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2011 Supreme(Cal) 559
High Court of Calcutta
Amit Talukdar, Shukla Kabir Sinha, JJ.
Satyagopal Mishra – Appellant
Versus
State of West Bengal – Respondent
A.S.T. No. 119 of 2011 AND A.S.T.A. No. 104 of 2011
Decided on : Apr 20, 2011
Ekramul Bari, Syed Mansur Ali, S.U. Bari, Tanuja Basak, K.M. Hossain, Tulsi Das Maiti, Kanailal Samanta, Nabanita Pal
Compassionate appointment is a well-recognized exception to the general rule of appointment on the basis of open invitation of applications and comparative merit. It is granted to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service.
Headnote:
Compassionate Appointment - West Bengal Primary School Teachers Recruitment Rules, 2001 - Rule 14 - Interpretation and Application - Financial Distress - Assessment - Factors to Consider - Receipt of Terminal Benefits - Effect - Judicial Review - Scope and Limitations.
Fact of the Case:
The appellant, whose father was an assistant teacher in a primary school, applied for compassionate appointment on the ground of financial distress following his father's death in 2002. The application was rejected by the Director of School Education (respondent no. 2) without any reason or supporting grounds. The appellant challenged the order before the High Court, which directed the respondent no. 2 to reconsider the matter and pass a fresh decision with cogent reasons.
Finding of the Court:
The High Court held that the respondent no. 2's decision was arbitrary and unreasonable, as it was not supported by any cogent reasons or evidence. The court further held that the receipt of terminal benefits by the appellant's family was not a conclusive factor in determining whether they were in financial distress.
Issues: 1. Whether the respondent no. 2's decision was arbitrary and unreasonable? 2. Whether the receipt of terminal benefits by the appellant's family was a conclusive factor in determining whether they were in financial distress?
Ratio Decidendi: 1. The court held that the respondent no. 2's decision was arbitrary and unreasonable, as it was not supported by any cogent reasons or evidence. The court relied on the Supreme Court's decision in Syed Khadim Hossain v. State of Bihar, (2006) 9 SCC 195, which held that such prayers cannot be rejected without assigning any proper reason. 2. The court held that the receipt of terminal benefits by the appellant's family was not a conclusive factor in determining whether they were in financial distress. The court relied on the Division Bench decision in Tapan Kumar Barman v. State of West Bengal and Others, (2009) 1 Cal HN 23, and the Supreme Court decisions in Balbir Kaur and Another v. SAIL, (2000) 6 SCC 493, and Govind Prakash Verma v. LIC of India and others, (2005) 10 SCC 289.
Final Decision: The court allowed the appeal, set aside the respondent no. 2's order, and directed the respondent no. 2 to pass a fresh order within three weeks from the date of communication of the court's order, granting compassionate appointment to the appellant.
Talukdar, J.
1. FROM Caesar to Caesar's wife. It is in such trajectory we are reminded of the decision of the Supreme Court in Kalabharati Advertising v. Hemant Vimalnath Narichania and Others reported in (2010)9 SCC 437 where in similar situation it was held :-
"The cliche of appeal from Caesar to Caesar's wife can only be bettered by appeal from one's own order oneself"
2. WHILE Holding so Dr. Chauhan, J. speaking for the Bench had relied on its earlier decision in Ram and Shyam Company v. State of Haryana reported in (1985) 3 SCC 267 where Desai, J. writing the judgment for the Bench had held: To whom do you appeal in a State administration against the decision of the Chief Minister ? The ditch of appeal from Ceasar to Ceasar's wife can only be bettered by appeal from one's own order to oneself." It is in one such curve we have been interfaced with an order rendered by the Hon'ble Single Judge in W.P. 23840 (W) of 2010 on 17.3.2011 which contains two parts - one which the appellant does not agitate; the other he murmurs could have been otherwise.
3. BACKGROUND facts require to be set out so as to have a whole hog of the entire issue before us - dates back to the story of an Assistant Teacher of a Primary School who was born in the year on 1.1.05.46 and was very much in service when death claimed him on 11.10.2002. Pushed to the foray of financial distress, having suffered the distraught pain of losing the breadwinner of the family, the Appellant reported to the Respondent No. 3 on 31.1.2003 carrying his woes.
4. SILENCE compounded by agony and animated suspension. Barring the same nothing except time stood still. Nothing moved, nothing fructified except the passage of dull time till such time on 15.9.2007 the Respondent No. 5 (Chairman of the District Primary School Education Council) communicated to the respondent No. 3 the decision of the Respondent No. 2 regretting that appointment on compassionate ground cannot be granted as he was not found to be in financial distress.
5. BEFORE that we need to retrace a bit to an anterior position on 04.12.2008 when the same Respondent No. 5 had forwarded the proposal for appointment of the Appellant in died-in-harness category of his Late Father who passed away while still in service.
6. FLUMAOXED in such a situation the Appellant sought for the Midas touch of constitutional remedy before the Hon'ble Single Judge. His Lordship by His order, under appeal after appreciating the concern of the Appellant in this regard rightly concluded that the finding rendered by the Respondent No. 2 "smacks of arbitrariness" as no supporting reasons was forwarded while relaying the decisions of the authorities for compassionate appointment of the Appellant. His Lordship directed the respondent No. 2 to render a decision afresh with cogent reasons taking into consideration the relevant Rules governing the appointment on compassionate ground under died-in-harness category. It is here Shri Bari for the Appellant has joined issue and submitted that when His Lordship had himself was of the opinion that the action initiated by the respondent No. 5 was drenched in arbitrariness and was not lucid, then why remitting the matter for fresh decision and why not a Mandamus ?
7. WE would be required to answer the 'WHY' of Shri Bari.
8. BUT we have to appreciate the 'HOW' of the respondent No. 2. Shri Bari for the Appellant has argued the appeal and we must say with great competence. He has placed before us the entire position in a very lucid fashion. Shri Bari referred to Rule 14 of the Recruitment and Leave Rules of Primary Teachers, 1991. According to Shri Bari, it is the Council who is to take a decision and the Director of the School Education is simply required to approve the same. When, according to Shri Bari, the respondent No. 5 had come to a decision and being satisfied on the basis of credential of the Appellant and the Proposal for his appointment it was not incumbent on the respondent No. 2 (Direc
