondents they have to get approval from the concerned Finance Department to give appointment to the petitioner No. 1. 11. HEARD the learned counsel for both the sides and considered the facts of this case as well as the materials on record. It appears from the records that the claim of the petitioners are genuine as found by the Enquiry Committee constituted in that regard which is an admitted fact as appears from the affidavit-in-opposition filed by the respondent herein. It also appears that the case of the petitioner No.2 is that he was medically unfit and in his place his son the petitioner No. 1 is to be given appointment on compassionate ground as per the relevant memorandum applicable in 1997. The respondent authorities even in spite of recommendation by the Enquiry Committee constituted by themselves, have sat tight over the matter until March 8, 2006 and did not give appointment to the petitioner No. 1 without any rhyme or reason. It appears from the record that the seven candidates were given appointment on compassionate ground in February 27, 2006 whereas after a gap of only nine days the petitioner's claim was refused on a purported plea which was not applicable on the date of making application or on the date of making recommendation or when the recommendation was made for giving approval. The respondent authorities deliberately sat tight over the matter for about 9 years and lastly rejected the claim of the petitioner No.2 without any reason whatsoever. The alleged grounds as disclosed in their letter on 8th March, 2006 are not at all applicable in the case of the petitioners. 12. I find substance in the submission of Mr. Pal, learned senior counsel appearing for the petitioner to the effect that compassionate appointment is required to be considered taking note of the relevant rules prevailing at the time of making the application. The judgment cited by Mr. Pal, State Bank of India v. Raj Kumar) (supra) support such contention. In view of the aforesaid Supreme Court decision I am of the view that the Rule of 1997 is applicable in the instant case of the petitioners and there is no doubt and/or dispute in that regard. The judgment cited by Mr. Pal, State Bank of India v. Raj Kumar) (supra) support such contention. In view of the aforesaid Supreme Court decision I am of the view that the Rule of 1997 is applicable in the instant case of the petitioners and there is no doubt and/or dispute in that regard. It is pertinent to mention that clause 15 of Notification dated 6th June, 2005 makes it clear that the cases, prior to coming into force of the notification, shall continue to be dealt with in accordance with the existing policy and procedure. The plea raised by the Counsel appearing for the respondent authorities as regards the approval of Finance Department as per notification dated 13th December, 2000 are of no basis whatsoever, simply because such approval is required in case of casual employees only, but in the instant case no such claim is made by any of the petitioners nor it is a case of casual employment and therefore, the circulars and memorandum issued by the Government have no manner of application in the case of the petitioners. Therefore, the contention raised on behalf of the respondents' Counsel is without any substance and the same is rejected by this Court. 13. I accept the submission of Mr. Pal, learned senior counsel appearing for the writ petitioners as regards the matter of appointment on compassionate ground to meet the crisis of a family on account of medical invalidation of the bread-earner. In case of V. Sivarnurthy v. State of Andhra Pradesh and Ors. (supra) the Supreme Court has clearly held that appointment on compassionate ground are a well-recognized exception to the general rule, carved out in the interest of justice to meet certain contingencies and one of such grounds is appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner which is the clear case as made out by the writ petitioners in the instant petition. The Supreme Court has compared both situations to an employee died in harness and employee being medically invalidation on account of serious illness/ accident and on compassionate ground the Supreme Court has come to a definite conclusion that the case of medical invalidation on account of serious illness/accident will be no less than the case of employee dies in harness. The Supreme Court has compared both situations to an employee died in harness and employee being medically invalidation on account of serious illness/ accident and on compassionate ground the Supreme Court has come to a definite conclusion that the case of medical invalidation on account of serious illness/accident will be no less than the case of employee dies in harness. In this case the Supreme Court also clearly held that refusal of compassionate appointment in the case of medical invalidation while granting compassionate appointment in case of death in harness may itself amount to hostile discrimination. 14. IN the install case the petitioners have been discriminated and denied such employment without any valid ground or reason. IN my opinion the petitioner No. 1 is entitled to get appointment on the ground of medical illness of the petitioner No.2 who happened to be the father of the petitioner No. 1. In my opinion the pleas taken by the respondent authorities are all illegal, unfair and discriminatory and therefore, the impugned letter dated 8th March, 2006 is set aside. The respondent authorities are directed to give employment to the petitioner No. 1 within a period of six weeks from the date of communication of this order. 15. THIS writ petition is allowed in favour of the petitioners. However, there would be no order as to costs. Writ petition allowed.