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2015 DIGILAW 327 (CAL)

Nanda Rani Das v. State of West Bengal

2015-04-08

TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty, J. 1. This writ application has been preferred challenging the inaction on the part of the respondents to consider the petitioner's claim for compassionate appointment in place and stead of her mother who died-in-harness on 24th of November, 2005 while working in the post of a Class- IV staff in Hardamnagar Uday Chand High School (hereinafter referred to as the said school). 2. Mr. Das, learned Advocate appearing for the petitioner submits that though the petitioner got married prior to the death of her mother, she, along with her unemployed husband, were totally dependent upon the income of her mother and that she looked after her mother, staying at her parental house and her subsistence was dependent upon her mother's income. 3. Drawing the attention of this Court to the annexures to the writ application, Mr. Das submits that the fact that the petitioner was dependent upon her mother and the fact that the petitioner was under financial distress would be explicit from the certificates issued by the Sabhapati of the local Panchayat Samiti and the member of the West Bengal Legislative Assembly (pages 36 and 37 of the writ petition). 4. He further submits that a 'No Objection Certificate' was issued by the other surviving heir of her mother and the concerned school in which her mother was working also adopted a resolution on 23rd of December, 2006 to take steps towards compassionate appointment of the petitioner and all the relevant records including the petitioner's application in the prescribed proforma were forwarded to the respondent No. 3 as would be explicit from the memorandum dated 3rd of August, 2007 issued by the Teacher-in-Charge of the said school (page 47 of the writ petition). But subsequent thereto, the said respondent No. 3 simply kept the petitioner's claim in abeyance and aggrieved by such inaction, the petitioner has approached this Court. 5. He further submits that in appreciation of the acute financial distress suffered, the school authorities appointed the petitioner as a temporary worker for the purpose of cleaning the school premises and for supplying drinking water to the students and the teachers. 6. Records reveal that the writ application was admitted with a direction towards exchange of affidavits and pursuant thereto, the respondent No. 3 has affirmed an affidavit-in-opposition, which has also been replied to by the petitioner by filing an affidavit-in-reply. 7. Mr. 6. Records reveal that the writ application was admitted with a direction towards exchange of affidavits and pursuant thereto, the respondent No. 3 has affirmed an affidavit-in-opposition, which has also been replied to by the petitioner by filing an affidavit-in-reply. 7. Mr. Das submits that the petitioner's claim is required to be considered in terms of the Government order dated 12th of October, 1987 and according to him, there is no bar under the said Government order to consider the claim of a married daughter for compassionate appointment. 8. He further submits that the State cannot discriminate amongst a married son and a married daughter and the respondents cannot reject the petitioner's claim only on the ground that she is a married daughter. In support of such contention, Mr. Das has relied upon the following judgments:- (a) The Secretary, West Bengal Regional School Service Commission (Southern Region) v. Debapriya Bose and others, reported in (2007)2 Cal LT 548 (HC) : (2007)2 WBLR (Cal) 809. (b) Manjula v. State of Karnataka, reported in (2004)4 KCCR 2501 . (c) Smt. Usha Singh v. State of West Bengal and others, reported in 2003(1) CLJ 401 : (2003)2 WBLR (Cal) 809. 9. Per contra, Mr. Banerjee, learned Advocate appearing for the State respondents submits that under the relevant rules the petitioner being a married daughter has no right to be considered for compassionate appointment and that the factor of dependency of the petitioner has not been pleaded in the writ application. 10. Drawing the attention of this Court to the averments made in the affidavit-in-opposition, Mr. Banerjee further submits that though the Government order dated 12th of October, 1987 is applicable in respect of the petitioner, the petitioner being a married daughter has no right to be considered for compassionate appointment. 11. He further submits that there is also a dispute as regards the name of the petitioner's mother inasmuch as in the approval memorandum, the name of the petitioner's mother stands incorporated as "Janaki Das" whereas the name of the petitioner's mother has been stated to be "Jonaki Das". 12. He further submits that the provisions of the West Bengal Schools (Control of Expenditures) Act, 2005 (hereinafter referred to as the said Act of 2005) do not permit consideration of the petitioner's claim. 