Deba Kalita vs The State Of Assam And 10 Ors. B
2023 Latest Caselaw 4390 Gua

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GAHC010081532023




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

                           Case No. : WA/147/2023

         DEBA KALITA
         S/O. LATE JATIN KALITA, VILL. NO. 2 SILAPATHAR BAZAR, P.S. AND P.O.-
         SILAPATHAR, DIST. DHEMAJI, PIN-787059, ASSAM.

         VERSUS

         THE STATE OF ASSAM AND 10 ORS. B
         REP. BY THE CHIEF SECRETARY, GOVT. OF ASSAM, DISPUR, GUWAHATI-
         781006.

         2:THE STATE LEVEL COMMITTEE (SLC)
         ASSAM
          DISPUR
          GUWAHATI-781006.

         3:THE CHIEF SECRETARY
          CHAIRMAN OF THE STATE LEVEL COMMITTEE (SLC)
         ASSAM
          DISPUR
          GUWAHATI-781006.

         4:THE COMMISSIONER AND SECRETARY
         TO THE GOVT. OF ASSAM
          PUBLIC WORKS (R/R) DEPTT.
          DISPUR
          GUWAHATI-781006.

         5:THE COMMISSIONER AND SECRETARY
         TO THE GOVT. OF ASSAM
          PERSONNEL (B) DEPTT.
          DISPUR
          GUWAHATI-781006.

         6:THE COMMISSIONER AND SECRETARY
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             TO THE GOVT. OF ASSAM
             FINANCE DEPTT.
             DISPUR, GUWAHATI-781006.

            7:THE JOINT SECRETARY
            WPT AND BC DEPTT.
             GOVT. OF ASSAM
             DISPUR, GUWAHATI-781006.

            8:THE DISTRICT LEVEL COMMITTEE (DLC)
             DHEMAJI
             DIST. DHEMAJI
            ASSAM, PIN-787057.

            9:THE DEPUTY COMMISSIONER
             CHAIRNAN OF THE DISTRICT LEVEL COMMITTEE (DLC)
             DHEMAJI
             DIST. DHEMAJI
            ASSAM, PIN-787057.

            10:THE CHIEF ENGINEER
             PUBLIC WORKS (ROADS) DEPTT.
            ASSAM
             CHANDMARI
             GUWAHATI-781003.

            11:THE EXECUTIVE ENGINEER
             PWD
             DHEMAJI RURAL ROAD DIVISION
             SILAPATHAR
             DIST. DHEMAJI
            ASSAM, PIN-787059

Advocate for the Petitioner   : MR S KHOUND

Advocate for the Respondent : GA, ASSAM


                                    BEFORE
                          HONOURABLE THE CHIEF JUSTICE
                        HONOURABLE MR. JUSTICE KARDAK ETE

                                      JUDGMENT

Date : 17-10-2023

[Kardak Ete, J] Page No.# 3/11

Heard Mr. S. Khound, learned Counsel representing the appellant. Also heard Mr. R.K. Borah, learned Additional Senior Government Advocate, Assam representing the respondent Nos.1--3, 5, 4, 8 & 9, Mr. D. Nath, learned Standing Counsel for the Public Works (Rural Road) Department representing the respondents No.10 & 11 and Mr. A. Chaliha, learned standing counsel for the Finance Department representing the respondent No.6.

2. This intra-Court Appeal is directed against the order dated 05.12.2022, passed by the learned Single Judge in WP(C) No.575/2021, whereby the writ petition has been dismissed on the ground that as the case of the appellant/writ petitioner was pending for more than two years, the Office Memorandum dated 01.06.2015, a policy decision, which mandates that if an application is pending for more than two years from the date of making such application due to want of vacancy, the said application would not require any further consideration, has not been put to challenge and there is no available vacancy.

