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2017 DIGILAW 571 (CAL)

Sanay Adhikari v. State of West Bengal

2017-06-29

ARIJIT BANERJEE

body2017
JUDGMENT : 1. In this writ application the petitioner prays for quashing of a Memo dated 27 August, 2013 issued by the Chairman of the Purba Medinipur District Primary School Council (respondent no. 4) whereby the petitioner’s prayer for appointment as Primary School Teacher on compassionate ground has been rejected. The petitioner further prays for an order directing the respondents to appoint him in the post of Assistant Teacher in a primary school under Panskura Circle-I, Purba Medinipur. 2. The petitioner’s mother was an Assistant Teacher in a primary school in Panskura Circle-I, District Purba Medinipur. She died in harness on 12 January, 2011. 3. On 1 April, 2011 an application was made by the petitioner’s father to the respondent no. 4 for appointment of the petitioner on compassionate ground. On the date of such application, the petitioner was a minor and had just completed 16 years of age. 4. The petitioner passed the Higher Secondary Examination in the year 2012. 5. Upon attaining majority on 5 March, 2013 (the petitioner’s date of birth was 5 March, 1995), the petitioner applied afresh to the respondent no. 4 on 1 April, 2013 for being employed on compassionate ground. The Sub-Inspector of Schools, Panskura Circle forwarded the petitioner’s prayer for appointment on compassionate ground to the respondent no.4 under cover of memo dated 13 May, 2013. 6. By the memo dated 27 August, 2013 which is impugned in this writ application, the respondent no. 4 rejected the petitioner’s prayer. The impugned memo reads as follows:- “In reference to the above subject & Memo the undersigned has to inform him that as the age of the applicant i.e. Sanay Adhikary is below eighteen years within two years from the death of the deceased teacher, for this reason his proposal for appointment on compassionate ground cannot be accepted by this Council.” 7. Subsequently, the petitioner made representations dated 20 November, 2013 (through his Advocate), 10 April 2014 and 5 May, 2015 to the respondent no. 4 renewing his prayer for appointment on compassionate ground but such representations did not receive any response. 8. Learned Counsel for the petitioner submitted that as on the date when the respondent no 4 considered and rejected the prayer of the petitioner for appointment on compassionate basis, the petitioner had completed 18 years of age and had attained majority. 4 renewing his prayer for appointment on compassionate ground but such representations did not receive any response. 8. Learned Counsel for the petitioner submitted that as on the date when the respondent no 4 considered and rejected the prayer of the petitioner for appointment on compassionate basis, the petitioner had completed 18 years of age and had attained majority. Hence, the rejection of the petitioner’s prayer on the ground that he was below 18 years within two years from the death of his mother, was wrongful. Learned Counsel submitted that the age of the applicant should be considered as on the date of consideration of this application. In this connection, Learned Counsel relied on a decision of the Hon’ble Apex Court in the case of Syed Khadim Hussain-vs.-State of Bihar, (2006) 9 SCC 195 . Learned Counsel also relied on a decision of a Division Bench of this Court in the case of In Re: Gopal Mondal, (2012) 3 CLJ (Cal) 66. 9. Opposing the writ application, Mr. Pinaki Dhole, Learned Counsel for the State referred to Rule 14 of the West Bengal Primary School Teachers Recruitment Rules, 2001 (in short the ‘Recruitment Rules’) which prescribes the circumstances in which appointment may be granted on compassionate ground. He submitted that admittedly the petitioner did not attain 18 years of age within two years from the date of death of his mother. A minor i.e. one below the age of 18 years cannot apply for appointment on compassionate ground and the period of two years mentioned in Rule 14(1) of the Recruitment Rules is not extendable. In this connection learned Counsel relied on a Full Bench decision of this Court in the case of Piali Saha-Vs.-State of West Bengal, (2013) 1 CHN (Cal) 18. 10. Learned Counsel for the State further submitted that the petitioner does not have the requisite qualification as prescribed by Rule 6 of the Recruitment Rules. He does not have the requisite marks in the Higher Secondary Examination nor the requisite training diploma. Rule 14 requires a candidate applying for appointment on compassionate basis to have the required educational qualifications as laid down in Rule 6 (1)(a) and (c). On this ground also the petitioner’s prayer cannot be allowed. In support of this submission, Learned Counsel relied on the decision in the case of Piali Saha (supra). 