West Bengal State Electricity Board & Ors Vs. Samir
K. Sarkar [1999] INSC 350 (17 September 1999)
C.Banerjee,
G.B.Pattanaik PATTANAIK, J.
Leave
granted.
The
West Bengal State Electricity Board has come in appeal against the judgment of
the Division Bench of the Calcutta High Court dated 30th June 1998 in M.A.T. No.
4271
of 1997 whereunder the High Court has directed the appellants to consider the
case of the private respondent for appointment on compassionate grounds. The
father of the said respondent, Samir Kumar Sarkar was an employee under the
State Electricity Board and he died on 29th November 1996 at the age of 56 years 10 months
and 15 days, which was within two years from the scheduled date of his
retirement on superannuation. When the respondent applied for an employment on
compassionate ground, the Board rejected his prayer on the ground that under
the Rules in question dealing with compassionate appointments, no appointment
can be given if the employee dies within two years from the scheduled date of
retirement on superannuation. The respondent, therefore, filed a writ petition
and the learned Single Judge, in view of the Rules, dismissed the same. The
respondent went in appeal in the High Court. The Division Bench of the High
Court came to the conclusion that provision disentitling appointment on
compassionate ground if the employees dies within two years from the date of
superannuation only in respect of clauses (iii), (iv) and (v) and not in case
of clauses (i) and (ii) is discriminatory and violative of Article 14.
Therefore, the High Court quashed that part of the order and directed
consideration of the case of respondent for compassionate appointment. It is
not disputed that the death of the father of the respondent was on account of
illness and it was within two years from the date of superannuation. Mr. V.R. Reddy,
learned senior counsel appearing for the appellants contended that the concept
of compassionate appointment is itself a discretionary one. There is no
statutory rule governing such appointments, conferring an enforceable right on
the LRs of the deceased employee. The idea to give such compassionate
appointment is that the children of the employee who dies in harness may not be
destitute on the road and can have a decent living. To achieve that objective,
several guidelines/criteria are fixed. The reason why the embargo in question
does not apply to clauses (i) and (ii) but apply to clauses (iii), (iv) and (v)
is for an avowed purpose inasmuch as in clause (i) and (ii), the death having
occurred due to accident arising out of and in course of employment and total
disablement due to accident in course of employment whereas under clauses
(iii), (iv) and (v), the death is not in any way connected with the employment
and, therefore, there is a reasonable basis for the classification in question
and the High Court was not justified in coming to the conclusion that such
classification is discriminatory. In order to appreciate the contention raised
by Mr. V.R. Reddy, learned senior counsel for the appellants, the relevant
office order is quoted herein below in extenso: The Board is pleased to make
provision for consideration for employment of a dependent of deceased employee
in the following circumstances and subject to condition as mentioned hereunder:-
i) In case of death of an employee due to accident arising out of and in course
of employment;
ii)
Employees rendered totally disabled due to an accident arising out of an in
course of employment;
iii)
Employees dying in harness;
iv)
Employees reported missing subject to observance of formalities as prescribed
by the Board;
v)
Employees declared lunatic by appropriate authority.
No
employment would however, be considered in the following circumstances:
a)
Where the death under (iii) above or the incident under (iv) or the declaration
under (v) above takes place in the proceeding two years from the scheduled date
of retirement on superannuation of the concerned employees.
b)
Where a dependent of the deceased, affected employee is already in employment
of the Board irrespective of the date of securing such employment.
An
analysis of the different clauses providing for compassionate appointment in
case of death of the employee would indicate that clauses (i), (ii) deal with
death arising out of and in course of employment or total disablement arising
out of and in course of employment whereas clauses (iii) and (iv) have no
relationship with the employment in question In that view of the matter, we
find sufficient force in contention of Mr. V.R. Reddy, learned senior counsel
appearing for the appellants that there is a reasonable classification and
consequently the embargo that no employment would be considered when criteria
under clauses (iii), (iv) and (v) are satisfied, if such criteria happens to be
within two years from the scheduled date of retirement on superannuation,
cannot be held to be discriminatory. The High Court, therefore, was totally in
error to hold that the embargo is violative of Article 14 of the Constitution.
We, accordingly, set aside the said conclusion of the High Court and hold that
the embargo contained in clause (a) is valid. On the admitted position that the
death of the father of the respondent occurred on 29th November 1996 which is within two years preceding to the date of superannuation,
the respondent will not be entitled to an compassionate appointment under the
office order dated 15th
March 1993 which deals
with the criteria for such appointment. We, therefore, set aside the impugned
judgment of the Calcutta High Court and allow this appeal.
But as
there is no appearance on behalf of the respondent, there will be no order as
to costs.
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