Chandra Dhar Saha vs State of West Bengal

Dilip Kumar Seth, J.—The Petitioner has been given an appointment under the Dying in Harness Rules in the post of Panchayat Karmi. It is contended by the Petitioner that the Petitioner possessed qualification for being appointed in the post of secretary. Therefore, according to the circular dated April 2, 1981, issued by the Government and the subsequent circular dated September 9, 1988, issued also by the Government the Petitioner is eligible for being appointed in the post of Secretary, it is contended by Mr. Islam that the Petitioner was compelled to accept the appointment in the post of Panchayat Karmi but the Respondents did not follow the Government policy in not appointing the Petitioner in the post of Secretary. Therefore, the Petitioner claims that the Petitioner ought to have appointed in the post of Secretary and not to have been compelled to accept the job of Panchayat Karmi in view of the Petitioner''s qualification.

Mr. Dasgupta, the Learned Counsel for the Respondent on the other hand contends that the Petitioner once having accepted the appointment he is estopped from seeking further appointment in any post. He then contends that it is not the choice of the Petitioner as to which post he should be given appointment under the dying in harness rules. According to him, the dying in harness rules was thought of for preventing destitution of the family of the deceased. It was not aimed at regular recruitment according to the circular but the policy was taken in order to protect the interest of the heirs of the deceased. Therefore the Petitioner can not claim as of right, appointment in the post of Secretary, this writ petition should therefore be dismissed.

I have heard the Learned Counsels for the respective parties at length.

The policy of appointment under the dying in harness rules was adopted with the object of preventing destitution of the family on the death of an employee dying in harness. The primary object is to make certain concession in favour of the deceased. In fact this policy is otherwise hit by the principles of Articles 14 and 16 of the Constitution of India. In fact vacancies are being filled up depriving the eligible candidates who are otherwise eligible to contest in view of Articles 14 and 16 of the Constitution of India. These two articles prescribe equity in the eye of law and equal opportunity of employment. Every citizen has a right of equal opportunity of employment. By reason of the policy under the dying in harness rules the same is subject to such policy of appointment under the dying in harness rules depriving all other eligible candidates in the open market for competing in the process of filling up of such post.

The rules creates a special provision for a special class of people. The same cannot be claimed as of right in order to establish the same through legal process that he has not been given the right post for which he possesses the qualification. It must be construed that this person is being given appointment without due process of selection simply by reason of being an heir of the deceased employee. He has been allowed to be exempted and skipped over from the competition altogether and is being allowed appointment without undergoing the process of recruitment and without any competition. Therefore, the Petitioner cannot claim, as of right, to a particular post of his choice, according to his qualification, once he is given appointment in a particular post.

The policy as has been pointed out from the circular dated April 2, 1981, being No. 8794/111/Panch/ 4c-1/80 does not confer any right on an incumbent. On the other hand it is a guide line. So far as the circular dated April 2, 1981, is concerned, the same also does not confer such right on a candidate to claim appointment according to his qualification once having been appointed against a vacancy for his reappointment in a post for which he possesses the qualifications in view of the express condition provided in the said circular. In order to appreciate the situation it may be beneficial to quote the contents of the said circular.

From: The Assistant Secretary to the Government of West Bengal To The Director of Panchayats, West Bengal Sub: Appointment of a son/daughter/near relation of a Chowkidar or Dafadar who dies in harness.

The undersigned is directed to say that several representations are being received by Government from the sons/daughters/near relations of the deceased Chowkidars/Dafadars who died in harness praying for their appointment in the post of Chowkidar/Dafadar or against any other suitable vacancies according to their qualifications. As the Government policy in regard to recruitment to the post of Chowkidars/Dafadars has not yet been finalised, it is not possible as this stage to consider their prayer for appointment in the vacant post of Chowkidars/Dafadars. This point will be duly examined after the final decision in the matter of appointment to the aforesaid posts is taken.

However, in consideration of the distressed condition the families of the deceased Chowkidars/Dafadars have been thrown into, the sons/daughters/ near relations of the Chowkidars who died/die in harness if they possess the requisite qualification may be considered for appointment against vacancies in the post of Secretary of Gram Panchayat in terms of para-2 of this Deptt. memo No. 23761/Panch dt. 23.10.78.

