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2013 DIGILAW 722 (GAU)

Gopa Bhattacharjee v. State of Assam, represented by the Commissioner and Secretary to the Govt. of Assam, Home Department

2013-10-03

TINLIANTHANG VAIPHEI

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JUDGMENT Tinlianthang Vaiphei, J. 1 In this writ petition, the petitioner is aggrieved by the refusal of the State-respondents to give regular appointment to her with consequential benefits. The facts giving rise to this writ petition may be briefly noticed at the outset. The petitioner is the daughter of the late Gongesh Bhattacharjee, a police constable working in the establishment of the Superintendent of Police, Cachar District, Silchar (respondent 6), who died in harness on 25-1-1981 due to cancer. He left behind him his wife and his minor children including the petitioner. Initially, the petitioner was temporarily appointed as Women Home Guard in the Office of the respondent No. 6 a fixed wages of Rs.1,300/- per month on compassionate ground. On 20-12-1993, she filed representation to the Director General of Police, Assam (respondent 3) for considering her appointment to the post of Lower Division Assistant-cum-Typist in the Office of respondent 6. The representation was forwarded to the respondent 3 for consideration. Between 26-9-1997 and 30-12-2000, she was called for interview for several times, but she was never appointed, which compelled her to approach this Court in WP(C) No. 6490 of 2001. This Court by the order dated 14-9-2001 had directed the respondent authorities to consider the case of the petitioner for appointment to the said post. 2. When the direction of this Court did not meet the desired result, she was constrained to approach the Committee on Petition, Assam Legislative Assembly for her appointment. The Committee on Petition vide it 38th report forwarded by the letter dated 11-4-2005 issued by the Additional Secretary, Assam Legislative Assembly directed the respondent authorities to consider her for appointment to the post of LDA-cum-Assistant under respondent 6 as her position was found to be in Serial No. 1 of the Select List in the test held on 30-12-2000. Even after the intervention of the Committee on Petition also, there was no improvement in her case. This prompted her to petition the Deputy Inspector General of Police to that end, but with no effect. This is how this second round of litigation is preferred by the petitioner. It is contended by the petitioner that the respondent authorities has been denying regular appointment to the petitioner till now arbitrarily and illegally. 3. This prompted her to petition the Deputy Inspector General of Police to that end, but with no effect. This is how this second round of litigation is preferred by the petitioner. It is contended by the petitioner that the respondent authorities has been denying regular appointment to the petitioner till now arbitrarily and illegally. 3. The writ petition is resisted by the State-respondents by filing separate affidavits-in-opposition by the respondent No. 6 and by the respondent No. 3 and 5. The stance taken by the respondent No. 6 in his affidavit is that the case of the petitioner does not attract the scheme of compassionate appointment. Moreover, contended the answering respondent, the ban on appointment imposed by the Government of Assam has not been lifted. In the case of respondent 3 and 5, their contentions in their affidavit are that at the time of the death of the father of the petitioner, she was a minor and was aged about 8 years only and that she was engaged as Women Home Guard under the establishment of respondent 6 only in 1993 and is still now continuing in that post. It is pointed out by the respondent 3 and 6 that the petitioner had appear in the viva voce test along with other candidates in the written and typing test at the Assam Police Headquarters on 16-6-1998, but the Selection Board did not select her and that the petitioner was interviewed again on 30-12-2000 for the post of LDA-cum-Typist. The answering respondent did not deny that the petitioner was selected in that interview and was included in the Select List so prepared but could not be appointed as there was ban on recruitment vide the order dated 6-12-1999. On the direction of this Court, the case of the petitioner was again considered and rejected by respondent 6 on 30-12-2003 on the ground that though her father died on 25-1-1981, his family had been surviving for 20 long years with available resources. These are the sum and substance of the case of the answering respondent. 4. It is the contention of Mr. These are the sum and substance of the case of the answering respondent. 