Asif Mohammad Soid vs The State Of Assam And 4 Ors
2021 Latest Caselaw 1232 Gua

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GAHC010146032017




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

                        Case No. : WP(C)/6633/2017

         ASIF MOHAMMAD SOID
         S/O LT. TAUFIQUL ISLAM R/O S.D.O. CIVIL ROAD, NEAR PHE OFFICE,
         RANGIA TOWN, WARD NO. 8, P.O. RANGIA, PIN - 781354, DIST. KAMRUP
         RURAL, ASSAM



         VERSUS

         THE STATE OF ASSAM and 4 ORS.
         REP.BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         SECONDARY EDUCATION DEPARTMENT, HAVING HIS OFFICE AT DISPUR,
         GUWAHATI- 781006, DIST. KAMRUP METRO, ASSAM

         2:THE DIRECTOR OF SECONDARY EDUCATION

          ASSAM HAVING HIS OFFICE AT KAHILIPARA
          GUWAHATI-781019
          DIST. KAMRUP METRO
          ASSAM

         3:THE INSPECTOR OF SCHOOLS

          KAMRUP DISTRICT CIRCLE
          HAVING HIS OFFICE AT GUWAHATI-HAJO ROAD
          AMINGAON
          GUWAHATI- 781039
          DIST. KAMRUP
          ASSAM

         4:THE DISTRICT LEVEL COMMITTEE
          FOR SELECTION AND APPOINTMENT OF CANDIDATES ON
         COMPASSIONATE GROUND
          KAMRUP DISTRICT
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             REP. BY ITS CHAIRMAN/ THE DEPUTY COMMISSIONER
             KAMRUP DISTRICT HAVING HIS OFFICE AT AMINGAON
             GUWAHATI - 781039
             DIST. KAMRUP
             ASSAM

            5:THE STATE LEVEL COMMITTEE FOR
             SELECTION AND APPOINTMENT OF CANDIDATES ON COMPASSIONATE
            GROUND
            ASSAM
             REP. BY ITS CHAIRMAN/THE CHIEF SECRETARY TO THE GOVT. OF
            ASSAM
             HAVING HIS OFFICE AT DISPUR
             GUWAHATI- 781006
             DIST. KAMRUP METRO
            ASSA

Advocate for the Petitioner   : MR.A A HUSSAIN

Advocate for the Respondent :

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL)

Date : 30-03-2021

Heard Mr. S. Rahman, learned counsel for the petitioner. Also heard Mr. S.M.T. Chistie, learned counsel for the respondents no. 1, 2 and 3 being the authorities under the Secondary Education Department of Government of Assam as well as Mr. B. Deori, learned counsel for the respondents no. 4 and 5 being the authorities under the DLC and SLC of Kamrup district for compassionate appointment.

2. The father of the petitioner who was serving as an Assistant Teacher (General) in the Hindi Vidyalay High School, Rangia died in harness on 22.11.2015. On his death, the petitioner had submitted an application for compassionate appointment. The application of the petitioner for compassionate appointment was considered by the DLC of Kamrup district in its meeting of 23.07.2016 and by the minutes thereof the petitioner was recommended against one of the Page No.# 3/6

vacant posts of Junior Assistant. In the minutes of the DLC, it was stated that the total cadre strength of Junior Assistant was 396 (three hundred and ninety six) and therefore, 5% thereof would be 20 (twenty). It was also worked out in the minutes of the DLC that 2 (two) candidates had already been appointed on compassionate ground and 11 (eleven) candidates were recommended by the earlier DLC of Kamrup district and therefore, it was concluded that 7 (seven) more posts of Junior Assistant were still available for compassionate appointment.

3. The recommendation of the DLC was placed before the SLC in its meeting dated 05.06.2017 but the SLC rejected the claim of the petitioner at Sl. No. 60 of the reject list by stating the reason that the rejection was due to non-availability of balance post.

4. Although no affidavit-in-opposition is filed, Mr. B. Deori, learned counsel for the respondents no. 4 and 5 relies upon a para-wise comment of the Joint Secretary to the Government of Assam in the Secondary Education Department.

5. Paragraph 4 of the para-wise comment is extracted as below:

Para 4. In the State Level Committee Meeting held on 05/06/2017 ( Copy of Minutes at ANNEXURE - A), the Man-in-Position in the Cadre Strength has been recorded as 341 (Three Hundred and Forty One), which is not the Total Cadre Strength of Junior Assistant of Kamrup (Rural) District. The Total Cadre Strength as per the DLC Minutes and information furnished by the Inspector of Schools, Kamrup ® is 396 (Refer ANNEXURE - B). And, it is to be informed that due post reserved for Compassionate Appointment has been formulated considering 5% of the Man-in-Position in the Cadre (i.e. 5% of 341). Clause 14(a) of O.M. No. ABP.50/2006/Pt/182, dtd. 01/06/2015 may be referred to.

