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Judgment
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Debangsu Basak, J.
These writ petitions involve similar issues and are taken up for consideration analogously. Essentially, the petitioners seek compassionate appointment
in the diedinharness category for the family members of the deceased municipal employee.Since a number of writ petitions are involved and since
different counsel have advanced arguments on behalf of the petitioners, it would be appropriate and convenient to collate the submissions on behalf of
the petitioners as one and record the same accordingly.
The petitioners rely upon the provisions of the West Beng-al Regulation of Recruitment in the State Government Establishments of Public
Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1998. The petitioners rely upon Section 1, SubSection (4) of the
Act of 1999 and contend that, the Act of 1999 applies to all posts in State Government Establishments and Establishments of Public Undertakings,
Statutory Bodies, Government Companies and Local Authorities. Relying to Section 2(7) of the Act of 1999, the petitioners contend that, local
authorities are defined therein. It has the same meaning as SubSection (23) of Section 3 of the Bengal General Clauses Act, 1899. Section 3(23) of
the B- engal General Clauses Act, 1899 defines a local authority. It stipulates that, a municipality would come within the definition of a local authority.
Consequently, the Act of 1999 is applicable to a municipality. Moreover, the Act of 1999 deals with the method of appointment of employees to a
municipality inasmuch as it provides that, the posts which are required to be filled up on the recommendations of the municipal authorities as noted in
SubSection (4) of Section 1. The Act of 1999 allows the State Government to stipulate the persons who would be- tr-eated as falling within the
exempted category. The exempted category, according to the petitioners, has been notified by the State Government, from time to time. In this regard
three notifications all dated August 21, 2002 being Emp. 301, Emp. 302 and Emp. 303 are relied upon by the petitioners. The petitioners also rely upon
Emp. 97, dated June 6, 2005, Emp. 142, dated November 1, 2007, Emp. 30, dated April 2, 2008 and Emp. 251, dated December 3, 2013 in support of
the contentions that, there subsists a scheme for grant of compassionate appointment to employees in the diedinharness category for all
municipalities. According to the petitioners, the scheme for grant of compassionate appointment in such a situation can be found by reading Emp. 301
to 303, dated August 21, 2002 along with Emp. 30, dated April 2, 2008. The petitioners also rely upon Emp. 98, dated April 28, 2015.
Without prejudice to the first contention and thereto, it is contended by the petitioners that, the provisions of the West Bengal Municipal Act, 1993 if
read harmoniously, provides that, an employee of the municipality should be treated as a State Government employee. According to the petitioners, the
State Government employees have a subsisting scheme for grant of compassionate appointment. Since an employee of a municipality is to be treated
on the same position as that of a State Government employee, then the scheme governing the State government employee should also apply for an
employee of the municipality. There being a subsisting scheme for the State Government employees, the municipal employee should also receive the
same benefit. In support of the contentions that, an employee of the municipality is to be treated as an employee of the State reliance is placed on
Section 53 (1), Section 54 (2) and (3) as also Section 56, Section 57 and Section 425 of the Act of 1993.
It is next contended on behalf of the petitioners that, assuming that, the municipal employee cannot be treated to be at par with that of the employee of
the State Government, then also, the Service Rules governing a State Government employee should apply so far as the municipal employees are
concerned. In absence of the municipality framing any service rules in respect of municipal employees, since the State Government employees have a
scheme for compassionate appointment, such scheme should apply to municipal employees also. The provisions of the Scheme for compassionate
appointment in the died in harness category can be read into the service rules governing a municipal employee and appropriate measures can be taken
by the Court acting on such premise.
The State should be considered as the master so far as the employees of the municipality is concerned. An employee of the municipality is appointed
on the basis delegation of powers under the Act of 1993. Although the persons empowered under the Act of 1993 to appoint an employee of a
municipality essentially such persons act as delegated of the State. The State is the master for all practicable purposes. Grant of appointment by the
persons enumerated in the Act of 1993 does not mean that, municipal employees cease to be an employee of the State. For all practical purposes, the
State is to be considered as the employer. The State provides the funds to the municipality for payment of salaries. Consequently, there is no reason
why an employee of the municipality cannot be treated as an employee of the State.
Relying upon 2018 (2) W.B.L.R. (Cal) 648 (Jaitra Acharya v. The State of West Bengal & Ors.) it is submitted on behalf of the petitioners that, a
Coordinate Bench had granted compassionate appointment. According to the petitioners, a Division Bench by a judgment and order dated February 9,
2015 passed in AST 276 of 2014 with ASTA 213 of 2014 had issued directions for grant of compassionate appointment in respect of an employee of
the municipality. Consequently, according to the petitioners, the issue as to whether an employee of a municipality is entitled to grant of compassionate
appointment has already been decided in presence of the State. Such issue is now by the principles of constructive res judicata or not is constructively
res judicata. The State was entitled to raise the point of absence of a scheme in those proceedings. The State did not do so. In support of the
contention that the plea is barred by the principles of constructive res judicata, reliance is placed on AIR 1949 Privy Council 302 (Sha Shivraj Gopalji
v. Edapakath Ayissa Bi and Ors.) by the petitioners.
