Gauhati High Court
Mridula Choudhury vs The State Of Assam And 5 Ors on 8 November, 2021
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GAHC010168642021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5855/2021
MRIDULA CHOUDHURY
W/O. LT. TIRTHA NATH CHOUDHURY, VILL. BARBANG KHANDOPAR, P.O.
BARBANG, P.S. PATACHARKUCHI, DIST. BARPETA, ASSAM.
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, ASSAM
SECRETARIAT, DISPUR, GUWAHATI-781006.
2:THE STATE LEVEL COMMITTEE
FOR APPOINTMENT ON COMPASSIONATE GROUND
REP. BY ITS CHAIRMAN
DISPUR
GUWAHATI-06.
3:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
SECONDARY EDUCATION DEPTT.
ASSAM SECRETARIAT
DISPUR
GUWAHATI-781006.
4:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019
KAMRUP (M)
ASSAM.
5:THE DEPUTY COMMISSIONER
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BARPETA P.O.
P.S. AND DIST. BARPETA
ASSAM.
6:THE INSPECTOR OF SCHOOLS
BARPETA
P.O.
P.S. AND DIST. BARPETA
ASSAM
Advocate for the Petitioner : MR. R PHUKAN
Advocate for the Respondent : SC, SEC. EDU.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT & ORDER (ORAL)
Date : 08-11-2021
Heard Mr. R Phukan, learned counsel for the petitioner. Also heard Mr. G Bokolial,
learned counsel for the respondents no. 1, 2 and 5 being the Chief Secretary to the
Government of Assam, SLC and Deputy Commissioner, Barpeta respectively and Ms. N M
Sarma, learned counsel for the respondents no. 3, 4 and 6 being the authorities under the
Secondary Education Department, Government of Assam.
2. The husband of the petitioner Tirtha Nath Choudhury who was working as a
Demonstrator at Barpeta Vidyapith Higher Secondary School died in harness on 12.04.2014
and on his death, the petitioner submitted an application for compassionate appointment on
20.07.2014. The application was placed before the DLC of Barpeta district in its meeting of
21.06.2018 and the petitioner was recommended for the post of Grade-III Junior Assistant.
The SLC in its meeting of 04.01.2021 rejected the recommendation made in favour of the
petitioner by stating the reason that she is overage.
3. The question as to whether the aspect of overage is also a factor in the matter of
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compassionate appointment was decided by this Court in its judgment dated 24.08.2010 in
WP(C) 2989/2010.
4. Paragraph 7 of the judgment dated 24.08.2010 in WP(C) 2989/2010 is provided as
follows:
"7. That apart, which is more important looking at the policy behind the scheme of
compassionate appointment, the Office Memorandum dated 4.1.92 cannot be made
applicable for compassionate appointment. The object of the compassionate
appointment scheme being to provide immediate succour to the family of the
deceased, if the concept of age bar applicable in the case of normal direct recruitment
is imported in to the concept of compassionate appointment, it is possible in many
cases that the spouse of the deceased will be overaged when a case for making
compassionate appointment arises. For example, if a deceased employee dies at the
age of 55 years, leaving behind his widow, who is 50 years old, by application of the
office Memorandum dated 4.1.92 she would not be entitled to get compassionate
appointment also. In my opinion, to accept the contention of the respondents-
authorities in this behalf will defeat the very object of providing immediate succour to
the dependants of the deceased."
"......The respondent- authorities ought to have been more sensitive to the plight of
widows like the petitioner; she was and is still chasing a mirage of compassionate
appointment even after the 6 years of the death of her husband. In the view that I
have taken, the petitioner has made out a clear case for interference of this Court."
5. The judicial pronouncement clearly provides that in case of a compassionate
appointment there would be no upper age limit unlike what is provided in a direct recruitment
to Government service.
6. Mr. G Bokolial, learned counsel for the respondents refers to the O.M. dated 01.06.2015
wherein in clause 16 it is provided as follows:
"(16) The upper age limit could be relaxed wherever found to be necessary as per the
existing Government policy. The lower age limit shall, however, in no case be relaxed
below 18 years. Age eligibility shall be determined with reference to the date of
application and not the date of appointment. The State Level Committee shall be
competent to grant relaxation of upper age limit for making such appointment as per
existing Government policy. "
7. We have noticed that there is a clear conflict between the clause 16 of O.M. dated
01.06.2015 and the judicial pronouncement of this Court in its judgment dated 24.08.2010 in
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WP(C) 2989/2010. In an event of a conflict between a judicial pronouncement providing for a
proposition of law and that of an office memorandum, the judicial pronouncement would
prevail.
8. Accordingly, the rejection of the claim of the petitioner by the SLC in its meeting
04.01.2021 for the reason of overage is unsustainable in law. The rejection of the SLC on the
claim of the petitioner in its meeting of 04.01.2021 is set aside and the matter stands remand
back to the SLC for a fresh consideration.
9. Writ petition stands allowed of in the above terms.
JUDGE
Comparing Assistant
