W.P No. 7723 (W) of 2019
Ct 24. SectionRuma Bose -vs- The State of West Bengal Ors.
Mr. Kumaresh Dalal
…For the petitioner.
Mr. S. S. Koley
…For the WBSEDCL
The prayer of the petitioner for appointment on
compassionate ground was rejected by the Assistant
Manager (HRA, ESER – II Cell) of the West Bengal
State Electricity Distribution Co. Ltd. (hereinafter
referred to as “the Company”) by a memo dated 13th
Aggrieved by the said rejection the petitioner
has filed the instant writ application.
The mother of the petitioner was an employee
of the Company, and she died in harness on 10th
December, 2014. The father of the petitioner
predeceased her mother. The petitioner applied for being
appointed on compassionate ground on 22nd June,
The petitioner submits that she along with her
minor daughter were residing with her mother for about
last ten years, prior to her death, as she was driven out
from her matrimonial home. She was completely
dependent upon her and on her death the petitioner and
her minor daughter are leading their life in sheer
The husband of the petitioner filed a matrimonial
suit against her in the year 2015 being Matrimonial Suit
No. 53 of 2015 (Arup Pandit -vs- Ruma Bose (Pandit))
and obtained a decree of divorce in the said Suit on 1st
June, 2016. The petitioner communicated the Company
the order of divorce and renewed her prayer for
The Company vide the impugned
communication dated 13th November, 2017 informed the
petitioner that her prayer for employment on
compassionate ground was duly examined and placed
before the Competent Authority, but the same has been
regretted relying upon the deceased dependent
employee’s rules of the Company vide Office Order No.
ES-ER-II D.D. Emp/45 dated 3rd January, 2017 since
she did not file her divorce petition prior to the death of
her mother. The petitioner was informed that no further
reference on the issue would be entertained in future.
The petitioner made further representation on
29th December, 2017 renewing her prayer for
compassionate appointment and forwarded a copy of the
judgment delivered by this Court with regard to
appointment of married daughter on compassionate
The petitioner approached this Hon’ble Court
earlier by filing a writ petition challenging the non-
consideration of her application for getting appointment
on compassionate ground. The said writ petition being
W.P No. 11490 (W) of 2018 was dismissed for default.
The application for restoration of the writ petition was
also dismissed on technical grounds. The petitioner
submits that the issue in question was not decided on
merits by this Court. Accordingly there is no bar in filing
the instant writ petition.
The petitioner relies upon the larger Bench
judgment delivered by this Court in the matter of SectionState
of West Bengal Ors. vs. Purnima Das Ors. reported in
2017(4) CLT 238 relating to appointment of married
daughters on compassionate ground.
He further relies upon a judgment delivered by
this Court in the matter of Rinku Mondal (Biswas) Anr.
-vs- Union of India Ors. reported in 2008(3) CHN 602
on the issue that in case a writ petition is disposed at
the threshold, for nonappearance and for default, the
same will not prevent the petitioner from filing a second
writ petition on the self-same cause of action,
notwithstanding the dismissal of the restoration
application in the interregnum for the conduct of a
The petitioner prays for setting aside the
impugned order and for issuance of appointment letter
in her favour.
The learned advocate appearing on behalf of
the Company raises a preliminary objection with regard
to the maintainability of the writ petition on the ground
of filing successive writ petitions on the self-same cause
of action as the petitioner had earlier filed a writ petition
praying for the same relief which stood dismissed and
the application for restoration was also dismissed.
He further submits that the petitioner is not
entitled for being appointed as she does not fall within
the category “dependent” as per the Rules of the
He submits that the petition for divorce was
filed, after the death of the employee, with the sole
intention to put forward her claim, for being appointed
on compassionate ground. The learned advocate relies
upon the Rules of the Company relating to
From the submissions made on behalf of the
parties it appears that the prayer of the petitioner was
rejected relying upon an Office Order of the Company
dated 3rd January, 2017. The said Office Order was
made for modification of the existing provisions of the
Company regarding employment on compassionate
Clause 6(g) of the Company’s Recruitment
Policy of 2010 was amended and replaced by the
“None other than the spouse, son(s),
unmarried daughter(s) and married daughter(s) who as
on date of death/incapacitation were unmarried and
were fully dependent on the deceased /permanently
incapacitated/disabled employee, shall be considered as
a dependent of such employee for consideration of
employment on compassionate grounds. Any exception
to this condition, if necessary, in any deserving case,
may be made by the CMD only on consideration of the
fact and circumstances of such particular case(s).
Besides, the divorcee daughters who on date of death or
incapacitation was fully dependent on the
employee, whose divorce petition was filed and/or who
obtained the decree of divorce issued by the competent
authority of an Hon’ble Court, either before or after
death of the employee, shall be considered as a
dependent of such employee for this purpose, subject to
determination of her eligibility after taking into account
as to whether she has been receiving any maintenance
cost from her husband is to be considered as eligible
relationship for consideration of employment on
compassionate ground due to premature
death/permanent incapacitation/disablement of the
employee within the term “Dependent”.
