Sampa Podder vs State Of West Bengal & Ors.

Sahidullah Munshi, J.

This writ petition has been filed complaining that the petitioner is entitled to a compassionate appointment on the death of her father Suresh Chandra

Modak, who expired while in service on 30th November, 2012. The petitioner has annexed a death certificate to show that her father died on 30th

November, 2012. It is the case of the petitioner that on 24th December, 2012 her mother made an application on her behalf praying for a

compassionate appointment in favour of the petitioner inasmuch as the petitioner was dependent on her mother. Thereafter, again an application has

been made on 18th October, 2014 by the mother of the petitioner requesting for appointment of the petitioner in the diein-harness category. The said

applications are Annexure P-1 and P-2.

Annexure P-2 is the last application as is evident from the writ petition. The petitioner has filed this writ petition primarily on the grievance that the

prayer for compassionate appointment made by her mother has not been considered. However, in the writ petition the petitioner has made the

following prayers : -

“ a) A writ of and/or in the nature of Mandamus do issue â€

i) by directing the respondent Secretary, MunicipalAffairs Department to consider the case of the petitioner, on the strength of the judgment delivered

by the Hon’ble Special Bench in FMA

1277 of 2015 with WPST 447 of 2013 and WPST 78 of 2014 and pass necessary orders on the pending application of the petitioner, seeking

compassionate appointment.

ii) by directing the respondent Secretary, to issue order of appointment in favour of the petitioner, if, it is found that the petitioner is entitled to get

compassionate appointment in place of her deceased father.

b) Writ of or in the nature of certiorari calling upon therespondent to certify and produce relevant documents of the instant case to this Hon’ble

Court for rendering justice;

c) Rule NISI be issued in terms of prayers above;

d) Costs of an incidental to this application by paid by therespondents;

e) Such further or other order or orders be made and/ordirection or directions be given as to this Hon’ble Court may deem fit and proper.â€​

In the writ petition the writ petitioner has stated that her mother expired on 21/9/2015. She has also stated that her mother used to get pension and

further that the family of the deceased employee also received a total death benefit of Rs.5.5 Lakh apart from pension. Petitioner stated that she had

passed Madhyamik examination in 2002 and that she has been residing at 4, Keshabpally, Ashoknagar with her husband Sri Bipul Podder and that she

used to pay house rent of Rs.5,500/- as license fee for the place which was taken for her residence.

Mr. Bhattacharya, appearing for the petitioner, submitted that his client’s mother made an application which is pending before the authority

without any order. In any event the authority either should have allowed or rejected it. However, the writ petition discloses no such prayer for

consideration of her application, perhaps for the reasons that there is no application made by the petitioner before the authority concerned to consider

her appointment on compassionate ground. It is the application made by her mother on behalf of the petitioner praying for compassionate appointment

and, ultimately, in 2005 the petitioner’s mother died. It is doubtful whether the petitioner at the moment can agitate the grievance that her

application is still pending and could allege that the prayer has not been considered and disposed of by the authority concerned. Therefore, I intended

to decide the matter on merit

considering it to be a prayer of the petitioner whether she is at all entitled to be appointed on compassionate ground on the death of her father for

which her mother made an application. Although, at the commencement of the hearing it was pointed out to Mr. Bhattacharya as to why the writ

petition has been made at a belated stage but Mr. Bhattacharya replied that in 2014 the last representation was made by the mother of the petitioner

and the writ petition was filed sometime in November, 2017. Therefore, according to him, the delay is not fatal. However, considering the employment

of a person I intended to hear the writ petition on merit without going into the question of delay in moving the writ petition. Mr. Bhattacharya

appearing for the petitioner has submitted that his client should be appointed on compassionate ground for the reason that various similar orders have

been passed by this Court both by Single Bench as also by Division Bench and in pursuance whereof the authorities made compassionate

appointment.

Therefore, according to him, there is no reason to deny the appointment to the petitioner. Learned Government Pleader appearing for the State has

drawn attention of this Court to various Government Orders and submitted that in absence of any scheme framed by the Government or in absence of

any such scheme maintained by the Municipality concerned petitioner, as a matter of right, cannot pray for compassionate appointment. Mr.

