Tufail Ahmed Barbhuiya vs The State Of Assam And 2 Ors
2022 Latest Caselaw 4561 Gua

                                                                    Page No.# 1/7

GAHC010114612022




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

                                  Case No. : WA/207/2022

            TUFAIL AHMED BARBHUIYA
            S/O LATE TAMIZ UDDIN BARBHUIYA, VILL-BEHARA PT-II, P.O.-BEHARA
            BAZAR, DIST-CACHAR (ASSAM)



            VERSUS

            THE STATE OF ASSAM AND 2 ORS.
            TO BE REPRESENTED BY THE PRINCIPAL SECRETARY TO THE
            GOVERNMENT OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT
            DEPARTMENT, DISPUR, GUWAHATI-6

            2:THE DISTRICT LEVEL COMMITTEE
             REPRESENTED BY ITS CHAIRMAN CUM DEPUTY COMMISSIONER
             CACHAR
            ASSAM
             PIN-788006

            3:THE CHIEF EXECUTIVE OFFICER
             CACHAR ZILLA PARISHAD
             P.O.
             P.S.-SILCHAR
             DIST- CACHAR
            ASSAM
             PIN-78800

Advocate for the Petitioner   : MR. A M BARBHUIYA

Advocate for the Respondent : GA, ASSAM
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                                  BEFORE
                       HONOURABLE THE CHIEF JUSTICE
                   HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                       ORDER

Date : 18.11.2022 (R.M. Chhaya, C.J.) Feeling aggrieved and dissatisfied by the judgment and order dated 09.05.2022, passed by the learned Single Judge in WP(C) 2939/2022, the appellant/original petitioner has preferred this intra-court appeal. The following facts emerge from the records of the appeal:

2. The father of the appellant was working as a Gaon Panchayat Secretary of Gorevitor Gaon Panchayat under Kalain Development Block in the District of Cachar. As per the appellant, his father expired on 25.12.2000 while in service. It is the case of the appellant that he applied on 04.09.2001 for compassionate appointment and as the application so filed by the appellant was not considered, he approached this Court by filing a writ petition, being WP(C) 9182/2003, which came to be disposed of by order dated 09.01.2004, wherein the learned Single Judge was pleased to direct the authorities to consider the case of the appellant as per the Government Circular dated 09.09.1983 and pass appropriate order within a period of three months. It is the case of the appellant that pursuant to the said order the appellant filed representation on 03.02.2004 and on 11.02.2004. However, according to the appellant, no action was taken on the representations so filed by the appellant/original petitioner. It is the further case of the appellant that in the year 2010, the appellant was informed that the application filed by the appellant along with the relevant documents was missing and, hence, the appellant again submitted another application dated 15.11.2010 before the respondent no. 3 herein. It is contended that even though his case was recommended by the District Level Committee, the same was not sent to the State Level Committee and, later on he was informed that his application had been rejected by the District Level Committee on 21.12.2011 on the ground of delay. It is the case of the appellant that the appellant had submitted his application way back in the year Page No.# 3/7

2001 and, therefore, the ground of rejection is erroneous. On the aforesaid grounds the appellant approached this Court by filing the writ petition as aforesaid.

3. The learned Single Judge considered the recommendations made by the District Level Committee for compassionate appointment and also expressed that the name mentioned in the minutes of the District Level Committee meeting dated 21.12.2011 is not same as the appellant/original petitioner's name as the name of the applicant recommended by the District Level Committee is Md. Tufail Ahmed, a resident of Sonapur, but the name of the appellant is Tufail Ahmed Barbhuiya, a resident of Behara Part-II village. In the aforesaid circumstances the learned Single Judge declined to exercise his extra-ordinary jurisdiction under Article 226 of the Constitution of India and, hence, this appeal.

4. Heard Mr. A. M. Barbhuiya, leaned counsel for the appellant. Also heard Mr. K. Konwar, learned counsel for respondent nos. 1 and 3 and Ms. M. Bhattacharjee, learned Additional Senior Government Advocate, Assam, appearing for respondent no.

2.

5. Mr. Barbhuiya, learned counsel for the appellant/original petitioner has taken this Court through the records of this appeal and has contended that the very ground on which the application of the appellant came to be rejected, i.e. delay, is erroneous as once the name of the appellant/original petitioner was recommended by the District Level Committee, the same should have been sent to the State Level Committee. Mr. Barbhuiya relied upon the Statement of the Applicants for appointment on compassionate ground, as prepared by the Chief Executive Officer, Cachar Zila Parishad, at page 56 of the Paper Book of the Appeal and has contended that his case was duly considered by the District Level Committee, whereas the authorities did not do anything further and the learned Single Judge has, thus, committed an error apparent on the face of the record. Further, referring to the representation dated 22.12.2021 (Annexure-N) submitted by the appellant, Mr. Barbhuiya further contended Page No.# 4/7

