Satyajit Chauliya vs State Of West Bengal & Ors

Shampa Sarkar, J

Let affidavit of service filed by the petitioner be kept with the records.

The petitioner claims compassionate appointment upon the death of his father, who died-in-harness on September 29, 1973. The petitioner claims to be

the younger son of the deceased. The petitioner has sisters and elder brothers and a 77 years old mother. The members of the family have given a

‘no objection’ in his favour for the purpose of seeking appointment on compassionate ground under the died-in-harness category.

For the first time, the petitioner made a representation before the authorities on April 18, 2017 claiming compassionate appointment on the death of his

father, who was an Assistant Teacher in Dakshin Mahendrapur S.B. High School.

The petitioner applied for appointment on compassionate ground after more than 44 years from the death of the deceased. The petitioner has also

crossed the age bar prescribed for such appointment under the scheme governing compassionate ground. Moreover, it is the settled principle of law

that compassionate appointment is an exception to the general rule of appointment and cannot be given as a matter of right but, can only be given

under exceptional circumstances in order to allow the family which had lost its bread earner to tide over immediate financial crisis. In the instant case,

the petitioner applied after 44 years from the date of death of his father.

Reference is made to the decision of the Hon’ble Apex Court in the decision of Sanjay Kumar Vs. The State of Bihar & Ors. reported in

(2000)7SCC 192. The relevant portion of the above decision is quoted below :

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“We are unable to agree with the submissions of the learned senior counsel for the petitioner. This Court has held in a number of cases that

compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crises resulting due to death of the bread

earner who have left the family in penury and without any means of livelihood. In fact such a view has been expressed in the very decision cited by

the petitioner in Director of Education and Anr. V. Pushpendra Kumar & Ors. (Supra). It is also significant to notice that on the date when the first

application was made by the petitioner on 2.6.1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner.

There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there is some specific

provisions. The very basis of compassionate appointment is to see that the family gets immediate relief.â€​

Reference is also made to the decision of Piyali Saha Vs. State of West Bengal & Ors. reported in (2013) 1 CHN 78 and the relevant portion of the

above decision is quoted below:

“10. Therefore the aforesaid language of the rule is very clear as correctly contended by Mr. Sanyal, to provide for an exception to the ordinary

recruitment rules as it has created classified candidates from other candidates. Apparently such a rule is an affront to Articles 14 and 16 of the

Constitution of India but such a classification is discernable for valid reasons. The reasons therefor are mentioned in the said Rules. The purpose of

the appointment on death-in-harness is not to provide an employment anyone and every one at any time. Its object is to save the member of the family

of the deceased teacher from the acute financial hardship which had befallen because of death and particularly when there is no other means to

survive but for such employment. This exceptional provision cannot be said to be a matter of right. Therefore interpretation given by the learned Single

Judge while relying on the earlier Division Bench judgment in case of Sri Prithwish Samanta and ors. which in its turn has affirmed the learned Single

Judge’s decision extending the period of two years on any ground is not the correct interpretation of purpose of the said Rule. It seems to us that

learned Single Judge in case of Arpita Sen’s case and the Division Bench while affirming the learned Single Judge’s decision in case of Sri

Prithwish Samanta’s case have been swayed by emotional argument that object is to provide with employment. According to us if any particular

member can survive for a longer time without employment and could wait on any circumstances we think that family does not deserve any

employment on compassionate ground. We find support of the Supreme Court pronouncement for above conclusion. In case of Commissioner of

Public Instructions & others. vs. K.R. Vishwanath reported in (2005) 7 SCC 206 in paragraph 10 Apex Court observed while noting the decision of

the same Court in case of Sushma Gosain vs. Union of India that the purpose of providing appointment on the compassionate ground is to mitigate the

hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress.

The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisages specifically otherwise, to state

that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The views of the same Court in earlier

judgments in case of Phoolwati v. Union of India [1991 Supp (2) SCC 689,] Union of India vs. Bhagwan Singh reported in [(1995) 6 SCC 476 ]have

also been noted and accepted in this judgment.

We could not find legal support to condone delay aiming to extend the time on the concept of continuous wrong. We failed to comprehend how the

department could commit any wrong let alone continuous wrong. When the rule creating some substantive right does not envisage any power to

condone delay how Court can do it. Again we add concept of continuous wrong giving rise continuous cause of action applies in judicial proceeding for

assessing existing right either codified or common law against wrongdoer, not for creating substantive right now nonexistent.

If the period which has not been contemplated in the Rule intending to create a right cannot be extended by the Court. In other words when the

legislature has fixed a time limit in relation to substantive law the Court cannot taking the task of legislature extends time limit, simply it amount to

amendment of Rule. The Court cannot have any amending power of the legislation. Under those circumstances as Supreme Court has been pleased to

observe in the case quoted above the aforesaid rule is a mandatory in character, we answer the aforesaid questions in the manner as follows: The

time fixed in the said Rule is a rigid, subsequent application after attaining majority is not a lawful application and the same cannot be said to be a

continuing process. Now we send down the writ petition for assigning finally taking note of our decision.â€​

Lastly, in the matter of Arindam Chowdhury Vs. State of West Bengal & Ors. (In re: W.P.S.T. 35 of 2018 with W.P.S.T.38 of 2018) the Hon’ble

Division Bench has summarized the well-settled principles governing the field of compassionate appointment. The relevant portion the above decision

is quoted below :-

“5. f) An application for compassionate appointment has to be made immediately upon death/incapacitation and in any case within a reasonable

period thereof or else a presumption could be drawn that the family of the deceased/incapacitated employee is not in immediate need of financial

assistance. Such appointment not being a vested right, the right to apply cannot be exercised at any time in future and it cannot be offered whatever

the lapse of time and after the crisis is over.

l) Compassionate employment cannot be granted after lapse of reasonable period, which must be specified in the scheme.

m) There cannot be reservation of a vacancy till such time as the applicant becomes a major after a number of years, unless there are some specific

provisions.

s) Having regard to the fixation of minimum and maximum age by an employer answering the definition of State within the meaning of Article 12 of

the Constitution for entering service, it is axiomatic that while an over-aged dependent cannot seek appointment, even an under-aged dependent

cannot also seek such appointment.

t) It is only in rare cases, if provided by the scheme for compassionate appointment and not otherwise, that a dependent who was a minor on the date

of death/ incapacitation, can be considered for appointment upon attaining majority.â€​

Compassionate appointment can be given only in strict compliance of the scheme or rules in this regard.

It is also noted that even if the petitioner was a minor at the time of death of the father, The Court sitting in writ jurisdiction under Article 226 of the

Constitution of India cannot re-write the Rules. Unless and until the rules or the guidelines or the scheme provide that a minor could apply for

compassionate appointment after attaining the age of majority, the Court cannot pass any order in favour of such a dependant.

In this case the Court also cannot direct the employer to condone the delay of 44 years in making the application. Moreover, it is also presumed in

such a case that the family could tide over the immediate financial hardship, as a lot of time had lapsed.

Compassionate appointment is not a heritable right.

With the above observations and discussions, this writ applicationis dismissed.

There will be, however, no order as to Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.