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2024 DIGILAW 635 (CAL)

Tarak Nath Mondal v. State of West Bengal

2024-03-21

ANIRUDDHA ROY

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JUDGMENT : Aniruddha Roy, J. Facts: 1. This is a claim for compassionate appointment. The father of the petitioner was working as Group-D staff at one Kalitha High School, District – Birbhum (for short, the school). The father of the petitioner died while in service on April 3, 2006 at his 43 years of age, Annexure P-1 at page 37 to the writ petition. 2. The mother of the petitioner being the widow applied for compassionate appointment on August 14, 2007, Annexure P-2 at page 38 to the writ petition. On October 20, 2008 during pendency of the said application submitted by the mother, the mother died at her age of about 35 years, Annexure P-3 at page 39 to the writ petition. Thus, the parent died leaving surviving three minor children of whom petitioner is the eldest one. 3. The petitioner attained majority on December 21, 2008 then the petitioner on March 4, 2009 applied for compassionate appointment in place and stead his father who died in harness, Annexure P-41 at page 40 to the writ petition. The Managing Committee of the school forwarded the application before the respondent No. 3 on March 4, 2009, Annexure P-5 at page 41 to the writ petition. 4. Since cause of the petitioner was not addressed and the same did not receive any attention of the respondent No. 3 the petitioner applied in the first round of writ litigation WP 7527 (W) of 2009. The said writ petition was disposed of by an order dated July 7, 2009 by a co-ordinate bench with a direction upon the respondent No. 3 to consider and dispose of the application of the petitioner. Pursuant to and in terms of the said direction, the respondent No. 3 gave its decision dated January 29, 2010, Annexure P-9 at page 49 to the writ petition rejecting the claim of the petitioner on the sole plea that, the application of the petitioner was not submitted within the period of two years from the date of death of the employee-father in terms of the Government Order No. 4-SE(Pry) dated January 2, 1995. 5. Challenging the said decision of the respondent No. 3 dated January 29, 2010 the petitioner applied in the second round of writ litigation W.P. 16081 (W) of 2010. 5. Challenging the said decision of the respondent No. 3 dated January 29, 2010 the petitioner applied in the second round of writ litigation W.P. 16081 (W) of 2010. By an order dated August 2, 2010 the said second writ petition was disposed of by a co-ordinate bench directing the Director of School Education to consider the case of the petitioner sympathetically in view of the observation made therein. Pursuant to the said direction, the Director of School Education considered the claim of the petitioner and again rejected the same by its order dated March 24, 2011 on the same ground of the rigor of Two years, Annexure P-11 at page 55 to the writ petition. 6. The record shows that, the Commissioner of School Education (previously Director of School Education) reviewed its said decision dated March 24, 2011 and gave its decision dated April 17, 2012 on review but rejected the claim of the same ground. However, requested the Principal Secretary, Education Department to cause the necessary amendment in the said Government Order dated January 2, 1995, but, the decision for rejection of the claim of the petitioner was not interfered with, Annexure P12 at page 58 to the writ petition. The Commissioner of School Education had pursued the issue before the Secretary of the School Education by its communication dated October 4, 2012, Annexure P-13 at page 61 to the writ petition. 7. The petitioner then in the third round of writ litigation W.P. 26418 (W) of 2015 challenged the said decision of the Director of School Education dated March 24, 2011. By an order dated November 30, 2015 a coordinate bench set aside the decision dated March 24, 2011 and directed the respondent No. 3 to consider the case of the petitioner in the light of the said decision on review dated April 17, 2012. 8. Pursuant to and in terms of the said direction of the co-ordinate bench dated November 30, 2015, the respondent No. 3 passed the impugned order dated June 3, 2016 once again rejecting the claim of the petitioner on the said rigor of Two Years, Annexure P-15 at page 68 to the writ petition. 9. The petitioner has impugned the said decision of the respondent No. 3 dated June 3, 2016 through the instant writ petition. 10. Affidavits are exchanged by and between the parties. Submissions: 11. Mr. 9. The petitioner has impugned the said decision of the respondent No. 3 dated June 3, 2016 through the instant writ petition. 10. Affidavits are exchanged by and between the parties. Submissions: 11. Mr. Sarwar Jahan, learned counsel for the petitioner referring to the Government Order bearing No. 457-Edn.(P)/4A-50/83 dated October 12, 1987 submits that, clause 5, 6 and 7 there under, inter alia, provide for the compassionate appointment of a Ward of the deceased employee as in the instant case but no time stipulation or time rigor of Two years was mentioned therein. He then refers to the Government Order bearing No. 4-SE(Pry)/4A-17/15 dated January 2, 1995 and submits that Sub-Clauses (i) and (ii) to Clause 4 thereof introduced the time rigor of Two years and also provides for that if an application is received after expiry of the said Two years should not be considered except under very special circumstances involving serious illness or physical inability of the applicant to submit such application in time, but in such cases the application should be submitted within a period of Four years from the date of expiry of the concerned Teacher. He submits that, the preface of the said Government Order dated January 2, 1995 shows that, there was a change and modification caused with reference to para 5 of the said Government Order dated October 12, 1987. 