Md. Mustak Ahmed vs The State Of Assam And 3 Ors
2021 Latest Caselaw 3601 Gua

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GAHC010023772018




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

                                 Case No. : WP(C)/976/2018

            MD. MUSTAK AHMED
            S/O- LT ISLAMUDDIN AHMED, R/O- VILL- MIRZA, KOCHPARA, P.O. MIRZA,
            P.S. PALASHBARI, DIST- KAMRUP, ASSAM



            VERSUS

            THE STATE OF ASSAM AND 3 ORS.
            REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
            ANIMAL HUSBANDRY AND VETERINARY DEPTT., DISPUR, GHY-6

            2:THE DIRECTOR OF ANIMAL HUSBANDRY AND VETERINARY DEPTT.
            ASSAM
             GHY-3

            3:THE DEPUTY DIRECTOR
             (B.C.P.P.)
             H.H AND VERY. DEPTT.
            ASSAM
             KHANAPARA
             GHY-22

            4:THE DEPUTY COMMISSIONER CUM CHAIRMAN
             DISTRICT LEVEL COMMITTEE
             KAMRUP (M)
             GHY-

Advocate for the Petitioner   : MR. R M CHOUDHURY

Advocate for the Respondent : GA, ASSAM
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                                       BEFORE
           THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY

                                      ORDER

23.12.2021 Heard Mr. R. M. Choudhury, the learned counsel for the petitioner. Also heard Ms. M. D. Bora, the learned State Counsel for the respondents.

2. The case projected by the petitioner is that the petitioner's father Late Islamuddin Ahmed died in harness on 05.07.2008, while working as a Veterinary Field Officer, under the Directorate of Animal Husbandry & Veterinary Department. Initially the petitioner's mother filed an application for compassionate appointment on 06.01.2012, but the same was not considered. Thereafter, when the present petitioner attained minority, filed an application before the Director on 27.11.2017 with a prayer for his compassionate appointment. The case of the petitioner is that the petitioner at the time of death of his father was a minor and he applied for compassionate appointment on attainment of his majority.

3. The learned counsel for the petitioner, Mr. R. M. Choudhury submits that an application for compassionate appointment can be entertained, even if same is filed within the reasonable time of attaining of majority. In support of such contention, Mr. Choudhury cites the cases of Shreejith L. -Vs- Deputy Director (Education) Kerala and Others reported in (2012) 7 SCC 248. Also relies the order dated 27.09.2021 passed in WP(C) No. 1688/2017, to contend that in a similar situation, an application by a minor for compassionate appointment was directed to be considered by this court in the aforesaid order.

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4. The learned counsel for the petitioner, Mr. R. M. Choudhury submits that the claim of the petitioner for compassionate appointment thus is required to be considered and the same cannot be rejected on the ground of the same being filed at a belated stage. According to Mr. Choudhury, in view of the law laid down by the hon'ble Apex Court and this Court in Shreejith L. (Supra) and Marab Uddin Laskar (Supra), this writ petition needs to be allowed.

5. Per contra Ms. M. D. Bora, the learned State Counsel submits that the claim of the compassionate appointment ca not be considered at this belated stage. The learned State Counsel submits that there is no provision in the extant Rule/ Scheme of the compassionate appointment allowing a minor to make an application for compassionate appointment upon attaining majority without any regard to the stage of filing of such application. According to the learned State Counsel, if such application, in absence of any provision in the Scheme/ Rule of compassionate appoint are allowed, the same may entitle any person to make it a source of employment rather than it being a case of compassionate appointment. The further argument of Ms. M. D. Bora, the learned State Counsel is that if such applications are allowed, the same would be in conflict with the prevailing law that there is time limit for making such application and no provision has been given in the prevailing procedure allowing minors to apply for compassionate appointment beyond one year of the death of the employee on attainment of majority.

6. In support of such contention, Ms. M. D. Bora, the learned State Counsel relies on the judgment of Hon'ble Apex Court passed in Sanjay Kumar -Vs- The State of Bihar and Ors. reported in (2000) 7 SCC 192 and judgment passed by a Coordinate Bench of this Court in WP(C) No.1953/2019 Page No.# 4/6

(Nayanmoni Das -Vs- The State of Assam and Ors.)

7. I have given anxious consideration to the submissions of the learned counsel for the petitioner.

8. The undisputed fact in the case in hand remains that the father of the petitioner died in harness in 05.07.2008. Though mother of the petitioner filed an application for compassionate appointment on 06.01.2012 i.e. after four years of the death of her husband, her case was not considered. The fact also remains that the mother is not a party aggrieved before this court. The present petitioner filed the application for compassionate appointment on 27.11.2017 i.e. nine years of the death of his father. The fact also remains that the extent Office Memorandum providing procedure for compassionate appointment does not provided anything for a minor to make an application for compassionate appointment upon attainment of majority beyond the period of time of one year provided in the said Office Memorandum for filing application for compassionate appointment.

9. The law so far relating to the compassionate appointment is by now well settled. The object of appointment of compassionate ground is to enable the family of the deceased employee to tide over the sudden crisis resulting due to the death of the bread earner, who had left the family in penury and without any means of livelihood as held by the Hon'ble Apex Court in Sanjay Kumar - Vs- State of Bihar (Supra). The Hon'ble Apex Court in Umesh Kumar Nagpal -Vs- State of Haryana & Ors. reported in (1994) 4 SCC 138 observed as under:-

"The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give a member of such Page No.# 5/6

family a post much less a post for post held by the deceased.......... The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned.......... The only ground which can justify compassionate employment is the penurious condition of the deceased's family. The consideration for such employment is not a vested right. The object being to enable the family to get over the financial crisis".

10. In view of the aforesaid proposition of law and given facts and circumstances of the case, this Court has come to a conclusion that, the Office Memorandum dated 02.03.2009, the application was required to be submitted within one year and the petitioner made the application on 27.11.2017 after attaining majority and such application was beyond time by about nine years. According to this Court, such delay was a relevant consideration while rejecting the application of the petitioner.

11. So far as relating to Shreejith L. (Supra), in the given facts of the said case there was a Government order dated 24.05.1999 and the para-19 of the said Government order provided that a minor can apply for compassionate appointment within a period of three years after attaining the majority. Therefore, in the given fact of the present case the said ratio cannot be applied.

12. So far relating to the facts in the case of Marab Uddin Laskar (Supra), the said order was passed in the given facts and circumstances of the said case. In the said case there were some impersonation and accordingly in the first round of litigation a direction was issued for consideration of the case of the petitioner and in that background the order in Marab Uddin Laskar (Supra) was passed, which can be clarified from the following paragraph:-

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"No doubt, in a case of general nature, rejection on the ground of not being eligible within the period for which an application is prescribed to be submitted on the ground of age, cannot be termed as arbitrary and unreasonable and in the instant case, such rejection without taking into account the peculiar background of the case does not appear to be reasonable at all. This court in the earlier direction dated 21.06.2013 had categorically observed that the case of either of the petitioner which means the present petitioner and his mother was liable for consideration, rejection on a technical ground would be nothing but a case of gross miscarriage of justice."

13. In the light of the discussions above, this Court, at this belated stage, is not inclined to direct the DLC to consider the case of the petitioner as prayed for. Accordingly, this writ petition is dismissed. However, no order as to cost.

JUDGE

Comparing Assistant