WA/92/2022
2022 Latest Caselaw 1442 Gua

                                                                      Page No.# 1/15

GAHC010039612022




                                           Judgment reserved on :6th April, 2022
                                           Judgment delivered on : 05.05.2022



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



                     WRIT APPEALNO.92 OF 2022

                     Bahar Uddin Laskar,
                     Aged about 42 years,
                     Son of-Late Sarif Uddin Laskar,
                     Vill-Lalang Pt.I, P.O.-Pailapool,
                     P.S-Lakhipur, Dist- Cachar (Assam).


                                                                ........Appellant


                          -Versus-

                        1. The State of Assam,
                     Represented by the Chief Secretary cum Chairman State
                     Level Committee for Compassionate Appointment Govt.
                     of Assam, Dispur, Guwahati-6.

                     2. The Commissioner & Secretary to the Government
                     of Assam, Public Health Engineering Department (PHE),
                     Dispur, Guwahati-781006.

                     3. The Chief Engineer, Public Health Engineering
                     Department, Assam, Hengrabari, Guwahati-781036.
                                                                                   Page No.# 2/15

                          4. The District Level Committee for compassionate
                          appointment, represented by it's Chairman cum Deputy
                          Commissioner, Cachar, Assam.

                          5. The Executive Engineer, Public Health Engineering
                          Department (PHE), Silchar Division No. II, Lakhipur,
                          Pailapool, Cachar.

                          6. The Asstt. Executive Engineer, PHE, Lakhipur Sub-
                          division, Pailapool, Lakhipur, Cachar.


                                                                        ........Respondents

-B E F O R E -

HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE SOUMITRA SAIKIA

Advocate for the appellants : Mr. N. H. Barbhuyan, Senior Advocate assisted by Ms. N. J. Begum, Advocate.

Advocate for the respondents : Mr. N. Das, Government Advocate and Mr. R. Bora, Standing cousnel PHE Department.

JUDGMENT AND ORDER (CAV) (Soumitra Saikia, J)

Being aggrieved by the order dated 08.12.2021 passed by the

learned Single Judge dismissing the writ petition being

W.P(C)/4987/2021, the present appeal has been filed by the appellant.

Page No.# 3/15

2. The appellant's father, who was working as a Pump Operator in the

office of the respondent no.6 i.e. Assistant Executive Engineer, Public

Health Engineering Department, Lakhipur Sub-division, Pailapool,

Lakhipur, Cachar died in harness on 20.05.2015. The petitioner filed

application for compassionate appointment on 13.07.2015. The said

application was not considered by the District Level Committee (DLC),

Cachar and by its meeting held on 19.07.2019, the application was

rejected on the ground that there were no vacancies available to

accommodate the petitioner.

3. The learned counsel for the petitioner submits that in terms of the

Office Memorandum dated 01.06.2015 issued by the Government of

Assam, Department of Personnel, as per Clause-15 of the said

memorandum, if sufficient vacancies are not available in any particular

office to accommodate the persons in the waiting list for compassionate

appointment, it was open to the administrative Department/Office to take

up the matter with other Departments of the Government to provide at

an early appointment on compassionate grounds. The learned counsel for

the petitioner has pressed into service the Judgment of the Apex Court

rendered in N. C. Santhosh Vs State of Karnataka and others reported in Page No.# 4/15

(2020) 7 SCC 617 to submit that the law governing compassionate

appointment on the date of the consideration of the application shall be

the basis for consideration of the application.

4. Learned counsel appearing for the respondents, however, submits

that the Office Memorandum referred to by the petitioner on 01.06.2015

is not applicable as the father of the petitioner expired on 20.05.2015.

5. We have heard the learned counsels for the parties and have

perused the pleadings as well as the Judgment impugned.

6. The claims made by the appellant is with regard to the denial of the

benefit under Clause- 15 of the Office Memorandum No. ABP

50/2006/Pt/182 dated 1st June, 2015. The appellant seeks the benefit of

Clause- 15 of the Memorandum. However, a perusal of the Office

Memorandum dated 01.06.2015 reveals that the said clause cannot be

read in isolation without reference to the other clauses in the said office

memorandum. For instance Clause- 9 provides that the family of the

deceased employee shall be considered to be in need of immediate

financial assistance if monthly income of the family falls below 90% of the

gross monthly salary of the employee before death or monthly income of Page No.# 5/15

the family falls below minimum salary of Gr.-IV employee. The relevant

clauses, namely, Clause- 9 and 15 are extracted below:-

"9 The family of a deceased or prematurely retired or missing government employee shall be considered to be in need of immediate financial assistance if any of the two conditions mentioned below is satisfied.

