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2018 DIGILAW 879 (CAL)

Rizwanul Hasan v. State of West Bengal

2018-12-03

SHEKHAR B.SARAF

body2018
JUDGMENT : 1. This is an application under Article 226 of the Constitution of India wherein the writ petitioner is aggrieved by an order passed by the District Inspector of Schools (S. E.), Kolkata (hereinafter referred to as the ‘D. I. of Schools’) with regard to his compassionate appointment on the death of his father in the year 2008. 2. In an earlier round of litigation this court had directed the D. I. of Schools to consider the claim for appointment of the petitioner on compassionate grounds in terms of the prevailing Rules at the time of the death of the concerned employee. Subsequent to passing of the order, a hearing was granted to the writ petitioner and upon consideration of all documents submitted by the writ petitioner his claim for compassionate appointment was rejected on the ground that the eldest son and the youngest son of the deceased employee were in service and family pension was being received by the family. On the aforesaid ground the D. I. of Schools came to the conclusion that this was not a case of extreme financial crisis wherein the petitioner was unable to provide two square meals to the surviving members of the deceased employee. 3. The petitioner relies upon the Government Order No. 457-Edn.(P) dated 12th October, 1987 read with 12-SE (B) dated 18th January, 1999 read with Government Order No. 898-SE(Pry.) dated 22nd August, 2005 to submit that the only criteria that has to be looked into for compassionate appointment is that the family is in distress and immediate need of financial assistance. The petitioner further relies on the judgement of the Apex Court in Balbir Kaur V. Steel Authority of India Ltd. reported in (2000) 6 SCC 493 wherein the Supreme Court had held that the family benefit scheme cannot in any way be equated with benefit of compassionate appointment. The Supreme Court had held that compassionate appointment would bring solace to the situation of the family of the deceased not only with regard to the economic condition but also with regard to the mental agony of the family of the deceased. 4. The Supreme Court had held that compassionate appointment would bring solace to the situation of the family of the deceased not only with regard to the economic condition but also with regard to the mental agony of the family of the deceased. 4. Learned counsel appearing on behalf of the respondents submits that the order of the D. I. of Schools is absolutely correct and in terms of the Government Orders referred by the petitioner and does not in any way violate the Rules and Regulations prescribed by the Government of West Bengal. It is further submitted that the judgement of Balbir Kaur (Supra) is no longer good law as the same has been overruled by the Supreme Court in Union of India vs. M. T. Latheesh reported in (2006) 7 SCC 350 . 5. I have heard learned counsel for both the parties and perused the materials on record. 6. The law on compassionate appointment has been dealt with by me in an earlier judgement in Sri Bijon Mukherjee vs. State of West Bengal & Ors. reported in 2018(4) CHN (Cal) 454; (2018) 3 CalLT 136 (HC). In the above judgement, several Supreme Court and Calcutta High Court decisions on compassionate appointment have been discussed and it has been clearly held that the decision of the Balbir Kaur (Supra) has lost its efficacy as a binding precedent and the law laid down by the Supreme Court in the case of M. T. Latheesh (Supra) holds the fort. The relevant portion of the M. T. Latheesh (Supra) judgment is provided below: “18. It is submitted that the dependent of a deceased employee will not get any vested or hereditary right to succeed the deceased in the matter of employment. What he is entitled to is a preferential treatment for appointment as against the general principle of appointment. The employer is not under obligation to grant appointment to the dependents. The duty of the employer is only to properly consider the application. 31. In Umesh Kumar Nagpal v. State of Haryana [ (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] this Court considered a case of compassionate appointment and the factors necessary for being taken into account before offering compassionate appointment. The duty of the employer is only to properly consider the application. 31. In Umesh Kumar Nagpal v. State of Haryana [ (1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] this Court considered a case of compassionate appointment and the factors necessary for being taken into account before offering compassionate appointment. This Court held that merely death of an employee does not entitle his family to compassionate employment and that the authority concerned must consider as to whether the family of the deceased employee is unable to meet the financial crisis resulting from the employee's death. This Court also held as under: (SCC p. 140, para 2) “The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency.” 35. Learned counsel for the respondent cited the decision in Balbir Kaur v. Steel Authority of India [ (2000) 6 SCC 493 : 2000 SCC (L&S) 767] which also deals with compassionate appointment. Learned counsel for the respondent cited the decision in Balbir Kaur v. Steel Authority of India [ (2000) 6 SCC 493 : 2000 SCC (L&S) 767] which also deals with compassionate appointment. In this case, this Court held that the family benefit scheme assuring monthly payment to the family of the deceased employee was not a substitute for compassionate appointment and, therefore, compassionate appointment could not, therefore, be denied on the ground that the Family Benefit Scheme was available and that non-payment of gratuity and provident fund to the family at the time of death of the employee runs counter to the object of the beneficial legislation contained in the Payment of Gratuity Act and the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and that lump sum payment of provident fund is an insulating factor for the family to cope with the situation arising out of the death of the employee. This Court also held that the socialistic pattern of society as envisaged in the Constitution has to be attributed its full meaning and that the law courts cannot be a mute spectator where relief is denied to the horrendous sufferings of a family which has lost its breadwinner and the constitutional philosophy should be allowed to become part of every man's life and then only the Constitution can reach everyone. This is a general observation made by this Court in the context of compassionate appointment. The above judgment, in our view, is distinguishable on facts and on law. This apart, the case on hand is directly covered by the Scheme formulated by the Bank in regard to compassionate appointment. 