Ashis Kumar Chakraborty, J. - (1.) This writ petition was filed by two petitioners. The petitioner no. 1 was the father of the petitioner no. 2. During the pendency of the writ petition, the petitioner no. 1 died. The original petitioner no. 2, presently the sole petitioner is proceeding with this writ petition, claiming compassionate appointment in the service of the respondent no. 1, West Bengal Electricity Distribution Company Limited (previously known as West Bengal State Electricity Board), as the dependant of his father, who obtained voluntary retirement from his service as Group-D staff of the respondent no. 1.
(2.) Shortly stated, the facts of the present case are that in the year 1982, the petitioner no. 1, since deceased (hereinafter referred as "the father of the present petitioner") joined the service of West Bengal State Electricity Board as a Group-D staff. On August 22, 2003 the father of the present petitioner filed an application to the West Bengal State Electricity Board stating that due to an illness, he had suffered permanent disablement and, as such, he should be allowed to appear before the Medical Board for obtaining voluntary retirement from his service and one of his dependant be allowed to join the service of the respondent no.1 on compassionate appointment. Thereafter, the father of the present petitioner appeared before the Medical Board of the respondent no.1 and on July 01, 2004 the Medical Board found him to be suffering from Parkinsonism and recommended for his voluntary retirement from service. By a letter dated July 31, 2004 the Manager, Industrial Relations of the respondent no. 1 informed the petitioner no. 1 that his prayer for voluntary retirement from service against employment of his dependant son has been examined by the competent authority but, as per the decision of the Government, employment could be considered to a dependant of an employee against voluntary retirement, only after the pending claims of the dependants of the deceased employees have been exhausted. By the said letter, the petitioner was informed that he may apply for voluntary retirement from his service as per the prevailing rules without any condition of employment of his dependant. On September 22, 2004 the father of the present petitioner filed an application to the General Manager of the respondent no. 1 praying for voluntary retirement from his service on medical ground as recommended by the Medical Board. By a separate letter dated September 22, 2004, the father of the petitioner requested the respondent no. 1 to consider his prayer for appointment of the present petitioner in the service of the respondent no. 1 on compassionate ground against his voluntary retirement from service. The respondent no. 1, although acceded to the request of the father of the petitioner to allow him to voluntarily retire from service due to permanent disablement but, did not accept his prayer to appoint the present petitioner on compassionate ground. Subsequently, the petitioner was allowed to voluntarily retire from his service with effect from January 01, 2005 and he was paid all his dues. Thereafter, in the year 2006 the present petitioner himself filed a representation before the respondent no. 1 for appointment on compassionate ground, but the same evoked no response. On August 21, 2008 the present petitioner and his father filed a Writ petition, being W.P. 3935 (W) of 2007 before this Court praying for compassionate appointment of the present petitioner by the respondent no. 1 on the ground of his father having obtained voluntary retired from service due to his permanent disablement. By an order dated August 21, 2008 the learned Single Judge of this Court disposed of the said writ petition by directing the present petitioner to submit a fresh representation before the respondent no. 4, the General Manager of the respondent no. 1, annexing thereto a copy of the writ petition and which would be considered and disposed of by the respondent no. 4 with the necessary order in accordance with the relevant rules. The present petitioner filed a representation before the respondent no. 4 and after giving an opportunity of hearing to the petitioner, by an order dated November 24, 2008 the respondent no. 4 rejected the petitioner's representation for compassionate appointment against the voluntary retirement of his father. Challenging the said order dated November 24, 2008 passed by the respondent no. 4, the present petitioner and his father filed the instant writ petition. The present petitioner seeks for setting aside of the said order dated November 24, 2008 passed by the respondent no. 4 and issuance of a writ of mandamus directing the respondent no. 1 to give him appointment on compassionate ground against the voluntary retirement of his father ,since deaced. As mentioned earlier, this writ petition was filed by the present petitioner as well as his father but, during the pendency of the writ petition, the father of the present petitioner died.
(3.) The writ petition is contested by the respondent no. 1, West Bengal State Electricity Distribution Company Limited and other respondents and they filed their respective affidavits-in-opposition to the writ petition. The petitioner also filed a supplementary affidavit and the respondent no. 1 also filed its counter-affidavit to the said supplementary affidavit. Assailing the impugned decision dated November 24, 2008 passed by the respondent no. 4, Mr. Soumik Ganguly, learned advocate appearing for the petitioner submitted that as per the Office Order No. C/IR/DD/EMP/242 dated April 04, 2008 (hereinafter referred to as "the said Office Order") issued by the respondent no. 1, appointment on compassionate ground in case of death/premature retirement of the employees occurred prior to June 06, 2005, shall be governed by the provisions laid down in the Government Notification No. 308-303/EMP dated August 21, 2002 (hereinafter referred to as "the said Notification") issued by the Labour Department, Government of West Bengal but, the respondent no. 4 passed the impugned decision dated November 24, 2008 without taking into consideration either the said Office Order or the said Notification. In this regard, Mr. Ganguly drew the attention of this Court to the said Office Order dated April 04, 2008, disclosed as Annexure -" P-2" to the supplementary affidavit filed on behalf of the petitioner, as well as the said Notification dated August 21, 2002 disclosed by the respondents as Annexure - "R-2" to the counter-affidavit. It was argued that from a bare reading of the said Office Order dated April 04, 2008 issued by the respondent no. 1, it is evident that all cases of appointment on compassionate ground in case of death/premature retirement of employees of the respondent no. 1 occurring prior to June 06, 2005 shall be dealt with as per the said Notification subject to availability of vacancies as well as subject to certain other restrictions. Therefore, according to the petitioner, when his father voluntarily retired from his service due to permanent disablement prior to June 06, 2005 and, as on December 31, 2004, that is, the date of retirement of his father, his age was below 40 years and he is a commerce graduate, the impugned decision dated November 24, 2008 passed by the respondent no. 4 is vitiated by arbitrary exercise of power. On these grounds, the learned advocate appearing for the petitioner strenuously urged for setting aside of the impugned order dated November 24, 2008 passed by the respondent no. 4.;