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2017 DIGILAW 1556 (GAU)

Ahid Ahmed Majumdar v. State of Assam

2017-12-20

SUMAN SHYAM

body2017
JUDGMENT : Suman Shyam, J. 1. Heard Mr. N. Deka, learned counsel appearing for the petitioner. I have also herd Mr. N. Sarma, learned Standing Counsel, Elementary Education Department, Assam, appearing for respondent nos. 1, 4, 5, 6 and 7 as well as Mr. C.K.S. Baruah, learned Government Advocate, Assam, representing respondent nos. 2, 3 and 8. 2. By filing this writ petition, the petitioner has approached this Court for the second time being aggrieved by the rejection of his application seeking appointment on compassionate ground. 3. The brief facts of the case, giving rise to the filing of the writ petition, may be noticed here-under. The petitioner's father late Selim Uddin Mazumdar had died in harness on 21.05.2015 while serving as the Head Teacher in the No. 62 Dudhpatil L.P. School, Udarbond in the district of Cachar. Faced with severe financial constraints on account of the untimely death of the sole bread earner of the family, the petitioner being eligible for appointment under the compassionate appointment scheme of the Government of Assam, had submitted an application on 14.7.2015 praying for appointment of compassionate ground. His application was placed before the District Level Committee (DLC) of Cachar district, but the same was rejected by the DLC in its meeting held on 29.08.2015 on the ground that the petitioner did not have the requisite qualification for being appointed in the Grade-III post of Assistant Teacher. Since the petitioner was in desperate need of a job so as to save his family, hence, he had submitted a representation dated 07.12.2015 requesting the authorities to appoint him against a Grade-IV post by reviewing the earlier decision of the DLC. But when no action was taken on his representation, the petitioner had approached this Court by filing WP (C) 65/2016, which was disposed of by the learned Single Judge by the order dated 08.01.2016 with a direction that the petitioner's case be considered for appointment in a Grade-IV post by placing the matter in the next sitting of the DLC. 4. 4. In terms of the order dated 08.01.2016 passed by this court, the petitioner's application was again placed before the DLC in its meeting held on 11.08.2016 but the DLC had once again rejected the same on the ground that the same was barred under the Office Memorandum dated 01.06.2015 bearing No. ABP.50/2006/Pt/182 issued by the Government of Assam since the petitioner's father did not have 3 years of balance service at the time of his death. Aggrieved thereby, the petitioner has once again approached this Court by filing the instant writ petition. 5. Mr. Deka, learned counsel for the petitioner submits that as per the Government notification holding the field on 21.05.2015 i.e. the date of death of the petitioner's father, the time limit for filing an application seeking appointment on compassionate ground was one year from the date of death of the sole bread earner. Therefore, the subsequent OM dated 01.06.2015 which seeks to take away a right already accrued in favour of the petitioner on the date of his father's death on the basis of a subsequent notification was impermissible in the eye of law. In support of his aforesaid argument Mr. Deka has relied upon the decision of the Hon'ble Supreme Court in the case of Canara Bank and Another vs. M. Mahesh Kumar, (2015) 7 SCC 412 and another decision of this Court in the case of Samarjyoti Medhi vs. Indian Oil Corporation Ltd. (2015) 5 GLT 417 to contend that the petitioners application could not have been rejected on the basis of OM date 01.06.2015, which would only have prospective effect. 6. The respondents have not filed any counter-affidavit but the learned State Counsel have advanced oral arguments defending the impugned order by contending that the petitioner's application seeking appointment on compassionate ground was filed on 14.7.2015 i.e. after the OM dated 1.6.2015 came into force and as such, the said OM would be applicable in his case. 7. I have considered the submissions made by the learned counsel for the parties and have also carefully gone through the materials available on record. Whether the OM dated 01.06.2015 restricting the eligibility criteria for making application for compassionate appointments would cover those cases where the Government servant had died prior to the issuance of the OM or not is the key question arising for determination by this court in the instant writ petition. Whether the OM dated 01.06.2015 restricting the eligibility criteria for making application for compassionate appointments would cover those cases where the Government servant had died prior to the issuance of the OM or not is the key question arising for determination by this court in the instant writ petition. In order to answer the said question, a brief reference to the various Office memorandums issued by the Government of Assam from time to time laying down the eligibility conditions is deemed necessary. 8. By issuing the Office memorandum dated 9.9.1983, The Government of Assam had introduced a scheme for appointment of the sons, daughter's and near relatives of Government servant who die in harness by relaxing the prescribed Rules of recruitment. Under the said scheme, 5% of the vacancies in the Grade-III and IV categories were to be filled up on compassionate ground by applying the criteria mentioned therein. 