Nur Islam Mondal vs The State Of Assam And 3 Ors
2021 Latest Caselaw 1697 Gua

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GAHC010045022020




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

                                 Case No. : WP(C)/1402/2020

            NUR ISLAM MONDAL
            S/O- LT. RAMJAN ALI MONDAL, VILL- KATHALDI PT-III, P.O. AND P.S.
            BILASIPARA, DIST.- DHUBRI, ASSAM, PIN- 783348



            VERSUS

            THE STATE OF ASSAM AND 3 ORS.
            REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, P AND RD
            DEPTT., DISPUR, GHY-6

            2:THE COMMISSIONER
             P AND R.D. DEPTT.
             PANJABARI
             JURIPAR
             GHY-37

            3:THE STATE LEVEL COMMITTEE
             REP. BY THE CHIEF SECY.
            ASSAM
             DISPUR
             GHY-6

            5:THE DISTRICT LEVEL COMMITTEE
             REP. BY THE DY. COMMISSIONER
             DHUBRI
            ASSAM
             PIN- 78330

Advocate for the Petitioner   : MD. A HUSSAIN

Advocate for the Respondent : SC, PNRD (R2,4)
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                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                       ORDER

Date : 26-07-2021

Heard Mr. A. Hussain, learned counsel for the petitioner and Mr. S. S. Roy, learned Government Advocate for the respondent nos.3 and 5. The name of the respondent no.4 has been struck off as per the order dated 04.03.2020. Mr. M. Nath, learned Standing counsel for the P & RD Department appears for the respondents no.1 and 2.

2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner is seeking a direction upon the respondents for providing compassionate appointment to the petitioner in terms of OM dated 01.06.2015. This is the fourth round of litigation by the petitioner.

3. The case of the petitioner is that his father late Ramjan Ali Mondal was serving as a Grade-IV employee at Bahir Suapata Gaon Panchayat under Dhubri district who died-in-harness on 31.12.2004 leaving behind the petitioner and his old mother. On 16.12.2005, the petitioner had submitted an application seeking appointment on compassionate ground. The DLC, Dhubri by minutes dated 15.09.2008 had recommended the name of the petitioner along with others for appointment on compassionate ground in the vacant posts. The said minutes was forwarded to the Joint Secretary to the Government of Assam, P & RD Department by forwarding letter dated 12.03.2020, i.e. after 1 ½ years. The learned counsel for the petitioner projects that the case of the petitioner was not placed before the SLC till 2015. Accordingly, the petitioner approached this Page No.# 3/7

Court by filing WP(C) 1205/2015 and this Court by order dated 10.04.2015, had directed the Deputy Commissioner, Dhubri to resubmit the recommendation for the petitioner and others, who were recommended on 15.09.2008 along with all the supporting documents, the P & RD Department within a period of 2 (two) months from the date of receipt of the certified copy of the order and it was provided that once the document is received, the P&RD Department shall place the same before the SLC for necessary consideration.

4. The petitioner was served with a letter dated 22.07.2015 asking him to submit HSLC pass certificate which was submitted by the petitioner. On 14.08.2017, the petitioner submitted a RTI petition seeking information about the SLC held from 2014 till August 2017. From the RTI reply dated 16.09.2017, the petitioner learned that his case was placed before the SLC on 01.02.2014 and 31.10.2015 and his case was rejected twice on different grounds. The learned counsel for the petitioner submits that by minutes dated 01.02.2014 his application was rejected at it exceeded the limit of one year and the SLC dated 31.10.2015, his case was rejected as it was an old case.

5. The aggrieved petitioner had approached the Court again by filing WP(C) 7476/2017 and this Court by order dated 04.12.2017 had directed that the case of the petitioner to be placed before the next available SLC and to consider it in its own merit and take into account the facts and circumstances as mentioned in the said order. As nothing was done, the petitioner approached this Court by filing WP(C) 362/2020 with a prayer to direct the respondent authorities to hold the SLC meeting and to consider the case of the petitioner in terms of the order dated 04.12.2017 in WP(C) 7476/2017. The SLC in its Page No.# 4/7

meeting held on 15.02.2019 had rejected the case of the petitioner on the ground of non-availability of vacancy for the period of 2005 and 2007. And accordingly, this Court by order dated 05.02.2020 dismissed the said WP(C) 362/2020 with the following observations:

"The Committee also found that there were 3 vacancies of Grade-IV in the office of the Commissioner of P&RD. On verification of records the SLC found that during the time when he applied for compassionate appointment, there were no vacancies for Grade-IV post in P&RD Department, particularly for the period from 2005 to 2007 and considering the same, the SLC in its said meeting dated 15.02.2019 rejected the case of the petitioner for his compassionate appointment in Grade-IV post.

