Madhumita Bhattacharjee vs The State Of Assam And 6 Ors
2022 Latest Caselaw 590 Gua

                                                                Page No.# 1/16

GAHC010086832020




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

                         Case No. : WP(C)/2700/2020

         MADHUMITA BHATTACHARJEE
         W/O- LATE ASHOK BHATTACHARJEE, R/O- SRI DURGA SARANI, TARAPUR,
         SIX BARI ROAD, P.O- TARAPUR- 788003, DIST- CACHAR, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REP. BY THE CHIEF SECRETARY TO THE GOVT OF ASSAM, DISPUR,
         GUWAHATI- 781006

         2:THE STATE LEVEL COMMITTEE FOR COMPASSIONATE APPOINTMENT
          REP. BY THE CHIEF SECRETARY TO THE GOVT OF ASSAM
          DISPUR
          GUWAHATI- 06

         3:THE DIRECTOR
          INFORMATION AND PUBLIC RELATION
         ASSAM
          DISPUR
          GUWAHATI- 781006

         4:THE DISTRICT LEVEL COMMITTEE FOR COMPASSIONATE
         APPOINTMENT
          HAILAKANDI DIST
          REP. BY THE DC
          HAILAKANDI
          P.O- HAILAKANDI
          788151
         ASSAM

         5:THE DISTRICT INFORMATION AND PUBLIC RELATION OFFICER
          HAILAKANDI DISTRICT
          P.O HAILAKANDI- 788151
                                                                         Page No.# 2/16

             ASSAM

            6:THE DEPUTY COMMISSIONER
             HAILAKANDI DISTRICT
             P.O- HAILAKANDI- 788151
            ASSAM

            7:THE SUB DIVISIONAL INFORMATION AND PUBLIC RELATION OFFICER
             P.O- HAILAKANDI- 788151
            ASSA

Advocate for the Petitioner   : MR. N DHAR

Advocate for the Respondent : GA, ASSAM




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 21.02.2022

Heard Mr. N. Dhar, learned counsel for the petitioner. Also heard Ms. M.D. Bora, learned Government Advocate appearing for the respondents.

2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner is seeking a direction upon the respondent authorities to appoint the petitioner on compassionate ground and the petitioner is also seeking quashing of the minutes dated 03.10.2019 (Annexure-13), thereby rejecting the candidature of the petitioner for appointment on compassionate ground as the application has spent its force.

3) The case of the petitioner is that her husband, while working as an Operator (Grade-III) in the office of respondent no.7 had died-in-harness on Page No.# 3/16

14.04.2011. Thereafter, on 13.06.2011, the petitioner had submitted her application for appointment on compassionate ground. The case of the petitioner was put up in the meeting of the District Level Committee for compassionate appointment, Hailakandi (DLC for short) held on 09.12.2011. However, as the case could not be considered for want of vacancy position, vide minutes dated 09.12.2011, the respondent no. 7 was directed to furnish the particulars of the petitioner along with vacancy position of Grade-IV in the next meeting. Thereafter, vide resolution no. 18 of minutes of DLC meeting dated 03.04.2017, while recording in the minutes that only 2 numbers of Grade-IV posts exists in the establishment of respondent no. 5 but no vacancy existed, but recommended the name of the petitioner for appointment on compassionate ground subject to the availability of vacancy criteria of Grade-IV under respondent no. 3, if otherwise eligible subject to condonation of her age on the strength of the vacancies maintained by the said Directorate. The case of the petitioner was again placed in the meeting of the DLC held on 20.03.2018 and vide resolution no. 3 of minutes dated 20.03.2018, the DLC declined to make any further recommendation as the petitioner was already recommended by DLC held on 03.04.2017, subject to availability of vacancy criteria of Grade-IV under respondent no.3 and subject to condonation of age. As despite representations submitted by the petitioner, she was not appointed, she had approached this Court by filing W.P.(C) 5685/2017 and this Court by order dated 04.11.2019 disposed of the writ petition by directing the Secretary to the Government of Assam, Information and Public Relation and the respondent no. 3 herein to furnish the vacancy position of Grade-IV posts under respondent no. 4 as well as respondent no. 5 herein on or before 07.12.2019 and also to intimate the same to the petitioner and it was also directed that thereafter the case of the petitioner shall be taken up by the DLC in its next meeting for being Page No.# 4/16

