Sujoy Mahato vs The State of West Bengal & Others

The petitioners have challenged the denial of compassionate

appointment on the death of their predecessor in interest dying-in-

harness.

The predecessor in interest of the present petitioners was an

employee attached to Santaldih Thermal Power Station and after

working for about more than twenty six and a-half years he died

on August 5, 2005. He was the father and husband of the

petitioner nos. 1 and 2 respectively. He had two sons, a daughter and his widow. None of them was an earning member. The

petitioner no. 2 made an application before the respondents for

employment of her son on compassionate ground who was then a

major.

It is the case of the petitioners that after receiving the

application the respondents asked the petitioner to appear on

September 19, 2012 at the administrative building of the

concerned Power Station for discussion and examination of the

documents. After this was done, the respondents assured them

that they would get in touch with the petitioners. Subsequently, on

February 20, 2015, the Manager (HR & A) of the respondent

organization sent a letter to the petitioner no. 1 regretting

appointment on compassionate ground intimating her that in

terms of the provision of the relevant Scheme of 2010, the prayer

could not be considered. The petitioners state that they were

shocked by the rejection of the claim of appointment on

compassionate ground. However, since their financial condition

was very poor and the family of the deceased had no source of

income, the petitioner no. 1 again made an application on March 5,

2015, before the respondent authority to consider his case but till the date of filing of the writ petition the respondents did not

consider the same.

It is the specific case of the petitioners that the ground of

rejection of the prayer for appointment on compassionate ground,

as mentioned by the respondents, was in terms of the relevant

Scheme of 2010. But the father of the petitioner died in the year

2005 which was long before the Scheme was framed. Their further

case is that the respondents did not properly assess their case and

did not consider the economic condition of the family. Therefore, by

the present writ petition, the petitioners prayed for a direction

upon the respondents for setting aside and quashing of the

communication, dated February 20, 2015 and for allowing the

application of the petitioners for appointment on compassionate

ground for a Group ''D'' post at the concerned Thermal Power

Station.

The respondents have filed a report in the form of an

affidavit, affirmed by the General Manager of the concerned Power

Station, i.e., the respondent no. 4. It appears from the said report

that the wife of the deceased employee more than three years after

the death of her husband had by a letter, dated August 10, 2008 applied for a job for the petitioner no. 1. Nothing was annexed to

the said letter regarding the credentials of the petitioner no.1. By

an office order, dated August 26, 2010, the management of the

respondent corporation formulated a Scheme regarding the

employment or financial relief of the dependants of an employee

who died in harness or prematurely retired being permanently

incapacitated, on compassionate ground. The Scheme was known

as the West Bengal Power Development Corporation Ltd. Scheme

for Employment/Financial Relief on Compassionate Ground, 2010

(the Scheme, for short).

As per the said Scheme, the eligibility criteria in respect of

age was less than 40 years as the upper age limit for the spouse

and 30 years for other dependants on the date of the death or

premature retirement on permanent disablement of the employee.

The Scheme also provided for ex-gratia payment of one time

financial compensation to the dependant of the deceased employee

who died on or after June 6, 2005. The petitioner no. 1 not being

eligible for compassionate appointment was entitled to receive one

time ex-gratia payment subject to submission of no objection

certificate from the other dependants of the deceased employee.

The relevant provision for relating to one time financial assistance is that this will be allowed to the dependants of the employee

dying-in-harness or being declared permanently incapacitated after

June 6, 2005 and who did not qualify in the selection process for

appointment and had not received financial compensation in lieu

of employment. The dependants can also opt for such

compensation within a year after being unsuccessful in the

qualifying tests. The two methods of calculating the financial

compensation had been mentioned in the Scheme. It is the specific

case of the respondents that the petitioner no. 1 applied for a

compassionate appointment in the prescribed form about seven

years after the death of the deceased employee. The petitioner no.

1 was advised by the management to call on the concerned

authority on September 19, 2012 in connection with the

application made by him for verification of original documents.

Ultimately, by a letter dated February 20, 2015, the petitioner no.

2 was informed that her son is not eligible for the appointment on

compassionate ground in terms of this Scheme of 2010.

The respondents have stated that the petitioner no. 1 was

neither eligible for the employment at the time of the death of his

father as he was a minor nor is he eligible for appointment in

terms of the relevant clause relating to the age qualification in the Scheme. It has been clarified that the respondent corporation did

not ask the petitioner no. 2 to submit any document in connection

with the application filed by her in the year 2008. The petitioner

no. 1 was asked to come with the documents in connection with

the application filed by him in the year 2012. As per the relevant

Scheme the age of the dependant or spouse had to be considered

on the date of death and he was minor at the relevant point of

time.

However, even if the petitioner no. 1 was not eligible for

compassionate appointment when his father had died the

dependant of the deceased employee is entitled to one time ex-

gratia payment for Rs. 3,03,996/- subject to submission of no

objection certificate from the other dependants of the deceased.