Since the petitioner's case was already placed before the SLC in terms of the order dated 04.12.2017, passed in WP(C) No.7476/2017 and the SLC accordingly has passed the order on the prayer of the petitioner, noted above, nothing survives for adjudication in this writ petition and the same is accordingly stands dismissed."

6. The petitioner thereafter submitted a RTI application and obtained a copy of the minutes of the SLC held on 15.02.2019. The learned counsel submits that though no RTI reply has been issued but the petitioner has been able to collect the copy of the SLC meeting held on 15.02.2019. It is submitted that the reasons for rejecting the case of the petitioner has been different in all the SLCs. It is submitted that while in the minutes dated 01.02.2014, this application was rejected as it exceeded the limit of one year and as per the minutes dated 31.10.2015, it was held that this was an old case and that in the SLC dated 15.02.2019, the reason assigned was that vacancy was not available during the year 2005-2007.

7. Referring to the judgment and order passed by the Division Bench of this Court in the case of Ajij Jaman Barbhuiya Vs. State of Assam and others, Page No.# 5/7

2018 (2) GLT 390, it is submitted that as the application by the appellant therein was filed within time and the inordinate delay in the disposal of the application was not applicable to the applicant therein, the Division Bench of this Court had interfered with the decision of the SLC and accordingly, this Court was not impressed with the rejection of the candidature of the want of vacancy and it was directed that the case of the appellant therein be placed before the SLC.

8. The learned Government Advocate submits that in the present case in hand, the OM which was holding the field would be applicable and not the OM dated 01.06.2015. Accordingly, it is submitted that Clause-15 of the current OM dated 01.06.2015 considering vacancy in other departments was not available in the previous OM of 2009.

9. It is seen that in the present case in hand, this Court by an order dated 04.12.2017 passed in WP(C)7476/2017 had directed that the case of the petitioner be placed before the next available vacancy and accordingly, the case of the petitioner was placed before the next SLC held on 15.02.2019 and the case of the petitioner was rejected as vacancy was not available in 2005 to 2007.

10. Aggrieved by the minutes dated 15.02.2019, the petitioner had approached this Court again by filing WP(C) 362/2020 and by the order of the Court, as extracted above, this Court had dismissed the writ petition and that no vacancies were available particularly for a period from 2005 to 2007.

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11. Under such circumstances, as this Court had already dismissed the said WP(C) 362/2020 by rejecting the SLC meeting dated 15.02.2019, the challenge to the said SLC meeting dated 15.02.2019 is found to be barred by the principles of res judicata. Nonetheless, there is nothing on record in this writ petition to show that there were vacancies available for the year 2005 -2007. Moreover, in Annexure-7 to this writ petition, which is a RTI application dated 14.08.2017, it discloses that the petitioner has sought for information as regard to the employees appointed under compassionate ground in the P&RD Department, Dhubri district for the years 2008 to 2016 and not for the years 2005-2007, which further indicates that even on 14.08.2017, the petitioner was aware that there was no vacancies for the year 2005-2007 and as the father of the petitioner had died-in-harness on 31.12.2004, the candidature of the petitioner cannot be considered for any period subsequent to 2005-2007, which is not even disputed by the petitioner.

12. The Court finds that by directing the case of the petitioner before the next SLC by order dated 04.12.2017 passed in WP(C) 7476/2017, this Court in the case of Ajij Jaman Barbhuiya (supra) would not help the petitioner in any way because in the present case in hand the challenge to the SLC dated 15.02.2019 is found to be barred by res judicata, having already been decided by order dated 05.02.2020 in WP(C) 362/2020. Accordingly, the present petition is dismissed.

13. There shall be no order as to cost.

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JUDGE

Comparing Assistant