11. Learned Counsel appearing for the respondent nos. On this ground also the petitioner’s prayer cannot be allowed. In support of this submission, Learned Counsel relied on the decision in the case of Piali Saha (supra). 11. Learned Counsel appearing for the respondent nos. 4 and 5 adopted the submissions of learned Counsel for the State in opposing the writ application. He relied on an order dated 25 March, 2013 passed by a learned Single Judge of this Court in WP 5575(W) of 2013 (Dipak Kumar Mondal-vs.-State of West Bengal) in support of his submission that a minor cannot file an application for appointment on compassionate ground and if he attains majority beyond two years from the date of death of his father/mother who was the teacher, he cannot thereafter apply. In this regard, Learned Counsel also relied on a judgment of a Division Bench of this Court dated 24 November, 2016 in MAT 1361 of 2016 (The State of West Bengal & Ors.-vs.-Bharat Sarkar) wherein the Hon’ble Division Bench observed that a minor child of a deceased employee has no right for being considered for appointment on compassionate ground upon attaining majority. In this regard, the Hon’ble Division Bench observed that a writ in the nature of mandamus cannot be issued directing the authority concerned to appoint a person claiming appointment on compassionate ground. 12. In reply, Learned Counsel for the petitioner submitted that the higher educational qualification required of a candidate applying for appointment on compassionate ground was introduced by way of amendment of the Recruitment Rules and in particular Rule 6 thereof, which came into effect on 13 August, 2012. Prior thereto, the candidate was required to have passed only Madhyamik Examination. On the date of death of the petitioner’s mother, the un-amended Rule 6 was in force and hence, the petitioner’s case has to be considered on the basis of such un-amended Rule. In support of this submission Learned Counsel relied on a Division Bench decision of this Court in the case of State of West Bengal & Ors.-vs.-Smt. Bina Debnath & Ors, (2009) 2 CJL (Cal) 512. 13. Learned Counsel further submitted that the petitioner’s prayer was not rejected on the ground that he lacked the necessary educational qualification. The memo rejecting the petitioner’s prayer does not state that the petitioner’s prayer was being declined because he did not possess the necessary educational qualification. 13. Learned Counsel further submitted that the petitioner’s prayer was not rejected on the ground that he lacked the necessary educational qualification. The memo rejecting the petitioner’s prayer does not state that the petitioner’s prayer was being declined because he did not possess the necessary educational qualification. A fresh ground cannot be urged to support the impugned order. The order challenged must stand or fall on the basis of what is contained in the order. In this connection, learned Counsel referred to the celebrated case of Mohinder Singh Gill-vs.-Chief Election Commissioner, (1978) 1 SCC 405 . 14. Learned Counsel then submitted that the law declared by the Hon’ble Apex Court in the case of Syed Khadim Hussain (supra) is binding on all High Courts and to the extent the decision in Piali Saha (supra) differs from the said decision of the Hon’ble Apex Court, the same cannot be considered to be good law. In this connection learned Counsel relied on a decision of the Hon’ble Apex Court in the case of South Central Railway Employees Cooperative Credit Society Employees Union-vs.-B. Yashodabai, (2015) 2 SCC 727 , and in particular learned Counsel relied on paragraph 15 of the said reported judgment which reads as follows:- “15. If the view taken by the High Court is accepted, in our opinion, there would be total chaos in this country because in that case there would be no finality to any order passed by this Court. When a higher court has rendered a particular decision, the said decision must be followed by a subordinate or lower court unless it is distinguished or overruled or set aside. The High Court had considered several provisions which, in its opinion, had not been considered or argued before this Court when CA No. 4343 of 1998 was decided. If the litigants or lawyers are permitted to argue that something what was correct, but was not argued earlier before the higher court and on that ground if the courts below are permitted to take a different view in a matter, possibly the entire law in relation to the precedents and ratio decidendi will have to be rewritten and, in our opinion, that cannot be done. Moreover, by not following the law laid down by this Court, the High Court or the subordinate courts would also be violating the provisions of Article 141 of the Constitution of India.” 