Khanindra Rabha vs The State Of Assam And 5 Ors
2022 Latest Caselaw 4389 Gua

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GAHC010171802019




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

                         Case No. : WP(C)/5221/2019

         KHANINDRA RABHA
         S/O- LATE PRAMOD CH RABHA, R/O- VILL- MULAGAON, RABHAPARA,
         P.O- MULAGAON, P.S- BONGAIGAON, DIST- BONGAIGAON, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
         PWD, DISPUR, GUWAHATI- 06

         2:THE PRINCIPAL SECRETARY
         TO THE GOVT OF ASSAM
          PERSONNEL DEPTT
          DISPUR
          GHY- 06

         3:THE COMMISSIONER AND SECRETARY
         TO THE GOVT OF ASSAM
          FINANCE DEPTT
          DISPUR
          GHY- 6

         4:THE DEPUTY COMMISSIONER
          BONGAIGAON CUM CHAIRMAN OF DISTRICT LEVEL SELECTION
         COMMITTEE
          BONGAIGAON
          PIN-

         5:THE DISTRICT LEVEL SELECTION COMMITTEE
          BONGAIGAON
          REP. BY ITS CHAIRMAN
          PIN-
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            6:EXECUTIVE ENGINEER
             PWD
             BONGAIGAON RURAL ROAD DIVISION
             BONGAIGAON
            ASSAM
             PIN

Advocate for the Petitioner   : MR S KHOUND

Advocate for the Respondent : GA, ASSAM




                                 BEFORE
            HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                          ORDER

Date : 11-11-2022

Heard Mr. S Khound, learned counsel for the petitioner. Also heard Mr. M Bhuyan, learned counsel for the respondent no. 1 and 6 being the authorities under the PWD and Mr. T C Chutia, learned Additional Senior Government Advocate for the respondents no. 2, 4 and 5 respectively, being the Personnel Department of the Government of Assam and the Deputy Commissioner, Bongaigaon as well as Mr. A Chaliha, learned counsel for the respondent no. 3 being the authorities under the Finance Department of the Government of Assam.

2. The father of the petitioner Pramod Ch. Rabha who was a Muster Roll Worker subsequently regularized by the order dated 22.07.2005 died in harness on 19.07.2009. On his death, the petitioner submitted an application for compassionate appointment on 08.04.2010. The said application was initially placed before the DLC of Bongaigaon district in its meeting of 29.01.2011. But the application stood rejected by providing that as the petitioner was a regularized Muster Roll Worker and his regularization was against a personal post and therefore, the benefits of the compassionate scheme was unavailable.

3. The application was again considered by the DLC of Bongaigaon district in its meeting of 13.06.2013 wherein the earlier stand taken that compassionate appointment is not applicable to a regular Muster Roll Worker working in a personal post was recalled and a view was taken that such persons would also be entitled for compassionate appointment. In the Page No.# 3/4

said resolution it was also provided that the consideration would be made subsequently. When the application was again placed in the DLC of 14.06.2016, it stood rejected by referring to Clause 10 of the OM dated 01.06.2015 and the provisions of Clause 10 of the OM dated 01.06.2015 was also quoted in the resolution of the DLC.

4. Accordingly, a view was taken that as the application is dated 08.04.2010 and two years had gone by, therefore, it does not need any further consideration.

5. Clause 10 itself provides that the bar of two years from the date of submission of application would be available only when the application was earlier rejected for want of vacancy.

6. In the instant case, on the facts narrated above, there was no earlier consideration of the application of the petitioner resulting in a rejection for want of vacancy. As the condition precedent of Clause 10 of the OM dated 01.06.2015 of there being an earlier rejection for want of vacancy, we are unable to accept the stand of the DLC that merely because two years have gone by since the application was made, it does not need any further consideration.

7. Mr. T C Chutia, learned Additional Senior Government Advocate by referring to the affidavit-in-opposition of the Deputy Commissioner, Bongaigaon takes a stand that the application of the petitioner is dated 08.04.2010 whereas the death occurred on 19.07.2009 and as because it was made beyond three months of the death, therefore, the application is not maintainable.

8. Without expressing any view on the acceptability of the said submission otherwise, we are of the view that the DLC having rejected the application of the petitioner for another reason, a better reason cannot be substituted in a writ proceeding by filing an affidavit in view of the law laid down in judgment of the Supreme Court passed in the Mohinder Singh Gill vs. the Chief Election Commissioner reported in 1978 (1) SCC 405.

9. Accordingly, the stand taken by the Deputy Commissioner in the affidavit-in-opposition would be unacceptable but as the application of the petitioner was rejected upon a wrong consideration of Clause 10 of the OM dated 01.06.2015, we remand the matter back to the DLC of Bongaigaon district to be placed before the next available DLC for a fresh Page No.# 4/4

consideration of the application of the petitioner.

Writ petition stands disposed of in the above terms.

JUDGE

Comparing Assistant