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2017 DIGILAW 698 (CAL)

Sujoy Mahato v. State of West Bengal

2017-08-18

SAMBUDDHA CHAKRABARTI

body2017
JUDGMENT : Sambuddha Chakrabarti, J. 1. The petitioners have challenged the denial of compassionate appointment on the death of their predecessor in interest dying-in-harness. 2. The predecessor in interest of the present petitioners was an employee attached to Santaldih Thermal Power Station and after working for about more than twenty six and a-half years he died on August 5, 2005. He was the father and husband of the petitioner Nos. 1 and 2 respectively. He had two sons, a daughter and his widow. None of them was an earning member. The petitioner No. 2 made an application before the respondents for employment of her son on compassionate ground who was then a major. 3. It is the case of the petitioners that after receiving the application the respondents asked the petitioner to appear on September 19, 2012 at the administrative building of the concerned Power Station for discussion and examination of the documents. After this was done, the respondents assured them that they would get in touch with the petitioners. Subsequently, on February 20, 2015, the Manager (HR & A) of the respondent organization sent a letter to the petitioner No. 1 regretting appointment on compassionate ground intimating her that in terms of the provision of the relevant Scheme of 2010, the prayer could not be considered. The petitioners state that they were shocked by the rejection of the claim of appointment on compassionate ground. However, since their financial condition was very poor and the family of the deceased had no source of income, the petitioner No. 1 again made an application on March 5, 2015, before the respondent authority to consider his case but till the date of filing of the writ petition the respondents did not consider the same. 4. It is the specific case of the petitioners that the ground of rejection of the prayer for appointment on compassionate ground, as mentioned by the respondents, was in terms of the relevant Scheme of 2010. But the father of the petitioner died in the year 2005 which was long before the Scheme was framed. Their further case is that the respondents did not properly assess their case and did not consider the economic condition of the family. But the father of the petitioner died in the year 2005 which was long before the Scheme was framed. Their further case is that the respondents did not properly assess their case and did not consider the economic condition of the family. Therefore, by the present writ petition, the petitioners prayed for a direction upon the respondents for setting aside and quashing of the communication, dated February 20, 2015 and for allowing the application of the petitioners for appointment on compassionate ground for a Group 'D' post at the concerned Thermal Power Station. 5. The respondents have filed a report in the form of an affidavit, affirmed by the General Manager of the concerned Power Station, i.e., the respondent No. 4. It appears from the said report that the wife of the deceased employee more than three years after the death of her husband had by a letter, dated August 10, 2008 applied for a job for the petitioner No. 1. Nothing was annexed to the said letter regarding the credentials of the petitioner No. 1. By an office order, dated August 26, 2010, the management of the respondent corporation formulated a Scheme regarding the employment or financial relief of the dependants of an employee who died in harness or prematurely retired being permanently incapacitated, on compassionate ground. The Scheme was known as the West Bengal Power Development Corporation Ltd. Scheme for Employment/Financial Relief on Compassionate Ground, 2010 (the Scheme, for short). 6. As per the said Scheme, the eligibility criteria in respect of age was less than 40 years as the upper age limit for the spouse and 30 years for other dependants on the date of the death or premature retirement on permanent disablement of the employee. The Scheme also provided for ex-gratia payment of one time financial compensation to the dependant of the deceased employee who died on or after June 6, 2005. The petitioner No. 1 not being eligible for compassionate appointment was entitled to receive one time ex-gratia payment subject to submission of no objection certificate from the other dependants of the deceased employee. The Scheme also provided for ex-gratia payment of one time financial compensation to the dependant of the deceased employee who died on or after June 6, 2005. The petitioner No. 1 not being eligible for compassionate appointment was entitled to receive one time ex-gratia payment subject to submission of no objection certificate from the other dependants of the deceased employee. The relevant provision for relating to one time financial assistance is that this will be allowed to the dependants of the employee dying-in-harness or being declared permanently incapacitated after June 6, 2005 and who did not qualify in the selection process for appointment and had not received financial compensation in lieu of employment. The dependants can also opt for such compensation within a year after being unsuccessful in the qualifying tests. The two methods of calculating the financial compensation had been mentioned in the Scheme. It is the specific case of the respondents that the petitioner No. 1 applied for a compassionate appointment in the prescribed form about seven years after the death of the deceased employee. The petitioner No. 1 was advised by the management to call on the concerned authority on September 19, 2012 in connection with the application made by him for verification of original documents. Ultimately, by a letter dated February 20, 2015, the petitioner No. 2 was informed that her son is not eligible for the appointment on compassionate ground in terms of this Scheme of 2010. 7. The respondents have stated that the petitioner No. 1 was neither eligible for the employment at the time of the death of his father as he was a minor nor is he eligible for appointment in terms of the relevant clause relating to the age qualification in the Scheme. It has been clarified that the respondent corporation did not ask the petitioner No. 2 to submit any document in connection with the application filed by her in the year 2008. The petitioner No. 1 was asked to come with the documents in connection with the application filed by him in the year 2012. As per the relevant Scheme the age of the dependant or spouse had to be considered on the date of death and he was minor at the relevant point of time. 8. The petitioner No. 1 was asked to come with the documents in connection with the application filed by him in the year 2012. As per the relevant Scheme the age of the dependant or spouse had to be considered on the date of death and he was minor at the relevant point of time. 8. However, even if the petitioner No. 1 was not eligible for compassionate appointment when his father had died the dependant of the deceased employee is entitled to one time ex-gratia payment for Rs. 3,03,996/- subject to submission of no objection certificate from the other dependants of the deceased. 