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Judgment
Amrita Sinha, J.
(1) The father of the petitioner, an assistant teacher of KanchraparaHarett High School (H.S.) died in harass on 28th October, 2012 leaving behind his
mother, wife and daughter, the petitioner herein. The normal date of superannuation of the deceased teacher was 31st. July 2013. The petitioner, being
his only daughter applied for appointment on compassionate ground.
(2) The District Inspector of Schools (S.E.) Barrackpore, North 24 Parganas vide memo dated 2nd December, 2014 rejected the prayer of the
petitioner indicating as follows :-
“In reference to the subject cited above, I have to state that following the notification No. 697ES/S/IS-18/08 dt. 9th July, 2009, Kolkata Gazette,
Chapter â€"IV Schedule â€"V, it appears that the family pension of the applicant will be less than the initial gross salary of Group- D staff at the
material point of time. The statements of determination of financial hardship of the candidates have been examined. As per statement “Family
Pension†of Debabrata Mukhopadhyay is Rs.15,440.00/- and gross salary of Group â€"D at the material point of time was Rs.10,860.00/-. Hence the
prayer of Smt. M. Mukhopadhyay cannot be processed from this office.â€
(3) The order of rejection dated 2nd. December 2014 passed by the District Inspector of Schools (S.E.), Barrackpore, North 24 Parganas is impugned
in this writ petition.
(4) The specific case of the petitioner is that the father of the petitioner was the only earning member of the family and on his death the family was
faced with severe financial crisis. It is further submitted that mere receipt of pension and pensionary benefits is not a bar to give appointment to the
petitioner on compassionate ground.
(5) The petitioner submitted that the notification dated 9th July, 2009 that has been relied upon by the respondent to reject the case of the petitioner is
not applicable in case of the petitioner. The petitioner prays for giving appointment upon setting aside the impugned memo.
(6) The learned Advocate for the petitioner relies upon the following cases in support of his client:-
i) Balbir Kaur & Anr. vs. Steel Authority of India Limited & Ors, (2000) 6 SCC 493.
ii) Santosh Kumar Sahoo vs. Union of India, 2017 (2) CHN (Cal) 305. iii) Tapan Kumar Barman vs. State of West Bengal & Ors., 2009 (1) CHN 23.
 iv) Swati Chatterjee vs. State of West Bengal & Ors., 2010 (1) CLJ (Cal) 350.
v) Susmita Majumder vs. State, 2013 (3) CHN (Cal) 696.
vi) State of West Bengal vs. Purnima Das reported in 2017 (4) CHN (Cal) 362.
(7) The learned Government Pleader appearing for the State submits that the petitioner cannot claim compassionate appointment as a matter of right
and since the petitioner did not fulfil the criteria as laid down in the notification being no. 697-ES/S/IS-18/08 dated 9th July, 2009 appointment cannot
be given to her. He submits that the family pension of the deceased teacher is more than the gross salary of Group-D staff and further the petitioner
has received lump sum money on account of provident fund and gratuity being the retiral benefits of the deceased teacher. As such the petitioner
cannot under any circumstances said to be living under extreme financial hardship that fails to provide two square meals and other essentials of the
surviving members.
(8) The learned Government pleader further submits that the judgment of Balbir Kaur relied upon the petitioner is no longer good law in view of the
later judgments passed by the Hon’ble Supreme Court in similar matters.
(9) The Learned Government Pleader relies upon the following cases in his support :-
i) Union Bank of India & Others vs. M.T. Latheesh, (2006) 7 SCC 350.
ii) Steel Authority of India Limited vs. Madhusudan Das & Others, (2008) 15 SCC 560.
iii) Unreported judgment of this court passed in WP No. 30465 (W) of 2013, Nivedita Adhikari vs. State of West Bengal & Ors.. iv) Unreported
judgment of this court passed in WP 9384 (W) of 2014, Smt. Sunita Saha (Poddar) vs. State of West Bengal & Ors.
(10) The issue to be decided in this writ petition is whether the respondent authorities were right in resorting to the provisions mentioned in Chapter IV
Schedule V of the notification no. 697-E/S/IS- 18/08 dated 9th July, 2009. Vide the aforesaid notification the Government of West Bengal, School
Education Department, Secondary Branch, published the West Bengal School Service Commission (Selection of persons for appointment to the post
of non teaching staff) Rules 2009 herein after referred to as the 2009 Rules.
(11) It appears that while deciding the case of the petitioner in accordance with the aforesaid rules the District Inspector of Schools assessed the
financial condition of the petitioner and came to a definite finding that the family of the employee received family pension of Rs.15,440/- only. The said
District Inspector further mentioned that at the material point of time, the gross salary of Group-D employee was Rs.10,860/-. The pension payment
order annexed to the affidavit in opposition shows that the family of the deceased received a sum of rupees six lac only on account of death cum
retiring gratuity.