In the instant case the following may be noted:

(1) Total Cadre Strength = 396 (2) Man-in-Position = 341 (Refer ANNEXURE - C) (3) Vacancy position = 5% of 341 = 17 (4) No. of incumbents already appointed on Compassionate Ground among the Man-in-Position = 15 (As per records available with IS Kamrup® ) Therefore, the Balance vacant post to be considered for compassionate appointment = (5% of Man-in-Position) - (Incumbents already appointed on Compassionate ground) = (5% of 341) - 15 = 17 - 15 = 2 (Two) Taking into consideration, the total monthly income, educational qualification Page No.# 4/6

and court case (i.e. WP(C) 5571/2015 Nikunja Lahkar - Vs- State of Assam), Ashim Das and Nikunja Lahkar were recommended for the posts of Jr. Asstt.

Hence, the candidature of Asif Mohammad Soid was rejected due to lack of balance post.

6. A reading of the comment of the Joint Secretary goes to show that although the cadre strength of Junior Assistant of Kamrup (Rural) district was 396 but the man-in- position was

341. The comment further provides that the compassionate appointment has to be made in respect of 5% of the man-in-position in the cadre and for the purpose reference is made to Clause 14(a) of the Office Memorandum No. ABP.50/2006/Pt/182 dated 01.06.2015.

7. Clause 14(a) of the O.M. dated 01.06.2015 is extracted as below:

"(14)(a) Compassionate appointment can be made up to a maximum of 5% of the total strength of a cadre/man in position in the cadre at the time of recruitment in any Grade III, not above the level of Junior Administrative Assistant (direct recruitment), or Grade IV (direct recruitment) posts....."

8. A reading of the Clause 14(a) goes to show that compassionate appointment can be made up to a maximum 5% of the total strength of a cadre/man in position in the cadre at the time of recruitment in any Grade III, not above the level of Junior Administrative Assistant (direct recruitment), or Grade IV (direct recruitment) posts. Clause 14(a) does not provide that 5% would only be of the man in position in the cadre. Clause 14(a) clearly provides that the compassionate appointment can be made up to a maximum 5% of the total strength of the cadre/man in position in the cadre.

9. Normally when two expressions are provided in a provision of law which is separated by a stroke (/), the ordinary understanding would be that it would be either of the two expressions which is separated by the stroke (/). In other words, the provision in the O.M. dated 01.06.2015 that it would be 5% of the total strength of the cadre/man in position in the cadre would have to be read as 5% of the total strength of cadre or man in position in the cadre. Ordinarily, the word 'or' is understood to be disjunctive and 'and' is normally understood to be conjunctive. If 'or' is disjunctive, the expression 5% of total strength of cadre/man in position would mean that it is either the total strength of cadre or man in position in the cadre. If both the expressions are available in the O.M. dated 01.06.2015, we have difficulty in understanding as to why the Joint Secretary in his para-wise comment thought it proper that it should be accepted to be 5% of the man in position and not 5% of the total cadre strength. If Page No.# 5/6

the man in position in the cadre strength is less than the total strength of the cadre and the 5% available vacancy is understood to be 5% of the man in position in the cadre, the same would lead to an arbitrariness as well as may give the authorities an unfettered power to decline any compassionate appointment on the basis of the man in position in the cadre at the time of consideration.

10. The man in position in the cadre is a variable concept which may frequently vary from time to time depending on the recruitments that may have been made. As the interpretation of the expression 5% of the total cadre strength or man in position in the cadre is understood by accepting the expression 'or' to be disjunctive i.e. it would be a discretion for the authorities to accept either 5% of the total strength of a cadre or 5% of man in position in the cadre to be the basis for determining the vacancies available for compassionate appointment, we are of the view that the same may produce an unintelligible or an absurd result. The law as regards interpreting an expression 'or' as 'and' and the expression 'and ' to be 'or' is provided in page

531 of the Principles of the Statutory Interpretation 14 th Edition by Justice G.P. Singh which is extracted as below:

"However, if the literal reading of the words produces an unintelligible or absurd result 'and' may be read for 'or' and 'or' for 'and' even though the result of so modifying the words is less favourable to the subject provided that the intention of the Legislature is otherwise clear."

11. The said expression clearly provides that if the literal reading of the words produce an unintelligible or absurd result the same has to be read as 'and' instead of 'or'. In the instant case, as already indicated above, in the expression '5% of the total cadre strength or the man- in-position in the cadre strength, the word 'or' has to be given its literal meaning, the same would produce an unintelligible and absurd result. From the said point of view, we interpret the expression 'maximum of 5% of the total cadre strength/man-in- position in the cadre to be 5% of total strength of cadre and man in position in the cadre.

12. Accordingly, in the instant case, we have taken note of that the DLC had clearly arrived in its meeting dated 23.07.2016 that the total cadre strength of Junior Assistants in Kamrup (Rural) district is 396 (three hundred and ninety six) and 5% thereof is 20 (twenty), out of which 7 (seven) posts remains vacant on the date when the DLC had made its recommendation. If it is so, we do not find any reason for the SLC to take a different view only by considering the criteria 5% of the man-in-position in the cadre and reject the claim of the Page No.# 6/6

petitioner. Accordingly the rejection of the claim of the petitioner by the SLC in its meeting of 05.06.2017 is set aside and the matter stands remanded back to be placed before the next available SLC.

13. A copy of the para-wise comment which is produced before the Court is kept on record.

14. Writ petitions stands disposed of in the above terms.

JUDGE

Comparing Assistant