(a) The monthly income of the family fall below 90 per cent of the gross monthly salary of the employee before death or premature retirement etc.

(b) The monthly income of the family falls below the minimum salary of a Grade-IV employee (in case of Grade-IV employees) or the minimum salary of a Junior Assistant LDC (in case of employees other than those belonging to Grade IV).

The gross monthly salary, for this purpose shall mean the basic pay along with dearness pay, dearness allowance, house rent allowance and medical allowance. The monthly income of the family shall mean the aggregate of:

(a) Total family pension per month (Basic, Dearness Pension and Relief etc.)

(b) Monthly interest income @ 8% p.a. on the total amount received by the family after death of the employee or retirement of the incapacitated employee (Gratuity, Leave Encashment, any Page No.# 6/15

other payments).

Provided that, where such an employee had to incur medical expenses as indoor patient prior to and leading to his death/incapacitation, such expenses may be deducted from the amount received. All such expenses must be supported by original receipt/Cash memo, hospital discharge certificates.

(c) Monthly income from movable and immovable properties (the family members are expected to submit a declaration on the matter).

(d) Monthly income of the dependents of the ex-employee named in the application (the family members are expected to submit a declaration on the matter)

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 Department/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".

7. The appellant is aggrieved that the Department while

rejecting/representation of the petitioner seeking compassionate

appointment did not consider the provisions of Clause- 15 of the said Page No.# 7/15

memorandum by taking up the matter with other departments/offices of

the Government to provide an early appointment to the appellant on

compassionate ground.

8. Referring to the judgment of the Apex Court in N.C. Santhosh

(Supra), the appellant's contentions is that notwithstanding the death of

his father on 20.05.2015, the office memorandum dated 01.06.2015 will

be applicable in his case, as his application was rejected only on

19.07.2019 by the DLC.

9. The scheme for compassionate appointment is not a means for

regular entry into service as per the Service Rules. It is an exception to

the recruitment procedure laid down in the service rules. The scheme of

compassionate appointment was introduced by the Government to

benefit the sudden hardships and misfortune which befall on a family

when the sole bread earner dies in harness. The primary object of the

scheme is to enable the family and the legal heirs of the deceased

employee to tide over the financial hardships by providing employment to

the family of the deceased employee subject to fulfillment of the

requirements laid down under the scheme. The object of compassionate Page No.# 8/15

appointment has been succinctly laid down by the Apex Court in Umesh

Kumar Nagpal Vs. State of Haryana reported in (1994) 4

SCC 138. The relevant paragraph is extracted below:

"The whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, 'mere death of an employee in harness does not entitle his family to such source of livelihood. 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 Classes III and IV are the lowest posts in non-manual 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 have it get over the emergency."

10. The law culled out in Umesh Kumar Nagpal (Supra) has been

subsequently reiterated in several subsequent judgments by the Apex

Court.

11. In the Indian Bank and Others Vs Promila and another reported in Page No.# 9/15

(2020) 2 SCC 729, the Apex Court held that the claim for compassionate

appointment must be decided only on the basis of the relevant scheme

prevalent on the date of demise of the employee. It further held that the

object of the compassionate appointment is only to provide for solace and

succour to the family in difficult times. Therefore, although the Court may

have sympathy for their predicament they faced on the death of the

deceased, but sympathy alone cannot give remedy to the claimants. That

apart the Apex Court held that policy decision scheme for compassionate

appointment is a policy decision and interference with such policy

decision is not called for by the Courts in order to substitute the scheme

and/or add or alter the terms thereof in exercise of judicial review.

12. The consistent view of the Apex Court is that compassionate

appointment is not a regular form of appointment but is an appointment

de hors the service Rules that govern the employment of any

department. Such source of employment is granted by State to enable

the dependent family members to overcome immediate hardship and

financial destitution that may be fall on the family in the face of the death

of the sole bread earner of the family. As such, it is absolutely necessary

for the Court to consider the hardship suffered by the family or the Page No.# 10/15

dependant members at the time of consideration of their application for

compassionate appointment. In the present case there are no averments

made by the appellants to show as to how the family survived for the so

many years. The father of the appellant expired on 20.05.2015. The

rejection of the petitioner's compassionate appointment application by the

District Level Committee (DLC), Cachar was on 19.07.2019. The appellant

approached this Court by way of a writ petition in the year 2021 and

which ultimately came to be dismissed by the impugned Order dated

08.12.2021, there is no averments as to how the appellant survived for

the last 6 (six) years. On the date of the application the appellant was

aged about 38 years.

