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2013 DIGILAW 598 (CAL)

Upama Pan v. State

2013-08-21

DEBASISH KAR GUPTA

body2013
Judgment : Let the affidavit of service be kept on record. 2. This writ application is directed against an order passed by the respondent No.2 under his memo No. 439/1 (3) /LS/IC-LS-437/11 dated May 31, 2013. By virtue of the impugned order, the prayer of the petitioner for appointment on compassionate ground due to sudden death of his father was rejected. The father of the petitioner died in harness on December 1, 2008 while he was working for gain as an assistant teacher of Maharampur Mittal Vidyamandir (H.S.), District Hooghly. 3. Initially, the above prayer of the petitioner was rejected by the respondent No.2 under his memo No. 187/SE dated February 23, 2011 considering the case of the petitioner on the basis of the guideline under memo No. 697-ES/S dated July 9, 2009. The petitioner filed an application under Article 226 of the Constitution of India bearing No. W.P. 12613(W) of 2011 and the same was disposed of on March 20, 2012 and the operative portion of the above decision is quoted below : "Law is now been well settled to the extent that right to be, considered for appointment on compassionate ground matures on the date of death of the deceased employee. As such, this Court is of the view that the concerned authority was not justified in rejecting the petitioner's application for her appointment in died in harness category by applying the provision contained in the Government Memorandum dated 9th July, 2009 which was not even in existence as on the date when the petitioner's right to be considered for such appointment in died in harness category matured. As such, the impugned order is an illegal order which cannot be retained on record. Mr. Goswami, learned Advocate appearing for the State-respondents however, submits that since the petitioner was minor at the time when her father died, the petitioner could not have been appointed in the died in harness category. Of course, the concerned District Inspector of Schools (SE) did not reject the petitioner's said application on the ground of minority of the petitioner at the relevant time. Of course, the concerned District Inspector of Schools (SE) did not reject the petitioner's said application on the ground of minority of the petitioner at the relevant time. Be that as it may, it appears from the record that though the petitioner was minor at the time when she submitted her application for appointment on compassionate ground but she attained the age of majority on the date when her application was taken up for consideration by the concerned District Inspector of Schools (SE). As such, the petitioner's minority as on the date of submission of her application cannot stand in the way of offering an appointment to her on compassionate ground, if she is otherwise found to be entitled to be appointed in the died in harness category on the basis of the rules and/or the government order which were prevalent as on the date of death of the petitioner's father. Accordingly, the impugned order stands set aside. The concerned District Inspector of Schools (SE) is directed to reconsider the petitioner's prayer for appointment on compassionate ground afresh in the light of the observation made hereinabove. Such consideration should be made within eight weeks from the date of communication of this order. Needless to mention here that a reasonable opportunity of hearing should be given to the petitioner before taking the ultimate decision in this regard. The concerned authority is also required to pass a reasoned order in support of his conclusion and the decision to be taken by the concerned authority in this regard, should be communicated to the petitioner within two wee-fcs thereafter. The writ petition is, thus, disposed of. Let affidavit-of-service which is filed in Court today be kept with record. Urgent Xerox certified copy of this order, if applied for, be supplied to the learned advocate for the petitioner immediately. (Jyotirmay Bhattacharya, J) 4. In compliance of the above order, the respondent No.2 considered the case of the petitioner and passed the impugned order. For proper adjudication of the issue involved in this case, the relevant portion of the impugned order is quoted below: "Considered the submissions and perused the documents. (Jyotirmay Bhattacharya, J) 4. In compliance of the above order, the respondent No.2 considered the case of the petitioner and passed the impugned order. For proper adjudication of the issue involved in this case, the relevant portion of the impugned order is quoted below: "Considered the submissions and perused the documents. As per P.P.O. and other papers/documents as submitted by the competent authority regarding the financial status of the deceased family it appears that the monthly pension in favour of wife of the deceased is 13, 710/-, basic + DA/relief 1234/-+300 = Total Rs.15,244/- + Rs.3,500, income from other sources = total Rs.18,744/- which is sufficient for the family of 3 members. As per Hon'ble High Court's judgement, the instant matter may be considered in the light of the rules which were in existence as on the date of death of the father of the petitioner, i.e. on 1.12.2008. The rules prevailing on 1.12.2008 was the West Bengal Schools (recruitment of Won Teaching Staff) Rules, 2005, published by School Education Department vide notification No.1594/SE (S) dated 26.12.2005, where in it is stated, that if the deceased family is in extreme financial assistance/shall be a criteria for considering the appointment in the death in harness category of a member of a deceased family. Herein, from the financial documents/ certificate submitted by the competent authority shows that the deceased family is not in extreme financial hardship as stated above, as such I am not in a position to extend any relief to the petitioner regarding her prayer for compassionate appointment under Died in harness category. Therefore, the matter is disposed of. All concerned be informed accordingly, Sd/ R.K. Sinha Commissioner of School Education West Bengal" 5. It is submitted by Mr. Ekramul Bari, learned Advocate appearing on behalf of the petitioner that the pensionery benefits of the dependants of a deceased assistant teacher of a Recognized Non Government Aided Educational Institution cannot be taken into consideration for rejecting the claim for appointment on compassionate ground. 