Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 987 (CAL)

Biswajit Ghata v. State of West Bengal

2017-12-15

TAPABRATA CHAKRABORTY

body2017
JUDGMENT : TAPABRATA CHAKRABORTY, J. 1. The writ petition has been preferred challenging the impugned denial of the respondents to grant compassionate appointment to the petitioner. Mr. Maiti, learned advocate appearing for the petitioner submits that the petitioner's wife, namely, Durga Patra (Ghata) (in short Durga) died-in-harness on 22nd June, 2014 while working as an Assistant Teacher of Bajbajia Iswar Chandra Sikshaniketan (in short the said school). Durga was the sole earning member of the family and to tide over the financial hardship due to the loss of the sole bread earner, the petitioner who has to look after Durga's parents, submitted ah application for compassionate appointment in the prescribed format to the respondent No. 6. The said application was filed along with the educational qualification certificate, the death certificate of the deceased, the legal heir certificate, the certificate of the panchayat samity relating to the financial status. The said application was also recommended by the authorities of the school in which Durga was working, by a resolution dated 16th December, 2014. Upon due consideration of the petitioner's application and being satisfied about the financial hardship suffered, the respondent No. 6 was pleased to enlist and register the petitioner's name in Live register for compassionate appointment, as required to be maintained in terms of the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Nonteaching Staff) Rules, 2009 (in short the said Rules). After such registration on 1st March, 2017, the respondent No. 6 forwarded the petitioner's name to the West Bengal Central School Service Commission (in short the said Commission) by a memo dated 7th March, 2017. Upon receipt of such communication, the respondent No. 4 issued a letter dated 29th March, 2017 asking the petitioner to attend his office on 11th April, 2017 along with all the documents as referred to in the said notice for physical verification. Pursuant to the said notice, the petitioner duly appeared before the respondent No. 4 and even after such verification when he was not called for counselling, he submitted a representation to the respondent No. 4 on 15th May, 2017 but the same was not responded to. 2. Pursuant to the said notice, the petitioner duly appeared before the respondent No. 4 and even after such verification when he was not called for counselling, he submitted a representation to the respondent No. 4 on 15th May, 2017 but the same was not responded to. 2. As no instruction was forthcoming from the Commission as to why follow up steps have not been taken in terms of the said Rules, this Court by an order dated 14th November, 2017 directed the respondent No. 4 to file a report in the form of an affidavit. Pursuant to such direction, an affidavit has been filed and the petitioner has also used a reply to the same. 3. In the affidavit filed by the Commission it has, inter alia, been disclosed that upon verification of the documents produced by the petitioner, a letter was issued on 27th June, 2017 by the respondent No. 4 to the respondent No. 6 stating, inter alia, that "during the time of verification Sri Ghata confessed about his Land property income which is perhaps not reflected in the "Format-A" prepared by your office on 01.03.2017" and that the Commission "is of opinion that sufficient ground exists for re-examining the report in "Format-A" for determination of financial hardship for appointment on compassionate ground". Accordingly, by the said letter the respondent No. 6 was requested to furnish a report keeping in view the land property income. In the said affidavit, it has also been stated that the petitioner did not produce appropriate documents pertaining to his land property income, as agreed to and as confessed and as such his name was not included in the panel and that before the writ petition was filed the Commission issued recommendation in favour of the eight candidates, who were empanelled under died-in-harness category. In the affidavit-in-reply the petitioner has enclosed a memo dated 7th March, 2017 issued by the respondent No. 6 by which the petitioner's name was forwarded to the Commission. The petitioner has also enclosed a parcha (land record) pertaining to his house hold land and a letter dated 25th October, 2017 issued by the respondent No. 4 to the respondent No. 6. In the said letter it was, inter alia, stated that the petitioner at the time of verification agreed to submit income certificate from competent authority in respect of his income from other source within 7 days. In the said letter it was, inter alia, stated that the petitioner at the time of verification agreed to submit income certificate from competent authority in respect of his income from other source within 7 days. However, the said letter dated 25th October, 2017 does not refer to the earlier letter dated 27th of June, 2017 issued by the respondent No. 4. 