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2016 DIGILAW 960 (CAL)

Asis Kanti Karan v. State of West Bengal

2016-12-05

SAMAPTI CHATTERJEE

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JUDGMENT : Samapti Chatterjee, J. 1. Petitioner filed the present writ petition assailing the impugned order dated 13th January, 2009 whereby the petitioner’s appointment on compassionate ground was rejected on the ground that his father (Home Guard) Kohinoor Karan did not have two years left to reach sixty years of age. 2. It is submitted that on 13th November, 1969 the petitioner’s father namely Kohinoor Karan was appointed as Home Guard under the Department of West Bengal Home Guard. Thereafter on 20th December, 2004 Identity Card of the petitioner’s father was issued by the Superintendent of Police, Purba Midnapur. 3. It is also submitted that on 13th October, 2007 the father of the petitioner became seriously ill while on duty in the office of the Divisional Engineer (D) (O and M) Sub-Division under Inspector in-charge Haldia Police Station. As a result whereof the petitioner’s brother took away the father of the petitioner to their house for his treatment and that was duly informed by submitting an application on the self same date i.e. on 13th October, 2007 to the Office-in-charge, Haldia Police station. Despite prolonged treatment in the Janak Public Health Centre, Purba Midnapur the father of the petitioner has not recovered from his illness and ultimately left side of the body of the petitioner’s father became paralyzed. In the result he became permanently incapacitated to work. 4. Thereafter on 31st July, 2008 the father of the petitioner made an application before the Superintendent of Police, Purba Midnapur to appoint the petitioner in his place as Home Guard since he has became permanently incapacitated to work. After receiving the said application the Superintendent of Police Purba Midnapur forwarded the same to the Director General and Commandant General (Home Guard) on 13th January, 2009 on the ground that enrollment on compassionate ground of his son (petitioner herein) cannot be considered as the said Home Guard, Kohinoor Karan did not have two yeas left to reach the age of sixty. 5. After gathering the same the petitioner approached the office of the Superintendent of Police Purba Midnapur on 4th March, 2009. 5. After gathering the same the petitioner approached the office of the Superintendent of Police Purba Midnapur on 4th March, 2009. He made his prayer that his father actually had fallen ill on 13th October, 2007 and date of retirement of the father was 23rd March, 2010 therefore, his father would remain in service about two years five months 10 days i.e. more than two years to attain age of sixty which obviously comes within the purview of appointment on compassionate ground. Then the petitioner was advised to approach the Director General and Commandant General (Home Guard) West Bengal who rejected the petitioner’s father’s prayer for appointment of the petitioner on compassionate ground. 6. Thereafter the petitioner on 9th September, 2009 made a representation before the Director General and Commandant General (Home Guard) West Bengal as follows :- “To The Director General and Commandant General (Home Guards), Government of West Bengal, Bikash Bhawan, Salt Lake City, Kolkata-700 091. Re: Prayer for appointment of the undersigned Sri Asis Kanti Karan in the post of Home Guard under compassionate ground in place of my father Kahinoor Kanti Karan, H.G No.440012 Village and Post Office-Kasaria, Police Station-Khejuri, District-Purba Medinipur who has been permanently incapacitated since 13.10.2007. Sir, I, The under signed, beg most respectfully to state the following facts as follows : 1. My father Sri Kahinoor Kanti Karan was appointed as a member of the ‘Home Guard’ under Section 4 of the West Bengal Ordinance No.XI of 1962 with effect from 13.11.1969 and also while on duty he will have the same pwoers, functions and privileges as a police officer appointed under Act-V of 1861. 2. The since the date of appointment, my father was working in such capacity till 12.10.2007 under different Police Station, Purba Medinipur District and posted different State Government Offices. Unfortunately, on 13.10.2007 at about 7 a.m. my father seriously fell ill; while on duty in the office of the Divisional Engineer (D) (O and M), Sub-Division under Inspector-in-Charge, Haldia Police Station Purba Medinipur which was duly informed by written application dated 13.10.2007 to the Inspector-in-charge, Haldia Police Station. 3. Since the date of illness, my father was treated as outdoor patient of the Janka Public Health Centre, Purba Medinipur. After prolonged treatment, he has not been recovered from illness. Ultimately he has been paralyzed left side of the body and also permanently incapacitated to work on duty. 3. Since the date of illness, my father was treated as outdoor patient of the Janka Public Health Centre, Purba Medinipur. After prolonged treatment, he has not been recovered from illness. Ultimately he has been paralyzed left side of the body and also permanently incapacitated to work on duty. Immediately thereafter my father made an application dated 31.7.08 to the Superintendent of Police, Purba Medinipur to appoint me in the post of Home Guard under Comp0assionate ground in terms of the Act-V of 1861. 