It is contended by the petitioners that, they are similarly situated and circumstanced as that of the writ petitioners of Jaitra Acharya (supra) and AST
276 of 2014 (supra). The petitioners should not be discriminated against by the State or the municipality. There are numerous instances where the
municipality had considered grant of compassionate appointment and had granted the same with the approval of the State. It no longer lies with the
State Government to deny the existence of a scheme for compassionate appointment. The petitioners cannot be discriminated against. The Court
should not permit such a discrimination to be made against the petitioners.
In the event, the Court is of the view that, there does not exist any scheme for grant of compassionate appointment for the municipal employees, then
also, the Court should direct that, the State to formulate a scheme for such employees so as to bring the municipal employees at par with that of State
Government employees who enjoy such a scheme. Any other action by the State and in fact, the nongrant of compassionate appointment so far as the
municipal employees are concerned, breach-es -Article 14 of the Constitution of India. Relying upon 2000 (6) SCC 493 (Balbir Kaur & Anr. v. Steel
Authority of India Ltd. & Ors.), it is contended that, the Supreme Court is of the view that, compassionate appointment should be granted to a
deceased employee for the family to tide over the financial difficulties. Reliance is also placed on 2017 (5) SCC 383 (Mukesh & Anr. v. State of Bihar
& Ors.) and 2013 (10) SCC 545 (Vishwanath Pandey v. State of Bihar & Ors.) in support of the contentions that, the municipality and the State must
grant compassionate appointment in the -die-dinharness category.
One of the writ petitions concerns grant of compassionate appointment to a married daughter. It is contended by the petitioners there relying upon a
Full Bench decision reported at 2007 (4) CHN (Cal) 362 (State of West Bengal v. Purnima Das), that, a married daughter is entitled to grant of
compassionate appointment in the diedinharness category. The learned council appearing in support of such writ petition, in his usual fairness,
submits that, Court in a judgment and order dated June 13, 2018 passed in W.P. No. 28509(W) of 2017 (Sampa Poddar v. State of West Bengal) has
decide the issue of grant of compassionate appointment, against the petitioners. However, all the points now sought to be canvassed by the parties,
were not taken in that matter.
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Learned Government Pleader appearing on behalf of the State submits that, there is no scheme for grant of compassionate appointment so far as
employees of the municipalities are concerned. He relies upon Circular Nos. Emps 301 to 303, dated August 21, 2005, Emp. 97, dated June 6, 2005,
Emp. 142, dated November 1, 2007, Emp. 30, dated April 2, 2008, Emp. 251, dated December 3, 2013, Emp. 96, dated April 28, 2015 in support of his
contentions that, there is no scheme for the grant of compassionate appointment in the diedinharness category or any other category so far as the
municipal employees are concerned. According to the Government Pleader, Purnima Das (supra) does not consider a situation where municipality is
involved. It involves Panchayat. Panchayat has a scheme for grant of compassionate appointment. In such context, it has also held that a married
daughter is entitled to grant of compassionate appointment. The facts scenarios in the present cases are different. The petitioners have not established
that, there is a scheme for grant of compassionate appointment. In fact, there is no scheme for grant of compassionate appointment.
Learned Government Pleader submits that, existence of scheme for compassionate appointment is sine qua non for consideration of an application for
grant of the same. In support of such contentions, he relies upon 2017 (2) CHN 683 (State of West Bengal v. Poly Dutta), 2018 (1) CHN (Cal) 504
(State of West Bengal v. Bimal Munda), 2008 (11) SCC 384 (Mumtaz Yunus Mulani (SMT.) v. State of Maharashtra & Ors.), 2012 (11) SCC 307
(Union of India & Anr. v. Shashank Goswami & Anr.) and 2014 (15) SCC 739 (State Bank of India & Ors. v. Surya Narain Tripathi).
An employee of a municipality is not an employee of the State. In support of such contentions, Learned Government Pleaser relies upon 2008(11)
SCC 10 (Union Public Service Commission Dr. Jamuna Kurup & Ors v. Dr. Jamuna Kurup & Ors.). So far as the incidents where the municipality
has granted appointment on compassionate ground and where the Courts have directed the municipalities to do so, he submits that, such orders of the
Court cannot be considered as binding precedence. No ratio has been laid down therein. Ratio of a judgment is binding. The order is not. None of the
orders of the Court has returned a finding that, there subsists a scheme for grant of compassionate appointment. The petitioners cannot claim negative
equality. In absence of a scheme for compassionate appointment, if a municipality has acted wrongly or illegally, in granting an appointment on such
ground, the same cannot form the basis for grant of relief to the petitioners. Relief as sought for by the petitioners is not available on such foundational
basis in view of the principles of negative equality. According to him, the petitioners are not entitled to any relief in any of the writ petition.
