Uttam Adhikari vs The State Of Assam And 4 Ors
2022 Latest Caselaw 948 Gua

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GAHC010019052016




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

                                 Case No. : WP(C)/3775/2016

            UTTAM ADHIKARI
            S/O. LT. GAURANGA ADHIKARI, VILL. TARAPUR, SUVBARI ROAD,
            SIVBARI LANE, P.O. TARAPUR, P.S. SILCHAR, DIST. CACHAR, ASSAM.



            VERSUS

            THE STATE OF ASSAM AND 4 ORS
            REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM, DISPUR, GHY.-06.



Advocate for the Petitioner   : MR.M S SARMA

Advocate for the Respondent : MS. M. D BORA, SC, TRANSPORT DEPTT.




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 21.03.2022

Heard Mrs. N. Saikia, learned counsel for the petitioner and Ms. M.D. Bora, learned Government Advocate as well as standing counsel for the Transport Department, appearing for the respondents.

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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 under die-in-harness scheme.

3) The case of the petitioner is that his father had died-in-harness on 30.12.2006. On 05.05.2007, his mother had submitted an application for his appointment on compassionate ground. As his appointment did not materialize, the petitioner had approached this Court by filing a writ petition, which was registered as W.P.(C) 4923/2007, which was disposed of by order dated 19.09.2007 to consider the case of the petitioner as per guidelines laid down in the case of Achyut Ranjan Das v. State of Assam & Ors., 2006 (4) GLT 694 . Thereafter, the case of the petitioner was considered by the District Level Committee on Compassionate Appointment, Cachar (hereinafter referred to as DLC for short) in its meeting held on 19.02.2008, and the name of the petitioner was recommended for appointment on compassionate ground. However, nothing had happened and the case of the petitioner was once again put up for consideration before the DLC in its meeting held on 10.12.2013, and his name was again recommended. Thereafter, the case of the petitioner was considered by State Level Committee (SLC for short), direction was issued to consider his case if not already taken. Despite assurances, nothing happened. Hence, this writ petition.

4) The learned counsel for the petitioner has meticulously read the statement made in the writ petition and has also filed a written note of her submissions. It was urged that the case of the petitioner ought to have been considered under the OM dated 09.09.1983, which was in force on the date Page No.# 3/6

when the father of the petitioner had died. It was also submitted that after the DLC on 19.02.2008 and 10.12.2013 had recommended the name of the petitioner for appointment on compassionate ground, he was not aware of the previous rejection of his candidature by SLC on 22.06.2009 for want of vacancy. It was also submitted that there were plenty of vacancies in the Transport Department, but yet the case of the petitioner was not sympathetically considered to give succor to the family who had lost its only earning member. It was submitted that the case of the petitioner be considered in light of the decision rendered in the case of (i) Smt. Sushma Gosain & Ors. v. Union of India & Ors., (1989) 4 SCC 468, (ii) Taufique Rahman v. State of Assam & Ors., 2018 (5) GLT 789, (iii) Debashis Esh v. State of Assam & Ors., 2017 (1) GLT 281, (iv) Kamaleshwar Roy v. State of Assam & Ors., 2019 (1) GLT 335 , and (v) Faziron Nessa v. State of Assam & Ors., 2010 (4 ) GLT 340.

5) Per contra, the learned Government Advocate has opposed this writ petition and has placed reliance on the case of Madhumita Bhattacharjee v. The State of Assam & Ors., W.P.(C) 2700/2020, decided on 21.02.2022.

6) It is seen that during the pendency of this writ petition, the respondents had produced documents through their affidavit to the effect that the case of the petitioner was rejected in the SLC meeting held on 22.06.2009. Thus, it is not known as to how the case of the petitioner could thereafter be considered by the DLC in its meeting held on 10.12.2013 and by the SLC in its meeting held on 06.07.2013. Be that as it may, as per SLC minutes dated 22.06.2009 (Annexure-B to the additional affidavit filed by the respondent no.2), the candidature of the petitioner was rejected on the ground that the "vacancy Page No.# 4/6

position in the year of expiry" was 'nil'. The same was reiterated in the SLC minutes dated 06.07.2013 (Annexure-C to the additional affidavit filed by the respondent no.2). The said SLC minutes dated 22.06.2009 is not under challenge even after the same has been disclosed by the respondent no.2 in its additional affidavit filed on 23.02.2022. Be it mentioned that the petitioner had filed an additional affidavit on 10.03.2022. Therefore, the SLC minutes dated 22.06.2009 and 06.07.2013 (Annexure-B and C to the additional affidavit filed by the respondent no.2), having attained finality, the petitioner is not found entitled to any relief in this writ petition.

7) Nonetheless, the merit of the claim is examined because the petitioner is seeking appointment on compassionate ground.

8) As the case of the petitioner was already considered and rejected by the SLC in its meeting held on 22.06.2009, it appears that the case of the petitioner was considered as per OM dated 09.09.1983. At that time 5% of vacancies could be filled up on compassionate ground. However, at present, the OM dated 01.06.2015 is in force, where 5% vacancy as per cadre strength can only be considered. In light of the ratio laid down in the case of N.C. Santhosh v. State of Karnataka & Ors., AIR 2020 SC 1401: (2020) 7 SCC 617: 2020 0 Supreme (SC) 237, decided by the Full Bench of the Supreme Court of India, it is no longer res integra that the policy/OM which is in force on the date of consideration of claim for compassionate appointment would hold the field. We may also refer to the case of SBI v. Raj Kumar, (2010) 11 SCC 661 , where 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 Page No.# 5/6

actually considered, will be applicable. Moreover, 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 , the Supreme Court of India had 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.

9) Therefore, the contention of the learned counsel for the petitioner that vacancies were available is of no consequence for two reasons, firstly, if the case of the petitioner is now considered, the OM dated 01.06.2015 would be in force and secondly, the petitioner has not brought any material on record to show that any vacancy existed for the relevant period (one year) when the SLC meeting dated 22.06.2009 was held and that the case of the petitioner was wrongfully or illegally rejected in contravention of Clause 4 of the OM dated 09.09.1983.

10) As the case of the petitioner was already rejected by SLC minutes dated 22.06.2009, the decisions cited by the learned counsel for the petitioner would not help the petitioner in any manner whatsoever, as they are not authorities on the point that even after rejection of the case of the petitioner way back on 22.06.2009 for dearth of vacancy, the Court would have power to direct the petitioner to be appointed on compassionate ground dehors the prevailing die-in-harness scheme. In this regard, it may be mentioned that in the case of Steel Authority of India Limited v. Madhusudan Das & Ors., (2008) 15 SCC 560, the Supreme Court of India had remarked that Page No.# 6/6

compassionate appointment is a concession and not a right and the criteria laid down in the Rules must be satisfied by all aspirant. Therefore, in light of the ratio laid down in the case of Steel Authority of India (supra), and N.C. Santhosh (supra), no purpose would be served by discussing the cases cited by the learned counsel for the petitioner.

11) Therefore, this writ petition fails and the same is dismissed. However, there shall be no order as to cost.

JUDGE

Comparing Assistant