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2018 DIGILAW 754 (CAL)

Rana Bouri v. State Of West Bengal

2018-10-11

ABHIJIT GANGOPADHYAY

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JUDGMENT : Abhijit Gangopadhyay, J. This is a writ application for employment under compassionate ground. 2. The petitioner has stated in the writ application that his father who was a Gram Panchayat Karmi under Nuni Gram Panchayat in the District of Burdwan died on 2nd day of March, 2000. A certificate of death to that effect has been annexed in the writ application. From annexure P-2 of the writ application it is evident that the petitioner on April 11, 2011 made an application for compassionate appointment by filling up the 'Proforma regarding employment of dependents of Govt employees dying while in service'. This application has been made after 11(Eleven) years from the date of death of the applicant's father. 3. From the educational qualification certificate annexed in the writ application it is found that the petitioner has read upto class VIII and left school on April 30, 1995 and his date of birth is 17.01.1981. 4. The petitioner has alleged that though the Proforma was forwarded by BDO to the District Panchayat and Rural Development officer on April 11, 2011 no step has been taken till date for appointing him on compassionate ground. His father expired while in service. In the meantime the papers sent by BDO was returned by the Joint Director of Panchayat for deficiency of documents with direction to re-submit the same which has been re-submitted with the necessary documents. 5. The petitioner prays for immediate appointment on compassionate ground. This prayer in the writ application has been made after 16 years from the date of death of the petitioner's father. 6. The writ application has been affirmed on July 29, 2016 and has been filed on August 2, 2016 i.e. after 5 years from the date of filing the abovementioned proforma. 7. Now, it is necessary to see what particulars have been disclosed by the petitioner in the Proforma. From Part-2 of the said proforma it is found that the deceased had four dependents. The first one is Ganesh Bauri, age 48 years, married, living separately. The second one is Arun Bauri, age 42 years, married. The third one is Rabin Bauri, age 36 years, married. The fourth one is the petitioner, Rana Bauri, age 30 years, unmarried. Such ages of the dependants are of the year 2011. All of them work as daily labours. The second one is Arun Bauri, age 42 years, married. The third one is Rabin Bauri, age 36 years, married. The fourth one is the petitioner, Rana Bauri, age 30 years, unmarried. Such ages of the dependants are of the year 2011. All of them work as daily labours. There is no mentioning in the said Part-II of the widow of the deceased. 8. No affidavit-in-opposition has been used by the respondent. 9. The application has been made after 11years from the date of death of the employee. 10. In support of his case the Learned Advocate for the petitioner has relied upon the following judgments: 1. Sushma Gosain versus Union of India and Others, (1989) 4 SCC 468 . 2. Phoolwati Versus Union of India and Others, (1991) AIR SC 469 3. Sabrabibi Usman Khan Pathan Versus Superintending Engineer , GE Board and Others, (1994) 5 SLR 138, a case of Gujarat High Court. 4. Gujarat State Road Transport Corporation Versus Dinesh Bhai Mani Bhai Panchal, (1995) 6 SLR 517, a case of Gujarat High Court). The petitioner has also relied upon two unreported judgments: 1. W.P. 5102 (W) of 2013 (Md. Jakir Hossen Versus State of West Bengal and Others) a case of Calcutta High Court, 2. W.P. 17519 (w) of 2015 (Md. Jakir Hossen Versus State of West Bengal and other) a case of Calcutta High Court. 11. In Sushma Gosain's case the husband of Sushma Gosain, one Ram Kumar, died in October, 1982 and Sushma Gosain sought appointment in November, 1982. In January 1983 she was called for the written test and later on was called for the interview. Subsequently she passed the Trade test but was not given appointment. In September 1985 she filed the writ petition when the concerned Ministry stated, relying on a notification dated 25.01.1985 that in its establishment appointment of any female was prohibited. Accepting such objection the writ application was dismissed. Against such dismissal appeal was filed before the Hon'ble Supreme Court and the appeal was allowed with the observation that it was improper to keep such cases pending for years and if there was no suitable post for appointment supernumerary post should be created to accommodate the appellant. Thus, it was a case of delay in giving appointment on compassionate ground; not a case where the application for such appointment made after a considerable period of time. 12. Thus, it was a case of delay in giving appointment on compassionate ground; not a case where the application for such appointment made after a considerable period of time. 12. In the case of Phoolwati, her husband expired on March 25, 1989 and her application for interim relief was dismissed on June 8, 1990. Here the Hon'ble Supreme Court granted the relief following Sushma Gosain's case. But one fact is clearly evident that application for compassionate appointment was made immediately and not after 11 years of the death of the government employee. 13. In the case of Sabrabibi, a Pardanashin lady, whose husband expired on August 9, 1982 applied for compassionate appointment. When her husband expired she was the mother for three children, the youngest being two months old. Four years after the death of her husband the respondent authority demanded some documents for compassionate appointment but thereafter the respondent authority made no response. In such circumstances the writ petition was filed in the year 1990. The question which fell for consideration of the Hon'ble High Court was whether the Court should wait till the vacancy is made available for offering employment (here, part time employment). While dealing with such question the High Court referring to Sushma Gosain's case held that in the peculiar facts and circumstances of the case some relief was to be rendered to the destitute family. In this case the High Court discussed the case of Auditor General of India Versus G.Ananta Rajeswara Rao, (1994) 1 SCC 192 and observed "The supreme court held that appointment on compassionate ground to son, daughter or widow to assist the family so as to relief economic distress, caused by sudden demise in harness of government employee is valid. However, if appointment is to be made solely on the ground of descent, the Supreme Court did not approve of office memorandum issued by Andhra Pradesh Government. In fact, the Supreme Court accepted the decision of the Andhra Pradesh High Court and held that compassionate appointment solely on the ground of descent cannot be encouraged as it would be breeding ground for misuse of appointments. Ground of descent for appointment is held to be violative of Art. 16(2) of the Constitution. In fact, the Supreme Court accepted the decision of the Andhra Pradesh High Court and held that compassionate appointment solely on the ground of descent cannot be encouraged as it would be breeding ground for misuse of appointments. Ground of descent for appointment is held to be violative of Art. 16(2) of the Constitution. The Supreme Court held that if the appointments are confined to the son/daughter or widow of the deceased government employee who died in harness and who needs immediate appointment on grounds of immediate need of assistance in the event of there being no other earning member in the family to supplement the loss of income from the bread-winner to relieve the economic distress of the members of the family, it is permissible. But, in other cases, there cannot be a Rule to appoint the persons to government service on the ground of compassion. Such appointment cannot be on the ground of descent simpliciter. In other words, recruitment to public post ordinarily shall have to be consistent with Article 16 of the Constitution of India and compassionate appointment should not become a regular source of recruitment so as to deny even opportunity of consideration to other eligible persons". 