Having recorded the rival contentions of the parties, the issues raised are required to be formulated. Shashank Goswami (supra) is of the view that,
grant of compassionate appointment is not a matter of right. Appointments on compassionate grounds have to be made in accordance with the rules,
regulations or administrative instructions if any, subsisting, taking into consideration the financial condition of the family of the deceased. Appointment
on compassionate ground is not another source of recruitment but merely an exception thereto. As a Rule, public service appointment should be made
strictly on the basis of open invitation of applications and merit.
Mumtaz Yunus Mulani (supra) is of the view that, appointment on compassionate ground can only be granted to tide over the sudden financial crisis.
The right to get appointment on compassionate ground would depend upon the scheme operating the field. Similar view has been expressed in Surya
Narain Tripathi (supra). M.T. Latis (supra) is of the view that, compassionate appointment being an exception to the general rule of appointment, it
has to be exercised only in warranting situations and circumstances existing for granting appointment. Vishwanath Pandey (supra) finds the petitioners
therein to be entitled to grant of compassionate appointment. It is followed up in Mukesh & Anr. (supra).
Poly Dutta (supra) is of the view that, a scheme for grant of compassionate appointment should be enforced at the material point of time, i.e. at the
time of the death of the concerned employee for the dependent of such employee to be considered for grant of such appointment. Similar view is
expressed in Bimal Munda (supra). Essentially, Poly Dutta (supra) and Bimal Munda (supra) require the Court to find out as to whether there subsists
any scheme for grant of compassionate appointment for such Court to direct the authorities to either consider an application for grant of
compassionate appointment or to grant such compassionate appointment. In both the cases, the Division Bench after finding that, there was no
scheme for grant of compassionate appointment and finding that, the Trial Court had directed grant of compassionate appointment without considering
the subsistence of a scheme for compassionate appointment had set aside such direction.
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The authorities noted above, require, the Court to find out whether there subsists a scheme governing the field that is to say that, whether there is a
scheme in existence for grant of compassionate appointment or not before embanking upon the exercise of considering issuing directions for grant of
appointments on such ground. In the context of the law stated above and the duty cast upon the Court, the following issues arise for consideration in
the present writ petitions:
(i) Is there any scheme for grant of compassionate appointment in respect of employees of Municipalities?
(ii) If the answer to the first issue is in the negative, then, should the scheme for State Government employees be read into the service conditions for
employees of Municipalities?
(iii) Can employees of a Municipality be treated as employees of the State Government? - -
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(iv) To what relief or reliefs, if any, are the parties entitled to? -
Eight circul-ars are rel-evant for the purpose of consideration of the first issue. Such circulars are 301E-mp. to 303Emp. all dated August 21, 2002,
97Emp. dated June 6, 2005, 142Emp. dated November 1, 2007, 30Emp. dated April 2, 2008, 251Emp. dated December 3, 2013 and 96Emp. dated
April 28, 2015. Relevant portions of such circulars are extracted below:
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“No.301EMP/1M10/2000 â€" 21st August 2002. â€" In exercise of the powers conferred by subsection (a) of section 3 of the West Bengal
Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory Bodies. Government Companies
and Local Authorities Act, 1999 (West Bengal Act XIV of 1999), the Governor is pleased to declare following categories of persons as exempted
categories for the purpose of the aforesaid Act:
Dependents of employees dying in harness : A solely dependent wife/son/daughter/near relation of an employee who dies in harness leaving his
family in immediate need of assistance. A near relation of the deceased employee may be considered for employment on compassionate ground only
when the son/daughter/wife of the deceased employee cannot be considered for employment owing to minor age or other disabilities. In such a case
the employment of a near relation of the deceased employee may be considered only for providing assistance immediately needed by the family, left
behind by the deceased.