4. Subsequently, on receipt of the said application, the Superintendent of Police, Purba Medinipur forwarded the same to the Director General & Commandant General (Home Guards), West Bengal. Thereafter, the application has been rejected by you on the ground that the Home Guard “Kahinoor Kanti Karan” H.G. No.440012 did not have 02 (two) years left to reach 60 (sixty) years of age which is not correct in as much as my father was seriously ill on duty at about 7 a.m. dated 13.10.2007 from which date he could not join in service and the same was informed by making application to the Inspector-in-Charge, Haldia Police Station which cannot be denied by any means and since the date of illness to date of retirement from service is about 2 years 5 months 10 days i.e. more than two years left to reach 60 (sixty) years of age; which obviously comes within the purview of appointment on compassionate ground. In such circumstances, I prayer to your good self to appoint me under compassionate ground in the post of Home Guard in place of my father Kahinoor Kanti Karan, H.G. No.440012 who has been permanently incapacitated to work on duty, otherwise our family will not survive in these hard days. Yours faithfully, [Asish Kanti Karan] Village and Post Office-Kasaria, Police Station-Khejuri, District-Purba Medinipur.” The said application was duly received by the Section of Director General and Commandant General (Home Guard) West Bengal but the Director General and Commandant General paid no heed to the petitioner’s representation. Finding no alternative the petitioner again on 25th January, 2010 made further representation sent through registered post with acknowledgement due as well as on 12th May, 2010. Finding no alternative the petitioner again on 25th January, 2010 made further representation sent through registered post with acknowledgement due as well as on 12th May, 2010. Thereafter on 10th June, 2010 the Senior Adjutant (H.G.) Purba Midnapur informed the Officer-in-charge Khejuri Police Station stating interalia as follows :- “Please inform Asis Kanti Karan, son of Ex-HG 440012 Kohinoor Karan of Village and Post Office-Kasaria Police Station, Khejuri, District-Purba Medinipur to report to District Home Guard Officer, Tamluk, Purba Medinipur regarding his petition dated 12.05.2010” which appears on Page-38 of the writ petition. 7. After receiving the same the petitioner had been to the office of Senior Adjutant (H.G) Purba Medinipur and made his prayer for appointment in the post of Home Guard on a compassionate ground as his father has become permanently incapacitated to work having fallen ill on duty on 13th October, 2007. But unfortunately till date no steps has been taken by the concerned authority. 8. Mr. Asis Sanyal, learned Advocate appearing for the petitioner submitted that it was obligatory on the part of the authority to consider the petitioner’s case on emergency basis as the petitioner’s father was the only bread winner and the entire family is depended on the earning of the petitioners’ father. But unfortunately the petitioner’s father became permanently incapacitated to work on and from 13th October, 2007 when he was on duty. Therefore the rejection of the petitioner’s appointment on compassionate ground on the technical point that petitioner’s father did not have two years left to reach sixty years of age is not correct as the petitioner’s father became permanently incapacitated to work since 13th October, 2007. Moreover, his date of retirement was due on 23rd March, 2010. That being the position two years five months ten days were still left to attain sixty years of age which has not been considered by the authority at the time of rejecting the petitioner’s prayer. The computation made in the rejection order as to the years and months left for retirement was nothing but a result of wrong calculation. 9. Mr. Sanyal further vehemently contended that time limit cannot be treated as a mandatory one as has been projected in the rejection order. In support of his contention Mr. The computation made in the rejection order as to the years and months left for retirement was nothing but a result of wrong calculation. 9. Mr. Sanyal further vehemently contended that time limit cannot be treated as a mandatory one as has been projected in the rejection order. In support of his contention Mr. Sanyal relied on a Hon’ble Apex Court decision reported in (2010) 13 SCC Page-98 Paragraphs-18 and 19 ( May George v. Special Tahsildar & Ors) which are quoted below :- “Para-18-In Raza Buland Sugar Co. Ltd. v Municipal Board, Rampur and State of Mysore v V.K. Kangan, this Court held that as to whether a provision is mandatory or director, would, in the ultimate analysis, depend upon the intent of the lawmaker and that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or the other. Para-19-In Sharif-ud-Din v Abdul Gani Lonethis Court held that the difference between a mandatory and directory rule is that the former requires strict observance while in the case of latter, substantial compliance with the rule may be enough and where the statute provides that failure to make observance of