3. The brief facts of the case is that the appellant/writ petitioner had challenged the rejection of his case for compassionate appointment by the State Level Committee (herein after referred to as 'the SLC') in its meeting held on 23.12.2019, whereby the case of the appellant has been rejected on the following grounds: that the application for compassionate appointment has been pending for recommendation for more than two years, therefore, said application has spent its force; that the petitioner does not possess the required educational qualification for the post of Sectional Assistant i.e. Higher Secondary (Science) and there is not a single earmarked 5% quota vacancy available for appointment on compassionate ground. The ground on which the appellant had Page No.# 4/11

challenged the minutes of the SLC meeting is that the grounds which have been assigned by the minutes of the SLC meeting held on 23.12.2019 are new grounds which were not there earlier.

4. Father of the appellant/Writ Petitioner Late Jatin Kalita, had died-in- harness on 11.01.2013, while he was working as Grade-IV employee in the Office of the Executive Engineer, PWD, Dhemaji Rural Road Division, Dhemaji, Silapathar. The appellant having Bachelor of Arts (B.A.) degree and being eligible, had submitted an application on 11.02.2013 for appointment in any Grade-III/IV category post in the Department under the compassionate appointment scheme. The District Level Committee (herein after referred to as 'the DLC') meeting held on 24.05.2016, recommended and forwarded the case of the appellant to the Commissioner & Secretary to the Government of Assam, PWD (Rural Roads) Department for consideration by the SLC. The SLC vide its meeting dated 31.12.2018 had rejected the application of the appellant for appointment on compassionate ground as no vacancy was available as the 5% quota had already been filled up.

5. The appellant challenged the rejection of his case by the SLC vide order dated 31.12.2018, by filing the Writ Petition (C) No.2634/2019 and the same was disposed of by an order dated 29.04.2019 and remanded back the matter to the SLC for re-examination of the availability of vacancies in other Departments as required under the relevant Office Memorandum dated 01.06.2015. Thereafter, the SLC vide its meeting held on 23.12.2019, the case of the petitioner was again rejected on three counts as mentioned herein above.

6. Being aggrieved by the rejection vide said minutes of meeting dated 23.12.2019, the appellant again approached this Court by filing the present writ Page No.# 5/11

petition being WP(C) No.575/2021, on the ground that in its earlier minutes of the meeting dated 31.12.2018, the ground of rejection was cited as the 5% quota being already filled up, whereas to the best knowledge of the appellant, there were 26 numbers of vacant posts of Grade-III/IV, in the Office of the Executive Engineer, PWD, Dhemaji Rural Road Division, Dhemaji, Silapathar.

7. The learned Single Judge, by the impugned order dated 05.12.2022 dismissed the Writ Petition on the ground that the case of the appellant was pending consideration for more than two years as there is no available vacancy. The learned Single Judge has also held that the Office Memorandum dated 01.06.2015, mandates that if an application is pending for a period of more than two years from the date of making such application due to want of vacancy, the application would not require any further consideration and the Office Memorandum dated 01.06.2015, being a policy decision of the Government, which has not been put to challenge by the appellant, there is no reason to interfere with the minutes of the SLC dated 23.12.2019, for appointment on compassionate ground. Hence, the present Writ Appeal.

8. Mr. S. Khound, learned counsel for the appellants submits that the learned Single Judge had failed to appreciate the fact that it was the pleaded case of the appellant that the office memorandum dated 01.06.2015 was not applicable in the case of the appellant as the appellant had applied for appointment on compassionate ground under the applicable scheme on 11.02.2013 and the office memorandum dated 01.06.2015, which was issued subsequently could not be applied retrospectively.

9. Mr. Khound also contends that the Hon'ble Single Judge failed to appreciate the judgment rendered in Ahid Ahmed Mazumdar Vs State of Assam and Ors reported in (2020) 1 GLR 292 , wherein it was held that the office Page No.# 6/11

memorandum dated 01.06.2015 will only have a prospective application to cover those cases where the government servant had died after the issuance of the office memorandum dated 01.06.2015 and the same cannot have a retrospective application so as to divest a consideration of his already acquired right under the existing circular holding the field on the date on which the government servant had died. It is settled that the policy prevalent at the time of the death of the deceased employee is only required to be considered and not the subsequent policy.