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This supersedes all earlier circulars and executive orders issued from time to time by the Government of West Bengal in the Labour Department
relating to employment of persons belong to the Exempted Categories. No.302EMP/1M10/2000 â€" 21st August, 2002 â€" In exercise of the powers
conferred by subsection (b) of section 3 of the West Bengal Regulation of Recruitment in State Government Establishments and Establishments of
Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 (West Bengal Act XIV of 1999), the Governor is
pleased to order that of the local vacancies arising in a year under any appointing authority, other than the vacancies which are required to be filled up
either on the recommendations of â€
(a) the Public Service Commission, West Bengal or
(b) the West Bengal College Service Commission or
(c) the We-st Bengal School Service Commission or
(d) the Municipal Service Commission or
(e) the Cooperative Service Commission - - -
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Or by promotion, or by absorption of persons declared surplus by the State Government or by absorption of such categories of casual workers and
other workers as the State Government may by notification specify from time to time, 30% shall be treated as reserved to be filled up by persons
falling within the ex-empted categories notified under subsection (a) of section 3 of the aforesaid Act. No.303EMP/1M10/2000 â€" 21st August,
2002 â€" In exercise of the powers conferred by subsection (c) of section 3 of the West Bengal Regulation of Recruitment in State Government
Establishments and Establishments of- Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 (West Bengal
Act XIV of 1999), the Governor is pleased to prescribe the following procedure for filling up the vacancies reserved for the Exempted Categories as
specified under subsection
(a) of section 3 of the aforesaid Act :
 A.GENERAL PROCEDURE TO BE FOLLOWED IN RESPECT OF DIFFERENT EXEMPTED CATEGORIES:
Dependents of persons who died in harness: None except wife/son/daughter/near relation of the deceased employee and solely dependent on the
earnings of the deceased employee, shall be eligible for consideration for such employment. The benefit will be admissible if the family, left behind by
the deceased employee, is in immediate need of assistance and such employment on compassionate ground is absolutely essential to support the family
of the deceased. A person belonging to a completely separate family shall not be treated as solely dependent on the deceased employee for the
purpose of such employment on compassionate ground.
The wife/son/daughter/near relation of an employee who died in harness, may apply to the appointing authority through the Head of the Office of the
employee in a prescribed form as per Part I & II of Annexure “A†along with a copy of death certificate praying for employment to support the
family of the deceased employee. On receipt of such application the appointing authority shall form an enquiring committee of senior officials not less
than three in number. The committee so formed shall make an enquiry about the genuineness of the prayer as well as the financial condition of the
family of the deceased employee and submit a report as per Annexure “A†to the appointing authority. The appointing authority will forward the
case together with his views, recorded in Annexure “Aâ€, to the Administrative Department concerned for consideration. If it is decided by the
administrative department to be a fit case for offering employment on compassionate ground a suitable vacancy may be identified under the appointing
authority concerned for providing employment subject to the condition that the candidate satisfies the qualification and other requirements prescribed
for recruitment to the post.
If a suitable vacancy is not available under the appointing authority concerned the administrative department may identify suitable vacancy under some
other appointing authority under its administrative control for providing employment. The administrative department will forward the case with suitable
direction, to the appointing authority, in whose establishment the vacancy has been identified. In the event of non availability of the berth for
accommodating such a case the administrative department concerned will have to move other departments for suitable berth. When a suitable
vacancy is available in some other department to accommodate the case, the Administrative Department will forward the case along with the relevant
papers to that department for further action. The Department having vacancy in the Exempted Category of posts will provide employment to the
wife/son/daughter/near relation of the employee who died in harness subject to observance of relevant conditions and formalities.
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97â€"Emp. 6th June, 2005: In exercise of the powers conferred by CLAUSE (c) of section 3 of the West Bengal Regulation of Recruitment in
State Government Establishments and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act,
1999, the Governor has been pleased to lay down the following principles and procedures to be followed in dealing with the issue of appointment on
compassionate ground to the dependants of employees who die in harness, or who retire prematurely on being declared permanently incapacitated.
One of the dependants of an employee who dies in harness or who retires prematurely on being declared permanent incapacitated may be offered
appointment on compassionate ground subject to the fulfillment of the following conditions :
(i) The employee has died, or retired on being permanently incapacitated before completing 20 years of services of before attaining the age of 50
years, whichever is earlier.
(ii) The family of the deceased of the retired employee, as the case may be, is in need of immediate assistance and appointment of dependant of the
employee is absolutely essential for survival of the family.
For the purpose of appointment of compassionate ground in terms of this notification, a dependant shall mean spouse, a son or an unmarried daughter
who ws (sic) solely dependent on the earnings of the deceased or the retired employee.
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The Labour Department will forward the name of persons found eligible for appointment on compassionate ground to one or more of the following
Departments, for appointing them against available vacancies.
1)Health & Family Welfare Department 2)School Education Department.
3)Higher Education Department.
4) Mass Education & Extension Department.
5) Home (Police) Department.
6) Jails Department.
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Approval of the Appointment Committee of the Cabinet will not be required for offering appointment in terms of this notification. EMP 142 â€" 1st
November, 2007:
Consequent upon issue of this Department’s Notification No.97Emp, dated 06.0-6.2005, a quest-ion -arose as to if the provisions of the said
notification would be applicable to the State Government employees only or to the employees attached to such other establishments, as are m- en-tioned
in the West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Government
Companies and Local Authorities Act, 1999, as well. To obviate the question, issue of a clarification in this regard has been under consideration of the
Government for some time past and in terms of this Department Notification No.69Emp. dated 26062007, it has been clarified that the term
‘employee’ will mean the State Government employee only for the purpo-se of this Depar-tme-nt’s Notification No.97Emp, dated -06062005.