4. In the prescribed application Format-A for compassionate appointment there are eight clauses seeking inter alia the details of the name of the staff, the date of death of the staff, name and address of the school, memo No. & date of approval of appointment of the deceased staff, a certificate from the school in which he/she was employed, whether he/she belongs to SC/ST, date of retirement and names of the family members of the deceased staff. In Format-B, there are seven clauses seeking the name of the dependent, his educational qualification, date of birth, caste, relationship with the deceased, no objection certificate and the sixth clause pertains to financial condition and it reads as follows: "A certificate regarding the financially distressed condition and the candidate is the dependent member is to be obtained from the Sauapati, Panchayat Samity in case of rural area and from the Chairman of the Municipality in case of notified area." 5. Along with the said Format the related documents were annexed and submitted to the office of the respondent No. 6. 6. Mr. Maiti submits that upon consideration of the documents furnished by the petitioner, the respondent No. 6 took a conscious decision to include the name of the petitioner in the Live register. The financial hardship was duly ascertained and only thereafter the petitioner's name was enlisted in the register. The said decision of the respondent No. 6 has neither been recalled by the respondent No. 6 nor has been set aside by any authority. In terms of the said Rules of 2009, the jurisdiction of the Commission is only limited towards incorporation of the name of the person sent by the respondent No. 6 in a panel and for issuance of recommendation upon counselling. In the Madhyamik examination, the petitioner obtained 49.6% and the last candidate empanelled appears to have secured 47.12% marks and as such, the petitioner did come within the zone of consideration for availing recommendation from the Commission. 7. Per contra, Mr. In the Madhyamik examination, the petitioner obtained 49.6% and the last candidate empanelled appears to have secured 47.12% marks and as such, the petitioner did come within the zone of consideration for availing recommendation from the Commission. 7. Per contra, Mr. Sougata Bhattacharyya, learned advocate appearing for the Commission submits that during verification of documents, the petitioner confessed about his land property income and as such the Commission sought for the documents towards such land property income. Since such document was not produced, the matter was sent back to the respondent No. 6 for revisiting his decision towards incorporation of the petitioner's name in the died-in-harness register and for a report. Though the Commission is a recommendatory body it certainly has the authority to verify the documents and call for the documents on the basis of which the financial hardship criterion was determined. 8. Ms. Nandy, learned advocate appearing for the State respondents submits that the documents produced by the petitioner were duly considered by the respondent No. 6 and on the basis of the same the financial hardship criterion was determined and the petitioner's name was included in the Live register. 9. Indisputably, the petitioner applied for grant of compassionate appointment in a Group-C post. The rules governing the field for consideration of such application is the said Rules of 2009. Rule 20 of the said Rules provides for the manner of selection on compassionate ground and the procedure, manner of application and preparation of panel for appointment on compassionate ground has been specified under Schedule-V of the said Rules. 10. A perusal of Rule 20 would reveal that the respondent No. 6 shall maintain a register of candidates seeking appointment on compassionate ground as per the procedure laid down in Schedule-V and forward the names to the respective Regional Commission in the manner as mentioned in that Schedule from time to time for recommendation. Under Rule 20(2) the Regional Commission's duty is to thereafter prepare a panel for the candidates to be appointed on compassionate ground. Rule 20(3) provides for preparation of the panel on medium wise, category wise and gender wise as per the procedure laid down in Schedule V and for recommendation of the name of a suitable candidate through district wise counselling on the basis of availability of vacancy. Rule 20(3) provides for preparation of the panel on medium wise, category wise and gender wise as per the procedure laid down in Schedule V and for recommendation of the name of a suitable candidate through district wise counselling on the basis of availability of vacancy. The proviso to Rule 20(3) provides that vacancies for the appointment on compassionate ground shall not include the vacancies of a particular Regional Level Selection Test and such recommendation of the candidates shall take place after publication of a panel of a particular Regional Level Selection Test and before advertisement of next Regional Level Selection Test for the post of non-teaching staff. 