a particular rule would lead to a specific consequence, the provisions has to be construed as mandatory.” Mr. Sanyal also relied on a Hon’ble Single Bench decision reported in 2013 (3) CLJ (Cal) Page-386 Paragraphs –7 & 8 (Shyamal Sen v The State of West Bengal & Ors) which are quoted below :- “Para-7-In view of the above I find that the correct interpretation shall be that the above provision is mandatory for his substantial compliance and directory for its strict compliance. On the basis of the above interpretation of the provision under reference, I find that the submission of the panel beyond the period of one month was permissible. Para-8-Therefore, the impugned order is quashed and set aside referring the matter back to the respondent authority to take a decision in respect of the above panel in the light of the observations made hereinabove within a period of six weeks from the date of communication of this order and to communicate the decision to the school concern within two weeks thereafter.” Mr. Sanyal further relied on a Hon’ble Single Bench decision reported in 2000 (2) CLJ (Cal) Page-469 Paragraphs 8, 9 and 10 (Sri Hironmoy Sarkar vs The Chief (Personnel & Administration) Jute Corporation of India & Ors) which are quoted below :- “Para-8-Although the respondents are absolutely right in their contention yet, in my opinion, the facts and circumstances of this case are such that the writ petitioner also deserves relief. For hundreds of years, the Courts have granted equitable relief against too hardship and too unfortunate an operation of lapse of time or a strict enforcement of terms as per strict dates. Para-9-Thus, in my opinion, the writ petition should be allowed; dismissing it would be breach of reasonableness and equity and therefore of Article 14. Para-10-The writ petitioner should be permitted to work till 31.5.2000 when he shall attain the age of 60. Subject to the aforesaid mandate and declaration, there shall be rule absolute in terms of Prayers A and B and a permanent order of injunction in terms of Prayer D. There shall be no order as to costs because the writ petitioner in the peculiar facts and circumstances of this case gets relief without there being any fault on the part of the respondents. Pay benefits and facilities for work be extended to the writ petitioner on the basis of the order and direction above. The writ petitioner be allowed to join his service on the basis of his Advocate’s letter.” 10. Before concluding his argument Mr. Sanyal submitted that the rejection order dated 13th January, 2009 is not sustainable in the eye of law and should be quashed and set aside. 11. Per contra, Mr. Sengupta learned Advocate appearing for the State authority submitted that since the petitioner’s father being Ex-HG 440012 Kohinoor Karan did not have two years left to attain his sixty years of age when he submitted the application for appointment of the petitioner on compassionate ground. Therefore, his application was rightly turned down. Mr. Sengupta also submitted that there is no infirmity or illegality in the impugned order which deserves interference by this Hon’ble Court. 12. Therefore, his application was rightly turned down. Mr. Sengupta also submitted that there is no infirmity or illegality in the impugned order which deserves interference by this Hon’ble Court. 12. Considering the submissions advanced by the learned Advocates appearing for the parties and after perusing the records and also the decisions reported in May George Case (supra), Shyamal Sen case (supra) & Sri Hironmoy Sarkar case (supra) I find the petitioner’s father became incapacitated on and from 13th October, 2007 and the date of retirement was due on 23rd March, 2010 which clearly shows that two years five months and ten days were left to attain sixty years of age. This period has not been considered by the authority at the time of rejecting the petitioner’s prayer for appointment on compassionate ground. This Court find substance in the submissions of Mr. Sanyal that two years prior to attaining the age of superannuation is not mandatory but directory in nature. Therefore, in the facts and circumstances of the case the respondent authority was under an obligation to relax such two years directory provision. 13. In the light of discussions as above, in my considered view that on the correct interpretation of the provision of two years is not mandatory but directory in nature for its strict compliance. 14. Therefore, in my considered view the impugned rejection order dated 13th January, 2009 cannot be sustained in the eye of law as well as in the facts and circumstances of the case. 15. Thus the impugned order dated 13th January, 2009 is hereby quashed and set aside. 16. I refer the matter to the respondent authority to revisit the matter in the light of the observations made hereinabove within six weeks from the date of communication of this order after giving an opportunity of hearing to the petitioner or his authorized representative and thereafter communicate the decision within two weeks to the petitioner. Needless to mention, respondents shall revisit the issue in the light of the decisions referred above. 17. With these directions the writ petition is allowed, without any order as to costs.