6. Mr. Bari relies upon the decisions of Tapan Kumar Barman v. State & Ors., reported in 2009 (1) CHN 123 and Nazrul Islam & Anr. v. State & Ors, reported in 2009 (1) CHN 339 . 7. 6. Mr. Bari relies upon the decisions of Tapan Kumar Barman v. State & Ors., reported in 2009 (1) CHN 123 and Nazrul Islam & Anr. v. State & Ors, reported in 2009 (1) CHN 339 . 7. It is submitted by the learned State Advocate that considering the number of dependents vis a vis the amount of pensionery benefits the decision of the respondent authority was set aside in case of Tapan Kumar Barman (supra). The number of dependants is lesser in the instant case. Therefore, the above decision does not help the petitioner. 8. It is the settled principles of law that the pensionery benefits of the dependants of an employee who dies in harness cannot be taken into consideration. Reference may be made to the decision of Balbir Kaur & Anr. v. Steel Authority of India Limited & Ors., reported in (2000) 6 SCC 493 . 9. The Division Bench of our Court decided the above issue in the matter of Tapan Kumar Barman (supra) and the relevant portion of the above decision is quoted below :- "10. Besides, the amount of Rs. 4,000/- being the family pension, is coterminous with the life of widow and the moment the widow dies, this benefit stands withdrawn. The sons are unemployed, the daughters are unmarried. Therefore, It is not for the Director to assess the financial need of the family and it is for the family who can feel their own need. Had the son been appointed, he would not have earned the same amount which his father would have earned during his service, However, his earning would have been some amount of financial replenishment. Therefore, the payment of terminal benefit on account of death cannot be equated with the scheme of compassionate appointment and this concept has been laid down by the Supreme Court in a decision rendered in the case of Balbir Kaur & Anr. v. Steel Authority of India Limited & Anr. reported in 2006 (6) SCC 493 ." 10. The above settled principles of law has been repeated and reiterated by another Division Bench of this High Court in the matter of Nazrul Islam & Anr. (supra) and the relevant portion of the above decision is quoted below : 21. v. Steel Authority of India Limited & Anr. reported in 2006 (6) SCC 493 ." 10. The above settled principles of law has been repeated and reiterated by another Division Bench of this High Court in the matter of Nazrul Islam & Anr. (supra) and the relevant portion of the above decision is quoted below : 21. In the aforesaid decision, the Hon'ble Supreme Court refused to consider the claim of the compassionate appointment on the ground that a family of the deceased employee was not only getting pension but had other monthly income which taken altogether exceeded that last pay drawn by the deceased. The Hon'ble Supreme Court in the aforesaid decision specifically held that the dependant of the deceased employee was not eligible for compassionate employment on the financial parameter. 22. In the present case on examination of the available record, we find that the total income of the appellant's family is less that Rs.10,000/- per annum which is below the poverty level. The Chairman, Maida District Primary School Council also did not refer to any other source of income of the appellants apart from the admissible pensionery benefits. The payment of admissible pensionery benefits by itself cannot mitigate the economic hardship of the family of the appellants herein. Furthermore, the appellants, cannot earn any substantial amount from the aforesaid 1.04 acres of land. The Chairman, Maida District Primary School Council also did not hold that the appellants herein had any income out of the said 1.04 acres of land. 11. After perusing the impugned order, I find that the pensionery benefits of the widow of a deceased employee has been taken into consideration by the respondent No. 2 in the instant case. The above decision cannot be sustained in law in view of the settled principles of law as discussed hereinabove. 12. I do not find any substance in the submissions made by the learned State Advocate that the number of dependants was the deciding factor far considering the claim of a dependant of the deceased employee for appointment on compassionate ground in the light of the decision of Tapan Kumar Barman (supra). 13. The above submission is misconceived and rejected. 14. I direct the respondent No.3 to take steps forthwith for appointment of the petitioner on compassionate ground, not later than the period of two months from the date of communication of this order. 15. 13. The above submission is misconceived and rejected. 14. I direct the respondent No.3 to take steps forthwith for appointment of the petitioner on compassionate ground, not later than the period of two months from the date of communication of this order. 15. This writ petition stands disposed of. 16. There will be, however, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.