Gauhati High Court
Hafizur Rahman vs The State Of Assam And 4 Ors on 10 December, 2021
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GAHC010202952021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6624/2021
HAFIZUR RAHMAN
S/O LATE IBRAHIM ALI
RESIDENT OF VILLAGE BORPOKA, PO TARABARI, DIST NAGAON, ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, EDUCATION (S) DEPARTMENT, DISPUR GUWAHATI 06
2:THE STATE LEVEL SELECTION COMMITTEE FOR COMPASSIONATE
APPOINTMENT
REPRESENTED BY ITS CHAIRMAN
THE CHIEF SECRETARY
ASSAM
3:DISTRICT LEVEL SELECTION COMMITTEE FOR COMPASSIONATE
APPOINTMENT
NAGAON.
4:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI 19
5:THE INSPECTOR OF SCHOOLS
NAGAON DISTRICT CIRCLE
NAGAON
PS AND DIST NAGAON
ASSA
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Advocate for the Petitioner : MR. D P CHALIHA
Advocate for the Respondent : SC, SEC. EDU.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 10-12-2021 Heard Mr. D.P. Chaliha, learned senior counsel, assisted by Ms. M. Roy, learned counsel for the petitioner. Also heard Mrs. D.D. Barman, learned Addl. Senior Government Advocate, appearing for respondent nos. 2 and 3 and Mr. S.M.T. Chistie, learned standing counsel for the Secondary Education Department, respondent nos. 1, 4 and 5.
2) On 01.06.2014, the father of the petitioner had died-in-harness as Grade-IV employee of Tarabari High School, Dist. Nagaon. The petitioner had applied for compassionate appointment on 05.08.2014. The District Level Committee for Compassionate Appointment of Nagaon District (hereinafter referred to as 'DLC' for short) had recommended the name of the petitioner for appointment on compassionate ground. However, the State Level Committee for Compassionate Appointment (hereinafter referred to as 'SLC' for short) had rejected the candidature of the petitioner on the ground of non-availability of Grade-IV post in Nagaon District. By way of reply to his Right to Information (RTI for short) application, the Inspector of Schools had informed the petitioner that the vacancy position of Grade-IV posts in provincialised HS/HSS schools Grade-IV in the Nagaon District was 18. Armed with the said information, the petitioner had approached this Court by filing W.P.(C) 4980/2015. However, this Page No.# 3/7 Court by order dated 19.09.2016, observed as follows - "... It appears that in the year 2014, there were total 18 vacancies in Grade-IV in Nagaon district. As per scheme of compassionate appointment prepared by the State Govt., 5% of the total vacancies are earmarked for compassionate appointment. 5% of 18 vacancies roughly comes to one vacancy. SLC considered the rival claims of the three claimants including the petitioner, who were recommended by the DLC and thereafter, found that one Motiur Rahman had a better claim to compassionate appointment and, accordingly, recommended him for appointment on compassionate ground. ..." On a perusal of the said order dated 19.09.2016 passed in W.P.(C) 4980/2015, it appears that by filing an affidavit on 07.04.2016 in the said proceeding, the petitioner claimed that 12 vacancies had arisen in the year 2015 and therefore, claimed that by then 30 vacancies had arisen and therefore, 5% would come to 1.5, which if rounded off to two, then the claim of the petitioner could be accommodated. However, that claim was also negated by this Court as claimants for the year 2015 could not be excluded from consideration. In this regard, the Court had held as follows - "... The decision rendered in the case of Achyut Ranjan Das v. State of Assam & Ors., reported in 2006 (1) GLT 674 that if on account of lack of vacancies, a claim to compassionate appointment cannot be considered within 2 (two) years, the same would be deemed to have been rejected, cannot be extended and interpreted in a manner to mean continuation of consideration for a period of two years even though the claim to compassionate appointment has been rejected. There cannot be endless consideration upon consideration. Once a claim is considered and rejected, further consideration would be ruled out. Of course this closure would not cover cases of reconsideration following judicial intervention. ..." Accordingly, the writ petition was dismissed.
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3) For reason which would be best known to the respondent authorities, the case of the petitioner was once again taken up by the DLC meeting held on 09.08.2019, but rejected again with following remarks - " The proposal of Hafizur Rahman is examined in DLC. His proposal was recommended in the DLC dtd. 09.01.2015 but was rejected by SLC. At present the period of 2 (two) years from the date of making application is already over. Hence, his proposal can't be considered as per Principle 10 of Para 11 of O.M. No. ABP.50/ 2000/Pt/182, dtd. 01/06/2015, though there is vacancy in the department."