The petitioners have filed an affidavit-in-reply to the said

rejoinder largely reiterating their pleadings and the stand taken in

the writ petition. Here also they have taken a stand that since the

father of the petitioner had died before the relevant Scheme of

2010 had been formulated the case of the petitioner cannot be

governed by the same and that Scheme has no effect on their

application for compassionate appointment. The petitioners have relied on a clause of the Scheme that the dependants of an

employee shall be eligible to apply for appointment provided the

death had taken place on or after June 6, 2006 and if the

dependant did not receive any financial compensation in lieu of

employment. The petitioner no. 1 is entitled to join the service in

terms of the said clause. The petitioners have, however, not denied

that the petitioner no. 1 made an application in the prescribed

form on August 9, 2012. The petitioners have further alleged that

Annexure R3 to the report further shows that they had paid the ex-

gratia money to the petitioner. But the respondents did not pay

any financial compensation in lieu of employment. The petitioners

reiterated their prayer for appointment on compassionate ground

of the petitioner no. 1.

Thus, only two points are required to be decided in the

present writ petition, viz., whether the respondents can dispose of

the application for compassionate appointment of the petitioner no.

1 in terms of the relevant Scheme and whether in terms of the

Clause B of the said Scheme, the petitioner no. 1 is entitled to an

appointment on compassionate ground.

The law on the point is very well-settled that irrespective of

when an employee may die-in-harness the Scheme governing the

field at the time of consideration of the application for

compassionate appointment shall be the law applicable to a given

case. The point has been settled in the case of State Bank of India

Vs. Raj Kumar, reported in (2010) 11 SCC 661, where a similar

question cropped up for consideration before the Supreme Court.

Exactly the same point, as has been urged by the petitioner herein,

was argued by the respondent in the Supreme Court, which was

not found tenable as compassionate appointment is always a

Scheme related one, as unless the concerned employer or an

establishment has a Scheme for compassionate appointment such

appointment cannot be made. Therefore, the provision of the

Scheme governing the issue concerning compassionate

appointment are applicable and not the Scheme that was in

existence when the employee had died.

Applying the said principle of law the respondents can

definitely say that in terms of the relevant provision in the Scheme

of 2010 the petitioner no. 1 was not eligible for appointment on

compassionate ground. This is because the petitioner no. 1 applied

in the prescribed format about seven years after the death of the deceased employee when the new Scheme of 2010 was governing

the relevant field.

Again it cannot be glossed over that the petitioner no. 2 made

an application for compassionate appointment, though not in the

prescribed form, more than three years after the death of her

husband. If the whole purpose of providing compassionate

appointment is to help a family facing financial crisis as a result of

the death of the sole bread-earner such application is to be made

as early as possible after the death of the employee. The time gap

of three years by itself is a sufficient ground disentitling the

petitioners to get an employment. Moreover, the petitioner no. 2

made a formal application about seven years later after the death

of her husband. The petitioners have conducted themselves in a

manner which belie the case of urgency which is expected of an

applicant for compassionate appointment under normal

circumstances.

I have very carefully examined the contention of the

petitioners that the petitioner no. 1 is eligible for compassionate

appointment in terms of Clause B of the Scheme. Clause B merely

says that a dependant shall be eligible to apply for employment provided the death or permanent incapacitation takes place on or

after June 6, 2005 and also when the dependants did not receive

any financial compensation in lieu of employment.

That, however, is not sole Clause in the Scheme nor does

Clause B fix the criteria for such application. There are other

clauses in the Scheme which have equally to be complied with. The

Scheme specifically says that dependants of a deceased or a person

declared to be permanently incapacitated may be offered regular

employment in certain categories of posts subject to the conditions

as mentioned therein. This means that all the conditions as

provided in the Scheme have to be complied with in order to be

eligible for appointment on compassionate ground. For example,

the age limit has to be complied with, conditions relating to the

minimum educational qualification has to be complied with, the

physical condition should be as per the norms prescribed by the

corporation, so on and so forth. Clause B relates to the eligibility of

making an application.

Much assertion to the contrary, Annexure R3 does not

convey any impression as if the amount had been sent by the

respondents or the petitioners had accepted the same. It makes no such observation or carries no such impression that such amount

had been sent to the petitioner at all. All that it says that the

petitioners are entitled to get a sum of Rs. 3,03,996/- etc.

Thus there is nothing in the writ petition which calls for a

judicial intervention..

In such view of it, I find no merit in the writ petition and the

writ petition is dismissed. However, if the petitioners want they

may approach the employer for release of the said fund and the

respondents authorities shall, upon compliance of all formalities

and verifications of all records, shall release the sum to the

applicant within a period of six weeks from the date of the receipt

of the application, if any. With the direction as above the writ

petition is dismissed.

There shall be no order as to the costs.

Urgent Photostat certified copy of this order, if applied for, be

supplied to the parties on priority basis upon compliance of all

requisite formalities.