Mokter Ali Shah vs State of West Bengal

Pranab Kumar Chattopadhyay, J.—The Petitioner herein being aggrieved by the non-consideration of claim for appointment as Panchayat Karmi at Shankarpur Gram Panchayat, filed the instant writ petition. The father of the Petitioner was a Chowkidar ot Shankarpur Gram Panchayat and he died in harness on February 7, 1993. The Petitioner along with his other brothers and sisters were dependent on the income of their deceased father. Admittedly, almost within a month after the death of the father of the Petitioner, a representation was submitted before the Prodhan of Shankarpur Gram Panchayat, P.O. Dholahat, District- South 24-Parganas, by the Petitioner seeking appointment on compassionate ground.

The said representation was received by the Prodhan of the concerned Panchayat on March 15, 1993 and a receipt copy of such representation has been annexed as annexure ''C to this writ petition. Upon receipt of the said representation, the concerned Gram Panchayat also held a meeting on March 26, 1993 and recommended the prayer of the Petitioner tor his immediate absorption on compassionate ground. The resolution of the said Gram Panchayat recommending the absorption of the Petitioner would appear from the extract of the Minute of the meeting of the said Gram Panchyat is annexed as Annexure''E'' to this writ petition.

Unfortunately, inspite of the said representation being made almost within a month after the sudden death of the father of the Petitioner, no step has been taken by the Respondent authorities in the matter of granting appointment to the Petitioner on compassionate ground under the died in harn.ess scheme.

At the time of hearing of this writ application, Mr. Islam, learned Advocate appearing for the Petitioner has drawn my attention to the Circulars issued by the Government of West Bengal from time to time and submitted that on the basis of such circulars, the Petitioner being a son of a Chowkidar is entitled to enjoy the benefit under the principle of died in harness scheme as the father of the Petitioner died as a serving Chowkidar after the August 9, 1988. The following relevant Circulars issued from time to time by the Government of West Bengal have been referred to and/ or relied upon by Mr. Islam on behalf his client claiming the benefit under the died in harness scheme for absorption and/or appointment of his client as a Panchayat Karmi.

The relevant circulars as referred to, are

(1) No. 24611/lll/Panch/4C-2/86(PLI) dated 9.9.88;

(2) No. 1995/PN/C7III/2A-21/95 dated 20.10.95;

(3) No. 921/PN/C7III/2A-21/95 dated 11.4.96; and

(4) No. 5295/PN/0/l/Panch/3S-81/96 dated 3.12.96.

Mr. Dasgupta, learned Advocate appearing for the State Respondents, opposes the claim of the Petitioner on the ground that the Petitioner submitted his representation and/or put forward the claim before the Prodhan of the Gram Panchayat for appointment under the Gram Panchayat though he is not the proper authority for giving appointment straightway under the died in harness category and as such, the claim of the Petitioner cannot be considered now at this belated stage.

Mr. Dasgupta further submitted that the Petitioner is not entitled to claim any relief as prayed for in the writ petition on the ground of delay alone. Mr. Dasgupta cited - the following decisions in support of his contentions, Usha Das (Smt.) v. State of West Bengal and Ors.1998 (2) G.H.N. 375 , Sanjay Kumar Vs. The State of Bihar and Others, and Unreported judgment in M.A.T. No. 859 of 2000 (Paresh Ray v. State of West Bengal).

Considering the rival contentions of the parties and going through the materials on record, I find that the Petitioner made the representation before the Prodhan of the concerned Gram Panchayat immediately after the death of his father and admittedly, the Prodhan was the appointing authority at that point of time. The Prodhan of the Gram Panchayat upon receipt of such representation from the Petitioner held a meeting of the Gram Panchayat and recommended the case of the Petitioner for appointment under the died in harness category. Unfortunately, thereafter the matter was not placed before the appropriate authority for processing the claim of the Petitioner for absorption under the died in harness category for Which the Petitioner cannot be blamed under any circumstances.

