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2007 DIGILAW 779 (GAU)

Anu Morang v. State of Assam

2007-12-04

R.B.MISRA

body2007
JUDGMENT R.B. Misra, J. 1. Heard Ms. G Deka learned Counsel for the Petitioner and Ms. K. Devi, learned Govt. Advocate for the State Respondents. 2. In this petition, a prayer has been made to set aside the impugned order, dated 31.5.2001, (Annexure-4 to the writ petition), passed by the Deputy Commissioner, Lakhimpur District, North Lakhimpur, Assam, Respondent No. 3 herein, whereby the service of the Petitioner made temporarily as Junior Assistant in the branch of the census work in the establishment of the Respondent No. 3, was retrenched with effect from 31.5.2001. 3. The Petitioner is in possession of Bachelor degree from the year 1997 and has other unemployed brothers in the family whose father, namely, late Tileswar Morang, while working as Supervisor Assistant in the establishment of the Respondent No. 3, died on 19.9.97. Thereafter, the application of the Petitioner for getting a job on compassionate ground was forwarded by the Respondent 3 vide his letter, dated 20.7.1998, to the Respondent No. 2, namely, the Secretary to the Govt. of Assam, General Administration (B) Department, Dispur, Guwahati recommending his case for appointment as Lower Division Assistant. In reference thereto, the Respondent No. 3 appointed the Petitioner against the newly created posts of Junior Assistants for the Census Branch in the office of the Respondent No. 3, vide order, dated 10.3.2000, (Annexure-2), indicating that the appointment was purely on temporary and could be terminated after closing of the census works without any notice and assigning any reason thereof. It appears that along with the Petitioner, two other persons, namely, Sri Khirod Chutia and Sri Rupak Hazong were appointed by the same order, dated 10.3.2000. According to the Petitioner, he accepted the said appointment in the prevailing circumstances, as he had no other alternative. 4. Consequent upon such appointment to the said post, the Petitioner had been serving sincerely and dedicatedly without any blemish. It appears that by his order-dated 17.4.2000, the Respondent No. 3 withdrew the service of Sri Khirod Chutia, Jr. Assistant from the Census Branch and posted him in the Receipt Branch of the office of the Respondent No. 3 whereas the service of the Petitioner was dispensed with by order-dated 31.5.2001. According to the Petitioner, similarly situated persons e.g. Khirod Chutia has been accommodated and still continuing in service but the Petitioner had been treated differently whereas the vacancies are still available. According to the Petitioner, similarly situated persons e.g. Khirod Chutia has been accommodated and still continuing in service but the Petitioner had been treated differently whereas the vacancies are still available. This Court by an order dated 11.2.2005 was pleased to direct that the Respondents were to apprise about the existing vacancies in the establishment concerned where the Petitioner could be accommodated on the compassionate ground. 5. The Petitioner earlier also approached this Court by way of filing a writ petition contending inter alia that sufficient number of vacancies were available where the Petitioner could be accommodated. However, after hearing, W.P. (C) 5363 of 2001 was disposed of on 3.8.2001 with a direction to the State authorities to consider the case of the Petitioner on compassionate ground in accordance with the Government policy as modified from time to time with specific direction that while considering the case of the Petitioner, the authorities will keep in mind the availability of the vacancies for the post of Grade-III in the establishment of the Deputy Commissioner, Lakhimpur as well as the cases of other applicants for appointment on compassionate ground. Since then, the Petitioner has been running from pillar to post. 6. The learned Counsel for the Petitioner has referred the letter dated 7.6.2001 (An-nexure-10) of the Deputy Commissioner, Lakhimpur, addressed to the Commissioner & Secretary to the Govt. of Assam, General Administration (B), Deptt. whereby sufficient numbers of vacancies were said to be available where the Petitioner could be accommodated. 7. The High Court of Allahabad (D.B.) has taken a view in (1993) 3 UPLBEC 2263 Ravi Karan Singh v. State of U.P. and Ors. that appointment under Dying-in-Harness rules is a permanent appointment. Similar view had also been taken by the High Court of Allahabad (DB) in Budhi Sagar Debey v. D.I.O.DS. (1993) 1 UPLBEC 197 ; Gulab Yadav v. State of U.P. and Ors.(1991) 2 UPLBEC 995 and Dhirendra Pratap Singh v. D.I.O.S and Ors. (1991) 1 UPLBEC 427. 8. The Allahabad High Court (DB) has also taken similar view in 2002 (5) AWC 3 708 Yogendra Ram Chaurasiya v. State of U.P. and Ors. that the appointment on compassionate ground is to be made on the permanent basis. (1991) 1 UPLBEC 427. 