9. The petitioners have filed an affidavit-in-reply to the said rejoinder largely reiterating their pleadings and the stand taken in the writ petition. Here also they have taken a stand that since the father of the petitioner had died before the relevant Scheme of 2010 had been formulated the case of the petitioner cannot be governed by the same and that Scheme has no effect on their application for compassionate appointment. The petitioners have relied on a clause of the Scheme that the dependants of an employee shall be eligible to apply for appointment provided the death had taken place on or after June 6, 2006 and if the dependant did not receive any financial compensation in lieu of employment. The petitioner No. 1 is entitled to join the service in terms of the said clause. The petitioners have, however, not denied that the petitioner No. 1 made an application in the prescribed form on August 9, 2012. The petitioners have further alleged that Annexure R3 to the report further shows that they had paid the ex-gratia money to the petitioner. But the respondents did not pay any financial compensation in lieu of employment. The petitioners reiterated their prayer for appointment on compassionate ground of the petitioner No. 1. 10. Thus, only two points are required to be decided in the present writ petition, viz., whether the respondents can dispose of the application for compassionate appointment of the petitioner No. 1 in terms of the relevant Scheme and whether in terms of the Clause B of the said Scheme, the petitioner No. 1 is entitled to an appointment on compassionate ground. 11. 11. The law on the point is very well-settled that irrespective of when an employee may die-in-harness the Scheme governing the field at the time of consideration of the application for compassionate appointment shall be the law applicable to a given case. The point has been settled in the case of State Bank of India Vs. Raj Kumar, reported in (2010) 11 SCC 661 , where a similar question cropped up for consideration before the Supreme Court. Exactly the same point, as has been urged by the petitioner herein, was argued by the respondent in the Supreme Court, which was not found tenable as compassionate appointment is always a Scheme related one, as unless the concerned employer or an establishment has a Scheme for compassionate appointment such appointment cannot be made. Therefore, the provision of the Scheme governing the issue concerning compassionate appointment are applicable and not the Scheme that was in existence when the employee had died. 12. Applying the said principle of law the respondents can definitely say that in terms of the relevant provision in the Scheme of 2010 the petitioner No. 1 was not eligible for appointment on compassionate ground. This is because the petitioner No. 1 applied in the prescribed format about seven years after the death of the deceased employee when the new Scheme of 2010 was governing the relevant field. 13. Again it cannot be glossed over that the petitioner No. 2 made an application for compassionate appointment, though not in the prescribed form, more than three years after the death of her husband. If the whole purpose of providing compassionate appointment is to help a family facing financial crisis as a result of the death of the sole bread-earner such application is to be made as early as possible after the death of the employee. The time gap of three years by itself is a sufficient ground disentitling the petitioners to get an employment. Moreover, the petitioner No. 2 made a formal application about seven years later after the death of her husband. The petitioners have conducted themselves in a manner which belie the case of urgency which is expected of an applicant for compassionate appointment under normal circumstances. 14. I have very carefully examined the contention of the petitioners that the petitioner No. 1 is eligible for compassionate appointment in terms of Clause B of the Scheme. The petitioners have conducted themselves in a manner which belie the case of urgency which is expected of an applicant for compassionate appointment under normal circumstances. 14. I have very carefully examined the contention of the petitioners that the petitioner No. 1 is eligible for compassionate appointment in terms of Clause B of the Scheme. Clause B merely says that a dependant shall be eligible to apply for employment provided the death or permanent incapacitation takes place on or after June 6, 2005 and also when the dependants did not receive any financial compensation in lieu of employment. 15. That, however, is not sole Clause in the Scheme nor does Clause B fix the criteria for such application. There are other clauses in the Scheme which have equally to be complied with. The Scheme specifically says that dependants of a deceased or a person declared to be permanently incapacitated may be offered regular employment in certain categories of posts subject to the conditions as mentioned therein. This means that all the conditions as provided in the Scheme have to be complied with in order to be eligible for appointment on compassionate ground. For example, the age limit has to be complied with, conditions relating to the minimum educational qualification has to be complied with, the physical condition should be as per the norms prescribed by the corporation, so on and so forth. Clause B relates to the eligibility of making an application. 16. Much assertion to the contrary, Annexure R3 does not convey any impression as if the amount had been sent by the respondents or the petitioners had accepted the same. It makes no such observation or carries no such impression that such amount had been sent to the petitioner at all. All that it says that the petitioners are entitled to get a sum of Rs. 3,03,996/- etc. 17. Thus there is nothing in the writ petition which calls for a judicial intervention.. 18. In such view of it, I find no merit in the writ petition and the writ petition is dismissed. However, if the petitioners want they may approach the employer for release of the said fund and the respondents authorities shall, upon compliance of all formalities and verifications of all records, shall release the sum to the applicant within a period of six weeks from the date of the receipt of the application, if any. However, if the petitioners want they may approach the employer for release of the said fund and the respondents authorities shall, upon compliance of all formalities and verifications of all records, shall release the sum to the applicant within a period of six weeks from the date of the receipt of the application, if any. With the direction as above the writ petition is dismissed. 19. There shall be no order as to the costs. 20. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.