Rahul Saraswati vs State Of West Bengal & Ors.

Debangsu Basak, J

The petitioner is aggrieved by an order dated October 8, 2013 passed by the West Bengal Administrative Tribunal in OA 216 of 2012.

By the impugned order, the tribunal negated the claim of compassionate appointment on the ground of non-fulfilment of the financial eligibility criteria laid down in the notification dated April 2, 2008 bearing no. 300-EMP.

Learned advocate appearing for the writ petitioner submits that, financial criteria should be considered in the light of the judgments of the High Court, rendered in (2009) 1 CHN 23 [Tapan Kumar Barman vs. State of West Bengal & Ors.], (2000) 6 SCC 493 [Balbir Kaur & Anr. Vs. Steel Authority of India Lt. & Ors.], (2015) SCC Online Calcutta 2289 [Shib Narayan Das vs. The state of West Bengal & Ors.]. He submits that, appeal carried against Shib Narayan Das (supra) was dismissed by the Division Bench in March, 2017 with the writ petitioner therein being granted the compassionate appointment.

Learned advocate for the writ petitioner submits that, both the parents of the writ petitioner expired. The writ petitioner is seeking compassionate appointment in respect of the death of the mother of the writ petitioner who was a staff nurse. Mother of the writ petitioner expired on October 2, 2008. Mother of the writ petitioner was a cancer patient. All retiral benefits of both the parents were expended for the treatment of the mother of the writ petitioner. The writ petitioner is not receiving any family pension as he is not entitled to the same. The retiral benefits of the mother of the writ petitioner stood expended in the treatment of the mother of the writ petitioner.

Learned advocate appearing for the writ petitioner draws the attention of the Court to the letter dated December 2, 2009 where, the candidature of the writ petitioner for compassionate appointment was recommended. Thereafter, the authorities decided on October 19, 2011 not to appoint the writ petitioner. Being aggrieved by such decision, the writ petitioner approached the tribunal which passed the impugned order.

Learned senior advocate appearing for the State submits that, a compassionate appointment is not a matter of right. Compassionate appointment is guided by the relevant service rules. He submits that, as on the date of death of the mother of the writ petitioner, the service rule prevailing was 30-EMP dated April 2, 2008 as modified by 114-EMP dated August 14, 2008. He relies upon (2019) 3 SCC 653 [State of Himachal Pradesh & Anr. Vs. Shashi Kumar] and submits that, retiral benefits can be taken into consideration for the purpose of calculation of the financial condition of the family of the deceased employee.

The mother of the petitioner died-in-harness as a staff nurse on October 2, 2008. The father of the writ petitioner expired on February 8, 2013. The petitioner, however, applied for compassionate appointment immediately after the date of death of his mother in February 2009. There is a writing dated December 2, 2009 recommending the candidature of the writ petitioner for compassionate appointment. However, subsequently, the authorities turned down such request for compassionate appointment.

Finally, there is an order passed by the authority on October 19, 2011 rejecting the claim for compassionate appointment on the ground that the case of the writ petitioner did not fulfil the financial condition laid down in Labour Department notification EMP-114 dated August 14, 2008. This decision of the authorities was assailed in OA 216 of 2012 without success resulting in the impugned order.

The authorities relied on Labour Department notification EMP-114 dated August 14, 2008 to reject the claim for compassionate appointment. Labour Department notification EMP 114 of 2014 dated August 14, 2008 is the revised guideline in the matter of compassionate appointment, revising Labour Department notification no 30-EMP dated April 2, 2008.

The relevant clause of Labour Department notification 30-EMP dated April 2, 2008 is as follows :-

“3. One of the conditions that needs to be fulfilled for offering appointment on compassionate ground is that the family of the deceased or prematurely retired employee is in need of immediate financial assistance.

It is hereby clarified that the family of a deceased or prematurely retired employee shall be considered to be in need of immediate financial assistance, if any of the two conditions mentioned below is satisfied.

(a) The monthly income of the family falls below 80 per cent of the gross monthly salary of the employee before death or premature retirement.

(b) The monthly income of the family falls below the minimum salary of a Group-D employee (in case of Group-D employees)

or the minimum salary of a Lower Division Clark (in case of employees other than those belonging to the Group-D).

The gross monthly salary, for the purpose of this definition shall mean basic pay alongwith dearness pay, dearness allowance, house rent allowance and medical allowance.

The monthly income of the family shall mean the aggregate of:

(a) Total family pension per month (Basic, Dearness Pension and Relief etc.)

(b) Monthly interest income @ 8% p.a. on the total amount received by the family after death of the employee or retirement of the incapacitated employee (GPF, Gratuity, Leave Encashment, any other payment).