considered for compassionate appointment in accordance with law if in the meanwhile the DLC had not considered her case after its meeting held on 29.12.2011. The respondent no. 3 provided the requisite RTI information to the petitioner's advocate vide letter dated 28.02.2020, disclosing details of 5 (five) recommendations made by the SLC during the period from 01.10.2019 to 31.12.2019 for appointment on compassionate ground in the establishment of respondent no. 3. The case of the petitioner was also taken up in SLC meeting held on 03.10.2019(Annexure-13), but as indicated herein before, the candidature of the petitioner for appointment on compassionate ground was rejected as the application has spent its force.

4) The learned counsel for the petitioner has submitted that this Court in the case of Hamidur Rahman & Ors. v. The State of Assam & Ors., W.P. (C) 1060/2008 decided by order dated 09.09.2008, had issued a direction to considered all pending cases as one time measure. Accordingly, it has been submitted that the said step was not taken by the SLC. It is also submitted that as per the decision of this Court in the case of Md. Amdad Ahmed v. The State of Assam & Ors., W.P.(C) 4500/2016, decided on 12.12.2018 , held that in light of the decision in the case of Achyut Ranjan Das & Ors. v. State of Assam & Ors., 2006 (4) GLT 674, even the belated application deserves to be considered and could not have been rejected on ground of delay or being "spent force". It has been submitted that under OM dated 01.06.2015, if there was no vacancy in the concerned office, vacancy in other office/ departments was required to be considered. Hence, it is submitted that the SLC minutes dated 03.10.2019 was not sustainable and therefore, as the RTI information dated 27.10.2017, from Deputy Director of Information and Public Relations, Barak Valley Region, Silchar Page No.# 5/16

reveals existence of as many as 5 (five) vacancy position of Grade-IV posts, a suitable direction be issued to appoint the petitioner.

5) Per contra, the learned Government Advocate has opposed the prayer and has made her submissions to justify the rejection of the candidature of the petitioner.

6) As regards to the vacancy position which was disclosed in the RTI reply dated 27.10.2017 is considered, the Court is of the considered opinion that without the RTI question being annexed to the writ petition, a RTI reply cannot be read in isolation. Moreover, the said reply dated 27.10.2017 is by the Deputy Director of Information and Public Relations, Barak Valley Region, Silchar, which is in District Cachar. However, as per the cause title, the petitioner is a resident of Hailakandi. Therefore, the Court is unable to cull-out from the RTI reply alone if the 5 (five) vacancy in Grade-IV posts was for District Hailakandi or for the three Districts of Cachar, Karimganj and Hailakandi, which is usually called Barak Valley Districts. Moreover, the vacancy was for the period from various dates in the year 2016 till 12.10.2017, from which inference can be drawn that those recent posts was filled-up on 12.10.2017. Moreover, the appointment made on 12.10.2017 were not challenged. It may also be stated that it is not alleged in the writ petition that others were appointed on compassionate ground without considering the case of the petitioner. In this regard, the learned counsel for the petitioner could not show from any material on record that under which OM in force, although the husband of the petitioner had died on 14.04.2011, the case of the petitioner could be considered for vacancy in Barak Valley Region for vacancy that had purportedly arisen during Page No.# 6/16

2016-17.

7) It would be relevant to quote Principle-1 under clause -11, clause 15, and clause 24 of the OM dated 01.06.2015, which are as follows:-

"Principle-1: All pending applications against existing vacancies as per the quota earmarked including the cases of the petitioners in the present cases and all others, who may not be before the Court, shall be decided in accordance with the proposed directions to be laid down in the present order and also in accordance with the principles noted in the preceding paragraphs of this order. This will be done within a period of 4 (four) months from today. The present direction naturally has to be considered as a one time measure in view of the subsequent directions as laid down in the succeeding paragraphs.