14. Thus, in the facts and circumstances of the present matter the direction given by the High Court in support of the widow with three minor children does not help the writ petitioner in any manner and the observation made referring to the Hon'ble Supreme Court's view as to appointment on compassionate ground wholly goes against the petitioner. 15. In Gujarat State Road Transport's case the question was delay in making appointment and following Sushma Gosain's case it was held that "the family of the deceased is under duress and the financial condition of the family is pitiable and that there should hardly be any delay in considering the appointment of the applicant on compassionate grounds". In this judgment of Gujarat High Court it has been held that the whole object of granting compassionate employment is to enable the family to tide over the sudden crises. The object is not to give a member of such family a post much less a post for post held by the deceased. Mere death of an employee in harness does not entitle his family to such source of livelihood. The object is not to give a member of such family a post much less a post for post held by the deceased. Mere death of an employee in harness does not entitle his family to such source of livelihood. The object is to relieve the family of the financial destitution and to help it get out the emergency. The underlying philosophy of providing employment on compassionate grounds is just to mitigate the hardship arisen out of the sudden demise of the only bread-winner of the concerned family. 16. None of the above cases are in respect of delay in making application for appointment on compassionate ground. 17. The first of the unreported judgment (in W.P. 5102 (w) of 2013) the Court observed that the OSD and Ex-Officio Deputy Secretary to the Government of West Bengal of Panchayats & Rural Development Department is taking all steps for early disposal of pending cases as per available vacancy. The other unreported judgment (in W.P. 17519 (w) of 2015), annexed with the writ application no relevant facts have been discussed. Only observation of the Court is that in case the petitioner was to be rejected it ought to have been done long ago. 18. Thus the unreported decisions also do not give any support to the petitioner's case. 19. Now, the philosophical background and principles for compassionate appointment as has been discussed hereinabove may be summarized: (a) The very basic humanistic policy/philosophy is of providing employment (i.e. compassionate appointment) to the needy and starving members of the family which has lost the only bread-winner. (b) The whole object of granting compassionate employment is to enable the family to tide over the sudden crises. (c) Mere death of an employee in harness does not entitle his family to such source of livelihood. The object of compassionate appointment is to relieve the family of the financial destitution and to help it to get out of the emergency. (d) Offering compassionate appointment as a matter of course irrespective of the financial condition of the family of the deceased and making compassionate appointments is legally impermissible. (e) In all claims of appointment on compassionate grounds there should not be any delay in appointment. (d) Offering compassionate appointment as a matter of course irrespective of the financial condition of the family of the deceased and making compassionate appointments is legally impermissible. (e) In all claims of appointment on compassionate grounds there should not be any delay in appointment. Such appointment should be provided immediately to redeem the family in distress and to keep such a case pending over years in substance would amount to rendering the family of the deceased employee destitute and helpless. (f) Compassionate appointment cannot be made solely on the ground of descent as it would be breeding ground for misuse of appointments. Ground of descent only, for appointment, is violative of Article 16(2) of the Constitution. If appointments are confined to the son/daughter or widow of the deceased government employee who died in harness and who needs immediate appointment on grounds of immediate needs of assistance in the event of there being no other earning member in the family to supplement the loss of income from the bread-winner to relieve the economic distress of the members of the family, it is permissible. The above enumeration is only indicative and not exhaustive. Thus it is evident from the above discussion based on the judgments of High Court and Supreme Court placed in the course of hearing, it is found that sudden demise and loss of bread-winner and immediate need of financial assistances to avoid hardship due to death of the sole bread-winner gets the importance in considering compassionate appointment and the philosophical basis reflects the philosophy behind a welfare state. Here, in this case the application for compassionate appointment has been made after 10 years from the death of the petitioner's father. Thus there was no case of sudden economic crises for the family. The family members spent their days for 10 years without any such financial crises due to death of the employee. When the application was made by the petitioner for compassionate appointment, his age, according to his school certificate, was 30 years. He lost his father at the age of 20 years. Had there been any immediate crisis on the death of his father, the first thing the petitioner would have done was taking steps for a service under compassionate ground - which he did not do. I unhesitatingly hold that no new financial crisis arose in the family due to the death of the petitioner's father. Had there been any immediate crisis on the death of his father, the first thing the petitioner would have done was taking steps for a service under compassionate ground - which he did not do. I unhesitatingly hold that no new financial crisis arose in the family due to the death of the petitioner's father. Thus the claim of the petitioner for compassionate appointment for the death of his father is found to be baseless and does not satisfy any of the situations enumerated hereinabove or any other factor for which an order in his favour can be passed. Therefore, the writ application is dismissed. 20. No costs.