Umesh Chandra Nath vs The State Of Assam And 9 Ors
2021 Latest Caselaw 2690 Gua

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GAHC010015932017




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

                           Case No. : WP(C)/1563/2017

         UMESH CHANDRA NATH
         S/O LT. DIMBUDHAR NATH R/O VILL- MURALIJHAR P.O. BAGUAN DIST.
         GOALPARA, ASSAM



         VERSUS

         THE STATE OF ASSAM and 9 ORS.
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOV.T OF ASSAM,
         EDUCATION ELEMENTARY DEPARTMENT, DISPUR, GUWAHATI -6, ASSAM

         2:THE DIRECTOR OF ELEMENTARY EDUCATIO

          ASSAM
          KAHILIPARA
          GUWAHATI - 781019

         3:THE INSPECTOR OF SCHOOLS

          DIST. GOALPARA
          ASSAM

         4:THE DISTRICT ELEMENTARY EDUCATION OFFICER

          DIST. GOALPARA
          ASSAM

         5:THE DISTRICT LEVEL COMMITTEE
          REP.BY ITS CHAIRMAN
         THE DEPUTY COMMISSIONER
          DIST. GOALPARA
         ASSAM
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            6:THE STATE LEVEL COMMITTEE

             REP.B Y ITS CHAIRMAN
             THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
             DISPUR
             GUWAHATI -6.

            7:SRI SURANJIT KALITA
             S/O LT. RANU DAS

            8:NASIM RAHMAN
             S/O LT. ABDUL RAHMAN

            9:SRI DIBYAJYOTI RABHA
             S/O LT. DWIJEN CH. RABHA

            10:SMTI NIBEDITA BISWAS
             D/O LT. MANINDRA CH. BISWAS
            ALL ARE C/O THE DIRECTOR OF ELEMENTARY EDUCATION
            ASSAM
             KAHILIPARA
             GUWAHATI- 781019

Advocate for the Petitioner   : MR.J SINGH

Advocate for the Respondent :

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL) Date: 03.11.2021 Heard Dr. A Todi, learned counsel for the petitioner. Also heard Mr. B Kaushik, learned counsel for the respondents No.1, 2, 3 and 4 being the authorities under the Elementary Education Department, Government of Assam and Mr. SR Barua, learned counsel for the respondents No.5 and 6 being the Chief Secretary to the Government of Assam and the Deputy Commissioner, Goalpara.

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2. Office note of 29.09.2021 shows that in terms of Section 27 of the General Clauses Act, 1897 read with Order 5 Rule 9(5) proviso of the CPC, notice on respondent No.10 is deemed to have been served. The office note further reveals that A/D cards showing service of notice in respect of respondents No.7 to 9 have already been received back.

3. Further considering the nature of the order proposed to be passed, we are of the view that the respondents No.7, 8, 9 and 10 are not required to be heard for the present.

4. The father of the petitioner namely Dimbudhar Nath who was working as a Chowkidar at Muralijhar MV School in the Goalpara district died in harness on 25.02.2014 and on his death an application for compassionate appointment was submitted by the petitioner. The said application of the petitioner for compassionate appointment was considered by the DLC of Goalpara district in its meeting of 14.05.2014 and the petitioner Umesh Chandra Nath was recommended for appointment to a post of Assistant Teacher in a Lower Primary School against the vacancy of the year 2014. When the matter was considered by the SLC in its meeting of 16.06.2016, the claim of the petitioner was rejected on the ground of lack of vacancy. We have been informed that before the SLC, the number of vacancies available were less than the number of candidates recommended by the DLC. In the resultant situation, the SLC undertook an exercise to arrive at an inter-se comparison of the financial condition between the petitioner and the other candidates who were recommended. The results of the inter-se comparison of the financial status of the petitioner and others were that the petitioner was found to have been Page No.# 4/6

receiving a family pension of Rs.30,000/- per month. The respondent No.7 was found to be receiving family pension of Rs.8680/- per month, the respondent No.8 was receiving Rs.17,432/- per month, the respondent No.9 was receiving Rs.16,447/- per month and the respondent No.10 was receiving Rs.6010/- per month. It came to our notice that where the deceased in case of the petitioner was working as a Chowkidar, the deceased in case of respondent No.7 was working as a Sectional Assistant in the Office of the Executive Engineer, respondent No.8 was working as an Assistant Teacher, the respondent No.9 was working as a Head Teacher and the respondent No.10 was also working as a Assistant Teacher. It was found incomprehensible to some extent as to how the family members of a Chowkidar was receiving more family pension than that of an Assistant Teacher and a Head Teacher. In the resultant situation by the order dated 01.12.2020, a query was raised before the respondent authorities.

5. Mr. SR Barua, learned counsel for the respondents being the Chief Secretary to the Government of Assam and the Deputy Commissioner, Goalpara upon instruction has stated that there was some inadvertent mistake in the calculation in presenting the family pension received by the petitioner to the extent that the correct figure ought to have been Rs.13,400/- per month, but the cumulative family pension received for a period of three months together was taken into consideration, and, therefore, an incorrect figure was arrived at. As it is an admitted position of the respondent authorities that an incorrect calculation was inadvertently arrived at as regards the family pension received by the petitioner and because of such inadvertent mistake on an inter-se comparison, the petitioner was found to be financially better off than others, we are of the view that the claim of the petitioner for being appointed on Page No.# 5/6

compassionate ground was incorrectly rejected by the SLC.

6. In the above circumstance, we are now faced with a situation that the other respondents have already been appointed and have been serving for four years and it would now be inappropriate to order for a cancellation of the appointment of one of such respondents who was appointed inspite of being better off than the petitioner. But, however, to balance the equity and restore the legal right of the petitioner that was deprived without any appropriate basis, we direct the respondents in the Elementary Education Department to appoint the petitioner as an Assistant Teacher in a LP School as was recommended by the DLC in its meeting of 14.05.2014 against any vacant post of Assistant Teacher which may be earmarked for compassionate appointment. In the absence of a clear mandamus, we are of the view that the legal right of the petitioner which has been violated cannot be restored back.

7. But, in doing so, the respondents would be at liberty to examine as to whether the petitioner meets the required educational qualification for the post of Assistant Teacher in a LP School. In the event, the petitioner is found not to be meeting the required education qualification, the matter be placed before the DLC of Goalpara district and the DLC shall recommend the petitioner against any vacant post in any department to which the petitioner may be suitably qualified for.

8. The writ petition stands allowed in the above terms. The above requirement be done within a period of four months from the date of receipt of Page No.# 6/6

the certified copy of this order.

JUDGE

Comparing Assistant