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2011 DIGILAW 788 (CAL)

Purnam Pradhan v. STATE OF WEST BENGAL

2011-06-15

ASHOKE KUMAR DASADHIKARI

body2011
Judgment 1. THE Judgment of the Court was as follows :- THE writ petitioner has come up before this Court questioning the impugned memorandum dated 30th June, 2006 issued by the District Inspector of Schools (SE), Purba Medinipur whereby the said District Inspector refused the prayer for appointment to the petitioner in die in harness category on the death of his mother. 2. THE peculiar facts and circumstances of the case are that the petitioner's mother Smt. Swati Maity died on 14th October, 1995 when she was working as a clerk in Jasteghori Saranan Trilochan Balika Vidyalaya, Purba Medinipur. THE petitioner's father, Dilip Prodhan was taken into custody on murder charge of late Swati Maity (Prodhan), the mother of the petitioner. Ultimately, the father of the petitioner, Dilip Prodhan was sentenced with rigorous life, imprisonment. At that relevant point of time the petitioner was a minor. THE grandmother was appointed by the learned District Judge as a custodian of the petitioner. THE petitioner attained the age of 18 years on 15th May, 2005. Thereafter on 12th December, 2005 the Managing Committee of the aforesaid school took a resolution for the purpose of registration of the name of the petitioner in die in harness category. On or about 1st February, 2005 the petitioner wrote a letter to the District Inspector of Schools (SE) Tarnluk, Purba Medinipur requesting to register his name in the roster in die in harness category. Sabhadhipati, Ramnagar-I Panchayat Samity issued a certificate in favour of the petitioner. Palgachhari Gram Panchayat also issued a certificate in favour of the petitioner on 13th January, 2006. On 13th July, 2006 the petitioner made a representation to the school authority for taking step for registration of his name in die in harness category. On 30th June, 2006 District Inspector of Schools (SE), communicated by a letter to the petitioner rejecting his claim for enlistment his name in die in harness category on the ground that the case of the petitioner is contrary to paragraph 4(1) of G.O. dated 2nd January, 1995 which stipulates that the application for employment of a ward of a teacher who died in harness should be submitted to the District Primary School Council/District Inspector of Schools within two years from the date of death of the concerned teacher. 3. MR. 3. MR. Bhattacharya, learned Counsel appearing for the petitioner submits that the Circular on the basis of which the claim of the petitioner was rejected is not applicable specially when the petitioner was a minor at the time of death of his mother and in that Circular there is no specific rule which deals with such a situation. He submitted that the condition stipulated in the Circular is not at all applicable in the instant case specially when the petitioner was a minor at the relevant point of time and it was not possible for him to make an application within a period of two years when he was also a minor and his grandmother was appointed as legal guardian by a competent Court. 4. HE submitted that the petitioner herein attained the age of majority in the year 2005 and immediately after attaining the age of 18 years he has taken step to get his name recorded and/or registered in the die in harness category. But the school authority also took a resolution in his favour which was referred to the District Inspector of Schools but unfortunately the District Inspector of Schools (SE) Tamluk, Purba Medinipur refused such prayer on a plea that the application is required to be made within a period of two years which has not been done in the instant case. Mr. Mr. Bhattacharya, learned Counsel appearing for the petitioner cited a decision reported in (2006)9 SCC 195 (Syed Khadim Hussain v. State of Bihar and Ors.) in support of his client wherein in similar circumstances the Supreme Court has allowed a minor child of the deceased to be employed after attaining the age of 18 years and in that case also the Supreme Court observed that of course, in the rules framed by the State there is no specific provision as to what should be done in case of dependent is minor and there would be any relaxation of age in case he did not attain the age of majority within the prescribed period for submitting application In that case also the Supreme Court said even after lapse of 11 years a widow is not a fit candidate to be allowed to attend the Government service and in the opinion of the Supreme Court the appellant being the son who has attained the majority should be considered in place of the widow-mother and in the peculiar facts and circumstances of case the Supreme Court directed the respondent authorities to consider the application of the appellant and directed to give him appropriate appointment within a reasonable time at least within a period of three months. Paragraph 5 of the aforesaid judgment is very relevant and the said paragraph reads as follows : "5. We are unable to accept the contention of the Counsel for the Slate. In the instant case, the widow had applied for appointment within the prescribed period and without assigning any reasons the same was rejected. When the appellant submitted the application he was 13 years' old and the application was rejected after a period of six years and that too without giving any reason and the reason given by the authorities was incorrect as at the time of rejection of the application he must have crossed 18 years and he could have been very well considered for appointment. Of course, in the rules framed by the State there is no specific provision as to what should be done in case the dependents are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application." 