Gauhati High Court
Shri Shah Jahangir Alom vs The State Of Assam And 5 Ors on 7 December, 2021
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GAHC010024292021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/897/2021
SHRI SHAH JAHANGIR ALOM
S/O- LT. AKBOR ALI, VILL- MAHERIPAR, P.O. KALIADINGA, P.S. JURIA,
DIST.- NAGAON, ASSAM
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY ITS SECY. TO THE GOVT.OF ASSAM, DEPTT. OF PANCHAYAT AND
RURAL DEVELOPMENT, DISPUR, GHY-06
2:JOINT SECRETARY
PANCHAYAT AND RURAL DEVELOPMENT DEPTT.
DISPUR
GHY-06
3:THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT
ASSAM
PANJABARI
JURIPAR
GHY-37
4:THE DIRECTOR
PANCHAYAT AND RURAL DEVELOPMENT
ASSAM
PANJABARI
JURIPAR
GHY-37
5:THE DY. COMMISSIONER-CUM- THE CHAIRMAN
DISTRICT LEVEL COMMITTEE
NAGAON
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DIST.- NAGAON
ASSAM
6:THE STATE LEVEL COMMITTEE
REPRESENTED BY ITS CHAIRMAN i.e CHIEF SECRETARY TO THE GOVT.
OF ASSAM
DISPUR
GUWAHATI
Advocate for the Petitioner : MR. P K DEKA
Advocate for the Respondent : SC, PNRD
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 07-12-2021
JUDGMENT & ORDER (ORAL)
Heard Mr. PK Deka, learned counsel for the petitioner, Ms. MB Bora,
learned counsel for the respondents No. 5 and 6 being the Deputy
Commissioner, Nagaon and the Chief Secretary of the State of Assam as well as
Mr. A Roy, learned counsel for the respondents No. 1, 2, 3 and 4 being the
authorities in the Panchayat and Rural Development Department, Government
of Assam.
2. The father of the petitioner Akbar Ali, who was working as a Gram Sevak
in the office of the Block Development Officer in the Lawkhowa Development
Block, died in harness on 09.02.2004 and on his death, the petitioner submitted
an application for compassionate appointment on 20.02.2004. It is stated that
the application of the petitioner was forwarded to the Secretary to the
Government of Assam in the Panchayat and Rural Development Department on
29.07.2006. The DLC of Nagaon district in its meeting of 15.05.2017 had
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recommended the petitioner for appointment to a Grade-III post. When the said
recommendation was placed before the SLC, the SLC in its meeting of
15.02.2019 rejected the recommendation made in favour of the petitioner by
the DLC on the ground that the application was made after a period of one year
from the date of death.
3. We have taken note that when the application of the petitioner was not
given its consideration, WP(C) No. 6080/2016 was instituted and by the order
dated 04.04.2017, there was a direction that the said application be placed
before the concerned DLC. When the application of the petitioner was required
to be placed before the DLC pursuant to a direction of this Court, we are of the
view that no further discretion is available either on the DLC or on the SLC to
now take a stand that the application is not to be given its consideration
because of any late submission since the date of the death.
4. The said stand of rejecting the application on the ground of there being a
delayed submission of the application would be hit by the principle of
constructive res-judicata inasmuch as, the said stand ought to have been taken
in the earlier writ petition being WP(C) No. 6080/2016 and it having not been
taken, the said stand can further be no longer raised. Also the period of one
year of submission of application for compassionate appointment had already
been held by this Court to be a discretionary requirement and not a mandatory
requirement that it cannot be construed to be a limitation being imposed by the
law.
5. For both the reasons, the rejection of the recommendation made by the
DLC in favour of the petitioner by the SLC stands interfered and the matter is
remanded back to the SLC for a fresh consideration to the recommendation of
the DLC of Nagaon dated 15.05.2017 made in favour of the petitioner and pass
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a reasoned order thereon. The matter be placed before the next available SLC.
The writ petition is allowed to the extent indicated above.
JUDGE
Comparing Assistant
