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2016 DIGILAW 555 (CAL)

Saptami Karmakar v. State of West Bengal

2016-07-15

SUBRATA TALUKDAR

body2016
JUDGMENT : Subrata Talukdar, J. 1. In this writ application the petitioner claims compassionate appointment against the service of her deceased husband. By way of a brief recapitulation of the facts involved, it is first relevant to mention that the deceased husband of the petitioner was employed as an Assistant Teacher of a Higher Secondary School in the District of Purulia. 2. The marriage between the couple was solemnized on 3rd of August, 2000 in terms of Hindu rites and customs. Her husband, Dinobandhu Karmakar, died on 21st October, 2001 which, according to the petitioner was a suicide. After the death of her husband, his mother lodged a criminal complaint against the petitioner on 25th October, 2001 was registered as Manbazar Police Station Case No. 28 of 2001 under Sections 306/34 of the Indian Penal Code. 3. The trial in the Sessions Case No. 331 of 2005 arising out of the above noted complaint resulted in a judgment and order of acquittal qua the petitioner along with other co-accused dated 31st July, 2010 passed by the 3rd Additional Sessions Court, Purulia. 4. Pursuant to her acquittal the petitioner filed a writ petition before this Hon’ble Court being WP 4144(W) of 2013 claiming the death-cum-retiral benefits of her deceased husband along with the family pension. The said writ application was decided by an Hon’ble Single Bench vide its order dated 9th of July, 2013 directing the competent State Authority to consider and dispose of the claim of the writ petitioner. 5. Pursuant to the solemn order of the Hon’ble Single Bench dated 9th of July, 2013, the competent State Authority granted the retrial benefits of her late husband in favour of the petitioner along with the monthly family pension. The pleadings in support of the above noted facts are stated at paragraph 6 of the present writ application. 6. By way of the present writ application the petitioner now contends that the income received by her towards the death-cum-retrial benefits of her late husband as well as family pension is meager. Therefore, being an educated lady she claims that appointment on compassionate grounds be extended to her since her husband died in harness. 7. Sri D.N. Chatterjee, Ld. 6. By way of the present writ application the petitioner now contends that the income received by her towards the death-cum-retrial benefits of her late husband as well as family pension is meager. Therefore, being an educated lady she claims that appointment on compassionate grounds be extended to her since her husband died in harness. 7. Sri D.N. Chatterjee, Ld. Counsel appearing for the petitioner submits that the petitioner could only apply for the death-cum-retrial benefits of her deceased husband as well as his family pension after receiving the order of acquittal in the criminal trial. 8. Thereafter, upon receipt of the death-cum-retrial benefits and the family pension, finding the same to be at a low rate insufficient for the maintenance of the petitioner, she has now claimed appointment on compassionate ground. Sri Chatterjee submits that taking notice of the indigent circumstances presently faced by the writ petitioner, her claim to compassionate appointment requires to be proactively considered. 9. Appearing for the State-respondents, Sri Joytosh Majumdar, Ld. Assistant Additional Advocate General strongly submits that the claim of the petitioner in the present writ petition is barred by the principle of constructive res judicata. Sri Majumdar points out that at the time of preferring WP 4144(W) of 2013, being the first writ petition, the petitioner restricted her claim only to the death-cum-retrial benefits and the family pension of her deceased husband. Ld. State Counsel points out that such fact would appear from the prayers in the first writ petition. Therefore, considering the limited nature of the prayers in the first writ petition it must be presumed that the petitioner did not actively intend to press her claim to compassionate appointment. 10. Referring to the representations of the writ petitioner appended to the present writ petition and relied upon by Sri Chatterjee, Sri Majumdar submits, on specific instructions, that the representation dated 24th of December, 2011 was never submitted to the District Inspector of Schools (Secondary Education), Purulia (for short DI (SE), Purulia or only the said DI). Sri Majumdar further submits that the first representation submitted by the writ petitioner is to the Director of School Education, Government of West Bengal claiming compassionate appointment on the 14th of March, 2013 and such would also appear from the records of the State Authority. 11. Sri Majumdar further submits that the first representation submitted by the writ petitioner is to the Director of School Education, Government of West Bengal claiming compassionate appointment on the 14th of March, 2013 and such would also appear from the records of the State Authority. 11. Taking this Court to page 24 of the writ petition, Sri Majumdar points out that the representation of the writ petitioner to the Headmaster dated 1st October, 2012 has been submitted nearly 1 year after the first representation dated 24th December, 2011 appearing at page 23 of the present writ petition. 12. Sri Majumdar also argues that the representation dated 14th March, 2013 was followed by a representation of the writ petitioner dated 15th May, 2015 addressed to the Director to School Education, the DI of School (SE), Purulia and the Headmaster of the School in issue claiming compassionate appointment. Sri Majumdar points out and, in the opinion of this Court correctly so, that even such representation dated 15th May, 2015 has been filed two years after the representation dated 14th of March, 2013. 13. Relying on the relevant Circular of the School Education Department being Memo No. 4-SE(Pry) 4A-17/15 dated 2nd January, 1995, Sri Majumdar submits that the claim to compassionate appointment is hopelessly barred by time and there can be no claim to compassionate appointment at the end of 15 years from the death of her husband. Even assuming but not admitting that the claim of the petitioner became valid from the year 2010, i.e. post the order of acquittal, even then the first representation thereafter for compassionate appointment was filed in the year 2013, i.e. after a delay of nearly 3 years. 14. Having heard the parties and considering the materials relied upon, this Court finds adequate substance in the submissions advanced by Ld. State Counsel. This Court finds merit in Sri Majumdar’s submission that the petitioner could have raised the issue of compassionate appointment in her first writ petition. However, for reasons best known to the writ petitioner she only confined her claim to the receipt of the death-cum-retrial benefits and family pension connected to the service of her deceased husband. This Court also finds merit in Sri Majumdar’s submission that the representations relied upon by the writ petitioner towards her claim to compassionate appointment, not only demonstrate procrastination but also fail to show a consistent and bona fide conduct. This Court also finds merit in Sri Majumdar’s submission that the representations relied upon by the writ petitioner towards her claim to compassionate appointment, not only demonstrate procrastination but also fail to show a consistent and bona fide conduct. In the conclusive opinion of this Court the sine qua non of a claim to compassionate appointment in law for tiding over immediate distress stand far from satisfied in the facts of this case. For the above reasons WP 13603(W) of 2015 stands dismissed. 15. There will be, however, no order as to costs. 16. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.