PRITAM MALLICK Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The moot question addressed in these writ petitions is whether, in absence of a scheme, the petitioners in these cases can claim for compassionate appointment. Due to the shared legal question, all the three writ petitions were taken up for hearing together and are disposed of by this judgment and order.

(2.) Mr. N.C. Bihani, learned advocate appearing for the petitioner in W.P.A. No. 23952 of 2022, has submitted that Statute 5 (CNTE)(4)(a) of the Kalyani University Statutes, namely Statutes Relating to Terms and Conditions of Service and the Minimum Emoluments of Non-teaching Staff of All Colleges Affiliated to the University other than Government Colleges (in short, the said Statutes) provides for a specific provision relating to the recruitment of non-teaching employees on compassionate ground under died in harness category. Mr. Bihani has submitted that in view of the existence of a statutory provision for appointment on compassionate ground, the respondent authorities are obliged to consider the candidature of the petitioners. Mr. Bihani has further submitted that the said Statutes are framed in exercise of powers conferred by Clause (i) of Sec. 21 read with Clause (i) of Sec. 45 of the Kalyani University Act, 1981 (in short, the said Act of 1981). Mr. Bihani has referred to Sec. 46(2) of the said Act of 1981 which, inter alia, provides that a Statute passed in the manner provided in Sec. 46(1) shall be presented to the Chancellor for assent and shall come into force on being assented to by the Chancellor in consultation with the Minister. He has also referred to Sec. 46(3) of the said Act of 1981 to highlight that a Statute shall remain in force until repealed or amended by a new Statute similarly passed and assented to by the Chancellor. Mr. Bihani has further submitted that as per Rule 7 of the Rules of Business, Government of West Bengal, the Council of Ministers shall be collectively responsible for all advice tendered to the Governor and all orders issued in the name of the Governor, whether such advice is tendered or such orders are authorised by an individual Minister on a matter appertaining to his department or as the result of discussion at a meeting of the Council or the Cabinet or howsoever otherwise. According to Mr. Bihani, the Statutes were formulated with the approval of the State and the stand of the respondents that the proposal for compassionate appointment of the deceased family members of non-government Colleges should not be referred either from the Directorate office to the Department or from the College to Directorate office until a policy in that regard adopted by the State is not sustainable in the eye of law. Mr. Bihani has further submitted that the West Bengal Universities and Colleges (Administration and Regulation) Act, 2017 (in short, the said Act of 2017) has no manner of application in the present case as has been sought to be agitated by the respondent University. He has submitted that the said Act of 2017 is silent on compassionate appointment and as such, the Statutes of the Kalyani University cannot be said to be repugnant to the provisions of the said Act of 2017.

(3.) Mr. Bihani has further argued that it is a rule of construction that when the later enactment is worded in affirmative terms without any negative, it does not impliedly repeal the earlier law. In support of this proposition, Mr. Bihani has relied upon the judgment reported at AIR 1967 SC 1581 (Northern India Caterers (Private) Ltd. v. State of Punjab). Mr. Bihani has also argued that rights conferred by Statutes or statutory rules cannot be restricted or taken away by issuing circulars/ memorandums/ notifications. To buttress his argument, Mr. Bihani has placed reliance upon the judgment reported at (2004) 1 Cal LT 541 (Swapna Lahiri v. State of West Bengal).