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2017 DIGILAW 1358 (GAU)

Nayanmoni Das v. State of Assam

2017-10-24

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. M. Borah, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned State counsel. 2. The husband of the petitioner was an employee in the Veterinary Department in the State of Assam and was holding the post of VFA-BCCP under the B.C.P.P. Scheme and was posted at North Lakhimpur. 3. The husband of the petitioner died in harness on 03.07.2008. Upon the death of her husband, the petitioner submitted an application for compassionate appointment on 09.10.2009. The case of the petitioner was duly considered by the District Level Selection Board and as per the minutes of the District Level Committee the petitioner was recommended for compassionate appointment against the available vacancy of one Grade IV post in the establishment of the Assistant Director, BCCP Scheme Azad, Lakhimpur, North Lakhimpur. Subsequently, the case for compassionate appointment of the petitioner was considered by the State Level Committee and as per the minutes dated 16.11.2010, the petitioner's claim for compassionate appointment was rejected on the ground that the petitioner had submitted her application after expiry of a period of one year from the date of death of her husband. In the minutes, it was provided that her husband died in harness on 03.07.2008, whereas the application was submitted on 31.10.2009. 4. Mr. TC Chutia, learned State counsel has produced an office memorandum of the Department of Personnel, Govt. of Assam, dated 01.07.2015, wherein in clause 3, there is a provision that an application for appointment on compassionate ground in the prescribed form with all the required enclosures be made within a period of one year from the date of death or acceptance of retirement of the employee, as the case may be. 5. It is also stated that the genesis for filing the application for compassionate appointment within one year of the death of the person concerned can also be traced out to the earlier office memorandums providing for compassionate appointment. Reference has also been made to the decision of this Court rendered in Achyut Ranjan Das Vs. State of Assam & Ors. reported in (2006) 4 GLT 674 to justify the rejection of the application of the petitioner on the ground that the same was filed after the lapse of one year from the date of death of her husband. 6. State of Assam & Ors. reported in (2006) 4 GLT 674 to justify the rejection of the application of the petitioner on the ground that the same was filed after the lapse of one year from the date of death of her husband. 6. On a perusal of the judgment in Achyut Ranjan Das (supra), wherein certain guidelines have been provided in paragraph 7 thereof, no such provisions can be found that the application has to be made within a period of one year from the date of death of the employee. On the other hand, what has been provided, amongst others, is that all vacancies available against the quota of compassionate appointment must be filled up within a period of 6 (six) months from the date of occurrence of the vacancy. 7. Further reference has been made to the decision of this Court rendered in Faziron Nessa Vs. State of Assam & Ors. reported in (2010) 4 GLT 340. On a perusal of the said decision also, it is noticed that there is no such provision that the application for compassionate appointment has to be made within one year from the date of death of the employee. 8. Accordingly it is seen that the only basis in arriving at the conclusion that the application for compassionate appointment has to be made within a period of one year is the relevant provision in different office memorandums of the Govt. of Assam, issued from time to time. 9. The aforesaid question as to whether the said period of one year prescribed in the office memorandum is a mandatory requirement or a directory requirement was also examined by this Court in an earlier decision rendered in Trailokya Nath Vs. State of Assam & Ors. reported in 2016(5) GLT 310. 10. In the said decision, this Court has held as follows: "Compassionate appointment by its very nature is based on compassion. It is an exception to the general rules of recruitment. The period specified for submission of application is only in the form of a guideline to ensure orderliness in considering claims to compassionate appointment and also to eliminate belated submission of applications or not to entertain stale claims as such belated submission of application may defeat the very purpose of compassionate appointment. The period specified for submission of application is only in the form of a guideline to ensure orderliness in considering claims to compassionate appointment and also to eliminate belated submission of applications or not to entertain stale claims as such belated submission of application may defeat the very purpose of compassionate appointment. Having said that, it has also to be borne in mind that if the Court finds that in a particular case ends of justice requires relaxation of the period specified, in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution, the Writ Court would certainly be entitled to direct the authority to entertain claims to compassionate appointment made beyond the period specified. It would depend upon the facts and circumstances of the case. In the instant case, as noticed above, the father died on 29.03.2007 whereas the application for compassionate appointment was filed on 08.06.2008, there being delay of about 3 months which cannot be said to be fatal to the cause of the petitioner." 11. It is noticed that this Court in its earlier decision in Traloikya Nath (supra) had taken the view that the period of one year for submission of application for compassionate appointment cannot be held to be a mandatory requirement and the same depends upon the facts and circumstances of a particular case. 12. Accordingly, it is held that the period of one year prescribed in the office memorandum for submission of application forms on compassionate ground is a directory requirement, but at the same time, it is also incumbent upon the applicant to satisfy the existence of the facts and circumstances which would justify the acceptance of such application beyond the period of one year from the death or retirement, as the case may be. 13. In the aforesaid premises, it is noticed that in paragraph 12 of the writ petition, the petitioner had taken a specific stand that she was unable to submit the application for compassionate appointment within a period of one year as she was busy performing the rites and customary ceremonies on account of the death of her husband. It is not uncommon and judicial notice can also be taken that the period of bereavement of a Hindu woman on the death of her husband in certain families/communities also extend to a period of one year. It is not uncommon and judicial notice can also be taken that the period of bereavement of a Hindu woman on the death of her husband in certain families/communities also extend to a period of one year. The petitioner having taken the stand that she could not submit her application for compassionate appointment as she was busy performing file rites and customary ceremonies on the death of her husband, the said stand cannot be rejected on its own without taking into consideration that the petitioner was engaged in performing the rites and customary ceremonies for the death of her husband, which by itself is an inhibition on her part for submitting the application within a period of one year from the date of death of her husband. 14. In view of the above, the proposition that the period of one year prescribed for submission of application for compassionate appointment as prescribed in the office memorandum has to be considered in the facts and circumstances of every individual case, has been appropriately satisfied in the present case. 15. In such view of the matter, this Court is of the considered view that the rejection of the case of the petitioner by the SLC requires a reconsideration and the reason for rejecting her claim for compassionate appointment on the sole ground that the application was submitted after a lapse of one year from the date of death of her husband is hereby found to be unacceptable. It is further noticed that the delay for submitting the application was even less than 3(three) months, which leads to the conclusion that the application was filed within the proximity of the period of bereavement having came to an end after the rites and customary ceremonies were over. Accordingly, the decision of the SLC rendered in its meeting held on 16.11.2010 in respect of the petitioner is hereby set aside and the matter is remanded back to the SLC for fresh consideration by following the required provisions of law. 16. Writ petition, accordingly, stands disposed of.