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
While delving further ,a few basic question arises into our mind. They are-
- Is there any scheme for grant of compassionate appointment
in respect of employees of West Bengal Municipalities?
- 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?
- 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
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.