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2024 DAILYLAW 2341 (CAL)

Prabar Ganguly v. State of West Bengal

2024-08-21

Gaurang Kanth, Joymalya Bagchi

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Judgment : Joymalya Bagchi, J. 1. Appellant is the son of a deceased employee who was working as a Clerk in Baranagar Municipality. He died on 09.12.2006. His wife made an application in 2007 praying for compassionate appointment. However, the said application was not pursued. In 2010 appellant made an application for compassionate appointment. No steps were taken by the respondent authorities and in 2018 pursuant to a query under the Right to Information Act, appellant was informed that no appointment could be made due to non-availability of sanctioned vacant post of Group „C' and in view of notification No. 251-Emp. dated 03.12.2013. 2. Being aggrieved by the said order, appellant approached the Hon'ble Single Judge but his prayer was turned down. 3. Learned Advocate for the appellant contends his client's father had died in December, 2006. He was a minor at that time. In 2010 upon attaining majority appellant made an application for compassionate appointment which was kept pending. Only in 2018 he was informed he could not be given appointment due to non-availability of vacancy in Group „C' post and in view of notification No. 251-Emp. dated 03.12.2013. 4. In rebuttal, learned Advocate for the State-respondents relies on a judgment of the Hon'ble Apex Court in State of West Bengal vs. Debabrata Tiwari & Ors. , 2023 SCC OnLine SC 219 and contends the Apex Court held the circulars viz. Nos. 301-Emp., 302-Emp. and 303-Emp. providing for compassionate appointment do not apply to Municipalities and that the Municipalities were required to frame independent policy for compassionate appointment as per circular No. 97-Emp. dated 09.06.2005. That apart, it was argued the application for compassionate appointment was not made within two years i.e. the time stipulated in circular No. 30-Emp. dated 02.04.2008 since the appellant was minor at the material point of time. Right to compassionate appointment is not a heritable right. It is an exception to appointment to public posts through open competition in order to help the family of the deceased or incapacitated employee to tide over unforeseen circumstances. It could not have been availed by the appellant in 2010 i.e. four years after his father's death. 5. In reply, learned Advocate for the appellant refers to various decisions[State of Punjab & Anr. Vs. Devans Modern Breweries Ltd. & Anr.; (2004) 11 SCC 26 , State of Gujarat & Anr. Vs. It could not have been availed by the appellant in 2010 i.e. four years after his father's death. 5. In reply, learned Advocate for the appellant refers to various decisions[State of Punjab & Anr. Vs. Devans Modern Breweries Ltd. & Anr.; (2004) 11 SCC 26 , State of Gujarat & Anr. Vs. Raman Lal Keshav Lal Soni & Ors.; (1983) 2 SCC 33 , State of Assam & Ors. Vs. Shri Kanak Chandra Dutta; AIR 1967 SC 884 , Gobinda Hazra vs. State of West Bengal; 2018 SCC OnLine Cal 8864], of the Hon'ble Apex Court in support of the plea that employees of local bodies are holders of civil posts and therefore, entitled to the benefit of the aforesaid circulars providing for compassionate appointment. He further refers to circular No. 26-Emp. dated 01.03.2016 which enables the authority concerned to consider request for compassionate appointment upto five years in exceptional cases. 6. We have given anxious consideration to the aforesaid submissions. 7. Compassionate appointment is an exception to appointment to public posts through open competition. It is a concession extended to dependent of a deceased/incapacitated employee to wade over unforeseen circumstances. Right to compassionate appointment therefore, may be availed only if a scheme for compassionate appointment is formulated by the employer and strictly in terms of the scheme. 8. Appellant's father had expired on 09.12.2006. He was a minor at that time and in January, 2007 his mother made an application for compassionate appointment. However, the family did not proceed with the said application. After lapse of four years when the appellant attained majority, he made a fresh application for compassionate appointment which appears to have been disallowed in 2018 with reference to circular No.251-Emp. dated 03.12.2013. 9. Clause 10 of the aforesaid circular, inter alia, provides application for compassionate appointment has to be submitted within six months from the date of death or retirement on permanent incapacitation. If no application is submitted it shall be presumed that the family does not require any financial assistance. 