Shashadhar Mahanta vs The State Of Assam And 4 Ors
2022 Latest Caselaw 4890 Gua

                                                              Page No.# 1/7

GAHC010079732021




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

                       Case No. : WP(C)/2946/2021

         SHASHADHAR MAHANTA
         S/O LATE RUKMONI KANTA MAHANTA, RESIDENT OF VILLAGE AND PO
         PAGLAHAT, DIST DHUBRI, ASSAM, 783334



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         THROUGH THE COMMISSIONER AND SECRETARY TO THE GOVT. OF
         ASSAM, PWD DISPUR GUWAHATI 781006

         2:THE STATE LEVEL COMMITTEE FOR COMPASSIONATE APPOINTMENT
         ASSAM
          REPRESENTED BY ITS CHAIRMAN CUM THE CHIEF SECRETARY TO THE
         GOVT. OF ASSAM
          DISPUR
          GUWAHATI 781006

         3:THE CHIEF ENGINEER

          PWD(ROADS) ASSAM
          CHANDMARI
          GUWAHATI 781003

         4:THE DISTRICT LEVEL COMMITTEE FOR COMPASSIONATE
         APPOINTMENT
          DHUBRI

          REPRESENTED BY THE DEPUTY COMMISSIONER
          DHUBRI
          ASSAM
          783301
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            5:THE EXECUTIVE ENGINEER

             DHUBRI PWD (ROADS) DIVISION
             DHUBRI
             ASSAM 78330

Advocate for the Petitioner   : MR. A DAS

Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 12-12-2022

JUDGMENT & ORDER (ORAL)

Heard Mr. A Das, learned counsel for the petitioner, Mr. P Nayak, learned counsel for the respondents No. 1, 3 and 5 being the authorities in the PWD(Roads) and Mr. JK Goswami, learned additional senior Government Advocate for the respondents No. 2 and 4 being the Chief Secretary to the Government of Assam and the Deputy Commissioner, Dhubri.

2. The father of the petitioner Rukmoni Kanta Mahanta, who was working as a Section Assistant in the establishment of the Executive Engineer, PWD, Dhubri, died in harness on 28.10.1974. The petitioner is stated to have been born in the year 1974 and at the time of the death of his father, he was about seven months old. After attaining majority, the petitioner submitted an application for compassionate appointment, which is available at page 35 Annexure-12 to the writ petition. The application appears to have been processed by several authorities in the respondents as various endorsements are seen on the left hand side of the application. One such endorsement also bears a number being 9618 dated 28.06.1999. The application of the petitioner was also processed by Page No.# 3/7

another communication from the Executive Engineer, PWD, Rural Roads addressed to the Chief Engineer, PWD (Roads) dated 21.06.2005, wherein the Executive Engineer deemed it appropriate to send the proposal for compassionate appointment in a prescribed format comprising of Statement-1 and Statement-2, which also accompanied by a statement of vacancies available in the department. Annexure 17 page 54 to the writ petition is a communication from the Executive Engineer, PWD(Roads), Dhubri dated 07.05.2010 addressed to the Circle Officer, Golokganj seeks for a statement regarding the landed property, income etc of the family of the petitioner.

3. Be that as it may, the fact remains that the application of the petitioner for compassionate appointment was not given a due consideration under the law and it remained pending till date. In the circumstance, this writ petition is instituted.

4. Mr. P Nayak, learned counsel for the respondents in the PWD(Roads) raises a contention that the Hon'ble Supreme Court in its judgment in Fertilizers and Chemials Travancore Ltd and others -vs- Anusree K.B, reported in 2022 Live Law (SC) 819 had laid down the law in paragraph 9.1 thereof that there shall not be any entitlement to compassionate appointment on the death of the father after a period of 24 years from the death of the deceased employee inasmuch as, if such appointment is made, it would be against the object and purpose for which the appointment on compassionate ground is provided.

5. But in the case before the Hon'ble Supreme Court, the application for compassionate appointment was duly processed and the person concerned was also asked to appear before the interview, which the person did not. In the matter before the Hon'ble Supreme Court, reference was also made to an earlier judgment of the Hon'ble Supreme Court rendered in Umesh Kumar Nagpal -vs-

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State of Haryana, reported in (1994) 4 SCC 138, wherein it was provided that the Government or the public authority concerned has to examine the financial condition of the family of the deceased, and only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family and that the object of compassionate appointment is to relieve the family of financial destitution and to help it get overcome the emergency.

Paragraph 9.1 of Fertilizers and Chemicals Travancore Ltd (supra) is extracted below:-

"Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the respondent shall not be entitled to the appointment on compassionate ground on the death of her father, who died in the year 1995. After a period of 24 years from the death of the deceased employee, the respondent shall not be entitled to the appointment on compassionate ground. If such an appointment is made now and/or after a period of 14/24 years, the same shall be against the object and purpose for which the appointment on compassionate ground is provided."

