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. 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