Asif Md. Musharaf vs The State Of Assam And 5 Ors
2025 Latest Caselaw 2326 Gua

Gauhati High Court

Asif Md. Musharaf vs The State Of Assam And 5 Ors on 27 January, 2025

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                                    Page No.# 1/7

GAHC010227962024




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

                          Case No. : WP(C)/5758/2024

         ASIF MD. MUSHARAF
         S/O LATE ISMAIL HUSSAIN, R/O VILL- FAKALI PATHER, P.O.-FAKALI
         PATHER, DIST- NAGAON, ASSAM

         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, SCHOOL EDUCATION DEPARTMENT, DISPUR, GUWAHATI-
         781006

         2:THE DIRECTOR OF ELEMENTARY EDUCATION
         ASSAM KAHILIPARA
          GUWAHATI-781019

         3:THE DISTRICT COMMISSIONER (DC)
          NAGAON
          DIST-NAGAON
         ASSAM PIN-

         4:THE DISTRICT ELEMENTARY EDUCATION OFFICER
          NAGAON DIST-NAGAON
         ASSAM PIN

         5:THE BLOCK ELEMENTARY OFFICER OF JURIA ELEMENTARY
         EDUCATION BLOCK
          JURIA DIST- NAGAON
         ASSAM PIN

         6:THE DISTRICT LEVEL COMMITTEE (DLC)
          NAGAON
          REPRESENTED BY ITS CHAIRMAN I.E. DISTRICT COMMISSIONER
          NAGAON
         ASSA
                                                                        Page No.# 2/7


Advocate for the Petitioner   : MR. B RAHMAN,

Advocate for the Respondent : SC, ELEM. EDU, GA, ASSAM




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                         ORDER

Date : 27.01.2025

Heard Mr. B. Rahman, learned counsel for the petitioner, who submits that the petitioner's father died-in-harness on 02.07.2007, while working as a Headmaster in the Juria Senior Basic School. The petitioner applied for compassionate appointment on 16.12.2007. However, as the petitioner's application was not being considered by the authorities, the petitioner filed WP(C) 5001/2013, praying that the petitioner's application for compassionate appointment should be considered by the District Level Committee, for compassionate appointment.

2. WP(C) 5001/2013 was disposed of, vide order dated 15.09.2017, by directing the DLC, Nagaon, to consider the same.

3. Pursuant to the direction of this Court passed in WP(C) 5001/2013, the petitioner's case was placed before the DLC on 09.08.2019, wherein it was rejected. The ground for rejection was that there was no vacancy available in respect of the 5% quota of posts reserved for appointment on compassionate basis.

4. The learned counsel for the petitioner submits that the petitioner's Page No.# 3/7

application had been considered by the DLC on 09.08.2019 and again on 09.08.2021, wherein the petitioner's application was rejected, on the ground that there was no vacancy available. He submits that the same is clarified by the letter dated 24.03.2022 issued by the Addl. Deputy Commissioner (EB), Nagaon.

5. Mr. G. Pegu, learned counsel for the respondent Nos. 3 & 6 and Mr. A. Phukan, learned counsel for the respondent Nos. 1, 2, 4 & 5 submit that the petitioner's father having died in the year 2007 and as the petitioner's application had been considered on 09.08.2019, wherein the petitioner's case was rejected, on the ground of non-availability of vacancy, the writ petition should be dismissed. They further submit that in terms of the judgment of the Supreme Court in the case of the State of West Bengal vs. Debabrata Tiwari and others, reported in (2023) 0 SCC 191, the Supreme Court has held that in cases of prolonged period of delay, which may be on the part of the either the petitioner or the dependent member of the family or the authority concerned, it is implied that the financial status of the family has changed, as they have survived the initial loss of the death of the bread earner of the family. They accordingly submit that compassionate appointment not being a vested right, a claim for compassionate appointment cannot continue to be entertained after a lapse of considerable period of time, especially when the rejection of the petitioner's application has been due to non-availability of vacancy.

6. The petitioner's counsel submits that in terms of Clause 15 of the OM dated 01.06.2015, the petitioner's case for compassionate appointment should also have been considered in respect of vacancies in other Departments , if there was no available vacancies in the concerned Department, wherein the Page No.# 4/7

petitioner's father had worked.

