Gauhati High Court
Rajeawar Roy vs The State Of Assam And 4 Ors. E on 3 November, 2022
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GAHC010150382022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/315/2022
RAJEAWAR ROY
S/O LATE PROTAP CHANDRA ROY @ PRATAP, RESIDENT OF VILLAGE
MURABARI, BILASHIPARA, PO BARAKANDA, DIST DHUBRI, ASSAM
783348
VERSUS
THE STATE OF ASSAM AND 4 ORS. E
TO BE REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF
ASSAM, DISPUR. GUWAHATI 06
2:THE COMMISSIONER AND SECRETARY
GOVT. OF ASSAM
REVENUE AND DISASTER MANAGEMENT (IRRIGATION) DEPARTMENT
DISPUR GUWAHATI 06
3:THE DIRECTOR OF LAND RECORDS. ASSAM
RUPNAGAR
GUWAHATI 32
ASSAM
4:THE DEPUTY COMMISSIONER CUM CHAIRMAN
DISTRICT LEVEL COMMITTEE FOR COMPASSIONATE APPOINTMENT
DIST DHUBRI
ASSAM
5:THE CIRCLE OFFICER
BILASHIPARA REVENUE CIRCLE
BILASHIPARA
DIST DHUBRI
ASSAM
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78334
Advocate for the Petitioner : MR. M K SHARMA
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 03.11.2022
Heard Mr. M. K. Sharma, learned counsel for the appellant. Also heard Ms. M.
Bhattacharjee, learned Additional Senior Government Advocate, Assam, appearing for
respondent nos. 1, 4 and 5 as well as Mr. J. Handique, learned counsel for respondent
nos. 2 and 3.
As this appeal raises a short question, the appeal is taken up for disposal with the
consent of the learned counsel for the parties.
2. Feeling aggrieved and dissatisfied by the judgment and order dated 27.09.2021,
passed by the learned Single Judge in WP(C) 4943/2021, the appellant/original
petitioner has preferred this appeal. The following facts emerge from the records of
the appeal:
3. The appellant/original petitioner belongs to Scheduled Caste community. He
passed Higher Secondary examination from Alamganj Rangamati Junior College,
Dhubri. It is the case of the appellant/original petitioner that his father, late Protap
Chandra Roy was working as a Chainman (Grade-IV) in the office of the Settlement
Officer, Dhubri and Kokrajhar District, who expired on 12.05.2013 while in service. It is
the further case of the appellant/original petitioner that as he was eligible to be
appointed as a Grade-IV employee, he applied for appointment as a Grade-IV
employee on compassionate ground. However, as the same was not being considered,
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the filed a writ petition, being WP(C) 3637/2014 seeking appropriate direction, which
came to be disposed of vide an order dated 01.12.2014 with the direction to the
respondent authority to consider the case of the appellant/original petitioner treating
the father of the appellant/original petitioner to be a regular employee of the
respondent authority. It appears from the records that thereafter the case of the
appellant/original petitioner for appointment on compassionate ground was placed
before the District Level Committee in its meeting held on 10.04.2015. The District
Level Committee recommended the name of the appellant/original petitioner for
appointment on compassionate ground. The records further indicate that some
applications were considered by the different departments of the State of Assam as
per the rules of business but no further progress was made and, therefore, the
appellant/ original petitioner again approached this Court by way of filing writ petition,
being WP(C) 4819/2020 and, inter alia, prayed for the following reliefs:
"In the premises aforesaid it is most respectfully prayed that your
Lordships would be graciously pleased to admit this application, call for the
records, issue rule upon the Respondents to show cause as to why a writ of
Mandamus should not be issued directing them to do the needful for appointment
of the petitioner on compassionate ground.
And/Or
Upon cause or causes having been shown and upon hearing the parties
Your Lordships may be pleased to make the rule absolute.
And/Or
Pass such other or further order or orders or directions as your Lordships
may deem fit and proper in the facts and circumstances of the case and for the
ends of justice including payment of compensation to the petitioner.
And for this act of kindness the petitioner as in duty bound shall every
pray."
4. In the said writ proceedings, the respondent authorities brought on record the
Minutes of the State Level Committee Meeting held on 27.11.2020 and on the basis of
it the writ petition was closed by the learned Single Judge vide an order dated
10.03.2021 as follows:
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"Heard Mr. P. Saikia, learned counsel appearing on behalf of Ms. B.
Gogoi, learned counsel for the petitioner, who submits that despite the
petitioner's application for compassionate appointment being recommended by
the DLC on 10.04.2014, the petitioner's case has not been considered by the
SLC as on date.