10. It is further submitted by Mr. Khound that the Hon'ble Single Judge failed to appreciate that the SLC changed the grounds of rejection from time to time as the ground of the appellant not having the requisite educational qualification was not taken in the SLC minutes dated 31.12.2018. Similarly, the ground of rejection that the appellant's application was pending for recommendation for more than 2 (two) years had spent its force was not taken in the SLC minutes dated 31.12.2018 and that the Hon'ble Single Bench failed to appreciate that if the appellant was not eligible for Grade-III post due to lack of educational qualifications, then the SLC should have considered the case of the appellant for appointment to any other post commensurate to his educational qualification.

11. It is the contention of the learned counsel for the appellant that the Hon'ble Single Bench has failed to appreciate and consider the fact that in the order dated 29.04.2019 passed in WP(C) 2634/2019, Hon'ble the Coordinate Bench had held that in the earlier proceedings the SLC did not examine the availability of the vacancy in other departments. The impugned minutes of meeting of the SLC dated 23.12.2019 did not consider the said fact as to whether the appellant could be accommodated in other Departments.

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Therefore, he submits that impugned order dated 05.12.1022 is liable to be set aside.

12. Mr. D. Nath, learned Standing Counsel for the Public Works (Rural Road) Department, while referring to the affidavit-in-opposition filed on behalf of the respondents, submits that the name of the appellant was forwarded by the Executive Engineer, PWD, Dhemaji Rural Road Division, recommending him for appointment in Grade-III post along with necessary documents and the same was forwarded to the concerned authority for placing the same in the next DLC meeting. Thereafter, on receipt of the said proposal from the concerned office, the case of the appellant was placed before the DLC meeting held on 24.05.2016 and the name of the appellant was recommended against the vacant post of Grade-III category and forwarded to the Government for placing the same before the SLC.

13. Mr. R.K. Borah, learned Additional Senior Government Advocate, submits that the compassionate appointment is not a matter of right and it is subject to fulfillment of all the conditions including the availability of vacancy. While referring to the Office Memorandum dated 01.06.2015, he submits that if the application of an eligible candidate remains pending and cannot be considered due to want of vacancy for a period more than two years from the date of making such application, the said application require no further consideration and must be understood to have spent its force. Mr. Bora further submits that the appellant applied for the post of Sectional Assistant and admittedly having the qualification of Bachelor of Arts (B.A.) and not H.S. (Science), a qualification required for the said post, therefore, the grounds and reasons assigned in the minutes of SLC does not require any interference, thus, the learned Single Judge has rightly dismissed the writ petition.

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14. We have considered the submissions advanced by learned counsel for the parties. We have also perused the materials available on record.

15. The appellant/writ petitioner having the degree of Bachelor of Arts (B.A) had submitted an application on 11.02.2013 for appointment on compassionate ground in any post of Grade-III/IV on the death of his father, who had died-in-harness on 11.01.2013 while serving as Grade-IV employee in the Office of the Executive Engineer, PWD, Dhemaji Rural Road Division, Dhemaji, Silapathar. The case of the appellant/writ petitioner was taken up by the DLC in its meeting held on 24.05.2016 and the same was forwarded to the Commissioner & Secretary to the Government Assam, PWD (Roads), for consideration by the SLC. However, the SLC in its meeting held on 31.12.2018 rejected the application of the appellant for appointment on compassionate ground as no vacancy was available as the 5% quota had already filled up.

16. We have noticed from the records that the appellant had challenged the rejection of his case by the SLC minutes dated 31.12.2018 by filing the WP(C) No. 2634/2019, which was disposed of on 29.04.2019 by remanding the matter to the SLC to re-examine the availability of vacancy in other Departments as provided under the relevant Office Memorandum. The SLC vide its meeting dated 23.12.2019 examined the case of the petitioner and again rejected his case on three counts; that the application of the appellant was pending for recommendation for more than 2 (two) years, therefore, the application of the appellant spent its force; that the appellant does not possess required educational qualification for Sectional Assistant i.e. Higher Secondary (Science); and there is no single earmarked 5% quota vacancy for appointment on compassionate ground.

