Abulais Abdullah Mazumder vs The State Of Assam And 2 Ors
2022 Latest Caselaw 1807 Gua

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GAHC010034682021




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

                       Case No. : WP(C)/1258/2021

         ABULAIS ABDULLAH MAZUMDER
         S/O. LT. AMINUL HOQUE MAZUMDER, VILL. GONIRGRAM, P.O.
         GONIRGRAM, DIST. CACHAR, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 2 ORS
         REP. BY THE CHIEF SECRETARY CUM CHAIRMAN, STATE LEVEL
         COMMITTEE FOR COMPASSIONATE APPOINTMENT, GOVT. OF ASSAM,
         DISPUR, GUWAHATI-06.

         2:THE COMMISSIONER AND SECY.
         TO THE GOVT. OF ASSAM
          EDUCATION (SECONDARY) DEPTT.
          DISPUR
          GUWAHATI-781006.

         3:THE DISTRICT LEVEL COMMITTEE FOR COMPASSIONATE
         APPOINTMENT

          REP. BY ITS CHAIRMAN CUM DY. COMMISSIONER
          CACHAR
          P.O. SILCHAR
          DIST. CACHAR
          ASSAM.

         4:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
          DEPARTMENT OF PERSONAL
          PERSONAL (B)
          DISPUR
          GHY- 6
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Advocate for the Petitioner   : MR F A LASKAR

Advocate for the Respondent : SC, SEC. EDU.

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 26-05-2022

JUDGMENT & ORDER (ORAL)

Heard Mr. FA Laskar, learned counsel for the petitioner, Mr. SMT Chisti, learned counsel for the respondent No. 2 being the authorities in the Elementary Education Department of the Government of Assam and Mr. SR Barua, learned Junior Government Advocate for the respondent No. 1 and 3 respectively being the Chief Secretary of the State of Assam and the Deputy Commissioner, Cachar.

2. The father of the petitioner who was a Librarian in the Borkhola Anwarul Ulum Madrassa in the Cachar district, died in harness on 20.02.2013 and on his death, the petitioner submitted an application for compassionate appointment on 20.06.2014. The said application was considered in the meeting of the DLC of Cachar district in its meeting of 27.11.2015 and the DLC upon verification of the vacancies available had recommended the petitioner for a post of Assistant Teacher (FM). When the said recommendation of the DLC was placed before the SLC in its meeting of 05.06.2017, it stood rejected by stating the reason that the petitioner was under-qualified for the post of Assistant Teacher (FM). Accordingly, the SLC refers the matter back to the DLC of Cachar for considering the petitioner against a suitable post as per his qualification.

3. We are in complete agreement with the aforesaid view expressed by the Page No.# 3/5

SLC inasmuch as, if the petitioner did not have the necessary qualification for the post of Assistant Teacher (FM), the law of compassionate appointment requires his claim to be considered against any other suitable post to which the petitioner may have been duly qualified for. Accordingly, the claim of the petitioner was again placed before the DLC of Cachar district in its meeting of 27.10.2017 and by the resolution thereof, the petitioner was recommended for a post of Grade-IV.

4. In the recommendation of the DLC of 27.10.2017, the date of submission of the application by the petitioner was accepted to be 27.11.2015. It is stated that upon the matter being referred back to the DLC by the SLC on the earlier occasion, the petitioner submitted another application for compassionate appointment.

5. Be that as it may, when the subsequent recommendation of the DLC of Cachar dated 27.10.2017 was placed before the SLC in its meeting of 04.01.2021, it stood rejected by providing the reason that the application was not submitted within a period of one year from the date of death and on the other hand, it was submitted two years nine months seven days after the date of death. Being aggrieved, this writ petition is instituted.

6. We have heard the learned counsel for the parties.

7. When the claim of the petitioner, which was earlier recommended by the DLC on the basis of an application dated 20.06.2014 and the SLC remanded the matter back to the DLC for being considered against any suitable post to which the petitioner may have been qualified for, it has to be understood that the DLC would have to reconsider the matter on the basis of the said application. Merely because the petitioner may have submitted another application on an incorrect Page No.# 4/5

apprehension that as because the matter was remanded back, a further application is also required to be submitted, it cannot be a case that the subsequent recommendation would be made on basis of the the later application by ignoring the earlier application.

8. From such point of view, we do not find that the DLC was correct in referring the application of the petitioner to be of the subsequent dated 27.11.2015 rather than taking the original application of 20.06.2014.

9. Be that as it may, as the DLC had taken the subsequent application by ignoring the earlier application which actually ought to have been considered on being remanded back, the SLC took its view that the said application was made two years nine months seven days after the date of death and therefore, no consideration could be given.

10. True that this Court in Faziron Nessa and others -vs- State of Assam and others, reported in 2010 (4) GLT 340, had provided that an application for compassionate appointment is required to be made within a period of one year and pursuant thereto, the authorities in the Personal (B) Department had also issued the Office Memorandum dated 01.06.2015 providing for a period of one year for making an application for compassionate appointment. The said provision even if it is considered to be a limitation being imposed by the law, ordinarily the law of limitation also provides for a condonation of the delay in given circumstances and it cannot be a hyper technical situation that any application made even a day beyond one year would not merit consideration under any circumstances. It being a case of compassionate appointment, the circumstance would have to be understood as to where the core requirement of the family being in a dire financial situation still subsists or the limitation of one year would bring in a legal fiction that from the expiry of one year from the date Page No.# 5/5

of death, the situation of dire financial condition does not exist any further.

11. It being a case of compassionate appointment, the core consideration is whether the family is in a dire financial situation. From such point of view, whether it can be understood that after a period of one year from the date of death, the situation of dire financial situation does not exist any further. If yes, whether an application made after one year from the date of death is an inflexible provision where under no circumstances an application can be considered after the one year period had elapsed.

12. As in the instant case, the records reveals that the original application of the petitioner is dated 20.06.2014, we are of the view that even the DLC in its subsequent reconsideration as well as the SLC ought to have taken the said application to be the appropriate application, rather than a subsequent application that the petitioner may have been submitted.

13. Accordingly, the matter stands remanded back to the SLC for a fresh consideration in respect of the recommendation made by the DLC in its meeting of 27.10.2017 by accepting the date of submission of the application to be 20.06.2014. Accordingly, the matter be now placed before the next available SLC.

14. The writ petition is allowed to the extent as indicated above.

JUDGE

Comparing Assistant