4. It is the contention of Mr. N. Dhar, the learned counsel for the petitioner, that the petitioner was selected for appointment to the post of LD Assistant in accordance with the recognized recruitment process consistent with Articles 14 and 16 of the Constitution of India, and her right to be appointed against the post in question to which she was selected cannot be taken away on the pretext that the said panel had expired in the meantime or that the post had in the meantime been filled up by someone else. It is submitted by the learned counsel that the refusal of the respondent authorities to appoint the petitioner to the post of LDA on the basis of the Select List in question is, therefore, arbitrary, illegal and discriminatory and that this is a fit case for issuing a writ of mandamus upon the respondents to appoint the petitioner to the post of LDA-cum-Typist. On the other hand, Mr. Nur Mohammad, the learned State Counsel submits that the Select List could not be acted upon for the simple reason that the ban on recruitment got intervened and barred the respondent authorities from appointing the petitioner during the life of the Select List, for which they cannot be faulted with. As the Select List was valid only for a period of one year, argues the learned counsel, it is now too late in the day for the petitioner to claim appointment on the basis thereof which had expired some 12 years back. He, therefore, submits that the writ petition is without merit and is liable to be dismissed. 5. As the Select List was valid only for a period of one year, argues the learned counsel, it is now too late in the day for the petitioner to claim appointment on the basis thereof which had expired some 12 years back. He, therefore, submits that the writ petition is without merit and is liable to be dismissed. 5. The undisputed facts on record are that the father of the petitioner died on 25-1-1981 while he was serving as a police constable under the respondent No. 6; that in the year 1993, she was temporarily appointed in as Women Home Guard in the Office of the Superintendent of Police, Cachar District at a fixed wage of ` 1,300/- only per month (she is said to be still continuing till now) on compassionate ground; that since 1993, she was time and again asked to face interview for the post of LDA-cum-Typist, and was finally selected for that post in the interview held on 30-12-2000 and was accordingly included in the Select List prepared therefor; that she could not be given appointment on the basis of the said Select List as the ban on recruitment had intervened in the meantime and that even after the ban was lifted, she was not given the appointment. Having denied the appointment legitimately due to her for the last over 20 years for no fault of her, the respondents have now the audacity to take the stance that the family of the deceased have been able to survive for the last over 30 years and, therefore, it is no longer necessary to give her the appointment for which she was duly selected in the years 2000. 6. What the respondent authorities have completely overlooked or conveniently suppressed is that the family of the deceased must have survived for these long years due to the engagement of the petitioner as Women Home Guard on a fixed wage. In my opinion, the view taken by the respondent authorities is arbitrary as well as irrational and betrays insensitivity and lack of compassion. The petitioner has since 1993 been marching up and down and driven from pillar to post to pursue the elusive appointment on the basis of the Select List prepared in the year 2000; such Select List could be ignored by the respondent authorities only for cogent reason. The petitioner has since 1993 been marching up and down and driven from pillar to post to pursue the elusive appointment on the basis of the Select List prepared in the year 2000; such Select List could be ignored by the respondent authorities only for cogent reason. In my opinion, when the denial of the petitioner to the post of LDA-cum-Typist cannot be attributed to her act of commission or omission but clearly attributable to the inaction of the respondent authorities, the long passage of time cannot simply have the effect of extinguishing her right to appointment to post in question on the basis of the said Select List. It may be noted that the petitioner has been pursuing her claim uninterruptedly for the last over 20 years, and is never guilty of laches or negligence. Consequently, the petitioner has made out a clear case for the intervention of this Court. At this stage, it may also be noticed that no other reason is assigned by the respondent authorities for not acting upon the said Select List. It is a settled proposition of law that when the range of discretion is reduced to such an extent that only one decision is possible, the Court can specifically direct the respondent authorities to act in a particular manner.--See Union of India v. Anglo-Afghan Agencies, AIR 1968 SC 718 . The result of the foregoing discussion is that this writ petition is allowed. The respondent authorities are, therefore, directed to appoint the petitioner to the post of LDA-cum-Typist, subject to police verification, in the Office of the Superintendent of Police, Cachar, Silchar within a period of 2 months from the date of receipt of this judgment. It is made clear that if no such post is immediately available also, a supernumerary post may be created by the respondent authorities to accommodate her within that period. No costs. Petition allowed.