15. If sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Development/ Office to take up the matter with other Departments/Offices of the Government to provide at an early appointment on compassionate grounds to those in the waiting list.

24(a). As regards pending cases prior to issuance of the direction in Achyut Ranjan

Das & 162 ors. Vs. State of Assam & Ors (i.e. 3 rd August, 2006), the authorities/ Departments need to ensure the compliance of the directions contained in

Principle 1 urgently. The High Court had fixed 30 th September, 2010 within which all such pending cases were required to be considered. Those departments which have not yet complied with the Principle 1 and disposed off all such pending cases shall compete it within six months from the date of issue of this OM.

(b) It may be noted that once consideration of a case as a one time measure under Principle-1 is over, such applications that may remain pending are not required to be considered if a period of more than two years has elapsed. Thus, it is clarified that so far as the pending cases covered by Principle No.10 are Page No.# 7/16

concerned, these cases cannot be rejected applying the test of the principle No.10. The Principle-10 will come into operation only in respect of cases other than the pending case covered by the principle-1 i.e. cases received after the judgment dated 3-8-2006. This implies that if applications are pending for a period of two years from the date of making an application but could not be considered for want of vacancies, all such applications will require no further consideration and must be understood that they have spent their force."

8) Thus, it is seen that as per the mandate of Clause 24 of the said OM dated 01.06.2015, all the pending cases were to be considered within 6 (six) months of the said OM. This clause appears to be in compliance with para 7(I) of the case of Achyut Ranjan Das (supra). There is no material on record that the said exercise was not done. Therefore, if such an exercise was carried out as a one-time measure, there was no further mandate under the OM dated 01.06.2015 to repeat the similar exercise from time to time and thereby render the principle-10 of the OM dated 01.06.2015 as otiose. Clause 24(b) of the OM dated 01.06.2015 appears to be in consonance with the directions issued in para 7(X) of the case of Achyut Ranjan Das (supra). The said para 7(X) is also quoted in the case of Hamidur Rahman (supra). It appears from the judgment and order passed in the said case of Hamidur Rahman (supra), that in the said case the DLC had recommended the name of the petitioner therein in its meeting held on 23.02.2007, but the SLC had rejected the case of the petitioner in its meeting held on 01.12.2007 on the ground that the case was more than 2 (two) years old when DLC had taken up the case. It is in that context that the directions contained in para 7(X) of the case of Achyut Ranjan Das (supra) was reproduced and direction was issued to the SLC to de novo consider the case again.

Page No.# 8/16

9) In this present case in hand, the facts are distinguishable from the case of Hamidur Rahman (supra), because in this case, the DLC, after adjourning the case of the petitioner in its meeting held on 29.12.2011, considered the case of the petitioner in its next meeting held on 03.04.2017, however, subject to availability of vacancy criteria of Grade-IV posts under respondent no.3 and condonation of age.

10) It would be relevant to quote the relevant directions as contained in para 7, 7(I) and 7(X) of the case of Achyut Ranjan Das (supra), which are quoted below:-

"7. Having understood the principles governing compassionate appointment as deducible from the pronouncements of the Apex Court and in the light of what has been discussed above, this Court is of the view that it will only be just and appropriate to lay down the under noted principles on the basis of which, henceforth, claims relating to compassionate appointment will have to be considered:

I. All pending applications against existing and available vacancies as per the quota earmarked including the cases of the Petitioners in the present cases and all others, who may not be before the Court, shall be decided in accordance with the proposed directions to be laid down in the present order and also in accordance with the principles noted in the preceding paragraphs of this order. This will be done within a period of 4 (four) months from today. The present direction naturally has to be considered as a one-time measure in view of the subsequent direction as laid down in the succeeding paragraphs.