The above contents show that since no decision was taken with regard to filling up of the post of Chowkidars/Dafadars therefore it was considered that the heirs of the deceased Chowkidars and Defrauders may be considered for the post of Secretary if they possess the qualification in terms of memo, dated October 23, 1978. Thus instead of giving appointment in the post of Chowkidars and Dafadars they were being considered for a different post only on compassionate ground. This compassionate ground does not confer any absolute right to claim appointment in the post of Secretary particularly in view of subsequent circular dated September 9, 1988. In order to appreciate the situation it would be necessary to refer to the contents of the said circular which is quoted below:

The undersigned is directed to say that in terms of Memoranda issued by this Deptt. from time to time as detailed in the margin a son/daughter/near relation of an employee of a Gram Panchayat i.e. Secretary, Job-Assistant, Chowkidar and Dafadar who dies in harness leaving his family in immediate need of assistance can be appointed by the Director of Panchayats, West Bengal in the post of Secretary of a Gram panchayat without referring to the concerned Employment Exchange, provided, the dependent i.e. son/daughter/ near relation possesses requisite qualification prescribed for the said post according to the recruitment rules.

But in case the son/daughter/near relative of any such employee of Gram panchayat does not possess the requisite educational qualification prescribed for the post of Secretary of Gram Panchayat, he/she is not given any appointment. As this is causing extreme hardship to the families of Panchayat Raj Bodies employees who died/die in harness, the Governor is pleased to decide that the son/daughter/ near relation of an employee of a Gram Panchayat/ Panchayat Samiti, such as, Chowkidar, Dafadar, Job-Assistant, Secretary under the Gram Panchayat and Clerk-cum-Typist and Peon under a Panchayat Samiti who does not possess pass certificate of S.F./ Madhyamik or equivalent examination shall be appointed in a post of Group-D (erstwhile Class-IV) under the Zilla Parishads and the Panchayat Samitis provided the candidate concerned is otherwise suitable for the job, and for this purpose no reference to Employment Exchange will be necessary.

This is in continuation of this Deptt. No. 9099/ 1(15)/lll/Panch dt. 20.4.85 and No. 14504 (5)/lll dated 31.5.85 extending the benefits of ''dies in harness cases'' in respect of the employees of Zilla Parishad. The recruitment in respect of the Group D post from this exempted category of candidates will however be made by the respective bodies i.e. Zilla Parishad and Panchayat Samiti who shall duly consider the cases forwarded to them for giving appointment in Group-D posts and for this purpose no reference to the Employment Exchange will be necessary and relaxation of upper age limit if required may also be allowed.

The above contents clearly point out that such persons claiming appointment through dying in harness rules may be given appointment in Group-D post if he does not possess pass certificate of School Final or Madhyamik or equivalent examination. But who possess the requisite qualification may be appointed in the post of Secretary. Then again this was also a similar circular by which certain concession has been made curbing out of the equality clause provided in Article 16 of the Constitution of India. Thus the same can at best be considered as a guide line but the same can not be considered to be a right conferred on a person claiming appointment under dying in harness rules to a post of his choice. In case there is a vacancy in that event the person who is to be saved from immediate destitution may be engaged in such vacancy. After having engaged in such vacancy he cannot claim that he should be given further benefit to some other post. Be that as it may, once having been appointed he cannot claim that he should be given a better appointment simply because he has skipped through the recruitment process and has been given appointment directly under the dying in harness rules having curbed out of the equality clause provided under Article 16 of the Constitution.

In Umesh Kumar Nagpal v. State of Haryana and Ors. 1994 (2) S.L.R. 677 it was held that dying in harness rules does not confer any vested right to claim appointment. If it is not a right then one cannot claim after having been given appointment in an existing vacancy on compassionate ground, to be appointed in a post of his choice. Write jurisdiction can be exercised to establish legal right. If the right is not a vested right then the same cannot be claimed as legal right enforceable through writ jurisdiction. Once appointment having been given whatever right one had the same stands extinguished. It does not continue thereafter to seek appointment to a post of one''s choice. It is an appointment given on compassionate ground to save the family of the deceased employee from destitution. It cannot be said that destitution cannot be saved if he is not given appointment to a post of his choice. The circulars also provides for some concession since appointment under the dying in harness rules could not be made available to the post of Chowkidar Dafadar or such class IV post. One cannot claim vested right out of such concession. The circulars were issued to obviate a difficulty in making appointment in class IV post or in the post of Dafadar or Chowkidar under the policy. It was only a con-cessional alternative which cannot be enforced as a right.

In the circumstance I am not inclined to allow the claim raised by the Petitioner. This writ petition therefore, fails and is accordingly dismissed. There will be no order as to costs.

This order, however, will not prevent the Petitioner from competing with other candidates in case the post of Secretary falls vacant provided also that he possesses the requisite qualification and is otherwise eligible.

If an urgent Xerox certified copy of this order is applied for the same may be supplied as early as possible.