15. Moreover, by not following the law laid down by this Court, the High Court or the subordinate courts would also be violating the provisions of Article 141 of the Constitution of India.” 15. Finally, learned Counsel for the petitioner submitted that the High Court cannot refuse to follow a decision of the Apex Court on the ground that a legal proposition has been laid down by the Apex Court without considering some other points. In this connection, learned Counsel relied on a decision of the Hon’ble Apex Court in the case of Suganthi Suresh Kumar-vs.-Jagdeeshan, AIR 2002 SC 681 , and in particular he relied on paragraph 9 of the reported judgement which reads as follows:- “9. It is impermissible for the High Court to overrule the decision of the apex Court on the ground that Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India. It is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India, AIR 1988 SC 1353 that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court.” Court’s View:- 16. I have given anxious consideration to the rival contentions of the parties. Learned Counsel for the respondents have argued that the petitioner’s prayer for being given appointment on compassionate ground cannot be entertained because of two reasons. Firstly, the petitioner did not complete 18 years of age within two years from the date of death of his mother; and secondly, the petitioner does not have the requisite educational qualification. 17. Let me take up the second point first. This ground for rejecting the petitioner’s prayer does not find place in the impugned memo. The respondent no. 4 has not rejected the petitioner’s prayer on the ground that he does not have the requisite qualification as prescribed by Rule 6(1) (a) and (c) of the Recruitment Rules. It is established law that justifiability or legal validity of an executive order must be adjudged on the basis of the reasons contained in the order. The respondent no. 4 has not rejected the petitioner’s prayer on the ground that he does not have the requisite qualification as prescribed by Rule 6(1) (a) and (c) of the Recruitment Rules. It is established law that justifiability or legal validity of an executive order must be adjudged on the basis of the reasons contained in the order. If such an order is challenged, the authority must support the order on the basis of the reasons recorded in the order. The authority cannot be permitted to justify the passing of the order on grounds which are extraneous to the order. This principle of law was laid down by the Hon’ble Apex Court in the oft quoted decision of the Hon’ble Apex Court in the case of Mohinder Singh Gill (supra). There are numerous decisions of the Hon’ble Apex Court and of the High Courts which have followed this proposition of law propounded in Mohinder Singh Gill (supra). Perhaps the only exception to this rule is when larger public interest is involved. In such a situation, additional grounds can be looked into to examine the validity of an order. This exception was carved out by the Hon’ble Apex Court in the case of All India Railway Recruitment Board-vs.-K. Sham Kumar, (2010) 6 SCC 614 , wherein the Apex Court observed that the decision maker can always rely upon subsequent materials to support the decision already taken when larger public interest is involved. In Madhyamik Siksha Mondal M.P.- vs.-Abhilash Shiksha Prasar Samity, (1998) 9 SCC 236 , the Apex Court found no irregularity in placing reliance on a subsequent CBI report to sustain the cancellation of the examination conducted where there were serious allegations of mass copying. The Apex Court observed that the principle laid down in Mohinder Singh Gill (supra) would not be applicable in such cases involving larger public interest. 18. However, no such public interest is involved in the present case. Hence, the principle of law laid down in M.S. Gill (supra) would squarely apply. The respondents cannot seek to support the impugned memo on the ground of lack of requisite educational qualification on the part of the petitioner as the same was not the basis for issuance of the impugned memo. 19. In any event, I agree with Mr. Bhattacharya’s submission that the requirement of higher qualification would not apply to the petitioner. The respondents cannot seek to support the impugned memo on the ground of lack of requisite educational qualification on the part of the petitioner as the same was not the basis for issuance of the impugned memo. 19. In any event, I agree with Mr. Bhattacharya’s submission that the requirement of higher qualification would not apply to the petitioner. Such requirement was introduced by way of amendment of Rule 6 to the Recruitment Rules with effect from 13 August, 2012. The petitioner’s mother died on 12 January, 2011 and the first application for compassionate appointment was made on behalf of the petitioner by his father on 1 April, 2011. As held by a Division Bench of this court in the case of State of West Bengal-vs.