The relevant portion of the judgment of Umesh Kumar Nagpal is extracted as below:-

".......... The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Cases III and IV are the lowest posts in nonmanual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. ......"

6. Reference is also made to the pronouncement of Hon'ble Supreme Court in Sanjay Kumar -vs- State of Bihar and others, reported in (2000) 7 SCC 192, Page No.# 5/7

wherein in paragraph 3, it is provided that there cannot be a reservation of a vacancy till such time as the applicant becomes a major after a number of years unless there are some specific provisions.

7. As regards the proposition laid down in Sanjay Kumar (supra), Mr. A Das, learned counsel for the petitioner refers to a contrary judgment of the Hon'ble Supreme Court, rendered in Syed Khadim Hussain vs State of Bihar, reported in (2006) 9 SCC 195, wherein in paragraphs 5 and 6, it is provided as extracted:-

"5. In the instant case, the widow had applied for appointment within the prescribed period and without assigning any reasons the same was rejected. When the appellant submitted the application he was 13 years' old and the application was rejected after a period of six years and that too without giving any reason and the reason given by the authorities was incorrect as at the time of rejection of the application he must have crossed 18 years and he could have been very well considered for appointment. Of course, in the rules framed by the State there is no specific provision as to what should be done in case the dependents are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application.

6. As the widow had submitted the application in time the authorities should have considered her application. As eleven years have passed she would not be in a position to join the Government service. In our opinion, this is a fit case where the appellant should have been considered in her place for appointment. Counsel for the State could not point out any other circumstance for which the appellant would be dis-entitled to be considered for appointment. In the peculiar facts and circumstances of this case, we direct the respondent authorities to consider the application of the appellant and give him appropriate appointment within a reasonable time at least within a period of three months."

8. A conjoint reading of the law laid down in paragraph 9.1 of the judgment of the Hon'ble Supreme Court in Fertilizers and Chemicals Travancore Ltd (supra) and Umesh Kumar Nagpal as quoted hereinabove makes it discernible that a person is not entitled for a consideration for compassionate appointment after a period of 24 years from the death of the deceased employee and the said principle is evolved from the principle laid down in Umesh Kumar Nagpal (supra) that the object of compassionate appointment is to relieve the family of Page No.# 6/7

the financial destitution and to help it to get over the emergency and to enable the family to tie over the sudden crisis. Accordingly, in Umesh Kumar Nagpal (supra), it was also provided that the Government or the public authority concerned is to examine the financial condition of the family of the deceased and only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. In other words, there is also a requirement to examine the financial condition of the family as well as to balance the situation that if a long period had elapsed since the death, as to how the family had survived so as to disentitle a compassionate appointment.

9. In the instant case, it is noticed that the application of the petitioner was processed in the year 1999, then again in the year 2005 and subsequently in the year 2010, where the financial resource of the family was examined. But although such processes were undertaken, there is no definite finding that the family of the petitioner was not in such precarious financial condition which did not warrant a compassionate appointment, and from such point of view there appears to be a laches on the part of the respondent authorities in not placing the application before the concerned DLC at the relevant point of time. At the same time, there appears to be also laches on the part of the petitioner that nothing prevented the petitioner from approaching the Court immediately after 1999 when the application was processed, but was not brought to its logical end or in the subsequent years and the petitioner preferred to wait till the year 2022 to approach the Court.

10. In the circumstance, to balance the equity, we direct the Executive Engineer, PWD(Roads), Dhubri to place the application of the petitioner before the next available DLC of Dhubri district. On being placed, the DLC shall make a Page No.# 7/7

thorough examination as to how the petitioner survived for the last 48 years after the death and more particularly from the date when the application was made for compassionate appointment after attaining majority. If the explanation of the petitioner is unsatisfactory, the DLC need not examine any further. On the other hand, if the explanation for a precarious financial situation is satisfactorily explained by the petitioner, the DLC will look into the other aspect including the law laid down by the Hon'ble Supreme Court in paragraph 9.1 of the Judgment in Fertilizers and Chemicals Travancore Ltd (supra) and pass its reasoned order. The petitioner shall also explain before the DLC as to what prevented the petitioner from approaching the Court at the appropriate time rather than keep waiting for another 23 years.

11. It is clarified that by this order there is no direction to the DLC to pass any order in a given manner and it is entirely left to the wisdom of the DLC to pass its order, but strictly taking note of the pronouncements of the Hon'ble Supreme Court in Fertilizers and Chemicals Travancore Ltd (supra), Umesh Kumar Nagpal (supra) as well as Sanjay Kumar (supra) and prior to it to evaluate the financial condition of the petitioner for the last 48 years and whether it justifies any kind of compassionate appointment.

The writ petition stands disposed of as indicated above.

JUDGE

Comparing Assistant