5. MR. Of course, in the rules framed by the State there is no specific provision as to what should be done in case the dependents are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application." 5. MR. Bhattacharya in support of his contention cited another judgment of the Division Bench of this Court reported in (2011)2 Cal HN (Cal) page 17 (Syed Iftikar Ali v. State of West Bengal) wherein the Division Bench have followed the aforesaid decision and set aside the refusal of the District Inspector of Schools to approve the proposal of the petitioner only on the ground that the said applicant being son of the deceased teacher attained 18 years of age after lapse of 6 years. Paragraph 7 of the said judgment is very relevant and the contents of paragraph 7 are quoted here in below: "7. Considering the aforesaid decision of the Hon'ble Supreme Court, we are also of the opinion that in the present case, the Director of School Education, West Bengal should not have rejected the proposal for appointment of the appellant herein on the ground that the said appellant reached 18 years of age after six years from the date of death of the teacher concerned without appreciating the fact that the Chairman, Hooghly District Primary School Council sent the proposal for appointment of the appellant on compassionate ground in view of the special fact that the widow of the deceased teacher claimed appointment on compassionate ground within the time limit and pending consideration of such claim the said widow surrendered her claim in favour of the appellant herein due to her ill health. Furthermore, the authorities concerned failed to consider the claim of the widow of the deceased teacher for appointment on ' compassionate ground even though appropriate application/ representation was submitted by the said widow within the prescribed time limit." 6. Furthermore, the authorities concerned failed to consider the claim of the widow of the deceased teacher for appointment on ' compassionate ground even though appropriate application/ representation was submitted by the said widow within the prescribed time limit." 6. IN that case the only ground for rejection was that the application was made after a lapse of six years on attaining the age of 18 years and no other reason was given for such rejection and in that case a direction was issued by the Hon'ble Division Bench to the Director of School Education, West Bengal to approve the proposal of the Chairman, District Primary School Council for appointment of the appellant on compassionate ground at an early date within a period of two months from the date of communication of the order. Mr. Bhattacharya cited another decision of the Hon'ble Division Bench of this Court reported in (2011)1 WBLR (Cal) page 64 (The Chairman, District Primary School Council v. Sri Prithwish Samanta and Ors.) wherein the Supreme Court judgment was referred. Paragraph 26 of this judgment is very relevant which is quoted here in below : "26. Unable to resist our temptation of quoting from the inimitable words of V.R. Krishna Iyer, J. who authyored Gujarat Steel Tubes Ltd. Etc. v. Gujarat Steel Tubes Mazdoor Sabha and Ors. reported in AIR 1980 SC 1896 we found what the learned trial Court did while concluding in the finding impugned was exactly what Krishna Iyer, J. had cherished more than two decades ago : 'judicial daring is not daunted where glaring injustice demands even affirmative action. The wide words of Article 226 are designed for service of the lowly numbers in their grievances if the subject belongs to the Court's province and the remedy is appropriate to the judicial process.'" 7. MR. Usha Nath Banerjee, learned Counsel appearing for the respondents submitted that the Circular is very specific and in that Circular under Clause 4(i) a time limit has been prescribed for two years within the aforesaid period one has to make application. But unfortunately in the instant case no such application was made and therefore, the petitioner cannot come and pray for an equity before this Court under Article 226 of the Constitution of India specially when within the aforesaid period of two years he did not attain the age of 18 years. But unfortunately in the instant case no such application was made and therefore, the petitioner cannot come and pray for an equity before this Court under Article 226 of the Constitution of India specially when within the aforesaid period of two years he did not attain the age of 18 years. Therefore, he has lost his chance and he should not be allowed to claim any appointment on compassionate ground. He also submitted that the sole consideration for giving such compassionate appointment is to overcome the immediate financial crisis of the family and in the instant case the crisis was over and the petitioner attained the age of majority. Therefore, he should not be given any compassionate appointment. He also submitted that the claim for compassionate appointment is not at all statutory right and therefore, the petitioner cannot claim any benefit out of the same. 8. MR. Banerjee cited two judgments delivered by the Supreme Court and the first unreported decision rendered in the case of Local Administration Department and Anr. v. M. Selvanayagam @ Kumaravelu (Civil Appeal No. 2206 of 2006) and he submitted that there was a delay for six years and the reason recorded for refusal in that case is the mother of the respondent did not make any request for appointment and that showed the demise of the concerned employee has not caused any financial crisis in the family. The second reason