Gauhati High Court
Arif Ulla Dewan @ Arif Ullah Dewan vs The State Of Assam And 5 Ors on 7 June, 2023
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GAHC010119492023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/196/2023
ARIF ULLA DEWAN @ ARIF ULLAH DEWAN
SON OF LATE ABDUL JALIL DEWAN, VILLAGE- KOKILA NAYAPARA, P.O.-
KOKILA BAZAR, PS- ABHAYAPURI, DISTRICT- BONGAIGAON (ASSAM),
PIN- 783392.
VERSUS
1: THE STATE OF ASSAM AND 5 ORS.
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM,
CUM CHAIRMAN, STATE LEVEL SELECTION COMMITTEE ON
COMPASSIONATE APPOINTMENT, DISPUR, GUWAHATI-6.
2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT ASSAM DISPUR GUWAHATI-6.
3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF SCHOOL EDUCATION ASSAM DISPUR GUWAHATI-6.
4:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM KAHILIPARA GUWAHATI- 19.
5:THE CHAIRMAN DISTRICT LEVEL SELECTION COMMITTEE ON
COMPASSIONATE GROUND CUM DEPUTY COMMISSIONER BONGAIGAON
DIST.- BONGAIGAON (ASSAM) PIN- 783390.
6:THE DISTRICT ELEMENTARY EDUCATION OFFICER
BONGAIGAON DIST.- BONGAIGAON ASSAM PIN- 783390
For the Appellant : Mr. K.R. Patgiri, Advocate.
For the Respondents : Mr. N.J. Khataniar, Standing Counsel, Education (Elementary) Department.
: Mrs. R.B. Bora, Junior Government Advocate, Assam.
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-B E F O R E -
HON'BLE THE CHIEF JUSTICE
HON'BLE MRS. JUSTICE MITALI THAKURIA
07.06.2023
[Sandeep Mehta, C.J.]
The instant writ appeal is directed against the judgment & final order
dated 17.03.2023 passed by the learned Single Judge dismissing WP(C)
No.1455/2023 filed by the petitioner seeking to assail the minutes of the
meeting dated 19.02.2020 and 21.09.2021 held by the District Level Committee
(DLC), Bongaigaon and to direct the respondents to consider his case for
appointment on compassionate ground to any vacant post of Grade-III/Grade-IV
available in the concerned Department or any other Department as per Clause
15 of the Office Memorandum dated 01.06.2015.
Brief facts essential for disposal of the writ appeal are noted
hereinbelow.
The petitioner's father Abdul Jalil Dewan was serving as an Assistant
Teacher (Arabic) in Sati Jaymoti Kokila Girls M.E. School in the district of
Bongaigaon. He died in harness on 27.07.2016 leaving behind his widow, five
daughters and three sons, including the appellant herein. The appellant/
petitioner being a qualified graduate, filed an application dated 19.09.2016
seeking compassionate appointment as a teacher in any M.E. School as per the
Government Scheme. The DLC for compassionate appointment, Bongaigaon
considered and rejected the case of the appellant/petitioner in the meeting held
on 27.12.2016 observing that he did not have the requisite eligibility of B.Ed.
Degree so as to qualify him for upper primary teacher.
The appellant/petitioner preferred WP(C) No.1675/2017 being
aggrieved of the above rejection order, which was disposed of vide order dated
22.03.2017 with the observation that the DLC, Bongaigaon had not shut the
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door for the appellant/petitioner by making an observation that his case would
be considered again if he could produce the B.Ed. Degree Certificate within a
period of 2(two) years. Further observation was made that as the appellant/
petitioner was ready to accept any post for appointment on compassionate
ground to which he was qualified in the year 2017, the respondents were
directed to place the case of the petitioner before the DLC, Bongaigaon.
The case of the appellant/petitioner was again considered by the DLC
but could not be recommended as there was no vacancy available as per norms.
Hence, by order dated 19.02.2020, further reiterated on 21.09.2021, the
petitioner's prayer for compassionate appointment was rejected.
Being aggrieved, the appellant/petitioner filed the captioned writ
petition being WP(C) No.1455/2023 seeking a direction to set aside the
aforesaid 2(two) minutes dated 19.02.2020 and 21.09.2021 and to direct the
respondents to consider his case afresh for appointment on compassionate
ground in any other vacant post of Grade-III/ Grade-IV as per Clause 15 of the
Office Memorandum dated 01.06.2015.
The learned Single Bench held that Clause 24(b) & (c) of the Office
Memorandum dated 01.06.2015 clearly stipulates that if the application for
compassionate appointment was pending for a period of 2(two) years from the
date of making an application but could not be considered for want of
vacancies, the same would not require any further consideration and must be
understood that they have spent their force. Accordingly, the writ petition came
to be rejected by the order dated 17.03.2023, which is challenged in this writ
appeal.
Mr. K.R. Patgiri, learned counsel for the appellant/petitioner vehemently
and fervently contended that as there was a positive direction of this Court vide
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order dated 22.03.2017 passed in WP(C) No.1675/2017 to consider the case of
the appellant/petitioner against any available post, the respondents were not
justified in rejecting the case of the appellant/petitioner for compassionate
appointment. He thus, urged that the impugned minutes deserve to be set aside
and a direction be issued to the respondents to re-consider the case of the
appellant/petitioner for compassionate appointment.
Per contra, Mrs. R.B. Bora, learned Junior Government Advocate, Assam
and Mr. N.J. Khataniar, learned standing counsel, Education (Elementary)
Department appearing for the respondents pointed out that the appellant/
petitioner knowing very well that he did not have the qualification for being
appointed as a teacher, filed the application for being considered on the said
post. The application was rightly rejected because the appellant/petitioner did
not have the qualification for the said post. Subsequent to the direction given by
the Writ Court, the case of the appellant/petitioner was considered afresh and
vide the minutes dated 19.02.2020 and 21.09.2021, was again rejected on the
ground that there was lack of available vacancy as per norms fixed by the
Personnel (B) Department vide Office Memorandum dated 01.06.2015.
Having heard and considered the submissions advanced by the learned
counsel representing the parties, we find that the appellant/petitioner's father
expired in the year 2016. The first application for compassionate appointment
was filed for the post of teacher to which the appellant/petitioner did not qualify
and hence, was rightly rejected. The Writ Court vide order dated 22.03.2017
passed in WP(C) No.1675/2017 took a lenient view and directed the
respondents to re-consider the case of the appellant/petitioner for any other
available post of Grade-III/Grade-IV. However, the DLC upon fresh
consideration, did not find any vacancy and hence, the application was rejected
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and rightly so in our opinion.
Law is well settled that compassionate appointment is not a matter of
right and is only provided to the family of an employee dying in harness as a
measure to tide over penury and financial distress brought upon on account of
passing away of the sole bread earner of the family. However, the appellant/
petitioner after the death of his father, consciously choose to apply for the post
of teacher without having the requisite qualification. As per the Office
Memorandum dated 01.06.2015, the applications for compassionate
appointment pending for 2(two) years would be deemed to have spent their
force and hence, the direction given by the learned Single Judge in WP(C)
No.1675/2017 could not have sustained the appellant/petitioner's claim for
compassionate appointment beyond 2(two) years.
As a consequence, we are of the firm view that the learned Single
Judge was absolutely justified in rejecting the writ petition filed by the
appellant/petitioner and denying him the relief of compassionate appointment
pursuant to the death of his father. The impugned order dated 17.03.2023
passed in WP(C) No.1455/2023 does not suffer from any infirmity warranting
interference. Hence, the writ appeal fails and is dismissed as being devoid of
merit. No order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
