Page No.# 1/9 vs The Gauhati High Court And 2 Ors
2025 Latest Caselaw 4919 Gua

Gauhati High Court

Page No.# 1/9 vs The Gauhati High Court And 2 Ors on 22 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                   Page No.# 1/9

GAHC010064332024




                                                            2025:GAU-AS:6506

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

                          Case No. : WP(C)/1749/2024

         SIKHA DUTTA
         D/O- LATE DIMBESWAR DUTTA, R/O- VILL. AND P.O. MATIKHULA, P.S.
         DHEMAJI, DIST. DHEMAJI, ASSAM, PIN- 787057.



         VERSUS

         THE GAUHATI HIGH COURT AND 2 ORS.
         REPRESENTED BY THE REGISTRAR GENERAL, GAUHATI HIGH COURT,
         LATASIL, GUWAHATI, ASSAM, PIN- 781001.

         2:THE REGISTRAR (ADMIN)-CUM-IN-CHARGE

          CENTRALISED RECRUITMENT
          GAUHATI HIGH COURT
          LATASIL
          GUWAHATI
          ASSAM
          PIN- 781001.

         3:THE CHIEF JUDICIAL MAGISTRATE
          DHEMAJI
          RAM NAGAR
          DIST. DHEMAJI
         ASSAM
          PIN- 787057


                                BEFORE
               HON'BLE MR. JUSTICE DEVASHIS BARUAH
                                                                          Page No.# 2/9

Advocate for the petitioner(s): Mr. DJ Kapil



Advocate for the respondent(s): Mr. G Baishya,

Standing Counsel Gauhati High Court

Date of hearing & judgment : 22.05.2025

JUDGMENT & ORDER(ORAL)

Heard Mr. DJ Kapil, the learned counsel appearing on behalf of the petitioner. Mr. G Baishya, the learned Standing Counsel, Gauhati High Court appears on behalf of the respondent Nos.1, 2 and 3.

2. The petitioner herein is aggrieved as regards the rejection of her application for being appointed on compassionate ground vide the communication dated 20.09.2023 and it is under such circumstances, the present writ petition is being filed.

3. From the materials on record, it transpires that the father of the petitioner was working as a Lower Division Assistant in the office of the Chief Judicial Magistrate, Dhemaji, who expired on 09.07.2016 after rendering 29 years of service. The petitioner at that relevant point of time was 17 years old. The mother of the petitioner thereupon on 12.10.2018 applied for appointment on compassionate ground, but the said application was rejected on the ground that Page No.# 3/9

there was no vacant post of Grade-III and Grade-IV in the establishment of the Chief Judicial Magistrate, Dhemaji. Subsequent thereto, again after the Covid 19 period was over, the mother of the petitioner submitted another application on 28.04.2022 as a vacancy arose in the office of the Chief Judicial Magistrate, Dhemaji, in the post of Grade IV. However, the said application was not at all considered. In the meantime, the petitioner completed her studies and obtained a Master in Arts Degree in English from the Dibrugarh Hanumanbux Surajmal Kanoi College in the year 2021. She further had completed a 6(six) months Diploma Course in Computer Application with Grade "A" from the Computer Education Development Society Dhemaji. She, therefore, being qualified for the post of Lower Division Assistant which is a Grade-III post submitted an application on 14.06.2023 seeking appointment to the post of Lower Division Assistant which was likely to be vacant as per the information obtained under the Right to Information Act, 2005. The said application was rejected vide the order dated 20.09.2023 on the ground of non-availability of the vacant post to the cadre of Grade-III and Grade-IV in the Establishment of the Chief Judicial Magistrate, Dhemaji and it is under such circumstances, the present writ petition has been filed.

4. The record reveals that upon filing of the writ petition, this Court vide the order dated 15.05.2024 issued notice and passed an interim order to the effect that the respondent authorities shall not fill up the vacancy till the next date of listing. It is seen that subsequent thereto an affidavit-in-opposition was filed by the respondent No.3, stating inter alia, that vacancy of three Grade-IV posts under the Establishment of the respondent No.3 arose and accordingly the advertisement for filing up the three Grade-IV posts of Peon was published and Page No.# 4/9

the recruitment process was completed and also the candidates were duly appointed in the month of April 2022. Subsequent thereto, the mother of the petitioner had submitted an application on 28.04.2022, which was subsequent to the completion of the selection process. It was further mentioned that there was no vacancy in the Grade III and Grade IV posts for which the application so submitted by the petitioner was rejected vide the order dated 20.09.2023. It was also mentioned that though steps were taken for filing up of vacant post of Jarikarak which was lying vacant from 08.09.2023, the same had not been filled up in view of the interim order passed on 15.09.2024.