17. Having perused the order dated 29.04.2019, we find that the learned Page No.# 9/11

Single Judge in WP(C) No.2634/2019 has remanded the case of the appellant to the SLC for re-examining the availability of vacancy in other Departments as the SLC in its earlier meeting held on 31.12.2018 rejected the case of the appellant on the ground that 5% quota earmarked for appointment under the Scheme has already been filled up.

18. The SLC vide its meeting dated 23.12.2019 rejected the case of the petitioner on, inter alia, same ground of non-availability of 5% quota vacancy available for appointment on compassionate ground. Thus, we are of the view that the case of the petitioner has not been considered in a proper perspective and not as per the direction of the learned Single Judge in WP(C) No. 2634/2019 as no consideration has been shown to have made about the vacancy in other departments.

19. We find that the other ground of rejection of not having required qualification for Sectional Assistant i.e. Higher Secondary (Science) is also absurd and unsustainable in as much as it is not disputed that the petitioner is having a degree in Bachelor of Arts which is higher in educational qualification than the Higher Secondary (Science) qualification. That apart, the appellant never applied for the post of Sectional Assistant and thus rejection of his application on that premises was manifestly illegal. We are of the view that if at all, there was no vacancy in the post of Grade-III, the appellant's case ought to have been considered in any post of Grade-IV.

20. The third ground of rejection that the application of the appellant was pending for recommendation for more than 2 (two) years, therefore, the application has spent its force, cannot be accepted in as much as the case of the appellant/writ petitioner was considered by the DLC vide its minutes of the meeting dated 24.05.2016 which had recommended the case of the appellant Page No.# 10/11

against the vacant post of Grade-III.

21. As noted above, the case of the petitioner was initially recommended by the DLC vide its meeting held on 24.05.2016 and thereafter, the SLC vide its minutes of meeting dated 31.12.2018 has rejected the case of the petitioner, which the petitioner had challenged and the learned Single Judge in the said Writ Petition remanded back the matter to the SLC for re-examination and consideration. Thereafter, the SLC vide its Committee meeting dated 23.12.2019 has rejected the same on three grounds as mentioned in the preceding paragraphs including the ground that application of the appellant was pending for recommendation for more than two (2) years and it has spent its force, in our view, cannot be countenanced as it cannot be said that the case of the petitioner was pending for recommendation, rather, it was under continuous consideration. More so, the Office Memorandum dated 01.06.2015 would be prospective in its application and would not have any application to the case of the petitioner as the petitioner had applied for appointment on compassionate ground immediately after the death of his father way back in 2013.

22. We are of the view that if the petitioner was not eligible for the post of Sectional Assistant due to purported lack of educational qualification, the appellant having the degree of Bachelor of Arts, it was incumbent on the part of the SLC to consider the case of the petitioner to any other Grade-III post commensurate to his educational qualification. There is no dispute that the father of the petitioner was serving as Grade-IV employee in the Office of the Executive Engineer, PWD, Dhemaji Rural Road Division, Dhemaji, Silapathar. Therefore, the SLC ought to have considered the case of the petitioner against any Grade-IV post as well.

23. In that view of the matter, we are of the view that the rejection of the Page No.# 11/11

case of the appellant for appointment on compassionate ground cannot be sustained.

24. Law is well settled by a catena of judgments rendered by the Hon'ble Supreme Court that compassionate appointment is a means of providing immediate financial relief to the family of Government employee, who being the sole bread earner, dies-in-harness. This is a means to prevent the dependents of the employee from penury and to provide them immediate relief to tide over the sudden crisis that has befallen on the family due to demise of sole bread earner in the family.

25. For the reasons stated herein above, we are of the considered opinion that the impugned decision of the SLC dated 23.12.2019 in rejecting the case of the appellant for appointment on compassionate ground is not sustainable in law and the same is accordingly set aside.

26. Consequently, the impugned order dated 05.12.2022 passed by the learned Single Judge is interfered with and set aside.

27. The matter is remanded back to SLC for consideration of the petitioner's application afresh and the SLC would assess the claim of the petitioner against any Grade-III or Grade-IV vacant post in the year which the appellant applied.

28. With the above observations and directions this writ appeal stands allowed. No order as to costs.

                                         JUDGE               CHIEF JUSTICE


Comparing Assistant