9. Alleging arbitrariness and discriminatory treatment in making appointments to the 5% posts reserved under the scheme of compassionate appointment, several aggrieved persons had approached this court by filing writ petition. The series of writ petitions were disposed of by this court by the common judgment and order passed in the case of Achyut Ranjan Das and Others vs. State of Assam and Others, 2006 (4) GLT 674 laying down certain guiding principles to be followed while dealing with the pending and future applications for compassionate appointment. In terms of the directions issued in the case of Achyut Ranjan Das and Others (supra) the State of Assam had constituted a three member State Level Committee (SLC) headed by the Chief Secretary to the Government of Assam to consider applications for appointments on compassionate ground, which was notified on 11.10.2006. Similarly, District Level Committees (DLC) were also constituted at the level of each district. 10. Thereafter, the Government had issued several Office memorandums from time to time modifying the terms of appointment under the compassionate appointment scheme, a reference to all of which is not deemed necessary for the purpose, of this case. However, mention must be made to the notification dated 02.03.2009 by means of which, it was inter-alia provided that an application for appointment on compassionate ground must be submitted within three months from the date of death of the person. However, mention must be made to the notification dated 02.03.2009 by means of which, it was inter-alia provided that an application for appointment on compassionate ground must be submitted within three months from the date of death of the person. The said criteria was, however, subsequently relaxed by issuing the Circular dated 20.12.2012, whereby, the time limit for submission of application for compassionate appointment was stipulated as one year from the date of death of the sole bread earner. 11. On 01.06.2015, the Additional Chief Secretary to the Government of Assam, Department of Personnel (B) had issued another OM whereby the eligibility criteria for submission of application for compassionate appointment was further modified by restricting the same only to those cases where the Government servant had a balance of minimum 3 years of service. The effect of the said OM would be that where the Government servant had less than 3 years of service left at the time of death, the benefit of the compassionate appointment scheme shall not be available to his or her dependents. Clause-1 of the said OM would be relevant for the purpose of this case and is, therefore, reproduced herein-below:- "(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 reemployment 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." The petitioner's application had been rejected by placing reliance on clause (1) of the OM dated 01.06.2015. 12. It is to be noted here-in that at the time of the death of the petitioner's father, Circular dated 20.12.2012 was holding the field whereunder, the dependent of the deceased government servant had the time of one year with effect from the death of the bread earner to submit the application seeking compassionate appointment Petitioner' father died on 21.05.2015. Therefore, under the circular dated 20.12.2012, the petitioner was entitled to submit his application seeking compassionate appointment till 20.05.2016. Therefore, under the circular dated 20.12.2012, the petitioner was entitled to submit his application seeking compassionate appointment till 20.05.2016. The government Circular laying down the eligibility norms for submission of application for compassionate appointment, in the opinion of this court, vests a limited right on the applicant's to apply for the same, which in this case was available to the writ petitioner till 20.12.2012. As such, the mere fact that the petitioner did not submit his application on a particular date cannot be a ground for the authorities to disqualify him on any criteria that was not in existence on the date on which the petitioner had acquired the eligibility to apply for such appointment under the scheme. 13. The scheme introduced by the Government of Assam under the Office memorandum dated 9.9.1983 is undoubtedly a social welfare measure whereby an effort was made by the Government to provide immediate relief to those families whose sole bread earner had suffered a pre-mature death. The scheme of compassionate appointment operates in relaxation of the recruitment Rules. Therefore, having regard to the benevolent object of the scheme a pragmatic and justice oriented approach rather than a technical and restrictive interpretation would be called for while interpreting the eligibility criteria prescribed by the Government from time to time in the matter of appointment on compassionate scheme. 