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2016 DIGILAW 260 (GAU)

MD. AZAZUL HOQUE v. STATE OF ASSAM

2016-04-01

UJJAL BHUYAN

body2016
JUDGMENT : Ujjal Bhuyan, J. Heard Mr. M. Ahmed, learned counsel for the petitioner and Mr. M. Khataniar, learned Govt. Advocate, Assam. Also heard Mr. M. Choudhury, learned Standing Counsel, Directorate of Land Records and Surveys, etc, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of the decision of the District Level Committee, Dhubri, dated 18.09.2015 rejecting the case of the petitioner for compassionate appointment. 3. Case of the petitioner is that his father served as Chainman in the office of the Assistant Settlement Officer, Dhubri Circle. He died in harness on 06.12.2014. Petitioner submitted application before the District Level Committee (DLC), Dhubri, through proper channel on 17.12.2014 seeking appointment in a Grade-IV post on compassionate ground. Case of the petitioner was placed before the DLC on 10.04.2015. However, DLC took the view that since petitioner's father had worked under the re-settlement operation which was on the verge of completion, views of the Government were required to be obtained as to whether family members of the deceased employees under re-settlement operation were eligible for compassionate appointment under the scheme in force. It was observed that Settlement Officer, Dhubri, was earlier instructed to seek clarification/instruction from the Government in this regard but no such instructions were forthcoming. Therefore, case of the petitioner was not considered. 4. At that stage, petitioner approached this Court by filing WP(C) No.3231/2015. This Court by order dated 09.09.2015, disposed of the said writ petition by directing the DLC, Dhubri, to consider the case of the petitioner for compassionate appointment on its own merit and in accordance with law in its next meeting. 5. Thereafter, case of the petitioner was again taken up by the DLC on 18.09.2015 and this time, DLC rejected the claim of the petitioner on the ground that at the time of death of petitioner's father, he had less than three years of service left with him which dis-entitled the petitioner from a consideration in terms of Office Memorandum (OM) of the Government of Assam in the Department of Personnel bearing No.ABP 50/2006/Pt/182 dated 01.06.2015. 6. Aggrieved, present writ petition has been filed. 7. On 18.03.2016, this Court on due consideration, directed the respondents to keep aside one Grade-IV post vacant under the establishment of Settlement Officer, Dhubri and Kokrajhar districts. 8. 6. Aggrieved, present writ petition has been filed. 7. On 18.03.2016, this Court on due consideration, directed the respondents to keep aside one Grade-IV post vacant under the establishment of Settlement Officer, Dhubri and Kokrajhar districts. 8. Thereafter, on 28.03.2016, copy of the Government OM dated 01.06.2015 was placed before the Court (wrongly recorded as Government Memorandum dated 01.03.2016). 9. Relevant portion of the minutes of the DLC meeting held on 18.09.2015 reads as under: "The Department has submitted 2 (two) applications for Gr.III/IV each post in the light of order of the Hon'ble High Court in WP(C) No. 3231/2015 (Azazul Hoque v. State of Assam & ors) and WP(C) No. 1856/2015 (Sayed Hussain v. State of Assam & ors). The Hon'ble High Court Guwahati has ordered/directed to consider their proposal for the post of Gr.III/IV praying for appointment on compassionate ground as per information furnished by the Settlement Officer, Dhubri and Kokrajhar Dist vide Annexure-XII. The District Level Committee could not consider both the proposals because neither of them has a balance of 3 years of service which is an important criteria as per Govt. O.M. No.ABP/50/2005/Pt/182 Dated 1st June, 2015 requisite for consideration on compassionate ground which is shown below :- S.No. Name Date of Death Date of superannuation 1. Azazul Hoque, S/o. Late Amzad Hussain (2 yrs 10 months 25 days) 06/12/14 31.10.2017 2. Sayed Hussain, S/o. Late Sahabuddin Ahmed 04/02/14 30.06.2014 (4 months)" 10. As noticed above, case of the petitioner has been rejected on the ground that petitioner's father had less than three years of service when he died in harness which it is stated is an important criteria as per the Government OM dated 01.06.2015. 11. Since reference has been made to Government OM dated 01.06.2015, relevant portion of the same is extracted hereunder : "(1) Only one dependent family member of a Government servant appointed on regular basis excluding one working on daily wage or casual or apprentice or ad-hoc or contract or re-employment basis who die in harness or become incapacitated due to accidents suffered while on duty and is eligible to opt for invalid pension under relevant provision of Service Rule/Pension Code and/or who is missing is eligible for making application for compassionate appointment provided in each case the Government servant has balance of minimum of 3 years of service." 12. Question for consideration is whether the aforesaid provision as contained in the Government OM dated 01.06.2015 would be applicable in the case of the petitioner. 13. From the facts noticed above, it appears that petitioner's father had died on 06.12.2014 where after petitioner submitted application for compassionate appointment on 17.12.2014. As would be evident from the Government OM dated 01.06.2015 itself, it came into existence on 01.06.2015 after petitioner had laid claim for compassionate appointment by filing application dated 17.12.2014. Therefore, on 17.12.2014, Government OM dated 01.06.2015 was not in force. It is submitted at the bar that the prescription of having minimum of three years of service by the Government servant at the time of death was not there in the scheme governing compassionate appointment prior to 01.06.2015. 14. The Apex Court in the case of State Bank of India v. Jaspal Kaur, reported in (2007) 9 SCC 571 and in the case of Canara Bank v. M. Mahesh Kumar, reported in (2015) 7 SCC 412 , has held in no uncertain terms that scheme governing compassionate appointment at the time of making of the application for compassionate appointment would govern the claim for compassionate appointment and not any scheme subsequently brought into existence. 15. That being the legal position, petitioner's claim for compassionate appointment was required to be considered on the basis of the scheme governing compassionate appointment which was in force as on 17.12.2014 when the application for compassionate appointment was made. Therefore, rejection of case of the petitioner by taking assistance of the subsequent Government OM dated 01.06.2015 is not justified and cannot be sustained. 16. Accordingly, impugned decision of the DLC, Dhubri, in respect of the petitioner dated 18.09.2015 is hereby set aside and quashed. 17. Case of the petitioner is required to be re-considered by the DLC on its own merit. Let the Deputy Commissioner, Dhubri, place the case of the petitioner again before the DLC, Dhubri, for re-consideration in its next meeting. Writ petition is disposed of.