Admittedly, the Petitioner, on account of sudden death of his father, was financially distressed and it is not expected that every time a citizen would approach this, court. this Court cannot overlook the distressed condition of the deceased employee. It is, no doubt, that on account of the sudden death of the only bread earner of the dependent family members find it difficult to maintain their livelihood and therefore, the question of initiating appropriate legal proceeding expeditiously by a member of the family of a deceased employee before the court of law, normally does not take place as has happened in the present case.

However, I am inspired by the judgment of the Hon''ble Supreme Court in the case of M/s. Dehri Rohtas Light Railway Company Limited Vs. District Board, Bhojpur and and District Board, Shahabad and others, , wherein Fathima Beevi, J. categorically observed as under: ''The test is not to physical running of time. Where the circumstances justifying the Conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches.

In the instant case in view of the Circulars issued by the Government of West Bengal from time to time, the Petitioner''s claim should have, been taken into consideration under the died in harness category and should have been disposed of in terms of the said circulars, which unfortunately have not been done in the instant case.

It has been specifically provided in the circulars issued by the Government of West Bengal on October 20, 1995 that keeping into the consideration of the actual need of a distressed family, the names of the candidates of such family should be considered for appointment on priority basis by the concerned Block Level Selection Committee for the Gram Panchayat or the Selection Committee of Panchayat Samiti/Zilla Parishad, as the case may be. Moreover, it has been mentioned in the said circular that every effort should be made to offer employment under the concerned Gram Panchayat where the deceased was employed prior to his death and in case of non-availability of such suitable vacancy in that particular Gram Panchayat, appointment should be considered in the neighbouring Gram Panchayat or Panchayat Samiti, as the case may be and even if, no such vacancy is available in the neighbouring Gram Panchayat or Panchayat Samiti, then such appointment should be made under the Zilla Parishad.

In the instant case, admittedly, third party right has not interfered with and even if any delay and/or laches and/or lapses had happened in the instant case, then for such delay and/or laches and/or lapses the Petitioner could not be blamed under any circumstances and in the event any relief is granted to the Petitioner even today after considering his case under the died in harness category then in that event, the third party interest would not be prejudiced.

In the aforesaid circumstances stated above, the decisions cited by Mr. Dasgupta have no manner of application in the present case.

Considering the extreme urgency involved in the instant case and in view of the circulars dated September 9, 1988 of the Government of West Bengal, I direct the Director of Panchayat, Government of West Bengal to consider the claim of the Petitioner for appointment on compassionate ground on the basis of his representation made to the Prodhan of Shankarpur Gram Panchayat on March 15, 1993 being annexure ''C to this writ petition and also taking into consideration of the specific resolution of the Shankarpur Gram Panchayat dated March 26, 1993 being annexure ''E'' to the writ petition, within a period of four weeks from the date of communication of this order.

The learned advocate-on-record for the Petitioner is directed to supply a copy of the writ petition to the Director of Panchayat, Government of West Bengal, along with a copy of this order, so that the Director of Panchayat can take necessary steps in the matter in terms of the order of this Court. Needless to mention that the Director of Panchayat will make an endeavour to offer employment to the Petitioner under the died in harness scheme at the concerned Gram Panchayat where the deceased father of the Petitioner was employed prior to his death and in case of nonavailability of the suitable vacancy in the said gram panchayat, steps should be taken for accommodating the Petitioner in the neighbouring Gram Panchayat or Panchayat Samiti and even if no such vacancy is available in the neighbouring Gram Panchayat or Panchayat Samiti, then such appointment should be made under the Zilla Parishad.

Considering the extreme urgency involved, I direct the Director of Panchayat, Government of West Bengal to take immediate appropriate steps in the matter and shell finally consider the claim of the Petitioner as directed hereinabove under the died in harness category positively within a period of two months on receipt of this order.

Since no affidavit-in-opposition has been filed by the State-Respondents, the allegations made in the writ application, are denied by the Respondents.

The writ application is, accordingly, disposed of with the above observations.

There will be, however, no order as to costs.

Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.