14. In the case in hand, as noted above, a right had vested upon the petitioner to apply under the scheme on the date of death of his father and such right to apply was available to him until 20.05.2016. On the date of death of petitioner's father that was the policy of the Government. Therefore, as long as the application is submitted within the time prescribed by the existing policy decision of the Government, the same cannot be rejected on the basis of a subsequent policy decision which was not in existence on the date on which the petitioner had acquired his eligibility to apply. In other words, the petitioner could not have been divested of an accrued right to apply for compassionate appointment on the basis of the existing Government Circular by placing reliance upon a eligibility criteria which was not in existence on the date on which he had acquired the eligibility. In other words, the petitioner could not have been divested of an accrued right to apply for compassionate appointment on the basis of the existing Government Circular by placing reliance upon a eligibility criteria which was not in existence on the date on which he had acquired the eligibility. It is therefore, held that the OM dated 01.06.2015 will only have a prospective application so as to cover those cases where the Government servant had died after the issuance of the OM and the same cannot have a retrospective application so as to divest a considerate of his already acquired right under the existing circular holding the field on the date on which the government servant had died. 15. In the case of Samarjyoti Medhi (Supra), this Court had rejected a plea of similar nature where a right to be considered for availing the benefit under the compassionate scheme was sought to be denied by the authorities by placing reliance on subsequent change in the policy. That was a case where the deceased employee of the IOCL had died in harness on 30.08.2005 leaving behind his widow and 2 sons. At the time of his death "the IOCL Employees Superannuation Benefit Fund Scheme" was in vogue in the IOCL, which provided for employment of eligible dependent children of the deceased employee. The time limit for making such an application was, however, limited to a period of 3 years from the date of death of the employee, on the expiry of which the right to seek appointment would lapse under the scheme. The widow had initially exercised the option seeking employment in respect of the elder son but the elder son had also unfortunately died, as a result of which, on 3.4.2007, the widow had requested the authorities to provide employment to her younger son who was yet to acquire the requisite qualification. By issuing a communication dated 26.11.2007, the IOCL had declined to provide employment to the younger son on the ground that he having got married on 23.05.2006, was no longer a dependent family member under the changed policy of the Company and, therefore, request for his employment cannot be considered under the changed policy of the Company. Rejecting the plea of the IOCL, the learned Single Judge has held as follows:- "7. Rejecting the plea of the IOCL, the learned Single Judge has held as follows:- "7. When the petitioner's father Deben Chandra Medhi (employee) died on 30.8.2005, married person were not specifically kept out of the purview of the expression "dependent" mentioned in the Scheme and the marital status was made a relevant factor only through the amendment of the Scheme, made in the Trustee's meeting of 6.12.2006. Moreover there are instances of onetime measure being adopted in the IOCL for appointing at least 5 persons under the Scheme, although they were married at the time of appointment. Therefore according to me the non-consideration of the petitioner for his marital status, as informed by the IOCL on 26.11.2007 (Annexure-X), can't be accepted as a good ground for rejection of the petitioner's claim." 16. Having regard to the facts and circumstances of the present case, I am of the opinion that a similar view, as in the case of Samarjyoti Medhi (Supra), is called for even in the present case since this is also a case where the right of the petitioner is being sought to be defeated by taking shelter under a changed policy decision which was not in existence on the date of accrual of the right. 17. It is also to be noted herein that there was no objection raised by the learned Government counsel regarding maintainability of the petitioner's claim when this Court had disposed of WP (C) 65/2016 by issuing the order dated 08.01.2016, although the OM date 01.06.2015 was in existence on that date. Therefore, once this Court had passed an order after hearing arguments from both sides, directing the respondents to consider his application for compassionate appointment against a Grade-IV post, the same could not have been rejected by the DLC, in the present fashion, without examining the petitioner's claim on merit. 18. For the reasons stated herein above, I am of the considered opinion that the impugned decision of the DLC Cachar in rejecting the petitioner's application for compassionate appointment is unsustainable in law and the same is accordingly set aside. 19. The matter is remanded back for fresh consideration of the petitioner's application by the DLC. It is made clear that the DLC would assess the claim of the petitioner against any Grade-IV vacancy and for the purpose, his case be place in the next meeting of the DLC. 20. 19. The matter is remanded back for fresh consideration of the petitioner's application by the DLC. It is made clear that the DLC would assess the claim of the petitioner against any Grade-IV vacancy and for the purpose, his case be place in the next meeting of the DLC. 20. Writ petitions stands allowed. 21. There would be no order as to costs.