13. In the absence of necessary facts pleaded as to how the appellant

survived for these years since the demise of his late father, no fault can

be attributed to the Department in rejecting the application filed by the

appellant. It was incumbent on the appellant to justify his claim that he

was entitled to the benefit of compassionate appointment under the said

scheme. Such findings cannot be arrived at in the absence of such

essential facts which are not pleaded.

Page No.# 11/15

14. The Apex Court in State of H.P. Vs. Shashi Kumar reported in 2019

(3) GLT 653 held that appointment to any post in the service of the State

has to be made on the basis of the principles in accordance with Articles

14 and 16 of the Constitution and that compassionate appointment is an

exception to the general rule. The dependants of a deceased government

employee are made eligible by virtue of the policy on compassionate

appointment and they must fulfill the norms laid down by the State's

policy.

15. In N. C. Santhosh (supra), the compassionate appointments made

under Karnataka Civil Services (Appointment on Compassionate Grounds)

Rules, 1996 as amended w.e.f. 01.04.1999, were under consideration. In

the said matter certain compassionate appointments made under the

Karnataka Rules pursuant to the amended on 01.04.1999, were

terminated by the Government on the ground that the same

were de hors the said Rules read with amendments made. Under the said

Karnataka Rules, Rule 5 therein prior to amendment, prescribed for

applications for seeking compassionate appointment to be made within

one year from the date of death of the Government servant. In case of

minors, the applications were to be made within one year after attaining Page No.# 12/15

their majority.

15.1. Subsequently, an amendment was brought into effect from

01.04.1999 and the proviso under Rule 5 was amended to the effect that

an application of dependent is to be made within one year from the date

of death of the Government servant and he must have attained the age

of 18(eighteen) years on the date of making the application. This

amendment provision, however, was not made applicable to those

applications made under the unamended rule and which were pending

consideration when the amendment was made.

15.2. The claimant before the Apex Court in N. C. Santhosh (supra)

matter were appointed on compassionate ground. Pursuant to the

amendment made to the Karnataka Rules and therefore, their

appointments were terminated by the State Government as it was found

that their applications made were considered beyond the period

prescribed under the amended rule. The Apex Court on the facts of that

case held that since the appointments in question were made pursuant to

the amendments made in the Karnataka Rules, the dependent of the

deceased Government servant were not eligible to be appointed as per Page No.# 13/15

the Government norms. Accordingly, their appeals were dismissed. It was

in this context that the Apex Court held that norms prevailing on the date

of consideration of the application would be the basis for considering the

claim for compassionate appointment. In view of the facts involved in the

matter in N. C. Santhosh (supra) does not came to the aid and

support of the appellant. Even if the ratio of N.C. Santhosh is held to be

applicable, then also Clause- 15 of the Office Memorandum dated

01.06.2015 cannot be read in isolation to the exclusion of the other

clauses more particularly, clause 9 thereof.

16. That apart this Court in WP(C) No. 3875/2005, while dealing with

the matters relating to the compassionate appointment laid down certain

principles/guidelines to be followed in matters with regard to

compassionate appointment. This Judgment has been relied upon and

referred to in several subsequent judgments of this Court and including

inter alia in Writ Appeal No. 280/2021. In terms of the principles laid

down by this Court, the applications of eligible candidates which

remained pending and could not be considered due to want of vacancies

for a period of two years from the date of making such applications, such

applications will require no further considerations and the same must be Page No.# 14/15

instead considered to have spent their force.

17. The petitioner has stated that he has passed his higher secondary

examination in the year 1999 and has also obtained computer proficiency

certificate. Although the affidavit supporting the writ petition is not a part

of the appeal memo and although his age on the date of death of his

father is not specifically stated, from the application submitted by the

petitioner before the authority seeking compassionate appointment which

is available at Page-45 of the appeal memo, it is seen that his date of

birth is shown as 28.12.1977. As such on the date of death of his father

i.e. 20.05.2015, he was about 38 years. The District Level Committee

came to consider the petitioner's application and rejected it vide its

minutes dated 19.07.2019. As such in terms of the principles laid down by

this Court in matters of compassionate appointment the application for

the compassionate appointment for the petitioner ought not to have been

considered any further as two years had already elapsed by the time the

District Level Committee had considered his application. On this count

also the claim for compassionate appointment by the petitioner cannot be

entertained.

Page No.# 15/15

18. Under the circumstance, we are not persuaded to interfere with the

impugned order dated passed by the learned Single Judge. There is no

merit in the appeal and the same is accordingly dismissed.

19. No order as to cost.

                      JUDGE                CHIEF JUSTICE



Comparing Assistant