-Smt. Bina Debnath (supra), relying on the decision of the Hon’ble Apex Court in the case of Abhishek Kumar-vs.-State of Haryana & Ors., 2007 (2) Supreme 519 , the claim for appointment on compassionate ground is to be considered in terms of the Rules which were in existence at the time of death of the concerned employee. As per Rule 6 that was in force as on the date of death of the petitioner’s mother, the petitioner has the requisite qualification. Hence, the contention of learned Counsel for the respondents that the petitioner cannot be granted compassionate appointment because he does not have the requisite educational qualification cannot be sustained and is rejected. 20. Coming to the first point, the argument of learned Counsel for the petitioner is based entirely on two decisions i.e. the decision of the Hon’ble Apex Court in Syed Khadim Hussain (supra) and the decision of a Division Bench of this Court in In Re: Gopal Mondal (supra). On the other hand, learned Counsel for the respondents have relied on a Full Bench decision of this Court in Piali Saha (supra), the decision of a Division Bench of this Court in State of West Bengal-vs.- Bharat Sarkar (supra) and a decision of a learned Single Judge in Dipak Kumar Mondal-vs.-State of West Bengal (supra). 21. In Piali Saha (supra), a Full Bench of this Court interpreted Rule 14of the Recruitment Rules. 21. In Piali Saha (supra), a Full Bench of this Court interpreted Rule 14of the Recruitment Rules. The following two questions fell for decision by the Full Bench:- “(i) Whether an applicant seeking appointment on compassionate ground under the death-in-harness category who was a minor at the time of death of the concerned teacher or was a minor at the time of making an application within the statutory time framed of 2 years has any legal right to be considered for such appointment as a minor and (ii) Whether on attaining majority a subsequent application can be deemed to be held as a continuing process notwithstanding the fact that such application was made after the statutory period of 2 years?” At paragraph 10 of the reported judgment the conditions for granting appointment in case of death in harness of an employee were summarized by the Apex Court as follows:- “(i) The deceased teacher must have died before date of his superannuatijon at the age of his 60 years, (ii) He must have a family at the time of his death and is in extreme financial hardship so much so that it fails to provide two square meals and other essentials to the surviving members of the deceased teacher’s family (iii) The members of the family consist of as mentioned therein (iv) The eligible members seeking employment from that ground, they must possess required educational qualifications as laid down in clauses (a) and (c) of sub-rule (1) of Rule 6 and unemployed, and must not below 18 years and not above 45 years of age and found eligible to teach, (v) The prayer must be made for consideration for appointment within two years from the date of such death.” 22. After discussing several Apex Court judgments the Full Bench held that the time fixed in Rule 14 of the Recruitment Rules is rigid and a subsequent application after attaining majority is not a lawful application and the same cannot be said to be a continuing process. 23. What follows from the aforesaid decision of the Hon’ble Full Bench is that an application for being granted appointment on compassionate ground must be made within two years from the date of death of the concerned employee. The applicant must be aged at least 18 years i.e. a minor has no right to apply for being considered for compassionate appointment. What follows from the aforesaid decision of the Hon’ble Full Bench is that an application for being granted appointment on compassionate ground must be made within two years from the date of death of the concerned employee. The applicant must be aged at least 18 years i.e. a minor has no right to apply for being considered for compassionate appointment. If an application is made by a minor who attains majority beyond two years from the date of death of the concerned employee, he has no right to be considered for compassionate appointment. Unfortunately, the petitioner falls in this regard. Admittedly, he attained majority beyond two years from the date of death of his mother. Hence, there seems to be no infirmity in the impugned memo rejecting the petitioner’s prayer. 