given for rejecting the claim was that following the death of the employee the family was given Rs.26,674/- as terminal benefits besides family pension to the widow and thus the dependents of the deceased employee were not left completely without any financial resources. He submits that the sole object is to help the family which may suddenly find itself in dire straits as a result of the death of the bread winner. He submitted that an appointment made many years after the death of the employee or without due consideration of the financial resources available to the dependent and the financial deprivation caused to the dependents as a result of such death simply because the claimant happened to be one of the dependents of the deceased employee would be directly in conflict with Articles 14 and 16 of the Constitution and hence, quite bad and illegal. Mr. Mr. Banerjee cited another unreported judgment delivered by the Supreme Court in the case of Union of India and Anr. v. B. Kishore (Civil Appeal No. 1045 of 2006) and submitted that the entire scheme is to overcome the sudden financial crisis. But in the instant case the petitioner has overcome the situation and the family is not in need now. Therefore, the claim of the petitioner should be rejected. 9. HEARD the learned Counsel for the parties and considered the materials available on record. I find that this is a case of very peculiar in nature. It was not in normal death of the mother of the petitioner. She was killed by her husband and the accused father of the petitioner sentenced with rigorous life imprisonment. The petitioner being a minor of about 8 years did not have any family. The competent Court appointed the grandNo.1.mother of the petitioner as his legal guardian and the petitioner attained the age of majority after about 10 years and with the help of others he completed his minimum qualification and immediately after attaining the age of majority he has applied before the concerned authority i.e. the District Inspector of Schools to get a registration in the die in harness category. 10. IN the instant case the petitioner did not have any family. The mother was dead. The father was in jail and he had to depend as a minor child upon the grand-mother only. It appears from the impugned memorandum that the order of rejection based on Clause 4(i) wherein a time is prescribed for making application but unfortunately the period of two years as is fixed in case of a major dependant has got no manner of application in case of minor dependant. The Circular did not deal with any such situation wherein this type of situation occurs and in my opinion the minors are deprived to get compassionate appointment which has given to other candidates who are majors and dependents of the deceased employee. This is clearly discriminatory and violative of Article 14 of the Constitution of India. The Supreme Court in case of Bhagwanji Monabhai Khatana v. State of Gujarat and Ors. This is clearly discriminatory and violative of Article 14 of the Constitution of India. The Supreme Court in case of Bhagwanji Monabhai Khatana v. State of Gujarat and Ors. reported in (1995)5 SCC 34 has held that in such cases a right accrued in favour of the candidate under Article 21 of the Constitution of India and the Hon'ble Court directed to consider the case of the petitioner for giving appointment on compassionate ground. IN another case (Govind Prakash Verma v. Life Insurance Corporation of India and Ors.) reported in (2005)10 SCC 289 . The Hon'ble Supreme Court held that the scheme of compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased employee as benefits of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules. In my opinion, simply because some pecuniary benefits were given to the dependent, he is disentitled to get such compassionate appointment and the Hon'ble Supreme Court is quite clear that whatever might be the service benefits received by the deceased employee's successor or dependent this benefit of giving compassionate appointment is over and above such benefits which the dependent and/or successor are entitled in law. In my view, the time limit fixed for making such application is nor at all applicable in the case of the minor and there is no specific rule or guideline in the Circular to meet the situation as in the instant case and the judgment cited by Mr. Bhattacharya wherein it was observed that the rules are silent about the situation occurring in the case of the minor and the judgment of the Supreme Court as well as the Hon'ble High Court is clearly applicable in the instant case. 11. UNDER such circumstances the petitioner is entitled to get his appointment on compassionate ground for the aforesaid reasons. 12. IN my opinion the two judgments cited by Mr. Banerjee, learned Counsel appearing for the respondents have no manner of application in the facts and circumstances of the present case and therefore, those judgments are of no help to the respondent authorities. 12. IN my opinion the two judgments cited by Mr. Banerjee, learned Counsel appearing for the respondents have no manner of application in the facts and circumstances of the present case and therefore, those judgments are of no help to the respondent authorities. In view of the aforesaid findings, I direct the concerned respondent specially the District Inspector of Schools (SE), Tamluk, Purba Medinipur to consider the application of the petitioner and to get him register in the die in harness category and to provide him a suitable employment after such registration. 13. THIS writ petition is, thus, disposed of. There would be no order as to costs. 14. URGENT Photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.