36. In the present case, by declining the application submitted by the respondent after the proper consideration of the same in the light of the relevant parameters, the appellant Bank cannot be said to have acted in an arbitrary manner regardless of the constitutional principles. 37. It is also settled law that the specially constituted authorities in the rules or regulations like the competent authority in this case are better equipped to decide the cases on facts of the case and their objective finding arrived on the appreciation of the full facts should not be disturbed. Learned Single Judge and the Division Bench by directing appointment has fettered the discretion of the appointing and selecting authorities. Learned Single Judge and the Division Bench by directing appointment has fettered the discretion of the appointing and selecting authorities. The Bank had considered the application of the respondent in terms of the statutory scheme framed by the Bank for such appointment. After that even though the Bank found the respondent ineligible for appointment to its service, the High Court has found him eligible and has ordered his appointment. This is against the law laid down by this Court. It is settled law that the principles regarding compassionate appointment that compassionate appointment being an exception to the general rule the appointment has to be exercised only in warranting situations and circumstances existing in granting appointment and guiding factors should be financial condition of the family. The respondent is not entitled to claim relief under the new Scheme because the financial status of the family is much above the criterion fixed in the new Scheme.” 7. As noted in Bijon Mukherjee (Supra) a coordinate Bench of this Court in W.P. 9384(W) of 2014, Sunita Saha Podder vs. State of West Bengal and Ors. had also examined the principles relating to appointment on compassionate ground. At the risk of repetition, I once again reproduce the relevant portion below: “Untimely death of an employee is no doubt unfortunate. It is more unfortunate if the deceased leaves behind minor children and a young widow surviving him, without any prospect of earning. The distress condition faced by the family members of the deceased can well be imagined. It is for saving a family from destitution that compassionate appointment is offered to an eligible member of the family of the deceased to tide over the crisis arising due to untimely death of the sole bread winner. However, over the years, the Supreme Court has shifted from the initial compassionate view taken in the decision reported in AIR 1989 SC 1976 (Sushma Gosain Vs. Union of India) to a rather strict view starting from the decision reported in (1994) 4 SCC 138 (Umesh Kumar Nagpal Vs. State of Haryana). It has been held there as follows:- “2. *** The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. State of Haryana). It has been held there as follows:- “2. *** The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. ….. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.” That compassionate appointment cannot be claimed as a matter of right and should be offered only in accordance with the rules/regulations/scheme in place, and that financial condition of the family of the deceased is a relevant consideration for offering compassionate appointment has been reiterated by the Supreme Court in recent decisions reported in (2007) 9 SCC 571 (SBI v. Jaspal Kaur), (2012) 11 SCC 307 (Union of India v. Shashank Goswami) and (2012) 9 SCC 545 (State of Gujarat v. Arvindkumar T. Tiwari). In the decision in Balbir Kaur (supra), the earlier decision in Umesh Kumar Nagpal (supra) was not noticed and, therefore, the efficacy of the former decision as a binding precedent stands eroded. In the decision in Balbir Kaur (supra), the earlier decision in Umesh Kumar Nagpal (supra) was not noticed and, therefore, the efficacy of the former decision as a binding precedent stands eroded. Since the learned Judge while deciding Tapan Kumar Barman (supra) also did not notice the decision in Umesh Kumar Nagpal (supra) and His Lordship’s view seems to be inconsistent with the views expressed in Jaspal Kaur (supra), Shashank Goswami (supra), and Arvindkumar T. Tiwari (supra), I am not persuaded to concur therewith. It is axiomatic that compassionate appointment can only be offered in terms of the scheme that is formulated by the State. None can claim it as a matter of right. In the event a member of the family of the deceased fulfills the requirements of the scheme, appointment would follow but not otherwise. Non-fulfillment of the provisions of the scheme can well lead to denial of compassionate appointment.” 