8. The Allahabad High Court (DB) has also taken similar view in 2002 (5) AWC 3 708 Yogendra Ram Chaurasiya v. State of U.P. and Ors. that the appointment on compassionate ground is to be made on the permanent basis. The relevant paragraph of Yogendra Ram Chaurasiya (supra) is quoted below: Any appointment made under the provisions of Dying-in-Harness Rules is to be treated as a permanent appointment and not a temporary appointment. This is also clear from the Government order dated 23.1.1976 filed as Annexure-2 to the writ petition wherein it has been mentioned that the dependent of deceased employee appointed on compassionate ground under the provisions of Dying-in-Harness Rules should not be retrenched even where the strength of the employee is being reduced. Thus the appointment of the applicant-writ Petitioner to be treated as permanent appointment and not a temporary appointment. The nature of appointment will not affect the writ Petitioner, even if the Appellant-writ Petitioner has accepted the terms and conditions of the appointment which mentioned as a temporary appointment. The nature of appointment of the Appellant-writ Petitioner having been held to be permanent appointment, the Appellant-writ Petitioner is entitled to the constitutional safeguards as provided in Article 311 of the Constitution of India. In the present case, the procedure laid down in Article 311(2) of the Constitution of India, has not been followed before terminating the services of the Appellant-writ Petitioner, in as much as neither the Appellant had been informed about the charges levelled against him nor any enquiry was conducted before terminating his services nor he was given opportunity of hearing, nor the authorities have invoked any of the clauses mentioned in provision to Article311(2) of the Constitution of India for dispensing with the requirement of holding the enquiry. 9. The learned Counsel for the Petitioner has also submitted that appointment on compassionate ground cannot be made as stopgap arrangement, or on ad hoc basis, but has to be made on permanent basis, as has been held above by the Allahabad High Court in large number of cases and the same view has also been taken by this Court while disposing of the W.P. (C) No. 1204 of 2004 Smt. Bhanu Das v. State of Assam and Ors. vide its order dated 7.3.2005. 10. vide its order dated 7.3.2005. 10. According to the Petitioner, at the initial stage, he had no choice or alternative but to accept the offer of appointment. Adjusting and accommodating the similarly situated other persons ignoring the claim of Petitioner is legally not justifiable. The Petitioner's right of being considered for accommodating him to the vacant post cannot be brushed aside. At this stage, it has been pointed out by learned Govt. Advocate appearing for the State Respondents that this High Court while disposing of the large number of writ petitions seeking appointment on compassionate ground has given a guide lines, parameters to be adopted while considering the cases for granting appointment on compassionate ground in reference to the Office Memorandum, dated 9.9.83 and 20.10.83, of the State Government as amended from time to time. 11. After hearing the learned Counsel for the parties and on perusal of the documents in the present case, I am of the considered view that the Petitioner was initially to be appointed not on stop gap arrangement or on ad hoc basis or for a temporary period. His initial appointment was to be of such nature to show as he was to be accommodated on a permanent basis. For that purpose, the Petitioner could have been given temporary appointment initially and after fulfilling the probation period, he could have been given confirmation order to the post of Junior Assistant. Since the Petitioner's case was once considered, it goes without saying that he was eligible to be appointed to the said post of Junior Assistant and it has not been specifically denied on behalf of the Respondents that the vacancy for accommodating the Petitioner cannot be made available. With the hope and trust that the vacancies are available and in the light of the observations made by this Court in Achyut Ranjan Das and Ors. v. State of Assam and Ors., reported in 2006 (4) GLT 674and the referred cases in paragraphs above 7, 8 and 9, the Petitioner's case is directed to be considered sympathetically against the existing vacancy afresh provided that the Petitioner shall submit a representation (in sequence to the earlier representation) within two weeks along with certified copy of this order to the Secretary to the Govt. of Assam, General Administration (B) Department, Respondent No. 2 herein, who either himself or deputing the competent authority or Committee shall consider the case of the Petitioner for accommodating him to the appropriate post within eight weeks. 12. In view of the above observations and directions, the writ petition is disposed of. No order as to costs.