Bhattacharya has also drawn attention of the Court to a decision passed by a Special Bench of this Court which he has annexed as Annexure P-5 to

this writ petition and submitted that in view of the said Special Bench decision even married daughter has a right to be considered for appointment on

compassionate ground. Concluding part of the said Special Bench decision in paragraph 119 held that claims for compassionate appointment shall be

made keeping in view of paragraph 113 of the said decision. Conditions laid down in paragraph 113 of the judgment are to be adhered to while

claiming for compassionate appointment as an unmarried daughter. Paragraph 113 of the said judgment is set out below :

“113. Consequently, the offending provision in the notification dated April 2, 2008 (governing the cases of Arpita and Kakali) and February 3, 2009

(governing the case of Purnima) i.e. the adjective ‘unmarried’ before ‘daughter’, is struck down as violative of the Constitution. It,

however, goes without saying that after the need for compassionate appointment is established in accordance with the laid down formula (which in

itself is quite stringent), a daughter who is married on the date of death of the concerned Government employee while in service must succeed in her

claim of being entirely dependent on the earnings of her father/mother (Government employee) on the date of his/her death and agree to look after the

other family members of the deceased, if the claim is to be considered further.â€​

The above decision categorically mentions that the applicant being a married daughter if she claims compassionate appointment she has to show that

she is entirely dependent on the earnings of her mother or father (Government employee) on the date of his/her death and agree to look after the other

family members of the deceased, if the claim is to be considered further. Now, in the conspectus of the above finding of the Hon’ble Special

Bench if we consider whether the petitioner is eligible to make any claim for compassionate appointment or not, following facts are to be taken into

consideration â€

a) Admittedly, the petitioner never made any claim for compassionate appointment.

b) Only the claim which was made by her mother was on 24th December, 2012 and lastly on 18th October, 2014. Present petitioner’s father died

on 30th November, 2012 and the petitioner got married on 23rd May, 2005, long prior to the death of the father of the petitioner.

c) Petitioner’s mother, who made the application last on 18th October, 2014, expired on 21st September, 2015. As on date there is no pending

application before the concerned authority which can be taken up for consideration by the respondents.

d) Admittedly, on the death of the father of the petitioner the family of the deceased received a gratuity for a sum of Rs.3,50,784/- (Rupees Three

Lakh Fifty Thousand Seven Hundred Eighty Four) only, as would appear from the Pension Payment Order being P.P.O.

No.MUN/M/BRS/K/00187/2015 at Page 22, Annexure P-3 of the writ petition and in addition thereto the petitioner’s mother being the widow of

the deceased was getting the basic pension for a sum of Rs.7560/- every month. If all these incidents are taken into consideration, the petitioner

cannot have a claim for compassionate appointment.

Those apart, petitioner’s mother died on 21st September, 2015 and this writ petition has been filed before this Court on 22nd November, 2017. No

explanation has been offered as to why such a delay has been caused in approaching this Court about the alleged inaction of the authority. If this

question of delay is considered, this is alone to be sufficient for dismissal of the writ petition.

However, besides all those mentioned hereinabove, if we consider the merits of the case, the petitioner has to satisfy this Court that she has a legal

right to get a compassionate appointment and such right has not been addressed by the State. Simply because some co-ordinate Benches directed the

authorities concerned to consider their respective cases for consideration on compassionate ground, does not ipso facto create any right in favour of

the petitioner and she cannot seek mandamus upon the authority for compassionate appointment under Article 226 of the Constitution as rightly

submitted by the learned Government Pleader that as on date the petitioner has got no case at all even for consideration for appointment on

compassionate ground. Learned Government Pleader has drawn the attention of this Court to a notification dated 1st November, 2007 which has been

notified to clarify earlier notification no.97-Emp dated 6th June, 2005 where a question arose as to if the provisions of the said notification would be

applicable to the State Government employees only or to the employees attached to such other establishments as are mentioned in the West Bengal

Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Government Undertakings and Local

Authorities Act, 1999 as well. In this notification it has been clarified that the term ‘employee’ will mean the State Government employee only

for the purpose of notification no.97-Emp dated 6th June, 2005. This notification of 1st November, 2007 squarely applies to all Government employees

and if it does not extend to other establishments, the petitioner cannot get benefit out of it unless a separate scheme is framed by the Government with

the concurrence of Labour and Finance Department.

