Bahar Uddin Laskar vs The State Of Assam And 5 Ors
2021 Latest Caselaw 3357 Gua

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GAHC010130462021




                        THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/4987/2021

         BAHAR UDDIN LASKAR
         S/O. LT. SARIF UDDIN LASKAR, VILL. LALANG PT. I, P.O. PAILAPOOL, PS.
         LAKHIPUR, DIST. CACHAR, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REP. BY THE CHIEF SECRETARY CUM CHAIRMAN STATE LEVEL
         COMMITTEE FOR COMPASSIONATE APPOINTMENT, GOVT. OF ASSAM,
         DISPUR, GUWAHATI-06.

         2:THE COMM. AND SECY.
         TO THE GOVT. OF ASSAM
          PUBLIC HEALTH ENGINEERING DEPTT. (PHE)
          DISPUR
          GUWAHATI-781006.

         3:THE CHIEF ENGINEER

          PUBLIC HEALTH ENGINEERING DEPTT.
          ASSAM
          HENGRABARI
          GUWAHATI-781036.

         4:THE DISTRICT LEVEL COMMITTEE FOR COMPASSIONATE
         APPOINTMENT

          REP. BY ITS CHAIRMAN CUM DEPUTY COMMISSIONER
          CACHAR
          ASSAM.

         5:THE EXECUTIVE ENGINEER
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              PUBLIC HEALTH ENGINEERING DEPTT (PHE)
              SILCHAR DIVISION NO.II
              LAKHIPUR
              PAILAPOOL
              CACHAR


              6:THE ASSTT. EXECUTIVE ENGINEER

              PHE
              LAKHIPUR SUB-DIVISION
              PAILAPOOL
              LAKHIPUR
              CACHAR

Advocate for the Petitioner   : MR. N H BARBHUIYA

Advocate for the Respondent : GA, ASSAM




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                          ORDER

Date : 08-12-2021

Heard Mr. N.H. Barbhuyan, learned counsel for the petitioner who submits that the petitioner's father died in harness on 20.05.2015, while serving as Pump Operator in the Office of the respondent No.6.

2. The petitioner filed an application for compassionate appointment on 13.07.2015. The District Level Committee (DLC) Cachar rejected the petitioner's application for compassionate appointment vide its meeting minutes dated 19.07.2109, on the ground that there were no vacancies available to accommodate the petitioner.

3. The petitioner's counsel submits that if no vacancies were available for considering the case of the petitioner for compassionate appointment in the Office of the respondent No.6, it was open to the Administrative Page No.# 3/4

Department/Office to take up the matter with other Departments/Offices of the government to provide appointment on compassionate ground.

4. In support of his submission, the learned counsel for the petitioner has relied upon Clause-15 of the Office Memorandum dated 01.06.2015 issued by the Government of Assam, Department of Personnel, Vide Memo No.ABP 50/2006/Pt/182 dated 01.06.2015.

5. Ms. S. Baruah, learned counsel for the respondents No.1 and 4 and Mr. R. Bora, learned counsel for the respondents No.2, 3, 5 & 6 submit that the Office Memorandum dated 01.06.2015 is not applicable to the facts of this case.

6. I have heard the learned counsels for the parties.

7. Clause-15 of the Office Memorandum dated 01.06.2015 states as follows:-

"15.If sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Department/Office to take up the matter with other Departments/Offices of the Government to provide at an early appointment on compassionate grounds to those in the waiting list."

8. The date of death of the petitioner's father is 20.05.2015, while the Office Memorandum which is relied upon by the petitioner's counsel is dated 01.06.2015. The question to be decided here is, as to whether the law prevalent at the time of death of the government servant will have to be considered for the purpose of compassionate appointment or the law prevalent at the time of consideration of application for compassionate appointment.

9. In the case of N.C. Santosh vs. State of Karnataka reported in (2020) 7 SCC 617, the Apex Court has held that the law governing compassionate appointment on the date of consideration of the application should be the basis Page No.# 4/4

for considering the application. However, in Civil Appeal No.6903 & 6904 of 2021 in the State of Madhya Pradesh & Ors. -vs- Ashish Awasthi and The State of Madhya Pradesh & Ors. -vs- Baalendu Yadav, the Apex Court has relied and acted upon the earlier judgments of the Apex Court in Indian Bank & Others vs. Promila & Another, reported in (2020) 2 SCC 729 and State of Madhya Pradesh & Others vs. Amit Shrivas, reported in (2020) 10 SCC 496 wherein, it was held that the scheme prevalent on the date of death of the deceased employee is the only scheme to be considered while deciding an application for compassionate appointment.

10. In view of the judgment of the Apex Court in Indian Bank & Others vs. Promila & Another (supra), State of Madhya Pradesh & Others vs. Amit Shrivas (supra) and State of Madhya Pradesh & Others vs. Ashish Awasthi (supra), the petitioner's application for compassionate appointment, if it is eligible to be considered, would have to be considered as per the law/scheme prevalent at the time of death of the deceased employee.

11. In view of the fact that at the time of the death of the deceased employee, the Office Memorandum dated 01.06.2015 was not in existence, the said Office Memorandum dated 01.06.2015 cannot be made applicable to the petitioner's case.

Writ petition is accordingly dismissed.

JUDGE

Comparing Assistant