X. If the applications of eligible candidates remain pending and cannot be Page No.# 9/16

considered due to want of vacancies for a period of 2 (two) years from the date of making such applications, all such applications will require no further consideration and must be understood to have spent their force."

11) Therefore, once the case of the petitioner was considered and recommended by DLC minutes dated 29.12.2017, the subsequent DLC by its minutes dated 20.03.2018, appears to have rightly not considered the case of the petitioner. Therefore, by the time, the SLC had considered the candidature of the petitioner, the application of the petitioner was pending for more than 2 years and moreover, there was also no vacancy, as such the Court is unable to find any fault with the decision of the SLC in its minutes dated 03.10.2019.

12) The learned counsel for the petitioner had placed reliance on the case of Md. Amdad Ahmed (supra). In so far as the said case is concerned, the said decision was rendered under the peculiar facts of the said case. It appears that it was not pointed out before the Court that in terms of directions contained in para 7(I) of the case of Achyut Ranjan Das (supra), one time exercise was already conducted by the State. It also appears that the decision of this Court in the case of Foziron Nessa v. State of Assam & Ors., 2010 (4) GLT 340 and WP(C) No.262/2010 - Prabhuttam Brahma v. State of Assam and Ors., were also not brought to the notice of this Court wherein this Court had held that in the event the applications remained pending and cannot be considered for want of vacancy or otherwise for a period of two years from the date of submission of such applications, it has to be understood as to have spent its force and also the time limit for submission of such applications was fixed as twelve months from the date of the death of the Government servant.

Page No.# 10/16

13) Moreover, the said decision cannot be a binding precedent because of the fact that the decision of the Supreme Court of India in the case of Sanjay Kumar v. State of Bihar & Ors., AIR 2000 SC 2782: (2000) 7 SCC 192 was perhaps not brought to the notice of this Court when the case of Md. Amdad Ahmed (supra) was decided. In the case of Md. Amdad Ahmed (supra), the petitioner was a minor when his father had died on 29.07.1990 and on attaining majority, application for compassionate appointment was made on 04.07.1996. In the said context, it may be stated that in the case of Sanjay Kumar (supra), the Supreme Court of India had held that rejection of application/ claim of the appellant as time barred was justified by holding that there cannot be reservation of vacancy till such time claimant becomes a major after a number of years unless there is some specific provision. Thus, this Court is inclined to observe that the case of Md. Amdad Ahmed (supra) was decided on facts peculiar to the said case and would not constitute a binding precedent to be followed in this case in hand.

14) Moreover, the notice of the Court was also drawn to a decision of a Coordinate Bench of this Court in the case of Ahid Ahmed Majumdar Vs. State of Assam & Ors., (2020) 1 GLR:2019 (4) GLT 812:(2017) 0 Supreme (Gau) 1524, where this Court had held that the OM dated 01.06.2015 will have prospective application so as to cover those cases where Government servant had died after the issuance of the OM dated 01.06.2015 and the same cannot have a retrospective application so as to divert a considerate of his already acquired right under the existing circular holding the field on the date on which the Government servant had died. The said finding was arrived at by relying on the decision of the Supreme court of India in the case of Canara Bank Vs. M.

Page No.# 11/16

Mahesh Kumar, (2015) 7 SCC 412.

15) In this regard, we may refer to the various paragraphs of the case of N.C. Santhosh v. State of Karnataka & Ors., AIR 2020 SC 1401: (2020) 7 SCC 617: 2020 0 Supreme (SC) 237. Paragraph 11 to 21 are quoted below (extracted from Supreme Today):

"11. In all these cases, when the government employee died, the appellants were minor and they had turned 18, well beyond one year of death of the parent. As can be seen from the details in the chart, the dependants attained majority after a gap of 2-6 years from the respective date of death of their parents and then they applied for appointment. By the time, the dependent children turned 18, the amended provisions became operational w.e.f. 01.04.1999. As such their belated application for compassionate appointment should have been rejected at the threshold as being not in conformity with proviso to Rule 5. The appellants applied for compassionate appointment (after attainment of majority), well beyond the stipulated period of one year from the date of death of the parent, and therefore, those applications should not have been entertained being in contravention of Rules.

