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2017 DIGILAW 208 (CAL)

State of West Bengal v. Poly Dutta

2017-02-22

BISWANATH SOMADDER, SANKAR ACHARYYA

body2017
JUDGMENT : Biswanath Somadder, J. In Re: CAN 10514 of 2016 1. After considering the submission made by the learned advocate for the appellant and upon perusing the application for condonation of delay, it appears that sufficient cause has been shown to explain the delay in filing the appeal and as such the delay is condoned. 2. The application for condonation of delay, being CAN 10514 of 2016 is accordingly allowed. In Re: MAT 1857 of 2016 With CAN 10516 of 2016 3. By consent of the parties present, the appeal is treated as on day’s list and taken up for consideration along with the application for stay. 4. The instant appeal preferred by the State of West Bengal arises out of the following order passed by the learned Single Judge on 30th June, 2016, while disposing of a writ petition, being WP 869 (W) of 2016:- “A recommendation was made on 29th July, 2011 by the Baranagar Municipality recommending the name of the petitioner for compassionate appointment. It is submitted that this list was sent to the Director of Local Bodies. He has not taken any action in the last five years. So there is no question of any further waiting for the petitioner in terms of the waiting list. The Secretary, Local self Government and the Director of Local Bodies will ensure that the petitioner is appointed in terms of the recommendation of the Baranagar Municipality, in any suitable post within eight weeks of communication of this order, which time limit is peremptory. I also make it clear that if any circular prohibiting any compassionate appointment comes in the way, then the circular is to be followed. But the circular is not to be applied in respect of deaths occurring before the date of coming into force of the circular, as a valuable right had accrued before the circular became effective. The circular has and is to be given prospective effect. All the papers are before this Court. Affidavits were not invited. The allegations contained in the petition are deemed not to have been admitted. This writ application is accordingly disposed of.” 5. The circular has and is to be given prospective effect. All the papers are before this Court. Affidavits were not invited. The allegations contained in the petition are deemed not to have been admitted. This writ application is accordingly disposed of.” 5. Even a bare perusal of the impugned order reveals that the learned Single Judge has issued a mandatory direction upon the Secretary, Local Self Government and the Director of the Local Bodies to appoint the writ petitioner on compassionate ground in terms of the recommendation made on 29th July, 2011, by the Baranagar Municipality, within a certain mandatory timeframe. 6. It is well settled that an applicant cannot claim appointment in a particular group/class of post as a matter of right. Appointment on compassionate ground too, cannot be claimed as a matter of right. There can be no quarrel with the settled legal proposition that a claim for appointment on compassionate ground is based on the premises that the applicant was dependent on the deceased employee. Strictly, such a claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. As a rule, public appointments should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment, but merely an exception to the aforesaid requirement, upon taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases, the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. In this context, one may take notice of the judgment rendered by the Supreme Court in Union of India & Anr. V. Shashank Goswami & Anr., reported in AIR 2012 SC 2294 . 7. Further, in Mumtaz Yunus Mulani (Smt.) v. State of Maharashtra & Ors. In this context, one may take notice of the judgment rendered by the Supreme Court in Union of India & Anr. V. Shashank Goswami & Anr., reported in AIR 2012 SC 2294 . 7. Further, in Mumtaz Yunus Mulani (Smt.) v. State of Maharashtra & Ors. reported in (2008) 11 SCC 384 , the Supreme Court, while examining the scope of employment on compassionate ground, took into consideration a scheme where a dependant of an employee was considered ineligible for the post in a case where the family received terminal/re-trial benefits above the ceiling limit. This decision of the Supreme Court was referred to and relied upon by the Supreme Court in its latter decision rendered in Shashank Goswami (supra). 8. It is, therefore, clear from the principles of law laid down by the Supreme Court that in case of compassionate appointment, such claim cannot be strictly upheld on the touchstone of Article 14 or 16 of the Constitution of India and can only be considered by an authority when a scheme for such compassionate appointment is in force. We are of the view that such a scheme should be in force at the material point of time, i.e. at the time of death of the concerned employee, being the point of time his/her dependant became eligible to be considered for such compassionate appointment based on such prevailing scheme. However, at the same time it must be observed that it is not open to any person to approach the writ Court several years after the material point of time when he/she became eligible to be considered in terms of a prevailing scheme for compassionate appointment and seek issuance of a writ in the nature of mandamus directing the concerned authority to give him/her compassionate appointment, as has been done in the facts of the instant case. This is evident from the fact that the recommendation for her compassionate appointment was made as far back as on 29th July, 2011, by the Baranagar Municipality and the writ petition appears to have been filed only in the year 2016. In spite of such delay, the writ Court issued a mandatory order of appointment on compassionate ground in favour of the writ petitioner. 9. In such facts and circumstances as stated above, the impugned judgment and order is liable to be set aside and is accordingly set aside. In spite of such delay, the writ Court issued a mandatory order of appointment on compassionate ground in favour of the writ petitioner. 9. In such facts and circumstances as stated above, the impugned judgment and order is liable to be set aside and is accordingly set aside. Setting aside of the impugned judgment and order, however, shall not stand in the way of the concerned authority to consider the recommendation made on 29th July, 2011 by the Baranagar Municipality, provided, of course, the same can be so considered at this belated stage in accordance with law. The appeal is allowed and the application for stay is accordingly disposed of. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties. I agree.