Another notification no.30-Emp dated 2nd April, 2008 has been relied on by the learned Government Pleader which mentions about all other

Employment notifications and paragraph 2 thereof is relevant. Paragraph 2(1) is set out below :

“2.(1) One of the dependents of a Government employee who dies in harness or who retires prematurely on being declared permanently

incapacitated may be offered appointment on compassionate ground if â€

i) The family of the deceased or the retired employee as the casemay be is in need of immediate assistance; and

ii) The employee had at the time of death or premature retirementat least two years of service left to reach the normal age of superannuation.â€​

Considering such provision it is plain and simple that Government employee means State Government employee but not the employees of other

organizations or undertakings of the Government. Mr. Bhattacharya has, however, filed a compilation of orders passed by this Court whereby

authorities have been directed to consider appointments of the respective applicants. He submitted that such orders are binding on this Court and in

terms of such orders even in absence of any departmental circular making his client entitled to get appointment on compassionate ground, the

authorities are under obligation to pass a reasoned order at least on his client’s application. This Court respectfully declines to accept such

contention inasmuch as those orders cannot have any binding force on this Court unless it is shown that nonfollowing said orders would give rise to

judicial indiscipline. According to the law of precedent, ratio decided in a case is binding on a co-ordinate Bench but not the order. The order relied on

has not decided any ratio. That apart, under which circumstances the co-ordinate Benches passed such order, is also not on record and there is no

scope to compare those facts on which such orders were passed. Therefore, Mr. Bhattacharya’s submission cannot be accepted. Mr.

Bhattacharya, in his compilation filed before this Court, has also supplied few Government notifications, namely, notification no.251-Emp dated 3rd

December, 2013, which also speaks of a dependent family member of a Government employee.

After the notification no. 251-Emp dated 3rd December, 2013 there is yet another decision under 96-Emp dated 28th April, 2015 of the Government of

West Bengal, Labour Department Employment Cell, which has been relied on by the learned Government Pleader to show that the compassionate

appointment is meant for the dependents of the Government employee and not for the employees of Corporation, Public Undertaking, Statutory

Bodies, Government Companies, Boards, Local Bodies etc. unless a notified policy for compassionate appointment exists and that too no such policy

can be framed without due concurrence of the Labour and Finance Department. Therefore, according to the learned Government Pleader, even if any

Corporation maintains any scheme but the same cannot be invoked unless it is sanctioned by the Labour and Finance Department. Learned

Government Pleader has also drawn the attention of this Court to a decision in the case of State Bank of India & Anr. â€" Vs. â€" Raj Kumar,

reported in (2010) 11 SCC 661 which says that all pending applications will be considered only in terms of the new scheme. Therefore, in the present

case, although, petitioner’s father died before the circular of December, 2013 and circular of April, 2015, petitioner is bound by the circular which

came into force on the day of her case being considered. The petitioner, therefore, cannot argue that even without scheme her case can be considered

by any other scheme including 142-Emp dated 1st November, 2007.

This Court is, therefore, of the clear view that the petitioner cannot maintain her claim without there being any policy approved by the Labour and

Finance Department of the Government of West Bengal which could have any application to other segments of the State like statutory Corporations

or Local Bodies other than Government employees. Even the submission of Mr. Bhattacharya with reference to the Special Bench decision is not

satisfactory for the purpose of the claim for compassionate appointment. In the decision of the Hon’ble Special Bench it is considered that the

married daughter can maintain an application but for the foregoing reasons this petitioner cannot be considered to be within the zone of consideration

to maintain a claim for compassionate appointment on the death of her father, who is not a Government employee but an employee of Municipality

which does not have any scheme for compassionate appointment.

On the first day when this writ petition was considered, Mr. Bhattacharya submitted before this Court that Municipality has got a scheme regarding

compassionate appointment and he took time to place before the Court such scheme on subsequent occasions but he could not furnish such scheme.

Mr. Bhattacharya also submitted before this Court a document being Annexure P-4 at page 24 which is a license agreement between the petitioner

and her inducting landlord, which shows that the petitioner has been paying a sum of Rs.5,500/- (Rupees Five Thousand Five Hundred) only,

equivalent to rent per month. Therefore, it is difficult to believe that she was dependent on her mother. Question of dependency does not exist

anymore having regard to the fact that her mother died in 2015. Therefore, Mr. Bhattacharya has hopelessly failed to establish that his client is at all

entitled to any compassionate appointment. Having not been assigned with any statutory right to claim compassionate appointment this writ petition is

dismissed. However, in the facts and circumstances of the case there will be no order as to costs. Urgent Photostat certified copy of this judgment, if

applied for, be delivered to the learned counsel for the respective parties upon compliance of all usual formalities.