12. Mr. Sarwar Jahan, learned counsel for the petitioner submits that, within a period of two years from the date of expiry of the employee who died-in-harness, the mother of the petitioner being a Ward applied on August 14, 2007 seeking appointment for herself. Subsequently, the mother of the petitioner died on October 20, 2008 when the petitioner was a minor child. The petitioner then became major on December 31, 2008 and immediately thereafter on March 4, 2009 the petitioner applied for compassionate appointment. Therefore, if the submission of application for the petitioner is taken into account, it is within the two years of the date of death of the widow mother and within four years from the date of death of the employee who died on April 3, 2006. Mr. Therefore, if the submission of application for the petitioner is taken into account, it is within the two years of the date of death of the widow mother and within four years from the date of death of the employee who died on April 3, 2006. Mr. Jahan then refers to the observation of the co-ordinate bench dated August 2, 2010 and also the ground for review caused by the Commissioner of School Education dated April 17, 2012 requesting the Principal Secretary to cause the necessary amendment in the said 1995 Government Order. 13. Mr. Jahan further submits that, in any event the power and authority of the State is already embodied in its policy for granting compassionate appointment to extend the time from two years to four years under the said Government Order dated January 2, 1995. 14. In the light of the above, Mr. Jahan submits that, this writ petition may be allowed with a direction upon the State authority to grant compassionate appointment to the petitioner forthwith. 15. Ms. Iti Dutta, learned State advocate led by Mr. Supriyo Chattopadhyay, learned Additional Government Pleader referring to their averments from the affidavit-in-opposition filed on behalf of respondent No. 3 submits that, this is not a case for extending the period from two years to four years. It is not the case of the petitioner that, the petitioner has suffered from any illness or physical inability which prevented the petitioner from applying for compassionate appointment within four years from the date of death of the employee. Therefore, this is not an exceptional or special circumstances where the petitioner can claim compassionate appointment by relaxing the period from two years from four years in terms of Clause 4 (ii) under the said Government Order dated January 2, 1995. 16. Ms. Dutta, learned State counsel refers to the averments made in paragraph 4 from the affidavit-in-opposition and submits that, though there was a suggestion made by the Commissioner of School Education before the Principal Secretary of the School Education Department to consider the amendment of the provisions under the said Government Order dated January 2, 1995 but since no such step has been taken by the higher authority, the respondent No. 3 had no other option but to strictly follow this provision under the said Government Order dated January 2, 1995 and the claim of the petitioner was rejected. Decision : 17. Decision : 17. After considering the rival contentions of the parties and upon perusal of the materials on record, it appears to this Court that, the facts narrated above are admitted. The employee died on April 3, 2006 and the widow applied on August 14, 2007 for compassionate appointment, which was admittedly within two years from the date of death of the employee and inconsonance with the said Government Order dated January 2, 1995. The widow admittedly expired on October 20, 2008 when the petitioner was admittedly a minor. The petitioner then attained majority with effect from December 31, 2008 and immediately he applied seeking compassionate appointment on March 4, 2009. 18. Firstly, the petitioner did not have any right to apply until he attained majority. Secondly, so long the application of the petitioner’s mother was kept pending and she was alive, even if the petitioner became major prior to the demise of his mother no right would have accrued in favour of the petitioner to apply for compassionate appointment. The right to apply by the petitioner accrued on and from December 31, 2008 when the petitioner attained majority and the application of his mother has suffered its natural death with the demise of the mother. The petitioner immediately then applied on March 4, 2009. These chronological events clearly show that, the petitioner was a bona fide applicant at the relevant point of time. 19. The situation under which the petitioner was requiring a compassionate appointment and the compelling circumstance for the same under the special circumstance would appear from the observation of the previous co-ordinate bench dated August 2, 2010 and the same is quoted below: “Viewed in the light of the earlier order of this Court dated 7.7.2009 while disposing of W.P. 7527(W) of 2009, the impugned order cannot be sustained from the tenor of the order dated 7.7.2009, it is clear that a humane approach was called for in the circumstances. The petitioner prior to attaining majority lost both his parents and has two minor sisters to feed them. The approach of the District Inspector in refusing the claim on the ground that the petitioner had not applied within two years of death cannot be countenanced regard being had to the fact that prior to her death, the petitioner’s mother herself had applied for compassionate appointment. The approach of the District Inspector in refusing the claim on the ground that the petitioner had not applied within two years of death cannot be countenanced regard being had to the fact that prior to her death, the petitioner’s mother herself had applied for compassionate appointment. In view of the tragic circumstances brought about by the cruel hands of destiny, the District Inspector has exhibited extreme lack of graciousness. I do not find any reason to sustain the order. The same stands set aside. The claim of the petitioner for compassionate appointment shall be considered afresh by the Director of School Education, West Bengal being guided by the rules that were in existence in relation to appointment on compassionate ground on the date of death of the petitioner’s father in view of the Division Bench decision of this Court reported in 2009 (2) CLJ (Cal) 512, (State of West Bengal Vs. Smt. Bina Debnath). The petitioner shall be heard before a final decision is given. In the event the claim of the petitioner is once again rejected, a reasoned order shall be passed and communicated to him. On the contrary, if the claim succeeds, appropriate order shall be passed by the Director without any delay. In view of the special facts and circumstances of the case, the Director is expected to consider the claim of the petitioner sympathetically, within eight weeks from date of receipt of a copy of this order.” 