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The Governor has, now, been pleased to order that the appropriate authorities of the establishments of Public Undertakings, Statutory Bodies,
Government Companies and Local Authorities, within the purview of the Act ibid, will, having regard to the principles applicable to the State
Government employees as enunciated in this Department Notification No.97E-mp-, dated 06062005, read with Corrigendum No.151Emp, dated
08092005, Notification No.133Emp, dated 01102007 and any other order/Notification to be issued subsequently by the Government in this regard,
the financial position and the nature of activities of the respective organizations, formulate policies of their own in consultation with the respective
administrative departments so as to follow the same in course of dealing with the prayers for appointment or financial assistance on compassionate
ground, received by them, from the dependents of the employees who die inharness or retire prematurely on being declared permanently
incapacitated. - -
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Before notifying the policy, the administrative Department shall obtain the concurrence of the Labour Department and the Financial Department.
This order issues with the concurrence of the Finance (Audit) Department, vide their u.o. No.3947 Group ‘P’ (Service), da-ted- 31102007.
30Emp. â€" 2nd April, 2008: - - - - - - - -
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At present appointment on compassionate ground of the defendants of state government employees who die in harness, or retire prematurely on being
declared permanently incapacitated for s-ervice is govern-ed- by the provisions of Labour Department Notifications No.97Emp, dated 06052005, read
with Corrigendum No.131Emp, dated 26082005, Corrigendum No.151Emp, dated -08092005, C-orr-igendum No.27Emp, dated 08022006,
Memorandum No.28Emp, dated 08022006 and notification No.69Emp, dated 26062007 and 133Emp, dated 01102007. The Government had
been, for some time past, considering the necessity or reviewing these provisions. After careful review of the matter, the Governor has now been
pleased to rescind the Notification No.97Emp, dated 06062005 along with corrigenda/orders/notification issued in the context of the said notification
and restore the position which was prevailing prior to the issue of Notification No.97Emp, dated 06062005, subject to such modifications and
clarifications as specifically mentioned hereunder.
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All other provisions laid down in the Notification No.301Emp, & 303Emp, dated 21082002, to the extent those are not inconsistent with the
provisions laid down in this Notification shall -continue to apply. -
All applications for appointment on compassionate ground shall henceforth be disposed of by the concerned administrative department in
accordance with the provisions laid down in the notification. Approval of the Appointment Committees of the Cabinet will not be required for offering
appointment in terms of this notification. 251Emp. â€" 3rd December, 2003:
The Governor is pleased hereby to make the following scheme regulating the appointment on compassionate ground in supersession of all previous
orders in this respect : Scheme :
(1) Short title and commencement â€" This scheme may be called the West Bengal Scheme for Compassionate Appointment, 2013. This will come
into force with effect from the date of issue.
(2) Application â€" This shall apply to a dependent family member of a Government employee who â€
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(a) dies while in service ; or
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(b) is disabled permanently or otherwise incapacitated rendering him unfit to continue in service prematurely on- being declared permanently
incapacitated by a Medical Board formed by the Government. 96Emp. â€" 28th April, 2015:
A Question has arisen as to whether the provision of the Notification No.142Emp. dated 01112007 would continue to be in effect consequent upon
introduction of the West Bengal Scheme for Compassionate Appointment, 2013 issued under Notification No.251Emp. dated 03.12.2012. The
Scheme ibid specifies that it is applicable for regular State Govt. Employees. After careful consideration of the matter, the Governor has now been
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pleased to state that although Notification No.251Emp. dated 03.12.13 is not meant for the employees of Corporation Public Undertaking, Statutory
Bod-ies-, Govt. Companies’ Boards, Local Bodies etc., if a notified policy for compassionate appointment already exists in a concerned Department
in respect of the employees of the concerned organizations, prior to introduction of Notification No.251Emp. dated 03.12.13, which was issued after
cont-aining the concurrence of the Labour Department and Finance Department in pursu-ance of Notification No.142Emp. dated 01.11.2007, then
there is no bar in implementing the same for the purpose of extendin-g -compassionate appoin-tment to the dependents of employees who
diedinharness or are permanently incapacitated.
