Biswanath Majumdar vs State of West Bengal

S.N. Bhattacharjee J.

The Writ Petitioner is the son of an Assistant Teacher of Panchra Free Primary School who died in harness on April 24, 1996. The writ Petitioner filed an application dated September 2, 1996, praying for an appointment on compassionate ground against the vacancy created by the death of his father on the basis of circular No. 457-Edn.(P)/4A-50/83 dated October 12, 1987. The Respondent No. 2, the Chairman (Ad hoc Committee) of the District Primary School Council rejected the application the ground that the Petitioner''s father died on April 25, 1996, at the age of 64 years after his superannuation by a memo dated June 11, 1998. The Respondent No. 2 rejected the application relying upon the Government Notification dated January 2, 1995. Challenging the Notification as arbitrary, inconsistent with and in derogation of the Fundamental Rights of the Petitioner as envisaged under Articles 14, 19(g), 16(i) of the Constitution of India this writ petition has been filed with the following prayer:

A Declaration that Clause (iv) of Paragraph 4 of the said Circular or Notification of the Respondent No. 1 dated 2nd January, 1995 being annexure ''H'' hereto, be held to be ultra vires the Constitution of India as it violates the fundamental rights of the Petitioner.

It has been contended by Learned Counsel for the Petitioner that the impugned Circular seeks to discriminate between the two classes of teachers without any rational basis. The teachers who died in harness before expiry of 60 years which is the age of superannuation and the teachers who died thereafter while in extension of service have been wrongly discriminated against although both of them are in service.

The submission on behalf of the Petitioner has been vehemently opposed by the Learned Counsel appearing for the contesting Respondent No. 2. According to Learned Counsel that the appointment on compassionate ground is no right at all. It is a matter of exception to the general rule of recruitment and is granted on humanitarian considerations. He cited a ruling of a single Judge of this Court in Bishnupada Gope v. State of West Bengal 1996 (1) C.L.J. 18 wherein His Lordship held:

The whole object of granting compassionate employment is 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. Compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get ever the financial crisis which it faces at the time of death of the bread winner, the compassionate employment cannot be claimed and offered whatever be the lapse of time and after the crisis is over.

After having heard the Learned Counsels of both the sides I find that in the present case two questions fall for my decision:

(i) Whether an appointment on compassionate ground is a fundamental right within the meaning of Article 16(i) of the Constitution of India;

(ii) If so, whether the impugned circular dated 2.1.95 is liable to be quashed for being violative of Article 16(i) of the Constitution of India.

The first point has already been decided by the Supreme Court and is covered by the decision in Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others, where the Apex Court has held, The object underlying a provision for grant of compassionate employment is to enable the family of deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions of making appointment by following prescribed procedure. It is in the nature of an exception to the general provisions. An exception cannot subsume the main provision and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee.

The ratio of this decision is that the benefit of employment on compassionate ground is not a right at all, far less, a fundamental right. The above decision not only covers point No. 1 but also the other point. The rationale behind the denial of opportunity for compassionate employment beyond the age of superannuation is not unreasonable but based on sound principle. The State is at liberty to see that the benefit of compassionate employment should not be extended so far as to unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been otherwise available to them, had this benefit not been granted to the ward of the deceased teacher. The teachers who are in service till the age of superannuation and teachers who after having crossed the age of superannuation are enjoying extension of service do not belong to same class nor they are equally situated, classification is, therefore, not at all unreasonable. It is open to the appointing authority to lay down such pre-requisite condition of service and such classification does not amount to discrimination between two sections who are not equally circumstanced.

As it has been found that the Petitioner had no fundamental right to an appointment on compassionate ground further discussion on the point of unconstitutionality of the impugned circular is not warranted. The impugned circular not being unreasonable or arbitrary there is no reason to allow the prayers of the Petitioner. The writ petition being without any merit is dismissed. If the Petitioner applies for Xerox certified copy of this order, the same should be supplied urgently.