Mr. M. Goswami, learned counsel for the State respondents has produced
the minutes of the SLC meeting held on 27.11.2020, which shows that the
petitioner's application for compassionate appointment has been rejected due to
the following:-
"Could not be recommended as 4 (four) posts are already occupied by
persons appointed on compassionate ground which constitute more
than 5% of the cadre strength."
Mr. J. Handique, learned counsel appears for the Revenue Department.
In view of the SLC Meeting Minutes dated 27.11.2020, the writ petition
stands closed as infructuous.
The SLC Meeting Minutes dated 27.11.2020 is made a part of the record
and marked as Annexure-X."
5. The appellant/original petitioner again approached this Court by filing the
another writ petition, being WP(C) 4943/2021, and inter alia prayed as under:
"It is, therefore, prayed that Your Lordships may be pleased to issue a
Rule calling upon the respondents to show cause as to why directions should not
be issued to the SLC to recommend the name of the petitioner for appointment of
the petitioner on compassionate ground against the existing vacant posts in
accordance with the DLC, Dhubri recommendation dated 10.04.2015 and/or call
upon the respondents to show cause as to why the impugned SLC dated
27.11.2020 should not be interfered with.
And on hearing such cause or causes as may be shown by the
respondents, make the Rule absolute and/or pass such or further order or orders
as to Your Lordships may seem fit and proper.
And pending disposal of the Rule be further pleased to direct the
respondent authorities not to fill up one post of Grade-III under Dhubri district
and keep the same reserved for compassionate appointment."
6. The learned Single Judge, vide the impugned order dated 27.09.2021, dismissed
the writ petition on the ground of res judicata and also observed that it is open for
the appellant/original petitioner to assail the order dated 10.03.2021 passed in WP(C)
4819/2020. Being aggrieved by the same, the present appeal is filed by the
appellant/original petitioner.
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7. Learned counsel for the appellant/original petitioner has submitted that the
learned Single Judge committed an error in coming to the conclusion that the
petitioner is barred by the principles of res judicata. The other grounds on merits as
contended by the learned counsel for the appellant/original petitioner are that the
learned Single Judge has not considered the fact that in WP(C) 4819/2020 the
petitioner had prayed for issuing appropriate writ of mandamus directing the
respondent authorities to do the needful for appointment of the petitioner on
compassionate ground. Learned counsel has submitted that the appellant/original
petitioner had no occasion to challenge the decision taken by the State Level
Committee in its meeting held on 27.11.2020 on the basis of which the earlier writ
petition [WP(C) 4819/2020] came to be disposed of as infructuous. It is further
submitted that the learned Single Judge wrongly came to the conclusion that the
appellant/original petitioner was barred by the principles of res judicata and,
therefore, the matter requires consideration and the same may be allowed.
8. Ms. M. Bhattacharjee, learned Additional Senior Government Advocate has
supported the impugned order and has submitted that the appeal being meritless
deserves to be dismissed.
9. Having heard the learned counsel for the parties and on considering the records,
it is pertinent to note that WP(C) 4918/2020 came to be filed before the State Level
Committee took the decision on 27.10.2020. As per the prayers referred to above, the
prayer made by the appellant/original petitioner was for issuing general direction to
the respondent authorities and the order of the State Level Committee was not
challenged. Learned counsel for the appellant/original petitioner has correctly
contended that the appellant/original petitioner had no occasion to challenge the
decision of the State Level Committee taken in its meeting held on 27.11.2020 as it
was produced for the first time before this Court on 10.03.2021 by the respondent
authority in WP(C) 4819/2020 on the basis of which the writ petition was closed by
the learned Single Judge on 10.03.2021 itself. It appears from the prayers in WP(C)
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4819/2020 that the decision of the State Level Committee was not challenged,
whereas, in the present writ petition [WP(C) 4943/2021] the same has been
challenged for the first time.
10. In the light of the aforesaid, without entering into the merits and without
entering into the aspect whether the appellant/original petitioner is entitled for being
appointed on compassionate ground or not, the fact remains that the learned Single
Judge has not examined the matter on merits and has been pleased to dismiss the
writ petition on the sole ground of res judicata and such finding, with respect, is
incorrect. In the totality of the facts, therefore, we deem it fit to quash the impugned
order dated 27.09.2021 passed in WP(C) 4943/2021 and to remand the proceedings of
WP(C) 4943/2021 back to be filed before the learned Single Judge. The learned Single
Judge will decide the whole issue de novo after considering all aspects, including the
aspect as observed in this order. The learned Single Judge shall decide the entitlement
of the appellant/original petitioner to be appointed on compassionate ground
independently, strictly on merits, without being influenced in any manner by the order
passed by this court in this appeal or by the observations made herein.
The appeal is allowed to the aforesaid extent.
No order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
