Seema Rani Das vs The State Of Assam And 4 Ors
2021 Latest Caselaw 1695 Gua

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GAHC010084642021




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

                               Case No. : WP(C)/3371/2021

            SEEMA RANI DAS
            W/O LATE CHITTARANJAN DAS
            RESIDENT OF VILLAGE SHILA, PO BHELLA, DIST BARPETA, ASSAM
            781309

            VERSUS

            THE STATE OF ASSAM AND 4 ORS.
            REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM,
            CUM CHAIRMAN, STATE LEVEL SELECTION COMMITTEE ON
            COMPASSIONATE APPOINTMENT, DISPUR GUWAHATI 06

            2:THE COMMISSIONER AND SECRETARY
            TO THE GOVT. OF ASSAM
             EDUCATION (ELEMENTARY) DEPARTMENT
            ASSAM
             DISPUR GUWAHATI 06

            3:THE DIRECTOR ELEMENTARY EDUCATION
            ASSAM
             KAHILIPARA
             GUWAHATI 19

            4:THE CHAIRMAN
             DISTRICT LEVEL SCRUTINY COMMITTEE CUM COMPASSIONATE
            GROUND CUM DEPUTY COMMISSIONER
             BARPETA
            ASSAM 781301

            5:THE DISTRICT ELEMENTARY EDUCATION OFFICER
             BARPETA
            ASSAM 78130

Advocate for the Petitioner   : MR. K R PATGIRI
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Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 26-07-2021

JUDGMENT & ORDER (ORAL)

Heard Mr. KR Patgiri, learned counsel for the petitioner, Ms. DD Barman, learned Additional Senior Government Advocate for the respondent No. 1 and 3 being the Chief Secretary to the government of Assam and the Deputy Commissioner, Barpeta as well as Mr. PN Sarma, learned counsel for the respondent Nos. 2, 3 and 5 being the authorities in the Elementary Education Department of the Government of Assam.

2. The husband of the petitioner who was serving as a teacher of 1032 No. Damaljar LP School in the Barpeta district, died in harness on 14.12.2014. On his death, the petitioner submitted an application for compassionate appointment on 06.01.2015.

3. We have perused the application form of the petitioner for compassionate appointment. A reading of the said application shows that the petitioner had not specified that she had applied for a post of Assistant Teacher in a school. In the application form, she merely mentioned her own educational qualification and we have been told that the education qualification mentioned in the application form is correct on facts. The application of the petitioner was given a consideration by the DLC of Barpeta district in its meeting on 30.01.2017 and by the minutes of the DLC, she was recommended for appointment against the identified and vacant post of Assistant Teacher in a LP School. When the recommendation of the DLC was placed before the SLC in its meeting held on 20.07.2017, the claim of the petitioner stood rejected by showing the reason of lack of vacancy. The said rejection itself prima-facie appears to be arbitrary and contrary to the recommendation of the DLC inasmuch as, the DLC had recommended the petitioner against a specific identified vacant post and therefore without giving any further reason, it was incorrect on the part of the SLC to reject it by merely writing the words "lack of vacancy".

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4. Be that as it may, being aggrieved the petitioner approached this Court by way of WP(C) No.4077/2018, which was given its final consideration by the order dated 11.03.2019. After giving a final consideration, the WP(C) No.4077/2018 was disposed of by the order of 11.03.2019 and the relevant paragraph No.4 thereof is extracted as below:-

"4. Case of the petitioner was placed before the District Level Committee (DLC) of Barpeta district in its meeting held on 30.01.2017. District Level Committee (DLC) recommended the case of the petitioner for appointment against a vacant post of Assistant Teacher in L P School. District Level Committee (DLC) worked out from the record that 5 (five) vacancies were available in the post of Assistant Teacher of L P School for compassionate appointment since there were overall 98 vacancies. However, when the case of the petitioner was placed before the State Level Committee (SLC) in its meeting held on 20.07.2017, case of the petitioner was rejected on the ground of lack of vacancy."