Provided that, where an ex-employee had to incur medical expenses as indoor patient prior to and leading to his death/incapacitation, such expenses may be deducted from the amount received. All such expenses must be supported by original receipt/Cash memo, hospital discharge Certificates.

(c) Monthly income from movable and immovable properties (the family members are expected to submit a declaration on the matter).

(d) Monthly income of the dependents of the ex-employee named in the application (the family members are expected to submit a declaration on the matter).”

The modification introduced by the Labour Department notification no. 114-EMP dated August 14, 2008 is as follows :-

“ B. In para 3 of the notification, ibid, it has been laid down that the family of a deceased or prematurely retired employee shall be considered to be in need of immediate financial assistance if any of the two conditions mentioned below is satisfied.

(a) The monthly income of the family falls below 80 per cent of the gross monthly salary of the employee before death or premature retirement.

(b) The monthly income of the family falls below the minimum salary of a Group-D employee (in case of Group-D employees) or the minimum salary of LDC (in case of employees other than those belonging to Gr-D).

The requirement at (a) above is now raised to 90% from 80%. In other words, the family of the deceased/prematurely retired employee will be considered to be in need of immediate financial assistance if the monthly income falls below 90% of the gross monthly salary of the employee before death or premature retirement.

C. The latter para of para-3 of the notification ibid, in the monthly interest income which forms part of the monthly income of the family, amount received as accumulation of GP Fund has been included along with other amounts received as death benefits.

Since GPF accumulation is entirely out of savings of the Government employee during his service period, it is now decided that the same shall not be reckoned for the purpose of computing the monthly interest income.

The relevant clause of para-3 of the notification shall be deemed to have been modified to the above extent.”

Balbir Kaur & Anr. (supra) held that a family benefit scheme assuring monthly payment to a family of deceased employee was not a substitute for compassionate appointment. It considered the rules governing the compassionate appointment in the facts of that case and held that compassionate appointment could not be denied on account of family benefit scheme being available.

Tapan Kumar Barman (supra) took into consideration Balbir Kaur (supra). There, the High Court directed taking of lawful steps for the purpose of grant of compassionate appointment to the petitioner.

Shib Narayan Das (supra) took into consideration, Balbir Kaur (supra), Tapan Kumar Barman (supra) as well as various other authorities. In the facts of that case compassionate appointment was sought for in respect of an employee governed by the West Bengal Primary School Teachers Recruitment Rules, 2001. Such rules were noted and found on facts that, the retiral benefits was not to be taken into consideration. Appeal was carried by the State of West Bengal against Shib Naraya Das (supra) which was dismissed in March 2017 by the appeal Court.

In Shashi Kumar (supra) the Supreme Court took note of the scheme governing the compassionate appointment. In the facts of that case, the Supreme Court found that the scheme contemplates that appointment which was received on the ground of welfare measures provided by the State included family pension are to be taken into account.

Compassionate appointment is exception to the general rule of appointment to a public post. Compassionate appointment can be granted if there exists a declared policy for the same in respect of the deceased employee. Claim for compassionate appointment is required to be assessed on the basis of the declared policy.

In calculating monthly income of the family governed by 114-EMP dated August 114, 2008, total family pension and monthly interest income derived from the specified retiral benefits namely, Gratuity, leave encashment and any other payment except GPF should be taken into consideration. Writ petitioner herein is not receiving any family pension. Monthly interest income from the specified reterial benefits is a matter of calculation. Moreover, the monthly income of the family needs to fall below 90% of the gross monthly salary of the employee before the death or below the minimum salary of a Group D employee in case of Group D employee or the minimum salary of LDC in case of employees other than those belonging to Group D. The claim of the writ petitioner is that money received on account of retiral benefits stood expended for the treatment of the deceased employee during her lifetime is also required to be assessed. That is an issue of fact which should be looked at.

The order of the authorities rejecting the claim for compassionate appointment dated October 19, 2011 speaks of non-fulfilment of the financial condition laid down in Labour Department notification EMP-114 dated August 14, 2008 without giving reasons or a break up as to how, the authorities arrived at such finding.

In the facts of the present case, the writ petitioner is not receiving any family pension. The issue as to what is the interest income of the writ petitioner, if at all, arising out of the specified retiral benefits of the deceased employee after deducting the permissible deductions in terms of the relevant notification is yet to be decided by the authorities. Such exercise, is yet to be carried out by the State. The order of the authorities dated October 19, 2011 does not speak on such aspect.

In such circumstances, it would be appropriate to set aside the letter dated October 19, 2011 and direct the respondent no. 2 to submit a report with regard to the claim for compassionate appointment made by the petitioner including his financial eligibility with regard thereto in terms of the relevant notification, within a period of fortnight from date.

List the writ petition a fortnight hence when the report as called for be submitted.

Learned advocate for the State is requested to intimate this order to the respondent no. 2 for compliance.

I agree