4) By relying upon the decision of this Court rendered in the unreported case of Pankaj Kumar Mahato v. The State of Assam & 3 others, W.P.(C) 4504/2017 decided on 02.08.2017, it is submitted by the learned senior counsel for the petitioner that in the said case the application for compassionate was held to be valid for two years from the date of submission of application provided that the application was submitted on time. Accordingly, it is submitted that if vacancies were available, the application cannot be said to have spent force. Therefore, it is submitted that the respondent authorities be directed to consider the DLC recommendation dated 09.08.2019 for compassionate appointment of the petitioner.
5) The said argument, though appearing to be attractive, cannot be accepted under any view of the matter. Firstly, in the case of Pankaj Kumar Mahato (supra), the Court was not considering 5% vacancy position of 2014-15 for Nagaon district, available for compassionate appointment. Secondly, there is Page No.# 5/7 no material to demonstrate that on 09.08.2019, when the DLC had held its meeting, vacancy for the year 2014-15 was available. Thirdly, it is not in dispute that the order dated 19.09.2016, dismissing the writ petition, i.e. W.P.(C) 4980/2016, filed by the petitioner for seeking compassionate appointment has attained finality as such the present writ petition is held to be barred by principles of res judicata as well as issue estoppel. Fourthly, it is not in dispute that as per ratio laid down in the case of Achyut Ranjan Das (supra), as on 09.08.2019, when DLC had held its meeting more than two years from the date of application had lapsed. Fifthly, now the O.M. No. ABP.50/ 2006/ Pt/182 dated 01.06.2015, for compassionate appointment is in force and under the said OM, the 5% vacancy is required to be considered on cadre strength and not number of vacancies available. Sixthly, on a perusal of the case of Pankaj Kumar Mahato (supra), on which the learned senior counsel for the petitioner is heavily relying upon, it is seen that the judgment dated 19.09.2016 of this Court in the case of the present petitioner, i.e. Md. Hafizur Rahman (supra), had not been brought to the notice of the co-ordinate Bench of this Court, which the petitioner has allowed to attain finality. Seventhly, the case of Pankaj Kumar Mahato (supra), was decided, amongst others, on the basis of the ratio laid down by the Supreme Court of India in the case of Canara Bank v. M. Mahesh Kumar, (2015) 7 SCC 412 and State Bank of India & Ors. v. Jaspal Kaur, (2007) 9 SCC 571 . The said two judgments were by a Coram of Two Hon'ble Judges. However, later on, the Three Judge Bench of the Supreme Court of India, in the case of N.C. Santhosh v. State of Karnataka & Ors., AIR 2020 SC 1401: (2020) 7 SCC 617:
2020 0 Supreme (SC) 237, after considering the case of Canara Bank (supra) and several other cases, held as follows:
"19. In the most recent judgment in State of Himachal Pradesh & Page No.# 6/7 Anr. vs. Shashi Kumar, (2019) 3 SCC 653 the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the State's policy.
20. Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee.
21. In view of the foregoing opinion, we endorse the Tribunal's view as affirmed by the High Court of Karnataka to the effect that the appellants were ineligible for compassionate appointment when their applications were considered and the unamended provisions of Rule 5 of the Rules will not apply to them. Since no infirmity is found in the impugned judgments, the appeals are found devoid of merit and the same are dismissed."
6) In this regard, it may be mentioned that the case of Jaspal Kaur (supra), was referred to, discussed and followed in the case of Canara Bank (supra).
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7) Therefore, in light of the herein before case of N.C. Santhosh (supra), and under the OM dated 01.06.2015 for compassionate appointment in force in the State of Assam, the petitioner was ineligible to be appointed on compassionate ground. Accordingly, notwithstanding that the DLC ought not to have taken up the already rejected case of the petitioner, when challenge to the previous DLC minutes 09.01.2015 was rejected by this Court vide order dated 19.09.2016, yet on merit, the decision taken in the DLC meeting held on 09.08.2019 warrants no interference.
8) Therefore, in light of the discussions above, this writ petition is found to be devoid of any merit and the same is dismissed at the motion stage without issuing any notice on the respondents, owing to which there shall be no order as to cost.
JUDGE Comparing Assistant