(12) Schedule V of the 2009 Rules is as follows :-
“SCHEDULE V (See rules 20 and 21) PROCEDURE, MANNER OF APPLICATION AND PREPARATION OF PANEL FOR
APPOINTMENT ON COMPASSIONATE GROUND
When a Teacher or non-teaching staff dies in harness before the date of his superannuation, i.e. the age of 60 years, leaving a family which is, in the
opinion of the District Inspector of Schools (Secondary Education), in such extreme financial hardship that it fails to provide two square meals and
other essentials to the surviving members of the deceased teacher’s family, the â€
(i) Spouse;
(ii) Son;
(iii) Daughter of the deceased Teacher or non-teaching staffs family who is possessing required educational qualifications as laid down in Scheduled I
for the posts of Clerk or Group ‘D’ staff and unemployed and not below 18 years of age and not above 45 years of age may, within two years
from the date of such death, make an application in writing to the District Inspector of Schools (Secondary Education) for appointment as non-
teaching staff on compassionate ground:
Provided that only one member of the family of the deceased teacher may be appointed under the provisions of this sub-rule. Explanation.- The
expression “financial hardshipâ€, in relation to income of a deceased Teacher or non-teaching staff consisting of up to five members in his family,
shall mean an amount of income less than the initial gross salary of Group ‘D’ staff of the State Government at the material point of time. For
computation of income of such family, an income of an amount earned by each family member from any other sources than Provident Fund, Gratuity
and 40% of Family Pension of the first seven years or upon the attainment of sixty seven years of age of the deceased teacher had he been alive,
whichever is earlier, at the material point of time, shall be taken into account.â€
(13) From the above it follows that the criteria to be fulfilled for getting compassionate appointment is that the family should be under extreme
financial hardship that fails to provide two square meals and other essentials to the surviving members of the deceased teacher’s family. It further
appears that the explanation of the expression ‘financial hardship’ as provided in the said Rule means an amount of income less than the initial
gross salary of Group-D staff of the State Government at the material point of time. For computation of income of such family, an income of an
amount earned by each family member from any other sources than provident fund, gratuity and 40% of family pension of the first seven years or
upon the attainment of 67 years of age of the deceased teacher, had he been alive, whichever is earlier at the material point of time shall be taken into
account.
(14) The District Inspector of Schools had made the necessary computation and arrived at the finding that the family pension of the deceased teacher
was higher than the gross salary of Group-D employee of the State Government. The calculation is as follows :-
Family pension of the deceased employee = Rs.15,550/-
 Dearness Allowance (45%) = Rs.6,948/-
Miscellaneous Allowance = Rs.300/-
Total = Rs.22,688/-
 40% of the above income = Rs.9,075/- Admissible family pension = Rs. 22,680/ minus Rs. 9,075/- = Rs.13,613/-
(15) The gross salary of a Group-D employee as on 28th October, 2012 i.e, the date of expiry of the deceased teacher was as follows:-
Gross salary (Basic) = Rs.6,600/-
Dearness Allowance (45%) = Rs.2,970/-
House Rent Allowance (10%) = Rs.990/-
Miscellaneous Allowance = Rs.300/-
Total = Rs,10,860/
(16) Since 60% of family pension of the deceased employee i.e, Rs.13,613/- is more than the gross salary of a Group-D staff i.e, Rs.10,860/-
accordingly the petitioner failed to come within the ambit of ‘financial hardship’ in accordance with the aforesaid Rules, hence was not eligible
for being appointed on compassionate ground.
(17) The petitioner mainly relies upon the case of Balbir Kaur & Anr (Supra) and submits that the Hon’ble Supreme Court held that the socialistic
pattern of the society as envisaged in the Constitution had to be attributed its full meaning. Law Courts cannot be mute spectators where relief is
denied to the horrendous sufferings of an employee’s family on account of death of the bread earner. The judgments of Tapan Kumar Barman
(supra), Swati Chatterjee (supra), Susmita Majumder (supra) all takes into account the observation laid down in the case of Balbir Kaur (supra). The
Division Bench judgment of this court in the case of Santosh Kumar Sahoo also directed the authorities to grant compassionate appointment to the
petitioner in any post having regard to his educational qualification.
