Sri Mithangha Basumatary vs The State Of Assam And 4 Ors
2022 Latest Caselaw 41 Gua

                                                                          Page No.# 1/6

GAHC010033432016




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

                           Case No. : WP(C)/7700/2016

         SRI MITHANGHA BASUMATARY
         S/O- LT. SURESH BASUMATARY, R/O VILL. and P.O.- ALUPARA, P.S.-
         GOHPUR, DIST.- SONITPUR, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         THROUGH THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM,
         P.W.D. ROADS DEPTT., DISPUR, GHY- 6.

         2:THE STATE LEVEL COMMITTEE FOR COMPASSIONATE APPOINTMENT
         ASSAM
          REP. BY ITS CHAIRMAN
         THE CHIEF SECY. TO THE GOVT. OF ASSAM
          DISPUR
          GHY- 6.

         3:THE CHIEF ENGINEER
          P.W.D. ROADS
          CHANDMARI
          GHY- 3.

         4:THE DIST. LEVEL COMMITTEE FOR COMPASSIONATE APPOINTMENT
          SONITPUR
          REP. BY CHAIRMAN
         THE DY. COMMISSIONER
          SONITPUR DIST.
          P.O.- TEZPUR
          DIST.- SONITPUR
         ASSAM.

         5:THE EXECUTIVE ENGINEER
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             P.W.D. SONITPUR ROADS DIVISION
             BISWANATH CHARIALI
             DIST.- SONITPUR
             ASSAM

Advocate for the Petitioner   : MR. J BORAH

Advocate for the Respondent :




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                         ORDER

Date : 05.01.2022

Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Mr. S.S. Roy, learned Govt. Advocate appearing for respondent nos. 2 and 4 and Mr. P. Nayak, learned standing counsel for the PWD, representing respondent nos. 1, 3 and 5.

2. By filing this writ petition under Article 226 of the Constitution of India, the case projected by the petitioner is that his father Late Suresh Basumatary while working as Work Charged Section Assistant under the establishment of respondent no. 5 died-in-harness on 09.10.2014.

3. The petitioner had applied for appointment on compassionate ground on 18.04.2015. However, his application was returned vide communication dated 22.07.2015 on the ground that the father of the petitioner was holding the post of work charged Section Assistant and appointed after 01.04.1993. The aggrieved petitioner had moved this Court by filing WP(C) 6221/2015. By order dated 09.10.2015, writ petition was disposed of in the motion stage with observation to the effect that that the father of the petitioner was working as Page No.# 3/6

work charged Section Assistant in the establishment of respondent no. 5 that he had died while in service on 09.10.2014 and direction was issued to the effect that the petitioner would file a fresh application for his compassionate appointment before the respondent no. 5 on or before 31.10.2015 along with a certified copy of the order and it was further provided that in the event of filing of such application within the specified time, the respondent no. 5 would examine the case of the petitioner in terms of guidelines of the case of Achuyut Ranjan Das Vs. The State of Assam and Ors ., 2006 (4) GLT 674 and Faizan Nessa Vs. State of Assam & Ors., 2010 (4) 3 GLT 340, and if found eligible to be placed before the DLC for consideration of the case of the petitioner.

4. The learned counsel for the petitioner submits that vide application dated 19.10.2015 (Annexure-2) along with the standard form, the petitioner applied for appointment on the compassionate ground which contains an endorsement of the Parliament Secretary , Govt. of Assam with recommendation to place the proposal before the DLC in view of the judgment and order of this Court. It is submitted that despite of several visits of the petitioner to the office of the respondent no. 5 on several occasions as nothing happened, the petitioner had once again approached this Court with a prayer for a direction to the respondent authorities to place the case of the petitioner before the DLC for consideration.

