Nemai Roy vs. The State Of West Bengal

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 2024 (Special Leave to Appeal (C) No.18802/2019)

NEMAI ROY ...Appellant

VERSUS

THE STATE OF WEST BENGAL & ORS. ...Respondents

O R D E R

• 1. Leave granted.
• 2. The present civil appeal arises out of the judgment of the High Court of Calcutta in W.P.S.T No. 142 of 2018 dated 25.02.2019 whereby the Division Bench dismissed the writ petition filed by the appellant against the judgment and order of West Bengal Administrative Tribunal, Kolkata wherein appellant's original application for compassionate appointment came to be rejected.
• 3. It is contended that the appellant's father unfortunately died in harness on 29.08.2014 while being in approved government employment. The appellant moved an application on 03.11.2015 for suitable employment on compassionate grounds. The said application was rejected on 08.12.2015 on the following grounds:

"1. The date of death of the deceased employee was on 29.08.2024. It is seen from the reports submitted by the concerned authority that the deceased employee was not absorbed against regular vacancy and did not brought under regular establishment in consonance with the provisions as laid down in Government Order No.4026-F dated

22.04.1974 till the death of his death. Service rendered as work charged Employee cannot be treated as regular service in Government employment. As per prevalent rules issued by the Government in this regard that compassionate appointment shall be offered to a dependent family member of a deceased Government employee who appointed on regular basis against regular vacancy.

2. In view of the said fact, it is concluded that, the primary condition for having employment of compassionate ground as stipulate in Labour Department's order nos. issued time to time was not fulfilled in the instant case. Thus, the prayer of the applicant is considered, but rejected, due to the reasons stated above."

• 4. It is evident from the above referred rejection letter that the government refused to grant him a compassionate appointment on the ground that the appellant's father was not absorbed against a regular vacancy, and as such, he was not brought under regular establishment in consonance with the government order no.4026-F. The rejection is based on the stand taken by the government that a work charged employee cannot be equated with a regular service employee.
• 5. The original application filed by the appellant was dismissed by the State Administrative Tribunal on the ground of limitation. The writ petition filed by the appellant was dismissed on yet another ground, unrelated either to the reasoning adopted by the government in rejecting the compassionate appointment or that of the tribunal rejecting the original application on the ground of delay. The Division Bench dismissed the Writ Petition on the ground that the appellant

has not complied with the conditions of the compassionate appointment scheme, the relevant portion of the order is as under:

"6. The West Bengal Scheme for Compassionate Appointment, 2013 was the relevant scheme on the date the petitioner's father died. We have not been able to find any stipulation therein that compassionate appointment can only be extended to dependents of a permanent employee. All that is required is that the applicant must be a dependent family member of a Government employee. We, however, need not express any final opinion on such issue here because of what follows hereafter.

7. We find that the petitioner did not fulfil the conditions mentioned in paragraph 10(a) of the scheme. He was required to make an application within 6 (six) months from the date of death. Such provision also stipulated that if no application were submitted within 6 (six) months from date, it would be presumed that the family does not require any financial assistance. It is also ordained that in no case such an application submitted after expiry of the above period would be entertained. In terms of paragraph 10(b), an application had to be made in Annexure-A or Annexure-B, as the case may be. Annexure-A to the scheme is the proforma which is required to be filled up to apply for compassionate appointment, if death of an employee occurs while in service. An application for compassionate appointment, as of necessity, must be filed in such proforma. Any other application may not be entertained having regard to the proforma annexed to the scheme. Having regard to the terms of paragraph 10(a) of the scheme, we hold the terms thereof to be mandatory in nature. Not only has a time-frame been given for making an application but the consequence of not filing the application within such time-frame has also been spelt out."

6. To commence with, the appellant's claim was rejected on the ground that his father was not absorbed against regular vacancy

and not brought under regular establishment and he continued to be a work-charged employee. The administrative tribunal rejected the original application only on the ground of delay. The High Court was of view that the appellant has not complied with the conditions as contemplated under the West Bengal Scheme for Compassionate Appointment, 2013.

• 7. Having considered the matter in detail, we are of the opinion that the High Court should have confined its decision to the reasoning adopted by the government in rejecting the application for compassionate appointment. It is also important to note that the High Court specifically returned the finding on the governmental order that: "we have not been able to find any stipulation therein that compassionate appointment can only be extended to dependents of a permanent employee". Having noted that the scheme does not disentitle a legal representative from making an application for compassionate appointment if his parent is not a permanent employee, the High Court should not have proceeded to reject the writ petition on the other grounds.
• 8. In this view of the matter, we allow the appeal and set aside the order passed by the High Court and restore the W.P.S.T No. 142 of 2018 to its original number for further adjudication and determination as per law. Since the appeal is pending and the Writ Petition is of the year 2018, we request the High Court to dispose it of as expeditiously as possible within a period of six months from the date of our order.

9. Pending application(s), if any, shall stand disposed of.

..................................J. [PAMIDIGHANTAM SRI NARASIMHA]

..................................J. [MANOJ MISRA]

NEW DELHI; 02.12.2024.

6

ITEM NO.48 COURT NO.13 SECTION XVI

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No.18802/2019

[Arising out of impugned final judgment and order dated 25-02-2019 in WPST No.142/2018 passed by the High Court at Calcutta]

NEMAI ROY Petitioner(s)

VERSUS

THE STATE OF WEST BENGAL & ORS. Respondent(s)

Date : 02-12-2024 This petition was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE PAMIDIGHANTAM SRI NARASIMHA HON'BLE MR. JUSTICE MANOJ MISRA

• For Petitioner(s) Mr. Santi Ranjan Das, Adv.
• Mr. Chand Qureshi, AOR
• Mr. Anindo Mukherjee, Adv.
• Mr. Rahul Mohod, Adv.
• Mr. Sanjay Gyan, Adv.
• Mr. Rochak Kharbanda, Adv.
• Dr. O.P.kharbanda, Adv.
• Mr. Rajat Kharbanda, Adv.
• Dr. Raj Kumar Jain, Adv.
• For Respondent(s) Ms. Anju Thomas, Adv.
• Ms. Astha Sharma, AOR
• Ms. Mantika Haryani, Adv.
• Ms. Pratibha Yadav, Adv.
• Mr. Bhanu Mishra, Adv.

UPON hearing the counsel the Court made the following O R D E R

1. Leave granted.

2. The Civil Appeal is allowed in terms of the Signed Order placed on the file.

3. Pending application(s), if any, shall disposed of.

(VIJAY KUMAR) (NIDHI WASON)

COURT MASTER (SH) COURT MASTER (NSH)