Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 95 (GAU)

Jiban Thakuria v. State of Assam and Ors.

2015-01-30

B.K.SHARMA

body2015
B.K. Sharma, J. -- Both the writ petitions pertain to the prayer for compassionate appointment. Although the petitioners were recommended by the District Level Committee (DLC), but the State Level Committee (SLC) having rejected their cases on the ground of being under qualified, they have approached this Court. A common issue having been raised, both the writ petitions have been heard analogously and are being disposed of by this common order. 2. While in WP(C) No. 5968/2013, the father of the petitioner died while in service on 20.9.2010 and the petitioner applied for compassionate appointment on 6.12.2010, in WP(C) No. 4680/2014, the father of the petitioner died while in service on 27.11.2010 and the petitioner being his daughter applied for compassionate appointment immediately thereafter. Both the cases were recommended by the respective DLC. However, when their cases were taken up by the SLC, the same came to be rejected on the ground of being under qualified. 3. As noticed in the order dated 7.10.2013 and 6.8.2014, the petitioner in WP(C) No. 5968/2013 had secured 43.06% marks in HS examination. On the other hand, some other candidates named in the order dated 7.10.2013 secured 35.06%, 32.03% and 37.02% respectively. However, their cases were considered for appointment on compassionate ground, but the case of the petitioner was rejected on the ground of being under qualified. 4. The respondents were directed to clarify the above position. Mr. N.J. Khataniar, learned Standing Counsel, Education (Elementary) has produced the written instruction furnished to him, which refers to the OM dated 16.5.2012 laying down the criteria for appointment on compassionate ground, a copy of which is available in WP(C) No. 4680/2014 as Annexure-7. On perusal of the said OM, it appears that the same pertains to minimum qualification required for appointment as Assistant Teacher in Elementary Schools on compassionate ground and the same does not pertain to any other Grade-III and/or Grade IV posts. As per the said OM for appointment as Assistant Teacher in Elementary Schools on compassionate ground, the following criteria will have to be fulfilled. “1. Candidates for appointment on compassionate ground need not appear in Teachers Eligibility Test (TET). 2. As per the said OM for appointment as Assistant Teacher in Elementary Schools on compassionate ground, the following criteria will have to be fulfilled. “1. Candidates for appointment on compassionate ground need not appear in Teachers Eligibility Test (TET). 2. Cases prior to 23rd of August, 2010 Minimum qualification required for both LP and UP is Higher Secondary or its equivalent as laid down in the Assam Elementary (Provincialisation) Rules, 1977 as amended in 2005 before the notification of the NCTE norms as the qualification laid down in the RTE Act, 2009, has come into force prospectively. However, such appointee shall have to acquire requisite qualification in terms of the RTE Act, 2009 and Rules framed there under, within a period of 5 (five) years, falling which, the consequence laid down in the scheme shall follow. 3. Cases on or after 23rd August, 2010 (upto 31.3.2010) (i) Class I to Class V (a) Senior Secondary or its equivalent with at least 50 percent marks OR (b) Graduate (irrespective of marks) (ii) Class VI to class VIII: Graduate.” 5. As regards consideration of the cases of other three candidates referred to above, it is the stand of the respondents in their said written instruction that their cases were prior to 23.8.2010 and accordingly could be considered as the criteria laid down in the OM for the cases after 23.8.2010 were not applicable to them. 6. Mr. J.P. Kachari, learned counsel for the petitioner in WP(C) No. 5968/2013 and Mr. M. Sarania, learned counsel representing the petitioner in WP(C) No. 4680/2014 submit that the OM being confined to cases for compassionate appointment as Assistant Teacher in Elementary Schools, even if the criteria laid down therein did not help the case of the petitioners, but the authority was obliged to consider their cases against any Grade-III and/or Grade-IV posts other than post of Assistant Teacher. Referring to the guiding principles for compassionate appointment as laid down in Achyut Ranjan Das Vs. State of Assam reported in 2006 (4) GLT 674 and Foziron Nessa Vs. State of Assam reported in 2010 (4) GLT 340, they submit that the respondents committed manifest error of law in not considering their cases against the post other than the post of Assistant Teacher. However, Mr. State of Assam reported in 2006 (4) GLT 674 and Foziron Nessa Vs. State of Assam reported in 2010 (4) GLT 340, they submit that the respondents committed manifest error of law in not considering their cases against the post other than the post of Assistant Teacher. However, Mr. Khataniar, learned Standing Counsel, Education (Elementary) Department submits that since the petitioners had applied for appointment as Assistant Teacher, the SLC rightly rejected their cases. 7. As regards the petitioner involved in WP(C) No. 4680/2014, Mr. Sarania, learned counsel representing the said petitioner submits that after submission of the application for compassionate appointment, the petitioner has obtained her graduation, which was also informed to the authority and thus her case ought to have been considered for the post of Assistant Teacher as well. 8. Irrespective of rejection on the ground of non-fulfilment of criteria laid down in the OM dated 16.5.2012, both the cases being that of compassionate appointment, their cases ought to have been considered against any other post, be it Grade-III and/or Grade-IV. 9. In view of the above, both the writ petitions are disposed of remanding the matter back to the SLC for fresh consideration of the case of the petitioners against any Grade-III and/or Grade-IV other than posts of Assistant Teacher of Elementary School. Additionally, SLC shall also consider the subsequent development in respect of the petitioner in WP(C) No. 4680/2014. As noted above, she has already obtained graduation in 2012, after submission of the application for compassionate appointment. 10. Let the required exercise be carried out by taking up their cases in the next SLC meeting.