5. The learned standing counsel for the PWD has opposed the prayer made in the writ petition specifically on three grounds. Firstly, it is submitted that as per O.M. dated 01.06.2015 now in force, which would apply to the petitioner on the date his application is considered, it provides that the compassionate appointment can only be entertained in respect of a government servant, who was appointed on regular basis and had died-in-harness, and that the said Page No.# 4/6

policy was not applicable for persons working on daily wage or casual or apprentice or ad-hoc or contract or re-employment basis, who had died-in- harness as they are specifically excluded. Secondly, it is submitted that the application for compassionate appointment was not made on 19.10.2015 as directed vide order dated 09.10.2015 in WP(C 6221/2015 (Annexure-2 of the writ petition) and in this regard by referring to the statements made in paragraph 7 of the affidavit-in-opposition as well as Annexure-A to the affidavit- in-opposition filed by respondent no. 5, it is submitted that the application was received under Serial No.906 dated 10.01.2016 and it is also submitted that the contents of paragraph 7 of the affidavit-in-opposition has been admitted by the petitioner vide statement made in paragraph 7 of the affidavit-in-reply. Thirdly, it is submitted that the father of the petitioner died-in-harness on 09.10.2014 and on the said date the petitioner was a minor and he had attained the age of majority in the year 2015. Accordingly, it is further submitted that the said application could not have been entertained.

6. In reply to the statement made by the learned standing counsel for the PWD, the learned counsel for the petitioner has placed reliance on the order dated 09.12.2009 passed in WP(C) 4010/2009 and it is submitted that the petitioner therein was similarly situated with the present petitioner and although her husband was work charged employee of PWD, on the strength of the said order dated 09.12.2009, the said petitioner has already been given an employment on compassionate ground.

7. Upon consideration of the materials available on record, the Court finds that although the application for compassionate appointment was received under Sl. No. 906 dated 10.01.2016, but the endorsement made in the left hand Page No.# 5/6

corner of the Annexure-A to the affidavit-in-opposition contains the date of 04.01.2016. Be that as it may, the statement of the respondent no. 5 has been specifically admitted by the petitioner that the petitioner has not applied for appointment on compassionate ground within 31.10.2015 as directed vide order dated 09.10.2015 passed in WP(C) 6221/2015 by this Court. Therefore, the respondent no. 5 was not bound to examine the case of the petitioner, which was not submitted as per the directions contained in above referred order dated 09.10.2015.

8. Therefore, the said application of the petitioner is found to be not within the time permitted by this Court. Although the said ground may not be a sufficient reason for not placing the application before the DLC, but the factual position is that under paragraph 1 of the O.M. dated 01.06.2015, the compassionate appointment is open only for one dependent family member of the government servant appointed on regular basis excluding the one working on daily wage or casual or apprentice or ad-hoc or contract or re-employment basis who had died-in-harness. In the considered opinion of this Court, the appointment on compassionate ground is an exception to the rule of regular appointment under the government and therefore, the appointment must be made strictly in terms of office memorandum and the Court would not digress from the terms contained in the O.M. dated 01.06.2015 and create a new category of applicants which is not provided for under the office memorandum when the terms of the O.M. dated 01.06.2015 is not under challenge.

9. Moreover, in view of the ratio laid down in the case of Sanjay Kumar Vs. State of Bihar and Ors., (2000) 7 SCC 192, it is seen that the ratio laid down in the said case is that for the purpose of compassionate appointment there Page No.# 6/6

cannot be a reservation of vacancy till such time when claimant become a major after a number of years of death of an employee unless there are some specific provisions. In the present case in hand, the O.M. dated 01.06.2015 does not provide for any reservation till the time when claimants become a major so as to get eligibility to be appointed in a government service. Moreover, by examining the order dated 09.12.2009 passed in WP(C) 4010/2009, it is seen that in the order it is not mentioned that the husband of the said writ petitioner was not a regular employee. Thus, prima facie, it does not appear from the said order that the Court was conscious of the fact that the deceased father of the petitioner in the said case was not a regular employee. Therefore, because of the distinguishing factor, there is no material before this Court that the petitioner in WP(C) 4010/2009 was similarly situated with the father of the petitioner. Therefore, the said ratio would not be applicable in the present case in hand.

11. Therefore, for the aforesaid two reasons, both related to the terms of the O.M. dated 01.06.2015, this application stands dismissed.

JUDGE

Comparing Assistant