A new clause 6(i) was added to the
Recruitment Policy 2010 which is as under:-
“If the family of the deceased or the employee
retired on being permanently incapacitated is in need of
financial assistance and the same is absolutely
necessary to support the family, application for
employment is to be submitted within two years from
the date of death or retirement on permanent
incapacitation. If no application is submitted within the
said period it will be presumed that the family does not
require any financial support. However, in exceptional
cases such as (i) death during action/while in course of
out of performing official duties, (ii) where none in
family is eligible and (iii) in case of divorcee daughters
who on the date of death or permanent incapacitation of
the employee was fully dependent on the
deceased/permanently incapacitated employee, whose
divorce petition was filed, but where the decree of
divorcee is issued by the competent authority of an
appropriate Court after more than two years of
death/permanent incapacitation of the employee etc.,
application for employment of an eligible dependent
family member of the deceased/retired employee on
permanent incapacitation, on compassionate ground
can be considered, even where the death or retirement
on medical ground of the employee took place upto 5
(five) years ago, on case to case basis, with the approval
of the Chairman Managing Director.”
From the aforesaid provision it appears that
there is provision for providing compassionate
appointment to divorcee daughters who were fully
dependent on the deceased, subject to determination of
her eligibility after taking into account whether she
receives any maintenance from her husband or not.
Both the aforesaid clauses take care of
divorcee daughter who was fully dependent upon the
employee on the date of her death, even if, the divorce
petition was filed and the decree of divorce was issued
after more than two years of death of the employee.
There is provision for consideration of application
for employment on compassionate ground even where
the death of the employee took place five years ago, on
case to case basis, with the approval of the Chairman
and Managing Director. Filing of the petition for divorce
after the death of the employee does not stand in the
way of getting appointment on compassionate ground, in
the event, the divorcee daughter can satisfy the
authority that she was dependent upon the employee at
the time of her death.
In the instant case the employee died on 10th
December, 2014 and the petitioner made her application
on 26th June, 2015. The petitioner categorically stated
that she was driven away by her husband and she
resided with her minor daughter at her parental house
as dependents of her mother long prior to her death.
The Office Order relied upon for rejecting the
prayer of the petitioner permits divorcee daughters to be
considered as dependent for compassionate
appointment. The fact that the divorce petition was filed
after the death of the deceased employee does not act as
a disqualification for consideration of the prayer of the
petitioner in accordance with the said Office Order.
Since it is not always possible to fix up a
straight-jacket formula in such matters, accordingly the
Company was wise enough to make a provision for
making an exception to the said Rule. The Chairman
Managing Director of the Company is vested with the
authority to consider such cases, depending upon the
facts and circumstances of each case.
The larger Bench judgment relied upon by the
petitioner lay down that complete exclusion of married
daughters from the purview of compassionate
appointment is not constitutionally valid.
The learned advocate appearing on behalf of
the Company submits that the judgment of the larger
Bench has been stayed by the Hon’ble Supreme Court,
and accordingly no reliance may be placed on the same
till the matter is decided finally by the Hon’ble Supreme
This Hon’ble Court in the matter of SectionPiyush
Kanti Chowdhuri -vs- State of West Bengal Ors.
reported in 2007(3) CHN 178 laid down the law relating
to the effect of the stay order in a case pending before
the Hon’ble Supreme Court. It has been specifically held
that the interim order of stay is binding upon the parties
to the proceedings and that by mere passing of an
interim order staying the operation of a judgment the
existence of the said judgment is not wiped out. Unless
a decision is set aside by the Superior Court, the said
decision remains binding as a precedent, though may
not be binding upon the parties to the proceedings
where the Superior Court has granted interim order.
Mere grant of stay order does not destabilize the effect of
a binding precedent.
Accordingly, the defense taken by the
respondent, not to act in accordance with the judgment
laid down by the larger Bench, in view of the order of
stay passed by the Hon’ble Supreme Court, is not
tenable in the eye of law.
The argument of the respondent regarding
maintainability of the second writ petition on the self-
same cause of action cannot be accepted. The decision
relied upon by the petitioner in the case of Rinku
Mondal (Biswas) (supra) specifically lay down that as the
first writ petition was never adjudicated on merits
accordingly the second writ petition was certainly
maintainable. The second writ petition will not attract
the bar of res judicata.
In view of the discussions made hereinabove,
in my opinion, the impugned order is contrary to the
Company’s rules relating to compassionate appointment
of divorcee daughters.
The impugned order dated 13th November,
2017 cannot be sustained and is accordingly set aside.
The respondent authority is directed to reconsider the
prayer of the petitioner for being appointed on
compassionate ground, strictly in accordance with law
and in the light of the discussions made hereinabove,
within a period of eight weeks from the date of
communication of a copy of this order and to pass a
reasoned order and communicate the same to the
petitioner within a fortnight thereafter.
W.P No. 7723 (W) of 2019 is disposed of.
Urgent Photostat certified copy of this order be
given to the parties, if applied for.
( Amrita Sinha, J. )