20. The State authority did not carry out any appeal from the said order dated August 2, 2010 and on the contrary by accepting the same and acted thereupon and the Director of School Education passed its decision dated March 24, 2011 and rejected the claim of the petitioner on the rigor of two years though the period of four years of extension was noted and discussed therein. The observation of the Commissioner of School Education on review from its communication made to the Principal Secretary dated April 17, 2012 is quoted below: “Knowing such fact of your consideration, I would like to review my earlier decision and would propose you to extend your such consideration to the similarly circumstanced cases of secondary education also, by making amendment of the para – 4(a) & (b) of the G.O. No. 4-SE (Pry) dated 02-01-1995, for relaxation in deserving cases, where the candidate is of age at the time of appointment and issue necessary order so that I can take appropriate decision in the instant matter accordingly at par your order.” 21. From the above, it also appears to this Court that, the policy framers who framed policy for granting compassionate appointment are also not unmindful about the facts situation of the case and causing of necessary amendment accordingly in the said Government Order dated January 2, 1995. However, neither the record shows nor any submission has been made on behalf of the State authority before this Court that, the Principal Secretary or the appropriate authority of the State has considered the suggestion of another responsible State authority in the field, namely, Commissioner of School Education, West Bengal and no amendment has taken place in the said Government Order dated January 2, 1995 nor was it refused by the Principal Secretary or any other high officials in the hierarchy as to the suggestion of the Commissioner of School Education. 22. Be that as it may, from the facts stated above, this Court is of the firm view that, the application of the petitioner dated March 4, 2009 could not have been rejected on the plea of the rigor of two years. The chain of events as already narrated above would show that, the moment right of the petitioner had accrued to apply for compassionate appointment after attaining majority and after the demise of his mother whose application was pending he has applied. The application of the petitioner was within two years after the demise of his mother and within four years from the date of death of the father. The petitioner is a bona fide applicant. There was no delay and/or inordinate or unexplained delay in submitting the application by the petitioner. 23. It is true that, compassionate appointment cannot be claimed as a matter of right. The petitioner is a bona fide applicant. There was no delay and/or inordinate or unexplained delay in submitting the application by the petitioner. 23. It is true that, compassionate appointment cannot be claimed as a matter of right. This is a result of a benevolent State policy. It is equally true that, if an applicant is bona fide and his claim can be deserved for consideration in the light of the prevailing policy in the affirmative considering the special circumstance involved in the facts situation, then the State cannot and should not decline the claim of such applicant. The chain of events narrated above would also show it was a special circumstance under which the petitioner applied immediately after the right has accrued. 1995 Government order provides for a special circumstance as to the inability of the applicant to apply. In the instant case inability was also there on the part of the petitioner as narrated above till the date he applied for. 24. A writ court in exercise of its power under Article 226 of the Constitution of India is also a Court of equity and it is the duty of the Court to see that justice is done to a bona fide person, if otherwise such a bona fide person has fulfilled the necessary qualifications for obtaining the benefit under a State policy. 25. In view of the foregoing discussions and reasons, the said impugned decision/order dated June 3, 2016 passed by the respondent No. 3, Annexure P-15 at page 68 to the said writ petition stands set aside and quashed. 26. The respondent No. 3 is directed to take all necessary and consequential steps for recommending the name of the petitioner for compassionate appointment. However, the respondent No. 3 shall do the same upon verification of all the records and documents which are necessarily required to be verified in accordance with law. The entire exercise shall be carried out and completed by the respondent No. 3 positively within a period of three weeks from the date of communication of this judgment and order. 27. However, the respondent No. 3 shall do the same upon verification of all the records and documents which are necessarily required to be verified in accordance with law. The entire exercise shall be carried out and completed by the respondent No. 3 positively within a period of three weeks from the date of communication of this judgment and order. 27. Upon receiving the recommendation from the respondent No. 3, the respondent No. 6 shall issue the recommendation for appointment of the petitioner positively within a period of two weeks from the date of receiving the record from the respondent No. 3 and shall send the same before the appropriate authority for appointment and such an appropriate authority then shall take all necessary and consequential steps in accordance with law. 28. It is made clear that, the petitioner shall be granted notional benefit in every respect which he is eligible strictly in accordance with law on and from August 2, 2010 being the date of the order of the co-ordinate bench at page 53 to the writ petition as referred to above. 29. With the above observations and directions this writ petition being W.P.A. 30732 of 2017 stands allowed, without any order as to costs. 30. Photostat certified copy of this order, if applied for, be furnished expeditiously.