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301Emp. dated August 21, 2002 was notified in exercise of powers conferred under Subsection (a) of Section 3 of the Act of 1999. It deals with
grant of compassionate appointment to dependents of employees in the diedinharness category. 302 Emp. dated August 21, 2002 is an exercise of
power under- Section 3(b-) of the Act of 1999. It specifies that, 30% of the vacancies reserved are to be filled up by persons falling within the
exempted categories to -be- notified under Section 3(a) of the Act of 1999. 303Emp. dated August 21, 2002 prescribes the procedure for filling up the
vacancies reserved for the exempted categories. -
Reading 30-1-Emp. to 303Emp., together, the irresistible conclusion is that, the State Government had formulated a scheme for grant of compassionate
appointment in the diedinharness category. The notifications are of the Labour Department. The question is whether such notification applies to
employees of the Municipalities or not. The next notification is 97Emp. dated June 6, 2005. This notification is in exercise of the powers conferred
under Section 3(c) of the Act of 1999. It specifies that, the criteria which a person seeking appointment on the ground of compassionate appointment
in the diedinharness category must fulfil. It requires the Labour Department, on receipt of the recommendation of the Nodal Committee considering
the grant of compassionate- appointment, to forward such application to any of the six committees noted therein. It does n-ot require the approval of the
Appointment Committee of the Cabinet for offering appointment in terms of such notification. The department governing Municipality is not specified
in the notification dated June 6, 2005. - -
The next notification is 142Emp. da-ted November 1, 2007. It seeks to answer the question, whether the provisions of 97Emp. would be applicable to
State Government em-ployees only- or that it would apply to the employees attached to other establishments as mention-ed in the Act of 1999 as well. It
answers the question in the negative so far as employees of other establishments are concerned. 30Emp. dated April 2, 2008 rescinds 97Emp. dated
June 6, 2005 along with corrigenda/orders/notifications issued in the context of such notification and restores the position, which was prevailing prior to
the issue of the notification being 97Emp. dated June 6, 2005 subject to such modifications and clarifications as specified therein. It also provides that,
the provisions of 301Emp. to 303E-mp., to the extent that they are not inconsistent with the provisions laid down in 30Emp. dated April 2, 2008, shall
continue to apply and that, all applications for appointment on compassionate ground shall henceforth be disposed of by the concerned administrative
department. - -
The subsequent notification is 251Emp. dated December 3, 2013 by which, the State promulgates a scheme for compassionate app-ointment for
Government employees. It is called the West Bengal Scheme for Compassionate Appointment, 2013. There is no am-big-uity in such notification, as it
confines itself to a government employee only. 96 Emp. dated April 28, 2015 addresses the question whether the provisions of 142Emp. dated
November 1, 2007 should continue to be in effect consequent upon introduction of the West Bengal Scheme for Compassionate Appointment, 2013
introduced by 251Emp. dated December 3, 2013 or not. It goes on to state that, there is no bar in implementing the provisions of 142Emp. dated
Novemb-er 1, 2007 fo-r the purpose of extending compassionate appointment to the dependents of employees who diedinharness or are permanently
incapacitated.
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Reading the notifications, as enumerated above, it app-ears that, a scheme for compassionate appointment was introduced by the circular
nos.301Emp.- to 303Emp. dated August 21, 2002. The three circulars were not understood or read to be a scheme governing all employees of other
establishments governed by the Act of 1999. This stand of the State can be inferred from the contents of immediate notification subsequent to 301 to
303Emp. being 97Emp. dated June 6, 2005. 97Emp. dated June 6, 2005 notifies the departments in whose vacancies the appointments would be
granted. The Departments are of the State. If 301 to 303Emp. dated August 21, 2002 are to be read so as cover all establishments of the Act of
1999, then 97Emp. dated June 6, 2-005 should provide for appointment in the establishment covered by the Act of 1999 concerned. It does not do so.
It hints itself to the departments of the State. A dependent of the deceased employee of the municipality cannot legitimately claim an employment in
ano-ther legal entity other than the same legal entity where the de-ceased employee was employed. That is not the claim of the petitioners. The
petitioners claim employment in the same municipality as that of the deceased employee thro-ugh whom, the respective petitioners are claiming their
right. That is not provided for in 97Emp. dated June 6, 2005.
97Emp. dated June 6, 2005 has been subsequently clarified by 142Emp. dated November 1, 2007 to be restricted to government employees and not
to extend to employees of all establishments covered by the Act of 1999. Clause 2 of 142Emp. -dated November 1, 2007 allows the appropriate
authorities of the establishments covered by the Act of 1999 to formu-late policies of their own in consultation with th-e respective administrative
departments so as to follow the same in course of dealing with the prayers for appointment or financial assist-ance on compassionate ground. It also
specifies that, before notifying such policy, the administrative department should obtain the concurrence of the labour and the finance department.
Nothing is placed on record to suggest that any of the municipalities involved had, in terms of 142Emp. dated November 1, 2007, formulated any
policy for compassionate appointment, as prescribed, or otherwise. 97Emp. dated June 6, 2005 was rescinded by 30Emp. dated April 2, 2008.
Subsequent thereto, the West Bengal Scheme for Compassionate Appointment, 2013 was introduced by 251Emp. dated December 3, 2013. Such
Scheme is limited to State Government employees only.
Therefore, the reliance by the petitioners on such circulars for the purpose of contending that, there exists a scheme for compassionate appointment is
misplaced. In view of the discussions above, the first issue is answered in the negative and against the petitioners. The second and the third issues are
taken up for consideration together as a decision on the third issue will have ramifications for the second issue. A municipality is a body corporate with
perpetual succession and a common seal established under the provisions of the West Bengal Municipal Act, 1993. Section 13 of the Act of 1993
deals with the establishment of a municipality and its manner of functioning. Section 13(2) of the Act of 1993 stipulates that, the municipality may be
sued or sue in its name. Under Section 13(1), the Board of Councillors in a given case may decide to sue a party. Such proceeding has to be filed in
the name of the municipality under Section 13(2).