5. Pursuant to the filing of the said affidavit-in-opposition, this Court took up the matter on 20.03.2025, wherein taking into account the Scheme for Compassionate Appointment for the Gauhati High Court Principal Seat and the District Courts' Establishment of Assam dated 03.01.2017 (for short, the Scheme of 03.01.2017) this Court enquired with the Standing Counsel of the Gauhati High Court as to why the impugned order dated 20.09.2023 was made on the basis of the Establishment of the Chief Judicial Magistrate, Dhemaji centric and not the post of Lower Division Assistant (Direct Recruitment) or Grade IV (Direct Recruitment) which are cadres mentioned in Clause XVII of the Scheme of 03.01.2017 and in that regard there was a direction also to file an affidavit. Pursuant thereto, the matter was listed on 08.05.2025 when Mr. G Baishya, the learned Standing Counsel, Gauhati High Court submitted before this Court that the Scheme of 03.01.2017 for compassionate appointment no longer was holding the filed, in view of the subsequent Notification dated 19.04.2018. Taking into account the above, this Court further directed that an affidavit be filed by the respondent Gauhati High Court on the basis of the directions so Page No.# 5/9

passed on 20.03.2025 and 08.05.2025 by this Court. It is seen that pursuant thereto an additional affidavit was filed on 21.05.2025 wherein the entire vacancy position for the post in the cadre of the post of Lower Division Assistant (Direct Recruitment) or Grade IV (Direct Recruitment) was placed as Annexure R-7. Further to that, reference was also made to the Scheme for Compensate Family Pension dated 14.09.2017 in lieu of the Scheme of 03.01.2017 and it was mentioned that in terms with Clause 5.11, the said Scheme was only applicable in case of those employees who died/died in harness on or after 01.04.2017. It was also mentioned that in respect to the Office Memorandum related to compassionate appointment would be applicable to those who died on or before 31.03.2017.

6. Taking into account that the Scheme of 03.01.2017 for compassionate appointment was only discontinued vide the Notification dated 19.04.2018 on the basis of the Notification issued on 14.09.2017 i.e Compassionate Family Pension Scheme and the latter scheme did not apply insofar as those persons who expired prior to 31.03.2017, it is apparent that the Scheme of 03.01.2017 for compassionate appointment shall be duly applicable in the present case.

7. In the backdrop of the above, this Court had duly heard the learned counsels appearing on behalf of the parties and had given its anxious consideration to the submissions made.

8. The record reveals that the father of the petitioner expired in the year 2016. As on date, when the writ petition is being taken up, almost 9(nine) years Page No.# 6/9

had passed by. In the meantime, the petitioner, who was just 17 years when her father expired, she thereupon completed not only diploma course but also had obtained a Master Degree in Arts with English honors. This Court further finds it relevant to take note of the judgment of the Supreme Court in the case of State of West Bengal Vs. Debabrata Tiwari and Others reported in 2023 SCC Online SC 219 wherein the Supreme Court culled out the principles for making compassionate appointment. Paragraphs 32, 33 and 34 of the said judgment being relevant are reproduced hereinunder:

32. On consideration of the aforesaid decisions of this Court, the following principles emerge:

i. That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions and must be resorted to only in order to achieve the stated objectives, i.e., to enable the family of the deceased to get over the sudden financial crisis.

ii. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis.

Page No.# 7/9

iii. Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate employment cannot be claimed or offered after a lapse of time and after the crisis is over.

iv. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.

v. In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source.

33. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis due to the death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be in a position to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Having regard to such an object, it would be of no avail to grant compassionate appointment to the dependants of the deceased employee, after the crisis which arose on account of death of a bread-

winner, has been overcome. Thus, there is also a compelling need to act with a sense of immediacy in matters concerning compassionate appointment because on failure to do so, the object of the scheme of compassionate would be frustrated. Where a long lapse of time has Page No.# 8/9

occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and thus lose its significance and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out for consideration.

34. As noted above, the sine qua non for entertaining a claim for compassionate appointment is that the family of the deceased employee would be unable to make two ends meet without one of the dependants of the deceased employee being employed on compassionate grounds. The financial condition of the family of the deceased, at the time of the death of the deceased, is the primary consideration that ought to guide the authorities' decision in the matter.

9. The law declared by the Supreme Court in the above judgment makes it apparent that appointment on compassionate ground is not a source of recruitment and the reason for making such a benevolent scheme by the State or the public Sector undertaking is to see that the dependents of the deceased are not deprived of the means of livelihood. It was further categorically observed that appointments on compassionate basis are made in order to enable the family of the deceased to get over the sudden financial crisis which had resulted on account of the death of the sole bread earner.

10. In the instant case, the facts narrated above would clearly show that this is not a fit case where any direction can be issued to the respondents for Page No.# 9/9

consideration of the prayer of the petitioner for appointment on compassionate ground in terms with the Scheme of 03.01.2017 for compassionate appointment, more particularly on the ground that there appears to be no basis, inasmuch as, the petitioner along with her family have been able to tide out from the crisis which resulted on account of the death of her father. No doubt, it is mentioned in the application that various loans were taken and as such, for the purpose of repaying the said loan, the application for compassionate appointment should be considered, but in the opinion of this Court, the same under no circumstances can be a ground for the purpose of entertaining a claim for compassionate appointment.

11. Under such circumstances, this Court finds no merit in the instant petition, for which, the instant petition stands dismissed.

JUDGE

Comparing Assistant