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Seeking Compassionate Appointment In The Died-In-Harness Category For The Family Members Of The Deceased West Bengal Municipal Employee?

Appointments on compassionate grounds have to be made in accordance with the rules, regulations or administrative instructions if any, subsisting, taking into consideration the financial condition of the family of the deceased. Being an exception, appointment on compassionate ground cannot be another source of recruitment. Public service appointments, as a rule, needs to be made strictly on the basis of open invitation of applications and merit.

Being an exception to the general rule, Appointment on Compassionate ground has to be exercised only in warranting situations and circumstances existing for granting appointment.
While delving further ,a few basic question arises into our mind. They are-
  1. Is there any scheme for grant of compassionate appointment in respect of employees of West Bengal Municipalities?
  2. If the answer to the first issue is in the negative, then, should the scheme for West Bengal State Government employees be read into the service conditions for employees of all the Municipalities in West Bengal?
  3. Can employees of a Municipality of West Bengal be treated as employees of the Government of West Bengal?

We are aware of a notification dated December 3, 2013 being no. 251‐Emp by which, the State of West Bengal promulgated a scheme for compassionate appointment for Government employees, known as the West Bengal Scheme for Compassionate Appointment, 2013. And there is no ambiguity in such notification, as it confines itself to the state government employees only. Thus, as far as my knowledge goes, there is no scheme for grant of compassionate appointment so far as employees of the Bengal municipalities are concerned.

Existence of such scheme for compassionate appointment is sine qua non for consideration of an application for grant of the same.

Under the provisions of the West Bengal Municipal Act, 1993 a municipality is a body corporate with perpetual succession and a common seal.

Section 13(1) of the Act of 1993 deals with the establishment of a municipality and its manner of functioning. The municipality may be sued or sue in its name as per the provision .And section 13(2) of the Act of 1993 stipulates that, the Board of Councillors in a given case may decide to sue a party ,however, such proceeding has to be filed in the name of the municipality.

Section 53 of the Act of 1993 specifies the establishment of a municipality. It allows the Board of Councillors of a municipality to create a post, with the prior sanction of the State Government for such officers, and fix salaries and allowances for such officers, as may be required by a municipality.

The Board of Councillors of a municipality is allowed to regulate the size of the municipal establishment, categories and designations of its officers and employees and the pay and allowances that such officers and employees may receive as per provisions u/s 53 of the Act. Creation of post, however, is subject to the prior sanction of the State Government.
Section 54 of the Act of 1993 stipulates the State Government to constitute cadres for the State in respect of executive officers, health officers, engineers and finance officers of municipalities.

It recognizes the State Government to be the appointing authority of the officers referred to in Sub‐section (1) of Section 53 and empowers the State Government to transfer such officers from one municipality to the other. Sub-section (3) of Section 54 specifies that, the appointment of all other officers and employees not included in Sub‐section (1) of Section 54 shall be made by the municipality, with the prior approval of the State Government.

Section 56 of the Act of 1993 envisages salaries and allowances of the officers and employees. It allows the municipalities to pay salaries and allowances from out of the municipal fund. Leave and other conditions of service of all officers and employees of the municipalities are subject to such considerations of service including leave and other benefits or obligations as may be prescribed which is dealt with in Section 67 of the Act of 1993.

Section 425 of the Act of 1993 is in Chapter XXVIII relating to delegation, cooperation and control of a municipality. It empowers the State Government to delegate powers vested and functions imposed upon the State Government by or under the Act of 1993 upon the officials specified therein. After a harmonious reading of the provisions of the Act of 1993, it appears that, a person appointed by the municipality would be the employee of the municipality and cannot be treated as the employee of the State Government.

A municipality is a separate legal entity distinct from that of the State. A municipality may be an authority within the meaning of Article 12 of the Constitution of India. The funds of the municipality may be provided by the State Government. The State Government may retain the power to control the appointment of officers and creation of new post for a municipality. These incidences by themselves do not make an employee of the municipality to be an employee of the State Government.

Employees of a municipal corporation may be governed by statutory rules but they do not enjoy the status of a Government servant. In fact, the term employee may be considered. The Act of 1993 does not define the terms employee. The ordinary meaning has to be taken into consideration.

Therefore, it cannot be contented that, the master, of an employee of a municipality is the State Government and not the municipality.

It may be contended that, the scheme for compassionate appointment governing a State Government employee should be read into the service conditions of an employee of the municipality. With due respect to my readers I say, such a contention cannot be accepted. After all a municipality is a separate and distinct legal entity than that of the State Government.

The contract of employment between the municipality and its employee cannot be altered by importing service conditions of employees of other legal entities. No authority should endeavour to do so. The scheme for compassionate appointment governing a State Government employee cannot be incorporated into the service conditions of an employee of a municipality.

So far as the incidents where some municipality in West Bengal has granted appointment on compassionate ground and where the Courts might have directed the municipalities to do so, such orders of the Court cannot be considered as binding precedence. No ratio has been laid down therein. Ratio of a judgment is binding. But the order is not.

Last but not the least, one may contend before a Writ Court that the State should be directed to formulate a scheme for compassionate appointment governing the municipal employees. However, a Writ Court may not entertain because such a consideration is in the realm of executive action.

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