13. In reply, Mr. 12. He further submits that the provisions of the West Bengal Schools (Control of Expenditures) Act, 2005 (hereinafter referred to as the said Act of 2005) do not permit consideration of the petitioner's claim. 13. In reply, Mr. Das submits that the actual spelling of the name of the petitioner's mother is "Jonaki Das" and not "Janaki Das" and both "Jonaki and Janaki" is the same and identical person and the school authorities have also certified to that effect and the service book of the petitioner's mother also reveals that her name is Jonaki Das and that on the basis of an inadvertent spelling error, the respondents cannot deny consideration of the petitioner's claim. 14. Mr. Das further submits that the said Act of 2005 came into effect on and from 26th of December, 2005 and as the petitioner's mother expired on 24th of November, 2005, the provisions of the said act have no manner of application in respect of the petitioner's claim and that the petitioner's claim needs to be considered in terms of the rules which were in existence at the time of death of the concerned employee. (See Abhishek Kumar v. State of Haryana and Ors., reported in 2007 (2) Supreme 519 ) 15. I have heard the learned Advocates appearing for the respective parties and I have considered the materials on record. 16. The ground to the effect that the claim of a married daughter cannot be considered for compassionate appointment is not sustainable in law in view of the judgements delivered in the case of Usha Singh (supra), Majula (supra) and Aparna (supra) wherein it has, inter alia, been held that no married women can be denied of an entry into service on compassionate ground just because she is married. 17. The second ground as pleaded in the affidavit-in-opposition to the effect that the petitioner cannot claim compassionate appointment in view of the provisions of the said Act of 2005 is also not sustainable since the said Act of 2005 was given prospective effect and particularly. with effect from 26th December, 2005, i.e., subsequent to the death of the petitioner's mother. 18. with effect from 26th December, 2005, i.e., subsequent to the death of the petitioner's mother. 18. The erroneous incorporation of the name of the petitioner's mother as "Janaki" in the approval memorandum does not create any ambiguity as regards the identity of the petitioner's mother, more so, when the name of the petitioner's mother stands incorporated in the service book as "Jonaki" and that as such the respondents cannot deny the petitioner's claim on such technical plea. 19. In the affidavit-in-opposition, there is no averment and no document has been produced before this Court by the respondents to show that the dependency factor of the petitioner has been considered by the respondents. 20. The object of compassionate appointment is to protect the dependents of the deceased and to mitigate the hardship of the family members of the deceased and such factor of dependency needs to be considered by the authorities by holding an appropriate enquiry and prior to ascertainment of the need and dependence of the petitioner, the respondents cannot mechanically reject the petitioner's claim only on the ground that she is a married daughter. 21. Furthermore, the fact that the petitioner has survived the onslaught of the vagaries of life after the death of her mother, who was the earning member, cannot act to her prejudice while consideration of her claim for compassionate appointment. 22. For the reasons discussed above, I am of the opinion that it was the obligation on the part of the respondent No. 3 to consider the petitioner's claim for compassionate appointment upon ascertainment of the dependency factor irrespective of the fact that she is a married daughter but there has been a failure on the part of the said respondent No. 3 to discharge such obligation. 23. Accordingly, the respondent No. 3 is directed to decide the petitioner's claim for compassionate appointment in the light of the observations made above, upon granting an opportunity of hearing to the petitioner and to pass a reasoned order and to communicate the same to the petitioner. 24. The above exercise should be concluded by the said respondent No. 3 within a period of eight weeks from the date of communication of this order. 25. Needless to observe, in the event the petitioner's claim deserves acceptance, necessary follow up steps should be taken by the respondents without any further delay. 26. The writ application is, accordingly, disposed of. The above exercise should be concluded by the said respondent No. 3 within a period of eight weeks from the date of communication of this order. 25. Needless to observe, in the event the petitioner's claim deserves acceptance, necessary follow up steps should be taken by the respondents without any further delay. 26. The writ application is, accordingly, disposed of. 27. There shall, however, be no order as to costs. 28. Urgent certified photocopy of this order, if applied for, be supplied as expeditiously as possible.