10. Appellant's mother took out an application for compassionate appointment in January, 2007 which however, was not pursued. After a lapse of four years when the appellant had become major, he made an application for compassionate appointment in 2010. If no application is submitted it shall be presumed that the family does not require any financial assistance. 10. Appellant's mother took out an application for compassionate appointment in January, 2007 which however, was not pursued. After a lapse of four years when the appellant had become major, he made an application for compassionate appointment in 2010. Admittedly, appellant was ineligible for appointment within six months from the date of death of his father due to minority and could not have made prayer for compassionate appointment within the time frame prescribed under the said circular. 11. It is argued as per circular No. 30-Emp. dated 02.04.2008 (which was in force at the time of employee's death) application could be made within two years of the death/incapacitation of the employee. Even if such concession is given, appellant's application was not within the said time frame also having been filed in 2010 which is after four years of death of his father. 12. Learned Advocate for the appellant refers to relaxation engrafted in circular No. 26-Emp. dated 01.03.2016 which, inter alia, states in exceptional cases an application for compassionate appointment may be entertained upto five years from the death/incapacitation of the employee. In the said circular, exceptional cases have been enumerated as (i) death during action or (ii) where none in family is eligible. 13. Appellant does not fall within either of the aforesaid categories. His father had not died in action. His mother was eligible for compassionate appointment and in fact had made her application in 2007 which was subsequently not pursued. Thereafter the family waited for four years. Only after the appellant attained majority in 2010, he took out an application for compassionate appointment. The fact the family could wait for four years till the appellant attained majority shows they were in a position to tide over financial adversities after the death of the employee. As minority of the applicant during the period prescribed for making application for compassionate appointment is not a relevant consideration to seek relaxation under the aforesaid circular, reference to the said circular is wholly misconceived. 14. For these reasons, we are of the opinion the application for compassionate appointment was clearly belated and not in terms of aforesaid circulars even if they are deemed to be applicable to Municipalities concerned. 15. 14. For these reasons, we are of the opinion the application for compassionate appointment was clearly belated and not in terms of aforesaid circulars even if they are deemed to be applicable to Municipalities concerned. 15. However, the claim of the appellant is further skewered by the ratio in State of West Bengal vs. Debabrata Tiwari & Ors. (Supra). In the said judgment, the Apex Court, inter alia, held :- “ 56 ....... (i) Circular No. 303-Emp. provides that any Department which has vacancy in the Exempted Category of posts will provide employment to the wife/son/daughter/near relation of the employee who died in harness. Use of the work ‘Department’ would indicate that the said Circular would govern compassionate appointment to Departments of the State Government and not to local authorities. (ii) The meaning of the word ‘Department’ would have to be gathered, having regard to the fact that the immediate notification subsequent to 301-Emp., 302-Emp. and 303- Emp., being 97-Emp. dated 6 th June, 2005 notifies the departments in whose vacancies the appointments would be granted. The Departments are of the State. (iii) If Circular Nos. 301-Emp., 302-Emp. and 303-Emp. are to be read so as to cover all establishments of the Act of 1999, then 97-Emp. dated 6 th June, 2005, should provide for appointment in the establishment covered by the Act of 1999 concerned. It does not do so. Therefore, Circular Nos. 301- Emp, 302-Emp and 303-Emp. cannot be held to be applicable to local authorities.” 16. Nothing is placed on record to show a scheme has been formulated by the Baranagar Municipality with regard to compassionate appointment. Under such circumstances, claim of the appellant for compassionate appointment is not maintainable due to absence of a scheme for compassionate appointment formulated by the employer. 17. For these reasons, we find no merit in the appeal and the same is accordingly, dismissed. 18. There shall be no order as to costs. 19. Photostat certified copy of this judgment, if applied for, be given to the parties on compliance of all formalities. I agree. Gaurang Kanth, J.