IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE PRESENT: The Hon’ble Mr.Justice Subrata Talukdar W.P.31 of 2016 Angira Bhattacharya -vs.State of West Bengal & ORS.For the Petitioner : Mr.S.S.Arefin For the State : MRS.Chaitali Bhattacharya Mr.S.Bandopadhyay Heard on : 15/02/2016; 18/03/2016 & 13/05/2016 Judgement on : 21/09/2016 Subrata Talukdar, J.: In this writ application the petitioner claims compassionate appointment consequent upon the death of her mother, who was an Assistant Teacher in Bio-Science at the P.D.Girls High School, Dhoniakhali, District- Hooghly (hereinafter referred to as the said School).The facts of the case are briefly as follows:That the mother of the petitioner died in harness on 22nd October, 2008.
Thereafter, the father of the petitioner also died on 28th of August, 2009.
Among the surviving children were the petitioner and her younger sister.
At paragraph 5 of this writ petition, the petitioner claims to have applied for compassionate appointment before the District Inspector of Schools (Secondary Education) (for short DI (SE).Hooghly which was received by the DI (SE) on the 22nd of April, 2010.
By order dated 9th of November, 2011 the DI (SE).Hooghly rejected the prayer of the petitioner on the basis of Government Order (for short GO) No.697-E.S.dated 9th of July, 2009 which, inter alia, stipulates that where the total income of the family is not less than the initial gross salary of a Group-D staff, a prayer for compassionate appointment cannot be considered.
It is relevant to mention that while the mother of the petitioner died while working as an Assistant Teacher, the father of the petitioner was an employee of Singur Block Office.
Furthermore, the family was in enjoyment of family pension.
Sr.Syed Shamsul Arefin, Ld.
counsel appearing for the petitioner submits that the DI (SE) fell into error by applying the said GO dated 9th July, 2009 retrospectively.
Sr.Arefin points out that admittedly on the death of the mother on 22nd October, 2008 there was no existence of the said GO dated 9th July, 2009.
Admittedly again, the claim of the petitioner matured on 22nd October, 2008, i.e.on her mother’ death and, ought to have been considered under the applicable rule at the relevant point of time.
Therefore, Sr.Arefin submits that the petitioner applied again for reconsideration of her prayer for compassionate appointment.
Such application was made to the DI (SE) on 28th of August, 2015 and rejected by the DI (SE) on the 6th of November, 2015.
By the order of rejection dated 6th of November, 2015, the DI (SE) reiterated the fact that the petitioner’s prayer was considered earlier in the light of the said GO dated 9th of July, 2009 and stood decided against the petitioner.
Therefore, her prayer for reconsideration stood regretted.
Per contra, MRS.Chaitali Bhattacharya, Ld.
State Counsel argues that the right to claim compassionate appointment is coterminous with the need to tide over immediate penury.
Taking this Court to several documents annexed to the writ petition, MRS.Bhattacharya points out that the petitioner, who was in receipt of family pension, failed to approach the competent authority within time since admittedly, the fiRs.order of rejection issued by the DI (SE) was on 14th of November, 2011 and, the petitioner applied for reconsideration of her prayer on 28th of August, 2015, i.e.after a delay of 4 yeaRs.Such delay unequivocally demonstrates the lack of requirement of the petitioner to tide over immediate financial distress.
Having heard the parties and considering the materials on record this Court at fiRs.expresses its satisfaction at the point of law urged by Sr.Arefin that service rules or GO must normally operate prospectively unless indicated to the contrary by express language or, by necessary implication.
With regard to the above noted provision of law the judgment of the Hon’ble Apex Court In Re: N.T.Devin Katti & ORS.versus Karnataka Public Service Commission & ORS.reported in 1990 (3) SCC157at Paragraphs 11 & 13 can be usefully reproduced:“11.
There is yet another aspect of the question.
Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government OrdeRs.and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government OrdeRs.Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selections in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention.
Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalises on the date of publication of advertisement, however he has no absolute right in the matter.
If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules.
Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent.
The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement.
Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant Rules and ordeRs.Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant Rules and the terms contained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement.
He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature.”
13. In Y.V.Rangaiah v.J.Sreenivasa Rao, .3 SCC285similar Question arose relating to recruitment by promotion.
The question was whether promotion should be made in accordance with the Rules, in force on the date the vacancies occurred or in accordance with the amended Rules.
The Court observed as under: "The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules.
It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewise basis and, therefore, there was no question of challenging the new rules.
But the question is of filling the vacancies that occurred prior to the amended rules.
We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules." The same view was taken in P.
Ganeshwar Rao & Ors.v.State of Andhra Pradesh & Ors., .Supp.
SCC740 Similar view was taken in A.A.Calton v.
Director of Education & Ors., [ 1983].3SCC33 It is a well accepted principle of construction that a statutory rule or Government Order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect.
Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government Orders and any amendment of the rules or the Government Order pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amended rules or the amended Government orders issued in exercise of its statutory power either by express provision or by necessary intendment indicate that amended Rules shall be applicable to the pending selections.
Mahendra & Ors.v.State of Karnataka & Ors.” At the same time this Court also express satisfaction with the argument placed by Sr.Arefin that receipt of family pension or terminal benefits cannot be a ground to refuse compassionate appointment.
Such law has been settled both by the Hon’ble Apex Court and through judicial pronouncements of this Court.
Useful reference may be made in this regard to the following authorities:In Re: Punjab National Bank & ORS.versus Ashwini Kumar Taneja reported in 2004 (7) SCC265 In Re: General Manager (D & PB) & ORS.versus Kunti Tiwary & Anr.
reported in 2004 (7) SCC271 In Re: Union Bank of India & ORS.versus M.T.Lateesh reported in 2006 (7) SCC350 In Re: Santosh Kumar Dubey versus State of U.P.& ORS.reported in 2009 (6) SCC481 In Re: Canara Bank & Anr vs.M.Mahesh Kumar & ORS.reported in 2015 (7) SCC412 and In Re: Swati Chatterjee versus State of West Bengal reported in 2010 (2) WBLR (Cal) 490.
Having regard to the above noted position of facts and law it cannot be denied that the fiRs.rejection of the claim of the petitioner on 14th November, 2011 by the DI (SE).Hooghly only relying upon the ground of family income vide the said GO dated 9th of July, 2009 may be legally flawed.
However, the argument of MRS.Bhattacharya also cannot be ignored that the petitioner applied for reconsideration after 4 years in 2015 thereby waiving her claim to compassionate appointment.
MRS.Bhattacharya submits it is trite law that compassionate appointment must be claimed and offered to mitigate the immediate financial crisis which arises in the family after the death of its earning member.
Useful reference may be made in this regard to the law laid down by the Hon’ble Apex Court In Re: Haryana State Electricity Board versus Naresh Tanwar & Anr.
reported in 1996 (8) SCC23 Upon a consideration of the rival stand taken by the parties this Court finds that the fiRs.prayer for compassionate appointment was received by the DI (SE).Hooghly within due time and was rejected on the basis of the GO dated 9th July, 2009 which was admittedly not in operation at the time of death of the mother of the petitioner.
However, the said GO dated 9th of July, 2009 was in operation at the time the claim was lodged with the DI (SE) on 22nd April, 2010 as well as at the time of rejection of such claim on 14th November, 2011.
This Court although finding substance in the submission of Ld.
State Counsel that the reminder was issued to the DI (SE) by the petitioner after 4 years on 28th of August, 2015, the fact cannot be lost sight of that after the death of both her parents in 2008-09, the petitioner was left in a crisis to manage the family comprising of her medically suffering younger sister.
Therefore, this Court must opine that the DI (SE).Hooghly failed to carry out a proper enquiry into the family condition of the petitioner which was admittedly distressed at the time of the fiRs.rejection dated 14th of November, 2011.
This Court is also persuaded to accept the situation that after the fiRs.rejection the petitioner perforce had to return to her family responsibilities till she brushed against correct legal advice to file a prayer for reconsideration before the DI (SE).Accordingly, this Court is of the further opinion that the period of 4 years which lapsed after the fiRs.rejection on the 14th of November, 2011 do not connect to any intentional laches on the part of the petitioner and, indicate a situation where after the death of both of her parents the petitioner was faced with the primary task of fulfilling the role of a family guardian.
The halo of finality surrounding the fiRs.order of the rejection dated 14th November, 2011 does not, to the mind of this Court, preclude the petitioner from testing its legal correctness on the point that receipt of family pension may not be a bar in all situations from claiming compassionate appointment.
This Court must also hold that the second order of rejection by the DI (SE) dated 6th of November, 2015 is mechanical and merely reiterates the stand taken in the fiRs.order of rejection.
The second order of rejection dated 6th November, 2015/ fails to demonstrate adequate application of mind or indicate the fact that such rejection followed a proper enquiry by the DI (SE).In the backdrop of the above discussion the matter is remanded to the DI (SE).Hooghly to take a fresh decision after making a proper enquiry into the circumstances faced by the family of the writ petitioner at the time when the fiRs.claim to compassionate appointment was lodged with the DI (SE).Such decision shall be taken in the light of the observations made above in this judgment on merits within a period of 12 weeks from the date of communication of this order.
The petitioner shall be entitled to be heard by the DI (SE).Hooghly either personally or through her authorized representative.
The orders impugned dated 14th November, 2011 and 6th November, 2015 stand accordingly set aside.
WP31of 2016 stands accordingly disposed of.
There will be, however, no order as to costs.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)