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W.P No. 7723 (W) of 2019
05.07.2019
Ct 24. SectionRuma Bose -vs- The State of West Bengal Ors.

Ekramul Bari
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

November, 2017.

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,

2015.

The petitioner submits that she along with her

minor daughter were residing with her mother for about
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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

penury.

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

compassionate appointment.

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.
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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

grounds.

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.
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-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

lawyer.

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

Company.

He submits that the petition for divorce was
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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

compassionate appointment.

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

ground.

Clause 6(g) of the Company’s Recruitment

Policy of 2010 was amended and replaced by the

following:

“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,
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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

deceased/permanently incapacitated/disabled

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
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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
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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
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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
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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

Court.

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
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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
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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. )
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