Government Employee Dying A Day Before 60th Birthday Is Deemed Under 60, Dependent Eligible For Compassionate Appointment : Calcutta HC

Background Facts

The petitioner applied for appointment on compassionate ground in a secondary school after death of his father. The date of birth of father was 2nd January, 1961. He turned sixty on January 1, 2021, the same day he passed away. The respondent refused the prayer of the petitioner. The reason assigned by the respondent in the memo dated 5th February, 2024 was attainment of age of sixty years by father of the petitioner on 1st January, 2021 when he died.

The respondent decided on the basis of Schedule V of the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Non-teaching Staff) Rules, 2009 (Rules of 2009), that father of the petitioner attained sixty years on the date of his death, therefore, petitioner was not entitled to get benefit of appointment on compassionate ground.

Aggrieved by the same, the petitioner filed the writ petition for quashing the memo dated 5th February, 2024 issued by the Assistant Secretary, West Bengal Regional School Service Commission.

It was contended by the petitioner that since date of birth of father of the petitioner was 2nd January, 1961 therefore, father of the petitioner did not complete sixty years on 1st January, 2021. He would have completed sixty years on 2nd January, 2021. It was further argued that, despite the petitioner's father's date of superannuation, the petitioner should have been considered an eligible candidate for appointment on compassionate grounds. It was stated that there was one day short to complete age of 60 years on the date of death, which makes the petitioner entitled to be considered for appointment on compassionate ground.

Further petitioner relied on Rules 18 and 20 of the West Bengal Primary School Teachers Recruitment Rules, 2016. As per Rule 18, the superannuation date of father of the petitioner was 31st January, 2021. It was further submitted that Rule 20 states the financial hardship of family of deceased teacher and definition of family are to be taken into consideration in terms of Schedule V of the Rules of 2009.

On the other hand it was contended by the respondent that Rules of 2016 was not applicable but Schedule V of Rules of 2009 was applicable while adjudging eligibility of the petitioner to be appointed on compassionate ground. Clause 1 of Schedule V of the Rules of 2009 states that date of superannuation of father of petitioner was fixed on 31st January, 2021. However, father of the petitioner attained sixty years on 1st January, 2021 which makes the petitioner disentitled in the matter of granting appointment on compassionate ground. According to the respondent authorities, date of birth of father of the petitioner was 2nd January, 1961 and he completed sixty years of age on 1st January, 2021. Therefore, petitioner was not entitled to be considered for appointment on compassionate ground.

Findings of the Court

The Clause 1 under Schedule V of the Rules of 2009 was relied upon by the court which provides that when a teacher or non-teaching staff dies in harness before the date of his superannuation that is the age of sixty years in that event only one of the family members of the deceased teacher /nonteaching staff is entitled to be considered for appointment on compassionate ground.

It was observed by the court that father of the petitioner was scheduled to retire on 31st January, 2021 but unfortunately, he died on 1st January, 2021 when his age was 59 years 11 months and 29 days. If the father would have died on 2nd January, 2021 it could have been concluded that father completed sixty years of age.

It was further observed that had father of the petitioner died on 2nd January, 2021 then son would have been adjudged being not eligible to be considered for appointment on compassionate ground. But in the present case, since father died on the last date when he attained 60th year it cannot be concluded that the father completed sixty years.

Therefore, it was held by the court that there is no bar in considering application of the petitioner seeking appointment on compassionate ground if father of the petitioner had died on the last date just before completing sixty years of age. Therefore, the memo dated 5th February, 2024 issued by the respondent was set aside by the court.

With the aforesaid observations, the writ petition was allowed.

Case Name : Sk. Monikul Hossain VS. The State of West Bengal & Ors.

Case No. : W.P.A. 28275 OF 2024

Counsel for the Petitioner : Firdous Samim, Gopa Biswas, Sampriti Saha, Swati Dey

Counsel for the Respondents : Biswabrata Basu Mallick, Biman Halder, Sunit Kumar Roy, Saibal Acharyya, Tanweer Jamil Mandal