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2014 DIGILAW 3 (CAL)

Hiranmay Kumar Maity v. State of West Bengal

2014-01-06

SANJIB BANERJEE

body2014
JUDGMENT : Sanjib Banerjee, J. 1. The petitioner complains of the refusal by the State to consider the case of the petitioner's dependent son for compassionate appointment upon the premature retirement of the petitioner. It is the petitioner's assertion that the petitioner has been incapacitated since or about the year 2005 and after the petitioner had exhausted all medical and other leave and discovered that there was no chance of the petitioner recovering, the petitioner applied for premature retirement on December 15, 2010. Following such application, a medical board was constituted and such medical board rendered an opinion on June 09, 2011 that the petitioner was completely incapacitated and unable to perform his duties. On the basis of such report of the medical board, the petitioner was permitted to prematurely retire. The date of retirement was fixed as at the date of the report by the medical board on June 09, 2011. 2. The petitioner says that the relevant notification on the basis of which the petitioner's son's case has been refused to be considered, provides for compassionate appointment not to be considered in case the date of premature retirement is less than two years from the date of the scheduled retirement. In the present case, the petitioner retired with effect from June 09, 2011, whereas the petitioner's expected date of superannuation was January 31, 2013. The petitioner says that the petitioner's date of application for premature retirement should be reckoned as the effective date and, since such date was two years and a month before the date of the petitioner's scheduled retirement, the petitioner's son should be considered eligible for compassionate appointment. 3. In support of such contention, the petitioner relics on an unreported judgment rendered on November 02, 2003 in W.P. 192 of 2002 (Bimal Kumar Mishra v. State of West Bengal). The facts relevant for the decision in that case are recorded at paragraphs 71 and 72 of the report. The application for premature retirement was made several years prior to the scheduled date of the retirement of the employee and the medical board constituted by the employer found on October 16, 1998 that the petitioner was incapacitated and, as such, eligible to obtain premature retirement. The application for premature retirement was made several years prior to the scheduled date of the retirement of the employee and the medical board constituted by the employer found on October 16, 1998 that the petitioner was incapacitated and, as such, eligible to obtain premature retirement. Notwithstanding the report of October 16, 1998, the application for premature retirement was inexplicably kept pending for more than two years and, as the Court found, the employer again asked the employee to appear before another medical board on December 02, 2000. It is on the basis of the unexplained delay on the part of the employer in that case, between the filing of the report by the original medical board and the date of the employee being allowed to retire, that the Court found that the employee's dependent son should not be prejudiced due to the deliberate delay on the part of the employer. The decision cited does not make out any absolute proposition that if the date of application for premature retirement is more than two years before the date of actual retirement and the medical board subsequently finds the application to be on good grounds, the date of the application should be reckoned as the effective date for the purpose of the relevant notification. 4. In the present case, the petitioner applied about 25 months or so prior to the scheduled date of his retirement. The medical board was constituted and it examined the petitioner within reasonable time. It is not the petitioner's case that there was any laches in constituting the medical board or in obtaining the report therefrom to engineer any delay and ensure that the petitioner's dependent son was rendered ineligible for compassionate appointment. 5. In the circumstances, since it is evident that the petitioner's date of premature retirement was less than two years from the time when the petitioner would have otherwise retired and since it does not appear that the respondents deliberately took steps to ensure that the date of the petitioner's premature retirement was pushed back, the grounds urged do not appeal. In any event, the right of appointment on compassionate grounds upon the death of an employee is a weak right and the principle behind such provision is to ensure that the family of the erstwhile bread earner is able to tide over the crisis. In any event, the right of appointment on compassionate grounds upon the death of an employee is a weak right and the principle behind such provision is to ensure that the family of the erstwhile bread earner is able to tide over the crisis. In the petitioner's case, upon his premature retirement the petitioner will get substantial money which the petitioner would have got some 18 months later in the usual course. There does not appear to be any basis to the suggestion that the petitioner's son has been unfairly deprived from a possible appointment. 6. W.P. No. 20607 (W) of 2013 fails. 7. There will be no order as to costs. Certified website copies of this order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.