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2015 DIGILAW 738 (GAU)

PULAKESH BHATTA v. STATE OF ASSAM

2015-06-12

MICHAEL ZOTHANKHUMA

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JUDGMENT : Heard Mr S Sarma, counsel for the petitioner and Mr BJ Talukdar, counsel for the respondent State. Mr R Sarma, counsel for the petitioner submits that the petitioner’s father expired on 20.8.2009. The petitioner thereafter submitted an application dated 7.9.2009 for appointment on compassionate ground. The District Level Committee (DLC) in its meeting held on 7.12.2012 recommended the name of the petitioner for appointment in a Grade III post. The vacancy position given by the DLC with regard to the office of the Deputy Director, Town & Country Planning, Nalbari was to the effect that the vacancy position as on the date of the DLC meeting dtd. 7.12.2012 was— Grade III - 17 vacancies Grade IV - 58 vacancies. In the meeting of the State Level Committee (SLC) held on 24.12.2013, the petitioner’s candidature was rejected on the ground that the petitioner’s application had been pending for more than two years and also on the ground that there was no vacancy. Counsel for the petitioner has submitted that the DLC Meeting minutes dt. 7.12.2012 having clearly shown the vacancy position in the office of the Deputy Director, Town & Country Planning, Nalbari as Grade III-17 Nos. and Grade IV-58 Nos., 5% of the said vacancies which have to be reserved for appointment on compassionate ground would be to the effect that, under Grade III there would be 1 post and under Grade IV there would be 3 posts. Mr S Sarma submits that the reason for there being 3 vacant posts under Grade IV is due to the fact that 5% of 58 comes to 2.9. He also submits that as only two persons have been recommended by the SLC Meeting minutes dt. 24.12.2013; a third vacancy is still available and the petitioner should be considered against the said vacancy. Mr BJ Talukdar, counsel for the respondents referring to the affidavit in opposition filed by respondent Nos. 4 and 5, has submitted that the petitioner’s application for compassionate appointment was recommended by the DLC in its meeting held on 7.12.2012. He also submits that as the SLC has rejected the petitioner’s application on the ground that the petitioner’s application having remained pending for more than 2 years, the same had spent its force and accordingly, the petitioner’s application was rightly rejected. He also submits that as the SLC has rejected the petitioner’s application on the ground that the petitioner’s application having remained pending for more than 2 years, the same had spent its force and accordingly, the petitioner’s application was rightly rejected. Mr Talukdar thus submits that even if one post of Grade IV is still available, then also the petitioner cannot be considered, as his application was rejected on the ground that the same had spent its force. I have heard the counsels for the parties. The DLC Meeting minutes dated 7.12.2012 has clearly shown the vacancy position in the office of the Deputy Director, Town & Country Planning, Nalbari as 17 vacancies in Grade III and 58 vacancies in Grade IV. 5% of the above vacancies are to be filled up by compassionate appointment, which after calculation comes to 1 vacancy for Grade III and 3 vacancies for Grade IV (2.9). Thus, as per the Notification dt. 9.9.83 issued by the State Government, 5% of the vacancies in Class III Service (not above the level of LDA) and in Class IV Service are to be kept solely for persons to be appointed on compassionate ground. By taking into consideration the said Notification, the vacancy position in respect of Grade III and Grade IV which was to be filled up by the SLC was 1 and 3 respectively. The minutes of the SLC meeting dated 24.12.2013 shows that one vacancy in Grade III has been filled up and two out of three vacancies in Grade IV have been filled up. Thus, there is still one vacancy to be filled up by the SLC in respect of Grade IV post. The SLC Meeting minutes dtd. 24.12.2013 has clearly stated in Para 4 that the vacancies were relatable to the year 2009-2010. Thus, the SLC having left out one post in Grade IV category, the SLC has to fill up the said post by way of appointment on compassionate ground. With regard to the other ground of the petitioner’s application having spent its force as is reflected in the SLC Meeting minutes dt. 24.12.2013, this Court does not find the said ground taken by the SLC for rejecting the petitioner’s application as correct. The question that had to be decided, was as to whether the petitioner’s application was within time. With regard to the other ground of the petitioner’s application having spent its force as is reflected in the SLC Meeting minutes dt. 24.12.2013, this Court does not find the said ground taken by the SLC for rejecting the petitioner’s application as correct. The question that had to be decided, was as to whether the petitioner’s application was within time. If the answer was in the affirmative, then the next question was whether the vacancies that arose were vacancies which occurred during the validity period of the petitioner’s application as an application for compassionate appointment has a validity of two years as per the guidelines laid down by this Court. The petitioner’s father having died on 20.8.2009, the petitioner applied for compassionate appointment on 7.9.2009. The petitioner’s application being within one year from the date of death of his father, the petitioner’s application is within the time prescribed. As per the decision of this Court in Achyut Ranjan Das –vs- State of Assam & Ors, reported in 2006 (4) GLT 674 and in Fazirun Nessa –vs- State of Assam & Ors., reported in 2010 (4) GLT 340, the petitioner’s application was to have a validity of two years. The application being submitted on 7.9.2009, the same will have a validity period of two years till 6.9.2011. Thus, the petitioner will have to be considered against vacancies that arose between 7.9.2009 and 6.9.2011. The delay in considering the petitioner’s application by the SLC in the year 2013 cannot be a ground for rejecting the petitioner’s application on the ground that the same had spent its force. The question that has to be decided is whether there arose any vacancy during the validity period of the petitioner’s application which is between 7.9.2009 and 6.9.2011. There is no statement in the minutes of the SLC Meeting that the vacancies had occurred after 6.9.2011. As the validity period of the petitioner’s application is for the period 7.9.2009 to 6.9.2011, rejection of the petitioner’s application by the SLC on both counts i.e. (i) the petitioner’s application has spent its force, and (ii) no vacancy available, is not justified. Accordingly, the minutes of the SLC meeting dated 24.12.2013 to the extent that the petitioner’s application for compassionate appointment has been rejected in Para 5 of the said minutes is hereby set aside. Accordingly, the minutes of the SLC meeting dated 24.12.2013 to the extent that the petitioner’s application for compassionate appointment has been rejected in Para 5 of the said minutes is hereby set aside. The respondents shall place the case of the petitioner before the SLC for consideration of the petitioner’s case for appointment on compassionate ground against the remaining one vacancy of Grade IV in the office of the Deputy Director, Town & Country Planning, Nalbari. The SLC shall consider the petitioner’s application in its next meeting. It is also observed that though the petitioner’s case for compassionate appointment was recommended by the DLC for a Grade III post, the same shall not bar the SLC for considering the case of the petitioner for a Grade IV post. The writ petition is accordingly allowed. No cost.