that the appellant/original petitioner had submitted his application for compassionate appointment way back on 04.09.2001 and, as such, there is no day and the date of submission of the application is wrongly mentioned as 10.11.2011 in the minutes of the District Level Committee Meeting held on 21.12.2011. Learned counsel for the appellant has relied upon the judgment of this Court in the case of Faziron Nessa and Ors. Vs. State of Assam and Ors. Reported in 2010 (4) GLT 340 and has submitted that as no reason was communicated to the appellant/original petitioner, the same should be corrected and the authorities be directed to consider the case of the appellant, as already directed by this Court vide order dated 19.11.2018 passed in WP(C) 3949/2017. Mr. Barbhuiya also contended that the ratio laid down by the Apex Court in the case of Fertilizers and Chemicals Trvancore Ltd. & Ors. Vs. Anusree K.B., reported in 2022 Livelaw (SC) 819 would not be applicable in the present case. On the aforesaid grounds, it was contended by Mr. Barbhuiya that the appeal requires consideration and the same be allowed, as prayed for.

6. Per contra, Mr. K. Konwar, and Ms. M. Bhattacharjee, learned counsels for the respondents have supported the impugned judgment and order and have contended that the very element of die-in-harness does not exist in the present case as, even according to the appellant, his father expired way back in the year 2000. It is contended by the learned counsel for the respondents that the appeal being misconceived, deserves to be dismissed.

7. Upon consideration of the submissions made by the learned counsels for the respective parties, it is an admitted position that the father of the appellant/original petitioner was working as Gaon Panchayat Secretary of Gorevitor Gaon Panchayat under Kalain Development Block, in the District of Cachar, and he expired way back on 25.12.2000. By now 22 years have passed and, therefore, in the facts of this case the very element of die-in-harness does not exist. The Hon'ble Apex Court, in the case of Fertilizers and Chemicals Trvancore Ltd. (supra) has observed thus:

"7. While considering the issue involved in the present appeal, the law laid Page No.# 5/7

down by this Court on compassionate ground on the death of the deceased employee are required to be referred to and considered. In the recent decision, this Court in the case of Director of Treasuries in Karnataka and Anr. Vs. V. Somyashree, 2021 SCC Online SC 704, had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this Court in N.C. Santhosh Vs. State of Karnataka, (2020) 7 SCC 617, this Court has summarised the principle governing the grant of appointment on compassionate ground as under:-

(i) that the compassionate appointment is an exception to the general rule;

(ii) that no aspirant has a right to compassionate appointment;

(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;

(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy;

(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.

8. As per the law laid down by this Court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right.

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9. Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased.

9.1 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the observations made hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the respondent shall not be entitled to the appointment on compassionate ground on the death of her father, who died in the year 1995. After a period of 24 years from the death of the deceased employee, the Page No.# 6/7

respondent shall not be entitled to the appointment on compassionate ground. If such an appointment is made now and/or after a period of 14/24 years, the same shall be against the object and purpose for which the appointment on compassionate ground is provided."

8. It would be appropriate to note at this stage that compassionate appointment is not an alternative method or mode of recruitment in Government job, but the same is governed by the rules and the principles of die-in-harness should exist in the cases for compassionate appointment.

9. As noted by the learned Single Judge, even the identity of the appellant/original petitioner is not established inasmuch as the orders, which are relied upon by the appellant/original petitioner before the learned Single Judge as well as before this Court, bear similar names but having two different residential addresses. However, one of the names being Md. Tufail Ahmed, a resident of Sonapur, P.O. Sonapur, in the District of Cachar, who had been recommended by the District Level Committee, whereas the name of the present appellant/original petitioner is Tufail Ahmed Barbhuiya and he resides at Village Behara Pt-II, P.O. Behara Bazar in the District of Cachar. It further transpires that as per the records of the appeal, the application considered by the District Level Committee, Cachar Zila Parishad, Silchar, relates to the year 2011. The fact remains that the case of the appellant/original petitioner was duly considered and was rejected way back in the year 2011.

10. Moreover, even otherwise, following the ratio laid down by the Hon'ble Apex Court in the case of Fertilizers and Chemicals Trvancore Ltd. (supra), the appellant/original petitioner would not be entitled for appointment on compassionate ground as it cannot be believed that even after a period of 22/23 years from the date of death of the deceased employee, i.e. father of the appellant/original petitioner, the crisis caused by the sudden death of the father of the appellant/original petitioner still exists in the family and the family is not able to maintain itself.

11. In the totality of the facts, therefore, no interference is called for. The appeal Page No.# 7/7

is bereft of any merits and deserves to be dismissed and is hereby dismissed.

However, there shall be no order as to costs.

                                    JUDGE                      CHIEF JUSTICE



Comparing Assistant