12. The provision of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 was considered in Commissioner of Public Instructions and Others v. K.R. Vishwanath, (2005) 7 SCC 206. Speaking for the division bench, Dr. Justice Arijit Pasayat noted that the effect of the amended second proviso is that, unless the application is pending at the time of commencement of the Amendment Rules, the same can have no bearing on the claim for compassionate appointment. Thus, belated application filed by the dependant on attaining majority beyond one year from the date of death of the government employee would not be a valid application, consistent with the provisions of the Rules.

13. Insofar as the appellant's claim to legitimacy of appointment on the Page No.# 12/16

basis of Rule 9(3) of the Rules, a reading of Rule 9(3) suggests that it is a transitory provision granting extension of time for applying for compassionate appointment. But the transitory provision excludes application filed in contravention of Rule 5, as amended in 1999. In other words, applications filed by minor dependants who had not attained majority within one year from the date of death of the government servants will be in contravention of Rule 5. Therefore, we are of the considered view that the cases of the appellants are not covered by the transitory provision of Rule 9(3) introduced by the notification dated 28.5.2002.

14. It is well settled that for all government vacancies equal opportunity should be provided to all aspirants as is mandated under Articles 14 and 16 of the Constitution. However appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said norms. In Steel Authority of India Limited v. Madhusudan Das & Ors., (2008) 15 SCC 560. It was remarked accordingly that compassionate appointment is a concession and not a right and the criteria laid down in the Rules must be satisfied by all aspirant.

15. This Court in SBI v. Raj Kumar, (2010) 11 SCC 661 while reiterating that no aspirant has a vested right to claim compassionate appointment, declared that the norms that are in force, when the application is actually considered, will be applicable. The employer's right to modify the scheme depending on its policies was recognized in this judgment. Similarly in MCB Gramin Bank v. Chakrawarti Singh, (2014) 13 SCC 583 this Court reiterated that compassionate appointment has to be considered in accordance with the prevalent scheme and no aspirant can claim that his case should be considered as per the scheme existing on the date of death of the Government employee.

16. However in Canara Bank & Anr. v. M . Mahesh Kumar, (2015) 7 SCC 412 in the context of major shift in policy, whereunder, instead of compassionate appointment (envisaged by the scheme dated 8.5.1993), ex gratia payment was proposed (under the circular dated 14.02.2005), the Court adopted a different approach. Noticing the extinguishment of, the right to claim appointment, this Court held the "dying in harness scheme" which was prevalent on the death of the Page No.# 13/16

employee, be the basis for consideration.

17. A two judges bench headed by Justice Uday U. Lalit noticed the Supreme Court's view in SBI v. Raj Kumar (supra) and MCB Gramin Bank v. Chakrawarti Singh (supra) on one side and the contrary view in Canara Bank & Anr. v. M. Mahesh Kumar (supra) and felt the necessity of resolution of the conflicting question on whether the norms applicable on the date of death or on the date of consideration of application should apply. Accordingly, in State Bank of India & Ors. v. Sheo Shankar Tewari, (2019) 5 SCC 600 the Court referred the matter for consideration by a larger Bench so that the conflicting views could be reconciled.

18. The above discussion suggest that the view taken in Canara Bank & Anr. v. M. Mahesh Kumar (supra) is to be reconciled with the contrary view of the coordinate bench, in the two earlier judgments. Therefore, notwithstanding the strong reliance placed by the appellants counsel on Canara Bank & Anr. v. M. Mahesh Kumar (supra) as also the opinion of the learned Single Judge of the Karnataka High Court in Uday Krishna Naik v. State of Karnataka & Ors., MANU/KA/0203/1999 (Writ Petition No.37931 of 1998), it cannot be said that the appellants claim should be considered under the unamended provisions of the Rules prevailing on the date of death of the Government employee.