(18) The respondent on the other hand laid stress on the Government notification and submits that as the petitioner did not fulfil the eligibility criteria
she cannot be said to be living in penury and as such is not entitled to get appointment on compassionate ground. The learned Advocate General relies
upon the judgment of Union Bank of India & Ors. vs. M.T. Latheesh (supra) wherein the Supreme court relied upon the case of Umesh Kumar
Nagpal vs. State of Haryana, (1994) 4 SCC 138 which laid down 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. 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
must 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.â€
(19) The case of Balbir Kaur (supra) was also taken into account in the aforesaid case and Supreme Court held that the general observation made
therein on the context of compassionate appointment is distinguishable on facts and on law. In the case at hand Balbir Kaur as well as Santosh Kumar
Sahoo will not come in aid of the petitioner as the respondent authority had considered the application of the petitioner and found her ineligible to get
compassionate appointment as the financial status of the family was above the criteria fixed by the 2009 Rules. The Supreme Court never directed to
give appointment to an applicant de hors the Rules.
(20) It is settled law that compassionate appointment being an exception to the general rule should be exercised only in warranting situations and
circumstances existing in granting appointments and one of the guiding factors should be the financial condition of the family.
(21) The same principle had been relied upon in the case of Steel Authority of India Limited vs. Madhusudan Das & Ors. (supra) wherein the
Supreme Court held that appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for in the rules. It is meant
to provide for a minimum relief. Article 14 and 16 of the Constitution of India mandates that all eligible candidates should be considered for
appointment in the posts which have fallen vacant. Appointment on compassionate ground offered to a defendant of a deceased employee is an
exception to the said rule. It is a concession, not a right.
(22) In the case of Union of India vs Umesh Kumar Nagpal (supra) the Supreme Court held that the whole object of granting compassionate
appointment is to enable the family to tide over the sudden crisis caused on the death of the bread earner. The object is not to give a member of such
family a post, much less a post for the post held by the deceased. The exception to the general rule was to be resorted in case of penury where the
defendants of an employee are left without any means of livelihood and that unless some source of livelihood was provided a family would not be able
to make both ends meet.
(23) The principle laid down in the case of State of West Bengal vs. Purnima Das (supra) is not attracted in the facts of the instant case as the issue
of giving appointment to married daughter was not addressed by the parties.
(24) The provision of Schedule V of the 2009 Rules was taken into consideration by this Court in the case of Nivedita Adhikari (supra) and Smt.
Sunita Saha (Poddar) (supra). The facts of the aforesaid two cases are quite similar to the instant case. The Court dealt with the explanation of
financial hardship and held that as the family pension of the deceased employee exceeded the gross salary of Group-D employee accordingly no relief
could be granted to the petitioner.
(25) In the instant case, it is clear from the impugned order that the fact of getting pension simpliciter was not the reason for rejection of the prayer for
compassionate appointment but the fact of getting higher quantum of family pension stood in the way of providing appointment. The District Inspector
of Schools came to a specific finding that the family pension of the deceased employee is more than the gross salary of Group-D employee of the
State Government. Calculation had been made to verify whether the petitioner complied with the eligibility criteria for getting appointment on
compassionate ground. The petitioner has not challenged the computation of the family income of the deceased teacher and as such accepted the said
figure. Moreover the figures are borne out from the records and there is hardly any scope to dispute the same. Since the petitioner has failed to come
within the zone of consideration for getting compassionate appointment accordingly her prayer had been rightly rejected by the authority.
(26) The 2009 Rules are not under challenge before this Court. No such prayer has been made in the writ petition. No submission to that effect was
advanced in Court. As already mentioned the same Rules had been taken into consideration in similar matters and prayer for compassionate
appointment had been rejected as the candidate(s) claiming employment failed to fulfil the criteria of financial hardship as indicated in the proviso to
the explanation of Schedule V of the 2009 Rules. This court while adjudicating a similar matter cannot and ought not to take a different view.
(27) Moreover, the notification is based on a policy decision of the State. Compassionate appointment cannot under any stretch of imagination be given
de hors the policy. Had it been so then it would tantamount to violation of Article 14 and 16 of the Constitution of India. Regular employment for the
unemployed youth will be hindered if compassionate employment is given in non-deserving cases.
(28) The Supreme Court has reiterated in its decisions that compassionate appointment can be given to candidates in deserving cases. Compassionate
appointment being an exception to the general rule has to be exercised strictly in conformity to the parameters guiding the same. Since the income of
the petitioner from the family pension exceeds the limit fixed for providing compassionate appointment accordingly appointment cannot be given to the
petitioner in the instant case. This is not a fit case that deserves consideration for giving appointment on compassionate ground.
(29) The writ petition fails and is accordingly dismissed. There will however be no order as to costs.
(30) Urgent photostat certified copy of this judgment, if applied for, be supplied expeditiously in compliance of usual legal formalities.