5. A reading of paragraph 4 of the order dated 11.03.2019 goes to show that this Court had arrived at its satisfaction that the DLC had worked out from the records as regards the vacancies that were available against the post of Assistant Teacher of LP School for compassionate appointment. Accordingly, in paragraph 11 of the said order, it was provided as follows:-

"11. Commissioner and Secretary to the Government of Assam, Elementary Education Department is directed to give effect to the recommendation of the District Level Committee (DLC), Barpeta dated 30.01.2017 and issue consequential order of appointment to the petitioner."

6. A reading of paragraph 11 of the order dated 11.03.2019 goes to show that the Commissioner and Secretary to the Government of Assam in the Elementary Education Department was directed to give effect to the recommendation of the DLC dated 30.01.2017 and issue the consequential order of appointment to the petitioner. The said order is a clear mandamus issued by this Court without any other pre-condition and therefore it was incumbent upon the Commissioner and Secretary to issue the necessary appointment order to the petitioner and if it was not acceptable, it was open for the Commissioner and Secretary to take appropriate recourse against the said order.

7. But as it transpires from the records produced before us, the Commissioner and Secretary had done neither and on the other hand, he had placed the matter before the SLC in its meeting held on 28.12.2020, which itself appears to be a non-application of mind on its own. However, when the matter was again given a consideration by the SLC on 28.12.2020, Page No.# 4/5

the claim of the petitioner stood rejected by providing as such, which is extracted as below:-

"Rejected due to non availability of NCRT Norms (qualifying % in HS) and also do not come under the preview of O.M No AEE. 377/2016/23 dated 02/06/2017".

8. A reading of the recommendation of the SLC dated 28.12.2020 goes to show that the SLC had re-decided the matter, which was earlier decided by the Court in its order dated 11.03.2019 in WP(C) No.4077/2018. In our view that itself would not be sustainable in law. When the Court under Article 226 of the Constitution of India decides an issue in whatever manner, the decision stands as long as it is reversed in any other proceeding as per law and an administrative authority in any capacity doesnot not have the authority and jurisdiction to take up re-decide the matter and take a different view from what the Court had already taken. The entire mis-happening it appears has happened, as had already been noted earlier, as because the Commissioner and Secretary instead of complying with the order of this Court dated 11.03.2019 or to take appropriate steps against the said order, had misdirected himself and placed the matter again before the SLC without even going through the requirement of the order dated 11.03.2019.

9. From the said point of view, we are not taking any further coercive steps against the SLC and its members for proceeding in a manner contrary to the law, but at the same time, we cannot, but to interfere with the same on the ground of being not sustainable in law.

10. Another aspect of the matter is that the recommendation of the DLC is dated 30.01.2017 whereas the SLC refers to an Office Memorandum dated 02.06.2017, which provides for a different requirement of qualification, to nullify the recommendation of the DLC. If we look at the recommendation of the DLC dated 30.01.2017, the required qualification prescribed by the Office Memorandum dated 02.06.2017 was not in place when the said recommendation was made by the DLC.

10. In such situation, we set aside the recommendation of the SLC dated 28.12.2020 whereby the claim of the petitioner for appointment on compassionate ground stood rejected and send the matter back to the Commissioner and Secretary to the Elementary Education Department of the Government of Assam for doing the needful, or doing in a manner may be advised, in respect of the order dated 11.03.2019 in WP(C) No.4077/2018. It is stated that at present there is no Commissioner and Secretary in the Elementary Education Department and Page No.# 5/5

therefore, the requirement of this order be done by the Principal Secretary to the Government of Assam in the Elementary Education Department.

11. The requirement be done within a period of one month from the date of receipt of a certified copy of this order.

12. In terms of the above, the writ petition stands allowed.

JUDGE

Comparing Assistant