19. In the most recent judgment in State of Himachal Pradesh & Anr. v.Shashi Kumar, (2019) 3 SCC 653 the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfil the norms laid down by the State's policy.

20. Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the Page No.# 14/16

norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee.

21. In view of the foregoing opinion, we endorse the Tribunal's view as affirmed by the High Court of Karnataka to the effect that the appellants were ineligible for compassionate appointment when their applications were considered and the unamended provisions of Rule 5 of the Rules will not apply to them. Since no infirmity is found in the impugned judgments, the appeals are found devoid of merit and the same are dismissed."

Therefore, in view of specific finding in paragraph 17, 19 and 20 of the case of N.C. Santhosh (supra), the decision of the Coordinate Bench of this Court in the case of Ahid Ahmed Majumdar (supra) must be held to have been impliedly overrulled. Therefore, even the ratio of the case of Ahid Ahmed Majumdar (supra) would not come to the aid of the petitioner.

16) Coming to the present case in hand, the State's policy on compassionate appointment is contained in OM dated 01.06.2015, which is now in force. The said OM prescribes that applications pending for more than 2 (two) years is not required to be considered. The said terms and conditions flow from the decision of this Court in the case of Achyut Ranjan Das (supra), as followed in the case of Foziron Nessa v. State of Assam & Ors., 2010 (4) GLT 340 and WP(C) No.262/2010 - Prabhuttam Brahma v. State of Assam and Ors. It has not been demonstrated that the said decisions have been overruled.

Page No.# 15/16

17) The case of the petitioner was recommended by DLC minutes dated 29.12.2017. Therefore, it cannot be said that the case of the petitioner was kept in waiting list. The said clause 15 of the OM dated 01.06.2015 would have got attracted only if the case of the petitioner was kept in the waiting list. Therefore, the case of the petitioner, having been considered and her name being recommended by DLC by its minutes dated 29.12.2017, would not attract Clause 15 of OM dated 01.06.2015.

18) It may also be stated that as per communication dated 10.01.2017, the respondent no. 5 requested the respondent no. 3 to send the vacancy status of Grade-IV on compassionate ground throughout the State of Assam to be placed in the next meeting of DLC slated for first part of January, 2017. However, be that as it may, the petitioner has not been able to demonstrate that the cadre strength of Grade-IV in the establishment of respondent no. 3 was sufficient to permit appointment of persons on compassionate ground to the extent of 5% of vacancy in the cadre as envisaged in OM dated 01.06.2015. This is relevant because the petitioner had accepted the DLC minutes dated 29.12.2017 whereby the name of the petitioner was recommended by DLC for appointment in the establishment of respondent no. 3, however, making her appointment subject to availability of vacancy criteria of Grade-IV under the establishment of respondent no. 3, if otherwise eligible, and subject to condonation of her age and did not challenge the same on the ground that vacancy arising in other offices/ departments of the Government be considered in terms of clause 15 of OM dated 01.06.2015.

19) Thus, in all counts as mentioned in the foregoing paragraphs, Page No.# 16/16

the cases cited by the learned counsel for the petitioner are not found to help the petitioner in any manner.

20) In light of the discussions above, the Court is inclined to hold that the case of the petitioner was required to be considered strictly in terms of the OM dated 01.06.2015, which is the scheme for appointment on compassionate ground, which specifically provides that under clause 24(b) that once consideration of a case as a one-time measure under Principle-1 is over, such application that may remain pending are not required to be considered if a period of more than two years has elapsed. The said clause is found to be in consonance with the directions contained in para 7(X) of the case of Achyut Ranjan Das (supra). Therefore, the decision of the SLC in the impugned minutes dated 03.10.2019 (Annexure-13), thereby rejecting the candidature of the petitioner for appointment on compassionate ground as the application has spent its force warrants no interference.

21) Accordingly, this writ petition stands dismissed. The parties are left to bear their own cost.

JUDGE

Comparing Assistant