Likewise, where the municipality is sued, it has to be in its name, under Section 13(2). A contention was raised by some of the municipalities in these
petitions that, the municipality has not been made party to the petitioner and as such the writ petition is not maintainable. Since, the writ petitions are
heard on merits, such defective writ petitions are not dismissed on such ground alone, although such writ petitions where the municipality is not a party
respondent, is liable to be dismissed. Section 13(1) allows the municipality to function through the Board of Councillors. Section 13(2) deals with the
power to sue and be sued in its name. Section 53 of the Act of 1993 specifies the establishment of a municipality. It allows the Board of Councillors of
a municipality to create a post, with the prior sanction of the State Government for such officers, and fix salaries and allowances for such officers, as
may be required by a municipality. Section 53 of the Act of 1993 allows the Board of Councillors of a municipality to regulate the size of the municipal
establishment, categories and designations of its officers and employees and the pay and allowanc-es that such officers and employees may receive.
Creation of post, however, is subject to the prior sanction of the State Govern-ment. Section 54 of the Act of 1993 allows the State Government to
constitute cadres for the State in respect of ex-ecutive officers, health officers, engineers and finance officers of municipalities.
It recognizes the State Government to be the appointing authority of the officers referred to in Subsection (1) of Section 53 and empowers the State
Government to transfer such officers from one municipality to the other. Subsection (3) of Section 54 specifies that, the appointment of all other
officers and employees not included in Subsection (1) of Section 54 shall be made by the municipality, with the prior approval of the State
Government. Section 56 of the Act of 1993 deals with salaries and allowances of the officers and employees. It allows the municipalities to pay
salaries and allowances from out of the municipal fund. Leave and other conditions of service of all officers and employees of the municipalities are
subject to such considerations of service including leave and other benefits or obligations as may be prescribed. It is dealt with in Section 67 of the Act
of 1993. Section 425 of the Act of 1993 is in Chapter XXVIII relating to delegation, cooperation and control of a municipality. It empowers the State
Government to delegate powers vested and functions imposed upon the State Government by or under the Act of 1993 upon the officials specified
therein.
Reading the provisions of the Act of 1993, it appears that, a person appointed by the municipality would be the employee of the municipality and
cannot be treated as the employee of the State Government. A municipality is a separate legal entity distinct from that of the State. A municipality
may be an authority within the meaning of Article 12 of the Constitution of India. The funds of the municipality may be provided by the State
Government. The State Government may retain the power to control the appointment of officers and creation of new post for a municipality. These
incidences by themselves do not make an employee of the municipality to be an employee of the State Government. Dr. Jamuna Kurup & Ors.
(supra) is of the view that, a municipal corporation is not the Government and, therefore, its employees are not Government servants. Employees of a
municipal corporation may be governed by statutory rules but they do not enjoy the status of a Government servant. In the facts of such case, the term
‘employee’ was considered. It was found that, the term ‘employee’ was not defined in the Delhi Municipal Corporation Act, 1957. The
ordinary meaning of ‘employee’ was taken into consideration. The Act of 1993 also does not define the terms
“employeeâ€. The ordinary meaning has to be taken into consideration. Therefore, the contention of the petitioners that, the master, of an employee
of a municipality is the State Government and not the municipality, cannot be accepted.It is the contention of the petitioners that, the scheme for
compassionate appointment governing a State Government employee should be read into the service conditions of an employee of the municipality.
With respect, such a contention cannot be accepted. A municipality is a separate and distinct legal entity than that of the State Government. The
contract of employment between the municipality and its employee cannot be altered by importing service conditions of employees of other legal
entities. The Court should not endeavour to do so. Then the Court will not rewrite the contract of employment. The scheme for compassionate
appointment governing a State Government employee cannot be incorporated into the service conditions of an employee of a municipality. In view of
the discussions above, the second and the third issues are answered in the negative and against the petitioners.
Jaitra Acharya (supra) concerns an employee of West Bengal Essential Commodities Supply Corporation Limited. It notes that, in a reply to a query
under the Right of Information Act, 2005, as to what rules are followed to govern employees of the corporation, the answer was that, the Government
rules are followed by the corporation. Since the stand of the corporation was that the Government rules are applied to its employees, a scheme for
compassionate appointment governing employees of the corporation was found. Consequently, the petitioner was found to be entitled to compassionate
appointment since there was a scheme for grant of compassionate appointment for State Government employees. The fact scenario in the present
case is absolutely different. The municipalities do not have a scheme for grant of compassionate appointment for their employees.
