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2014 DIGILAW 674 (GAU)

Jusmita Borah v. State of Assam & Ors.

2014-06-26

K.SREEDHAR RAO, P.K.SAIKIA

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K. Sreedhar Rao, J.- Heard Mr. C. Goswami, learned counsel appearing for the petitioner. Also Heard Ms. S. Sarma, Government Advocate appearing for the State respondents. 2. This proceeding has been initiated seeking following reliefs:- “In the premises aforesaid it is therefore, prayed before this Hon'ble Court to be pleased to admit this petition, issue rule, call for the records calling upon the respondents to show cause as to why a writ in the nature of Mandamus and/or certiorari and/or any other appropriate writ/writs of like nature, should not be issued interfering with the impugned order dated 05.04.2013 and 23.05.2013 and as to why any order or direction should not be issued directing the Respondents to consider the case of the petitioner in terms of the prevailing Scheme for appointment on compassionate ground and/or alternatively be pleased to direct the Respondents particularly to the Respondent No. 3 to furnish the information as sought for by the Respondent No. 2 and to consider the case of the petitioner by the State Level Selection Committee and cause and causes that being shown and upon hearing the parties be pleased to make the rule absolute and/or pass such any other further order or orders as this Hon'ble Court may deem fit and proper to give the Petitioner complete relief/relief(s)." 3. The brief facts necessary for disposal of the present proceeding are that the petitioner is the daughter of one Surendra Nath Borah. The said Surendra Nath Borah was the Sheristadar in the office of the District & Sessions Judge, Jorhat who died in harness on 17.01.2011 leaving behind his wife, one son and one daughter. Owing to such unexpected death of their father who was the lone and sole bread winner for the family, the entire family plunged into dire distress. 4. Since there is a policy which enables the family members of a government employee who died in harness to secure a job in the establishment where such employee worked, the petitioner offered her candidature against one of the vacant Gr.-III post since she has all the requisite qualifications" to be recruited against such post on compassion. In due course, her matter was referred to District Level Committee (in short 'DLC') for due consideration. 5. In due course, her matter was referred to District Level Committee (in short 'DLC') for due consideration. 5. The District Level Committee (DLC) was held on 20.11.2012 and recommended the petitioner for appointment against the vacant Gr.-IH post in the establishment of District & Sessions Judge, Jorhat and referred the matter to the Joint L.R. & Secretary to the Government of Assam. However, the Joint L.R. & Secretary to the Government of Assam by his letter dated 14.03.2013 made a query regarding the post against which the petitioner was recommended for appointment. 6. On the receipt of such letter, the District & Sessions Judge, Jorhat instead of replying to the queries, item wise, expressed the view that the petitioner may be directed to apply for the Gr.-III post in the establishment of the District & Sessions Judge, Jorhat as and when advertisement in that connection is made. By expressing as above, the District & Sessions Judge, Jorhat had violated the right of the petitioner to be appointed against any Gr.-III post on compassionate ground on the death of her father. She, therefore, approaches this court seeking reliefs as aforesaid. 7. We have heard the learned counsel for the petitioner as well as the learned counsel for the State respondents. It may be stated here that this Court by its order dated 17.2.14 in the case of Babita Nath v. State of Assam, held that in case of appointment on compassionate ground in the Subordinate Judiciary in the State of Assam, the DLC has nothing to do since it is entirely a business to be done by appointing authority, of course, with the approval of JAD of this Court. The relevant part of such order is reproduced below:- “One Pramod Chandra Nath, who was working as Grade IV staff at the Barpeta Chief Judicial Magistrate has died in harness. Petitioner, who is wife of the deceased, made an application for appointment on compassionate basis. The said request was referred to the District-Level Committee, which rejected the request for want of vacancy in view of a circular of the State Government prescribing only 5% of the existing vacancy to be made on compassionate basis. In the present case it was found by the committee that there was no vacancy in the 5% quota. The procedure and practice of giving appointment on compassionate grounds appears to be a bizarre one. In the present case it was found by the committee that there was no vacancy in the 5% quota. The procedure and practice of giving appointment on compassionate grounds appears to be a bizarre one. Article 235 of the Constitution of India, empowers the High Court with all the jurisdiction over the subordinate courts which includes appointment and promotion of ministerial staff, apart from judicial officer. In case of appointment on compassionate ground, the intervention of the authorities of the executive would be totally unnecessary. It is in conflict with the powers of the High Court, under Article 235 of the Constitution. In case of the direct recruitment and promotion of the ministerial staff in the district judiciary, it is done only by the District judge and the Chief Judicial Magistrate, the question of intervention by the executive does not arise. A Division Bench of this Court in Bipul Kumar v. State of Assam and others, 2007 (2) GLT 51 has scrupulously referred to the judgment of the Supreme Court in State of West Bengal v. Nripendra Nath Bagchi, and R.M. Gurjar v. High Court of Gujarat, AIR 1996 SC 447, and held that under Article 235 of the Constitution, the High Court alone is vested with the jurisdiction to deal with the matter of appointment and service conditions of judicial officer, and ministerial and subordinate staff in the district judiciary. Therefore, the question of appointment on compassionate grounds being referred to district-level committees and the State-level committee will not be proper. The guidelines laid by this Court in Bipul Kumar v. State of Assam and others, 2007 (2) GLT 51 will apply only to civil servants working under the executive, and not those working under the control of the judiciary. It is, therefore, made clear that in case of compassionate appointment, the District Judge, or the Chief Judicial Magistrate, upon receipt of applications, shall consider the request and send the proposal to the High Court. Registry shall place the matter before concerned administrative Judge and, later on, before Hon'ble Chief Justice for necessary orders.” 8. It is, therefore, made clear that in case of compassionate appointment, the District Judge, or the Chief Judicial Magistrate, upon receipt of applications, shall consider the request and send the proposal to the High Court. Registry shall place the matter before concerned administrative Judge and, later on, before Hon'ble Chief Justice for necessary orders.” 8. Since the petitioner is admittedly a staff of the establishment of the District & Sessions Judge, Jorhat, since her father died in harness on 17.01.2011, since there is none from his family in any Government job, since the financial condition of the deceased Government servant is said to be extremely deplorable, since such financial condition becomes more and more critical after his death and since the petitioner has sought appointment in the establishment of District & Sessions Judge, Jorhat on compassionate ground, in our opinion, in the terms of order dated 17.2.14 passed in WP(C) No. 19787 2013, Babita Nath (supra) the DLC has no authority to deal with the matter in dispute in this proceeding. 9. Accordingly, the petitioner is directed to approach the District & Sessions Judge once again and to file necessary application seeking appointment on compassionate ground giving the required information in detail. 10. On the receipt of such application, the District & Sessions Judge, Jorhat shall consider the prayer of the petitioner seeking appointment on compassionate ground against any of the Gr.-III post in the establishment of District & Sessions Judge, commensurate to her qualification and experience and then pass necessary order in the terms of order dated 17.2.14 passed in Babita Nath (supra). 11. The petitioner shall submit necessary application alongwith copy of this order to the District & Sessions Judge, Jorhat within 10 days from today. 12. On the receipt of such application, the District & Sessions Judge, Jorhat shall dispose of such application within a period of 2 months from the date of receipt of such application in terms of order dated 17.2.14 passed in WP(C) No. 1978/2013. 13. With the above observations and directions, this proceeding is disposed of.