11. The authority to determine the financial hardship criterion under paragraphs 1 and 2 of the said Schedule has been conferred upon the respondent No. 6 as would be explicit from sub clause 3 of Schedule V which reads as follows: "(3) The District Inspector of Schools (Secondary Education) concerned shall enter the names of all applicant opting for appointment as Clerk or Group D staff, as the case may be, under paragraph 1 or paragraph 2, in a separate register and shall send all such names with particulars like educational qualification, address, date of birth, choice of posting (area) along with certificates of qualification, birth, Caste/Tribe etc. to the respective Regional School Service Commission concerned within such stipulated date(s) of a year as may be specified". 12. The jurisdiction of the Commission would be explicit from the provisions of sub-clause (4) and (5) of Schedule V which read thus: "(4) The Regional Commission shall maintain such information in a register or a database mentioning the date of receipt of the application from the concerned District Inspector of Schools (Secondary Education). (5) Thereafter Regional Commission shall prepare the panel and dispose it in accordance with the provisions of rule 20 or rule 21, as the case may be." 13. The said Rules do not confer any jurisdiction upon Commission to issue direction to the respondent No. 6 for revisiting the decision taken by the said respondent towards incorporation of a candidate's name in Live register. The authority of the Commission is only to recommend a candidate medium wise and category wise upon preparation of panel on the basis of counselling. The authority of the Commission is only to recommend a candidate medium wise and category wise upon preparation of panel on the basis of counselling. The Commission is not vested with any power and jurisdiction to identify the legality and validity of registration of the names of the candidates under death-in-harness category. It is a settled legal proposition that a statutory body under the law is entitled to perform only those acts as are prescribed under a statute. 14. There is no averment in the affidavit that any fraud has been committed by the petitioner. It is also not the Commission's stand that the petitioner has produced some documents, the veracity of which is doubtful. The respondent No. 4 by the first letter dated 29th March, 2017 did not even ask the petitioner to produce any certificate pertaining to income or land property income. It is only on the basis of an alleged confession, the petitioner was asked to produce documents pertaining to his land property income. The petitioner has categorically denied that he confessed and agreed to produce any land property income certificate. 15. In the said conspectus, this Court is of the opinion that there was no jurisdiction conferred upon the Commission to ascertain as to whether the financial status of the petitioner was rightly determined. The authority to determine such issue is vested upon the respondent No. 6 in terms of the Rules and the Commission cannot sit as an appellate authority over the said decision of the respondent No. 6. 16. The petitioner has secured 49.6% marks in the Madhyamik Examination and the last person who is recommended under died-in-harness category has secured 47.12% and as such, the petitioner comes within the zone to be recommended to an appropriate vacancy. 17. Needless to observe, in view of the averments made in paragraph 6 of the writ petition, upon being appointed on compassionate ground, the petitioner shall have to look after the parents of Durga. 18. Ms. Nandy, learned advocate appearing for the State respondents has produced before this Court a memo dated 24th April, 2017 by which 52 vacancies were reported to the Commission. Let a copy of the said memo be kept on record. 19. Mr. 18. Ms. Nandy, learned advocate appearing for the State respondents has produced before this Court a memo dated 24th April, 2017 by which 52 vacancies were reported to the Commission. Let a copy of the said memo be kept on record. 19. Mr. Bhattacharyya submits that the vacancies remaining after recommendation of eight candidates from the died-in-harness category, shall be filled up through the 3rd Regional Level Selection Test (N.T.), 2016 which is expected to be completed by 31st March, 2018. 20. Thus, the panel pertaining to the said selection process is yet to be published in terms of Rule 20(3) of the said Rules and the vacancies are yet to be filled up and as such no third party right has yet been created and in the circumstances, there can be no hindrance in recommending the petitioner in an appropriate vacancy through counselling, which has already been reported to the Commission. Accordingly, this Court directs the Commission to issue recommendation, upon counselling, in favour of the petitioner for appointment to a suitable post of 'Clerk' in any existing vacancy within a period of four weeks from the date of communication of this order. With the above observation and direction, the writ petition is disposed of. There shall, however, be no order as to costs. Urgent photostat certified copy of this order be supplied to the parties on compliance of all formalities.