8. Finally, the conclusion reached at in Bijon Mukherjee (Supra) are relevant for the purpose of the present case and are accordingly reproduced below: “25. I had on an earlier occasion, examined the principles relating to compassionate appointment in the case of W.P. 2825 (W) of 2018 (Smt. Ipsita Chakrabarti nee Dua vs. State of West Bengal and Ors.) [2018(3) CHN (CAL) 472]. After considering the Supreme Court judgements delivered in the cases of State Bank of India and Anr. Vs. Somvir Singh reported in (2007) 4 SCC 778 ; I.G. (Karmik) and Ors. vs. Prahalad Mani Tripathi reported in (2007) 6 SCC 162 ; National Institute of Technology vs. Niraj Kumar Singh reported in (2007) 2 SCC 481 ; Union Bank of India and Ors. vs. M.T. Latheesh (supra); this Court held that the appointment on compassionate grounds is to be done in accordance with the rules framed by the employer and there is no right to claim compassionate appointment on any other ground. Furthermore, the Court had held that this appointment is given only for meeting the immediate hardship faced by the family due to the death of the bread earner and the financial condition of the family is a guiding factor for such appointment. The relevant paragraph enunciating the ratio decidendi of the judgement is delineated below: “10. Furthermore, the Court had held that this appointment is given only for meeting the immediate hardship faced by the family due to the death of the bread earner and the financial condition of the family is a guiding factor for such appointment. The relevant paragraph enunciating the ratio decidendi of the judgement is delineated below: “10. After going through the judgments passed by the Supreme Court on the issue of compassionate appointment, the following principles emerge:- (a) Appointment on compassionate grounds is an exception craved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. (b) The right of a dependent of an employee who died in harness for compassionate appointment is based on the scheme, executive instructions, rules etc. framed by the employer and there is no right to claim compassionate appointment on any other ground apart from the above scheme conferred by the employer. (c) Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground it should be kept confined only to the purpose it seems to achieve, the idea being not to provide for endless compassion. (d) Compassionate appointment has to be exercised only in warranting situations and circumstances existing in granting appointment and guiding factors should be financial condition of the family.” 26. After observing the ratio and the legal positions contended by the Counsels appearing on behalf of the parties as well as the precedents examined above, I am persuaded to opine that appointment on compassionate grounds seeks to relieve the immediate financial hardship faced by the dependants of the deceased. It acts as an exception to Articles 14 and 16 of the Constitution as the defendant are given preferential appointment ahead of other equally meritorious candidates similarly placed and hence it cannot be claimed as a right. With the object of appointment on compassionate grounds in mind, it is palpably clear to me that this appointment must be done in accordance with the rules for such appointment. The dependant seeking such appointment must be eligible for such consideration and facing financial hardship to the extent delineated by the rules.” 9. With the object of appointment on compassionate grounds in mind, it is palpably clear to me that this appointment must be done in accordance with the rules for such appointment. The dependant seeking such appointment must be eligible for such consideration and facing financial hardship to the extent delineated by the rules.” 9. In view of the above judgments, the cardinal principle that emerges is that the law on compassionate appointment seeks only to relieve the immediate financial hardship faced by the dependants of the deceased. It acts as an exception to Articles 14 and 16 of the Constitution as the dependants of the deceased are given preferential appointment ahead of other equally meritorious candidates similarly placed and, therefore, the right to compassionate appointment cannot be claimed as a matter of right. The object of appointment on compassionate grounds being manifestly clear, such appointments have to be made in accordance with the Rules for such appointment. The dependant seeking such appointment must be eligible for such consideration and facing financial hardship to the extent delineated by the rules. 8. The impugned order of the D. I. of the Schools is a reasoned order and has considered the financial condition of the family of the deceased as per the Rules framed by the State of West Bengal. Furthermore, the conduct of the petitioner has also to be examined in the particular matter. Subsequent to passing of the impugned order the writ petition was filed in the year 2011. On 19th April, 2012 accommodation was sought for by the petitioner praying that the matter go out of the list. Subsequently, on August 2, 2013 the matter was dismissed for default as no one appeared on behalf of the writ petitioner. An application for restoration of this matter was filed in the year 2016 along with an application for condonation of delay for filing of the said restoration application. Both the applications for restoration and condonation of delay were allowed by an order dated May 2, 2016. Since 2016 the matter was taken up on two occasions. On the first occasion an adjournment was sought on behalf of the respondents on March 22, 2017 and subsequently an adjournment was sought by the petitioner on April 19, 2017. 9. Both the applications for restoration and condonation of delay were allowed by an order dated May 2, 2016. Since 2016 the matter was taken up on two occasions. On the first occasion an adjournment was sought on behalf of the respondents on March 22, 2017 and subsequently an adjournment was sought by the petitioner on April 19, 2017. 9. It is crystal clear that this litigation has been conducted by the writ petitioner in a shoddy manner without any urgency whatsoever that leads to a clear inference that there was no immediate extreme financial hardship on the writ petitioner. Apart from the above, the reasoned order that has been passed by the D. I. of Schools is based on correct understanding of the facts and application of the law prevailing at the time of the death of the deceased employee. 10. In view of the above, I see no reason to interfere with the said order and accordingly, the present writ petition (W.P. No. 14220(W) of 2011) is dismissed. As the matter is relating to compassionate appointment, I see no reason to pass any order as to costs. 11. Since no affidavit in opposition has been called for, allegations made in this writ petition are deemed not to have been admitted by the respondents. 12. All parties are to act on the website copy of this order to be downloaded from the official website of this Hon’ble Court.