7. I have heard the learned counsels for the parties.

8. The letter dated 24.03.2022 issued by the Addl. Deputy Commissioner (EB), Nagaon states as follows:-

"Sub:- Application for compassionate appointment.

Ref:- Your application dtd. 16.3.2022

With reference to the application forwarded by the MLA Rangia Constituency, it is informed you that your case for compassionate appointment was placed before the DLC meeting dated 09.08.2019 but due to non available of the vacancy for 5% quota your case has not been considered as per clause 10 and 11 of the OM vide No. ΑΒΡ.50/2000/PT/182 dtd. 1.6.2015...

Your case was placed before DLC again on 09.08.2021 but not considered, as your case has already been disposed of in the DLC meeting dated 9.8.2019. Copy of the decision dtd. 9.8.2019 and 9.8.2022 of the DLC and OM vide No. ABP.50/2000/pt/182 dtd. 1.6.2015 are sent to you."

9. Clause 15 of the office memorandum dated 01.06.2015 states as follows-

"If sufficient vacancies are not available in any particular offices accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Department Office to take up the matter with other Departments/Offices of the Government to provide an early appointment on compassionate grounds to those in the waiting list"

10. A perusal of the same clearly goes to show that the petitioner's application Page No.# 5/7

for compassionate appointment had been considered by the DLC on 09.08.2019 and had been rejected on account of non-availability of vacancy for compassionate appointment within the 5% quota reserved for compassionate appointment.

11. The said letter also reflects the fact that the DLC had rejected the petitioner's application on 09.08.2021, due to the earlier rejection of the petitioner's application on 09.08.2019. Thus, the petitioner has now made a prayer for reconsideration of his application for compassionate appointment under Clause 15 of the Office Memorandum dated 01.06.2015 after 5 years. Though the petitioner's case is that he has been informed of the rejection of his compassionate appointment application only by way of the letter dated 24.03.2022, it is seen that the present writ petition has been filed only on 28.10.2024.

12. The above being said, the Supreme Court in the case of the Debabrata Tiwari and others (supra), had considered the question as to whether the application for compassionate appointment could be considered after a delay of several years. The Supreme Court held that in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Further, the financial circumstances of the family of the deceased may have changed for the better, since the time of the death of the Government employee. In such circumstances, Courts or other relevant authorities are to be guided by the fact that for such prolonged period of delay, the family of the deceased was able to sustain themselves, most probably by availing gainful employment from some other source. Granting compassionate Page No.# 6/7

appointment in such case, as noted by the Supreme Court in the case of Debabrata Tiwari and others (supra) and in the case of Haryana State Electricity Board vs. Hakim Singh, reported in (1997) 8 SCC 85, would amount to treating a claim for compassionate appointment, as though it were a matter of inheritance based on a line of succession which is contrary to the Constitution. The Supreme Court thus held that since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee, as a consequence of his death, a claim for compassionate appointment may not be entertained, after lapse of a considerable period of time since the death of the government employee.

13. In the case of Hakim Singh (supra), the Supreme Court has placed emphasis on the need for immediacy in the matter for claim for compassionate appointment to be decided by the authorities. The object of compassionate appointment is to give succour to the family, to tide over the sudden financial crisis that has befallen the dependants, on account of the untimely demise of its sole earning member. The Supreme Court held that it would not be justified in directing appointment for the claims of compassionate appointment, 14 years after the death of the Government servant. It also held that such a direction would amount to treating a claim for compassionate appointment, as though it were a matter of inheritance based on a line of succession.

14. In the present case, the petitioner's father expired in the year 2007 and on the basis of the order of this Court passed in WP(C) 5001/2013, the petitioner's application was considered by the DLC in the year 2019. The same was however rejected on account of there being no vacancy available to accommodate the Page No.# 7/7

petitioner. Besides, in the view of this Court, Clause 15 of the OM dated 01.06.2015 is discretionary.

15. Keeping in view the fact that more than 18 years have elapsed from the date of death of the petitioner's father and in view of the further fact that the petitioner's application had been considered and rejected, this Court is not inclined to entertain the writ petition any further, in view of the judgment of the Supreme Court in the case of Debabrata Tiwari (supra) and Hakim Singh (supra).

16. Consequently, this Court is not inclined to exercise it's discretion in this case and the writ petition is dismissed.

JUDGE

Comparing Assistant