24. In Syed Khadim Hussain (supra), the material portion of the Apex Court’s order was as follows:- “…… When the appellant submitted the application he was 13 years’ old and the application was rejected after a period of six years and that too without giving any reason and the reason given by the authorities was incorrect as at the time of rejection of the application he must have crossed 18 years and he could have been very well considered for appointment. Of course, in the rules framed by the State there is no specific provisions as to what should be done in case the dependents are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application.” There was no Rule similar to Rule 14 of the West Bengal Recruitment Rules before the Apex Court. Hence, in my respectful submission, the said decision would not apply to the facts and circumstances of the present case. 25. Further, as I read the order of the Apex Court in Syed Khadim Hussain (supra), the same does not lay down any principle of law that the age of the applicant who has applied for compassionate appointment must be considered as on the date of consideration of the application. Still further, at paragraph 6 of the reported judgment the Apex Court observed as follows:- “In the peculiar facts and circumstances of this case, we direct the respondent authorities to consider the application of the appellant and give him appropriate appointment within a reasonable time at least within a period of three months. Still further, at paragraph 6 of the reported judgment the Apex Court observed as follows:- “In the peculiar facts and circumstances of this case, we direct the respondent authorities to consider the application of the appellant and give him appropriate appointment within a reasonable time at least within a period of three months. The appeal is disposed of in the above terms.” (emphasis is mine) Thus the order in Syed Khadim Hussain (supra) was passed in the peculiar facts of that case and in my respectful opinion was an order passed by the Apex Court in exercise of its power under Article 142 of the Constitution of India. Such an order of the Apex Court as held in several cases by the Hon’ble Supreme Court itself, does not create any precedent. 26. There cannot be any quarrel with the proposition of law laid down by the Apex Court in the cases of South Central Railway Employees Cooperative Credit Society Employees Union-vs.-B. Yashodabai (supra) and Suganthi Suresh Kumar-vs.-Jagdeeshan (supra). Indeed the same are binding on all High Courts and other Courts. However, the said two decisions have no manner of application in the facts of the instant case in view of my considered and respectful opinion that Syed Khadim Hussain (supra) has not laid down any proposition of law as contended by learned Counsel for the petitioner. 27. In so far as the decision of the Division Bench in In Re: Gopal Mondal, I am unable to follow the said decision in view of the subsequent Full Bench decision in the case of Piali Saha (supra). 28. Further, it is trite law that appointment on compassionate ground cannot be claimed as a matter of right. A claim for appointment on compassionate ground is based on the premises that the applicant was dependent on the deceased employee. It is not another method of recruitment. Strictly speaking, such a claim cannot be sustained on the touchstone of Articles 14 or 16 of the Constitution of India. However, such claim is considered to be reasonable and permissible on the basis of sudden crisis occurring in the family of the deceased employee. Rule 14 does not create any right in favour of the applicant. Hence, no mandamus can be issued directing the authorities to grant appointment to a person who has applied for being appointed on compassionate ground. However, such claim is considered to be reasonable and permissible on the basis of sudden crisis occurring in the family of the deceased employee. Rule 14 does not create any right in favour of the applicant. Hence, no mandamus can be issued directing the authorities to grant appointment to a person who has applied for being appointed on compassionate ground. In this connection, one may refer to the decision of a learned Single Judge of this Court in Tamal Krishna Chakraborty-vs.-The State of West Bengal (2013) 3 CLT 588 (HC) and also to the decision of an Hon’ble Division Bench of this Court in the case of State of West Bengal-vs.-Bharat Sarkar (supra). 29. I have full sympathy for the petitioner. But sympathy cannot be the basis for passing a judicial order. The applicable law must be followed. Equitable considerations cannot override legal principles. 30. For the reasons aforesaid this application fails and is dismissed, without, however, any order as to costs.