DEBDATTA MAILI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this writ petition, the petitioner, an applicant for compassionate appointment, has prayed for a direction upon the respondents for enlisting his name in the live register of Died in Harness Category after setting aside the order contained in the memo dated 27th July, 2012 issued by the Director of School Education, West Bengal, the respondent No. 2 rejecting his application. The facts which are relevant for adjudication are that Jaharlal Maiti, the father of the petitioner, an Assistant Teacher of Nafarganj Baidyanath Vidyapith, South 24 Parganas, had expired on 18th August, 2006 while in harness leaving behind Usha Rani, his wife and two sons Debabrata and Debdatta. Thereafter on 2nd November, 2006 Debdatta, the petitioner, filed representation along with necessary documents, before the District Inspector of Schools (S.E.) South 24 Parganas, the respondent No. 3 for appointment on compassionate ground. Subsequently on 7th September, 2006 the petitioner along with his mother and elder brother swore an affidavit that they are the heirs of the deceased. On 10th October, 2006 the Savapati, Contai-III, Panchayat Samiti, Purba Medinipore certified that none of the family members, which includes the petitioner, are in employment and they are in extreme financial crisis. Separate certificates were also issued about their annual income and landed property. Subsequently on 29th June, 2007 the Director of Pension, Provident Fund and Group Insurance issued Pension Payment Order holding that the heirs of late Jaharlal Maiti are entitled to EFP Rs. 4713/- and gratuity of Rs. 2,50,000/-. Thereafter, by memo dated 13th July, 2010 District Inspector of Schools (SE) South 24 Parganas, the respondent No. 3 requested the Chairperson of the South 24-Parganas District Primary School Council, the respondent No. 4 to make necessary arrangement for enlistment of the name of the petitioner. On 28th January, 2011 and on 3rd June, 2011 the Chairperson of the Council granted hearing. Certain documents, such as the first application for compassionate appointment, Pension Payment Order, information with regard to the deceased teacher furnished by District Inspector of School and Succession Certificate, as sought for, were furnished. Thereafter, the Chairperson forwarded the matter to the Director of School Education West Bengal, now redesignated as the Commissioner of School Education the respondent No. 5. Subsequently, by memo dated 27th November 2011 the Chairperson informed that the Director of School Education, the respondent No. 2 had rejected the prayer of the petitioner for appointment on compassionate ground. Aggrieved by the said order of rejection, the writ petition has been filed.

(2.) Mr. Avishek Prasad, learned Advocate for the petitioner, relying on Rule 14(1) of the West Bengal Primary School Teachers Recruitment Rules, 2001 ('2001 Rules' for short) submitted that the respondent No. 2 while rejecting the application for compassionate ground failed to consider the fact that the surviving members of the family were in extreme penury as income was insufficient to provide two square meals and other essentials to the family of the deceased. Moreover as the application for compassionate appointment was disposed of after a considerable delay and as it is a settled principle of law that compassionate appointment cannot be denied on the basis of family pension granted and as salary drawn by a primary teacher (untrained) during January, 2007 cannot be the barometer for consideration, the impugned order may be set aside and direction may be issued for appointment. The learned advocate for the petitioner had relied on the following judgments in support of his submission which are Smt. Sushma Gosain v. Union of India, 1989 AIR(SC) 1976 Smt. Phoolwati v. Union of India, 1991 AIR(SC) 469 Balbir Kaur v. Steel Authority of India Limited, 2000 6 SCC 493; Govind Prakash Verma v. LIC of India, 2005 10 SCC 289; Nazrul Islam v. State of West Bengal, 2008 3 CalHN 564; Swati Chatterjee v. State of West Bengal -; WPST 202 of 2011 Lalita Das v. State of West Bengal; FMA 874 of 2011 with CAN 1939 of 2011 (unreported); MAT 1520 of 2012 with CAN 9102 of 2012 (unreported) and W.P. 17607 (W) of 2012 (unreported).

(3.) Mr. Joytosh Mazumdar, learned advocate appearing on behalf of the Council, submitted that as the petitioner did not submit the application before the proper authority and the matter was dealt promptly after it was placed before the appropriate authority, the allegation of delay in disposing of the application is without foundation. On merit it was submitted whether the family of the deceased is in penury or not is the guiding principle under Rule 14(1) of the 2001 Rules and as in January, 2007 a primary teacher (untrained) drew a salary of Rs. 5960/- it cannot be said that the family of the petitioner drawing a pension of Rs. 7829/- per month in July, 2007 was in extreme financial hardship and was unable to provide two square meals for itself and other essentials. Moreover, as stipulations in the 2001 Rule, which is statutory in nature, are binding and as sympathy cannot be a ground for consideration for appointment, the order under challenge is just and proper. The learned advocate for the respondent had relied on the following judgments in support of his submission which are LIC v. Asha Ramchandra Ambekar, 1994 2 SCC 718; Umesh Kumar Nagpal v. State of Haryana, 1994 4 SCC 138; Director of Education (Secondary) v. Pushpendra Kumar, 1998 5 SCC 192; Bhawani Prasad Sonkar v. Union of India, 2011 4 SCC 209; Union Bank of India v. M.T. Latheesh, 2006 7 SCC 350; State of Bank of India v. Somvir Singh, 2007 4 SCC 778; SBI v. Jaspal Kaur, 2007 9 SCC 571; Mumtaz Yunus Mulani v. State of Maharashtra, 2008 11 SCC 384; SAIL v. Madhusudan Das, 2008 15 SCC 560; Eastern Coalfields Ltd. v. Anil Badyakar, 2009 13 SCC 112; SBI v. Raj Kumar, 2010 11 SCC 661 and Rohitash Kumar v. Om Prakash Sharma, 2013 AIR(SC) 30