Sampa Podder (supra) is of the view that, there is no scheme for compassionate appointment for employees of municipalities. It considers some of the
circulars governing the field. In AST 276 of 2014 (supra) did not consider the issues that fall for consideration in the present writ petitions. It is silent
as to whether there subsists any scheme for grant of compassionate appointment to employees of a municipality. It directs grant of compassionate
appointment upon receiving necessary order from the Directorate of Local Bodies, West Bengal. It does not decide any ratio. An order cannot be
considered as a binding precedent. Ratio decidendi of a judgment is binding. It is the contention of the petitioners that, the State not having taken the
point of absence of a scheme of compassionate appointment in AST 276 of 2014, the issue is no longer available to be raised on behalf of the State as
the same is barred by the principles of constructive res judicata. Sha Shivraj Gopalji (supra) is a decision rendered in an execution proceeding of a
decree. In the facts of that case, the point that the property is liable to attachment by reason of a statue was not taken in the earlier execution
proceeding and, therefore, it was found that, it was not open to the decree holder at a later execution proceeding to question and plead that, under such
statute, the property is liable to attachment. Res judicata is defined in Section 11 of the Code of Civil Procedure, 1908.
Although the Code of Civil Procedure, 1908 is not attracted in a proceeding under Article 226 of the Constitution of India, the principles enunciated
therein can be applied. For the principles of res judicata to apply, there must be identity of matter in issue and parties; the parties must be litigating
under the same title; there must be concurrence of jurisdiction of the Court in seisin of the two proceedings and a final decision must be rendered in
one of the two proceedings, for it to apply in the other proceeding. In the facts of the present cases, although the State is a party respondent in AST
276 of 2014 (supra) the same parties as that of the present writ petitions are not parties therein. It cannot be said that, the issues raised here are
barred by the principles of constructive res judicata. Moreover, the petitioners cannot rely upon the decision of AST 276 of 2014 (supra) on the
principles of negative equality. The petitioners cannot be allowed to obtain benefit of something which they are not entitled to receive, in law, on the
foundational basis that, the State had granted compassionate appointment on earlier occasions either voluntarily or under orders of Court. It is the
contention of the petitioners that, the State should be directed to formulate a scheme for compassionate appointment governing the municipal
employees. Such a consideration is in the realm of executive action. A Writ Court need not enter therein.
There being no scheme for grant of compassionate appointment, the petitioners are, therefore, not entitled to any relief as prayed for in the present
writ petitions. When there is no scheme for compassionate appointment, the question of a married daughter receiving an appointment on such ground
does not arise. Purnima Das (supra) allows a married daughter to be considered for grant of compassionate appointment after finding a scheme for
such purpose governing the employees of Panchayats. The fourth issue is answered accordingly.
W.P. 13147 (W) of 2017, W.P. 13149 (W) of 2017, W.P. 13151 (W) of 2017, W.P. 13191 (W) of 2016, W.P. 13194 (W) of 2016, W.P. 13195 (W) of
2016, W.P. 13197 (W) of 2016, W.P. 13207 (W) of 2016, W.P. 13209 (W) of 2016, W.P. 24166 (W) of 2015, W.P. 24167 (W) of 2015, W.P. 24168
(W) of 2015, W.P. 24169 (W) of 2015, W.P. 31057 (W) of 2017, W.P. 29553 (W) of 2017, W.P. 4388 (W) of 2017, W.P. 4386 (W) of 2017, W.P.
29570 (W) of 2017, W.P. 29564 (W) of 2017, W.P. 29560 (W) of 2017, W.P. 29556 (W) of 2017, W.P. 31056 (W) of 2017, W.P. 21009 (W) of 2015,
W.P. 21010 (W) of 2015, W.P. 21011 (W) of 2015, W.P. 21012 (W) of 2015, W.P. 21014 (W) of 2015, W.P. 21016 (W) of 2015, W.P. 21022 (W) of
2015, W.P. 21041 (W) of 2015, W.P. 24170 (W) of 2015, W.P. 24171 (W) of 2015, W.P. 25494 (W) of 2015, W.P. 25492 (W) of 2015, W.P. 1014
(W) of 2017, W.P. 3197 (W) of 2016, W.P. 3196 (W) of 2016, W.P. 3198 (W) of 2016, W.P. 3199 (W) of 2016, W.P. 3200 (W) of 2016, W.P. 3201
(W) of 2016, W.P. 3202 (W) of 2016, W.P. 3203 (W) of 2016, W.P. 27686 (W) of 2015, W.P. 7179 (W) of 2018, W.P. 7172 (W) of 2018, W.P. 328
(W) of 2016, W.P. 24583 (W) of 2016, W.P. 4590 (W) of 2016, W.P. 30285 (W) of 2016, W.P. 30279 (W) of 2016, W.P. 5323 (W) of 2018 and
W.P. 3529 (W) of 2012 are dismissed accordingly. There shall be no order as to costs.Urgent website certified copies of this judgment and order, if
applied for, be made available to the parties upon compliance of the requisite formalities.