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2017 DIGILAW 67 (CAL)

State of West Bengal v. Debarghya Chakraborty

2017-01-12

NISHITA MHATRE, TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty J. 1. The instant appeal has been preferred challenging a judgment and order dated 28th January, 2015 passed by the learned Single Judge in WP 33735 (W) of 2014. The said writ petition was preferred by the respondent no.1 herein challenging, inter alia, an order dated 20th August, 2014 passed by the appellant no.2 rejecting the writ petitioner’s claim for compassionate appointment. Though there has been a delay of 160 days in preferring the appeal, Ms. Bhattacharyya, learned advocate appearing for the appellant was invited to advance her arguments on the merits of the appeal. 2. Ms. Bhattacharyya submits that the proforma application filed by the writ petitioner on 15th July, 2013 claiming compassionate appointment was defective and as such by a letter dated 30th April, 2013 issued by the appellant no.3 appropriate particulars were sought for and thereafter the writ petitioner’s claim was considered. In the midst thereof, the West Bengal Scheme for Compassionate Appointment, 2013 (hereinafter referred to as the said scheme of 2013) came into effect from 3rd December, 2013. The writ petitioner’s claim was found to be barred in terms of the said scheme of 2013 and was accordingly rejected by the order impugned in the writ petition. There is no infirmity in the said order inasmuch as by the time proper application was filed by the writ petitioner, the said scheme of 2013 had already come into effect and the writ petitioner’s claim was rightly considered in terms of the same. 3. She further submits that after the employee died in harness on 22nd January, 2010, his widow made an application on 8th February, 2010 without specifying the name and relation of the deceased employee for whom compassionate appointment was sought for. At that juncture, compassionate appointment could have been prayed for either by the widow or by the major daughter of the deceased employee. The writ petitioner was admittedly a minor on the date of the said application and was disentitled to be considered for compassionate appointment. The dependants chose to wait till the writ petitioner attained majority and from such sequence of facts it is explicit that the family was not suffering from acute financial hardship. No vested right accrued in favour of the writ petitioner to be considered for compassionate appointment on the basis of the said application dated 8th February, 2010. The dependants chose to wait till the writ petitioner attained majority and from such sequence of facts it is explicit that the family was not suffering from acute financial hardship. No vested right accrued in favour of the writ petitioner to be considered for compassionate appointment on the basis of the said application dated 8th February, 2010. In support of such arguments reliance has been placed upon the judgments delivered in the case of MGB Gramin Bank Vs. Chakrawarti Singh, reported in (2014) 13 SCC 583 and in the case of Sanjay Kumar Vs. State of Bihar, reported in AIR 2000 SC 2782 . 4. Drawing the attention of this Court to the documents annexed at pages 63 to 67 of the stay application, Mr. Basu, learned senior counsel appearing for the writ petitioner/respondent no.1 submits that the writ petitioner filled up the prescribed proforma application for compassionate appointment and forwarded the same to the respondent no.2 on 25th March, 2010. After passing the School Final examination the registration certificate and the mark sheet were also forwarded to the office of the respondent no.2 on 2nd July, 2010. The writ petitioner filed a further application on 10th January, 2011 and he was asked to appear before the Die-in-harness committee on 15th December, 2012 and pursuant thereto, he duly appeared before the said committee on the date specified but thereafter no final order was communicated. The letter dated 30th April, 2013 was addressed to the respondent no.2 to furnish certain particulars to which the respondent no.2 replied on 12th February, 2014. The delay towards consideration of the writ petitioner’s claim is attributable to the authorities. The proforma application was filed and the writ petitioner was interviewed prior to coming into operation of the new scheme of 2013 and as such the provisions of the same could not have been made applicable in respect of the writ petitioner’s claim. New grounds for rejection of the claim have been advanced on behalf of the appellants in the instant appeal which do not feature in the order impugned in the writ petition. 5. In reply, Ms. Bhattacharyya submits that when the plea goes to the root of the question, it can be raised at any stage. In support of such argument reliance has been placed upon a judgement delivered in the case of Rattan Lal Sharma Vs. 5. In reply, Ms. Bhattacharyya submits that when the plea goes to the root of the question, it can be raised at any stage. In support of such argument reliance has been placed upon a judgement delivered in the case of Rattan Lal Sharma Vs. Managing Committee, Dr Hari Ram(Co-Education) Higher Secondary School and Others, reported in (1993) 4 SCC 10 . 6. Heard the learned advocates appearing for the respective parties and considered the materials on record. Indisputably, the writ petitioner’s father expired on 22nd January, 2010. The writ petitioner attained majority in the month of March, 2011. Upon consideration of the proforma application filed by the writ petitioner, he was asked to appear before the Die-in-harness committee on 15th December, 2012. The notification of 2008 does not indicate any age limit or any age bar. There is no clause similar to clause 6(c) of the new scheme of 2013 in the notification of 2008. The writ petitioner attained majority prior to promulgation of the new scheme of 2013. The writ petitioner’s application was not considered till he received a call to appear before the appropriate committee on 15th December, 2012. Even thereafter the matter was kept pending and in the midst thereof the new scheme of 2013 came into effect. The writ petitioner cannot be made to suffer for the delay attributable to the appellants. In the backdrop of the said facts the claim of the writ petitioner could not have been rejected by applying the provisions of the new scheme of 2013 which was admittedly not given any retrospective effect. 7. The arguments of Ms. Bhattacharyya to the effect that the initial application dated 8th February, 2010 was defective and that no vested right towards compassionate appointment accrued in favour of the writ petitioner prior to the commencement of the new scheme of 2013 were not advanced before the learned Single Judge and the order impugned in the writ petition also does not contain any such grounds towards rejection of the writ petitioner’s claim. By the order impugned in the writ petition, the writ petitioner’s claim was rejected only on the ground that compassionate appointment cannot be granted in view of the provisions of the new scheme of 2013. 8. It is well settled that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned. 8. It is well settled that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned. Otherwise, an order bad in the beginning may by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. The reasons given in the impugned order cannot be supplemented through new arguments. The judgment delivered in the case of MGB Gramin Bank (Supra) is distinguishable on facts inasmuch as there is no clause in the scheme of 2013 to the effect that applications pending on the date of commencement of the said scheme would be dealt with in terms of the same. The provisions of the scheme and the facts involved in the judgement delivered in the case of Sanjay Kumar (Supra) are totally different. The judgement delivered in the case of Rattan Lal Sharma is also not applicable to the facts of the instant case inasmuch as the new arguments advanced are not based on admitted and uncontroverted facts. 9. The order impugned in the instant appeal has been fortified with cogent reasons. The learned Single Judge, upon dealing with all the factual issues arrived at specific findings and we do not find any error in the same. Accordingly, the application for condonation of delay being C.A.N. 1789 of 2015 is allowed and the appeal and the stay application are dismissed. There shall, however, be no order as to costs.