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2018 DIGILAW 124 (GAU)

Pallab Chakraborty v. State of Assam

2018-01-24

NELSON SAILO

body2018
JUDGMENT & ORDER : 1. Heard Mr. IH Saikia, the learned counsel for the petitioner and Mr. MR Adhikari, the learned Government Advocate for all the respondents. 2. The case of the writ petitioner in brief is that his father who was working as an Accountant in the establishment of North Karimganj Block Development Office died in harness on 28.05.2013. The petitioner in terms of the relevant compassionate appointment scheme formulated by the State Government submitted his application for appointment on compassionate basis before the respondent authority concerned on 24.6.2013 i.e. the respondent No.3. The respondent No. 3 thereafter forwarded the application to the Deputy Commissioner, Karimganj district who is also the Chairman of the District Level Committee (DLC) for considering the case of the petitioner. Subsequently, the DLC held its meeting on 21.02.2014 and upon considering the application of the petitioner, recommended him for appointment to the post of Lower Division Assistant. Be it stated herein that at the time when the petitioner applied for the post of Lower Division Assistant, he had the educational qualification of Higher Secondary School Leaving Certificate. 3. The case of the petitioner upon being recommended by the DLC was then forwarded to the State Level Committee (SLC) by the Additional Deputy Commissioner of Karimganj district vide his letter dated 10.03.2014. However, when the SLC finally held its meeting on 31.10.2015, the case of the petitioner was rejected on account of being not qualified for the post of Lower Division Assistant which is Grade-III post. 4. Mr. IH Saikia, the learned counsel appearing for the petitioner submits that the father of the petitioner died in harness on 28.05.2013 where after, the petitioner submitted his application for compassionate appointment on 24.06.2013 for the post of Lower Division Assistant. He submits that as per the relevant rules i.e The Assam Ministerial District Establishment Service Rules, 1967, more particularly, Rule-7 provides the educational qualification of Higher Secondary Examination pass for being eligible to be appointed as LD Assistant. The petitioner therefore was clearly eligible to be considered for appointment in terms of the aforesaid Rules. Mr. He submits that as per the relevant rules i.e The Assam Ministerial District Establishment Service Rules, 1967, more particularly, Rule-7 provides the educational qualification of Higher Secondary Examination pass for being eligible to be appointed as LD Assistant. The petitioner therefore was clearly eligible to be considered for appointment in terms of the aforesaid Rules. Mr. IH Saikia further submits that although the Rules have been amended with the coming into force of Assam Ministerial Rules (Amendment Rules) 2015 w.e.f 16.10.2015 amending Rule 7 of the principal Rules by providing educational qualification of Graduate for appointment to the post of LD Assistant, the same cannot be applied to the case of the petitioner as he was qualified when he submitted his application. He submits that the petitioner submitted his application on 24.06.2013 and therefore, if the SLC had met soon after the recommendation was made by the DLC, the question of the petitioner being not qualified would not have arisen. At any rate, he submits that since the petitioner is not responsible for such delay, the SLC could not have rejected the case of the petitioner on this ground. He thus submits that the respondent authorities, more particularly, the SLC should be directed by this Court to reconsider the case of the petitioner. Mr. IH Saikia also submits that the petitioner in the meantime has obtained her graduation in Commerce sometime in the middle of the year 2015. He submits that this fact was brought to the notice of the respondent No.3 for conveying the same to the authorities concerned who would be responsible to consider the case of the petitioner. Similarly, a recommendation was also made by the local MLA informing the respondent No.1 that the petitioner had acquired B.Com Degree. However, despite such information given to the respondent authorities, the SLC found the petitioner to be under qualified for the post of LD Assistant. Mr. IH Saikia submits that application of the amended Rules which came into force w.e.f. 16.10.2015 to the case of the petitioner is not correct since he was qualified on the date of submitting his application and therefore, the SLC be directed to consider the case of the petitioner. 5. Mr. MR Adhikari, the learned Government Advocate submits that there is nothing wrong with the rejection of the petitioners application on account of being under qualified by the SLC. 5. Mr. MR Adhikari, the learned Government Advocate submits that there is nothing wrong with the rejection of the petitioners application on account of being under qualified by the SLC. He submits that in fact as per the Notification dated 15.11.2011 issued by the Panchayat and Rural Development (B) Department on 15.11.2011, the qualification of Graduate in any stream has been fixed in order to be appointed as Junior Assistant/LD Assistant under the establishment of the issuing authority. The petitioner on the other hand pursuant to the death of his father in harness on 28.05.2013 submitted his application on 24.06.2013 and therefore, the petitioner was clearly under qualified at the time of submitting his application. In that view of the matter, he submits that there is no merit in the writ petition and the same should be dismissed. 6. I have considered the submission advanced by the learned counsel for the rival parties and I have perused the materials available on record. As can be seen, the facts broadly are not in dispute but however what is to be seen is as to whether the application of the petitioner can be rejected in the manner it has been done. Petitioner submitted his application on 24.06.2013 where after the DLC recommended his case for compassionate appointment on 21.02.2014. It was only on 30.10.2015 that the SLC conducted its meeting to consider the case of the petitioner. In the meantime, the amendment of the relevant Rules had come into force w.e.f. 16.10.2015. With regard to the qualification of graduate prescribed for the post of Junior Assistant/LD Assistant by Notification dated 15.11.2011, it may be seen that Rule 7 of the Assam Ministerial District Establishment Service Rules, 1967 prescribed the educational qualification of HSSL pass . The said Rules have been framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. Therefore, the Notification dated 15.11.2011 cannot override the statutory provisons unless the Rules are amended by due process. No doubt the same was done by amendment of the Rules w.e.f. 16.10.2015 which is only after the petitioner submitting his application on 24.06.2013 and the DLC recommending him on 21.02.2014. Therefore, applying the amendment to the case of the petitioners would not be proper. No doubt the same was done by amendment of the Rules w.e.f. 16.10.2015 which is only after the petitioner submitting his application on 24.06.2013 and the DLC recommending him on 21.02.2014. Therefore, applying the amendment to the case of the petitioners would not be proper. Moreover, this Court in the case of Achyut Ranjan Das vs. State of Assam reported in 2006 4 GLT 674 while considering the case of compassionate appointment had clearly laid down the guidelines to be followed, more particularly at paragraph-7 (iv) and 7 (viii) wherein it is provided that the DLC should meet once in every two months and likewise SLC also should have its meeting once in three months respectively. Therefore, considering the said decision of this Court, there is admittedly delay in considering the case of the petitioner by the SLC. It may also be noticed that this is not a case of appointment on regular basis but a case of compassionate appointment wherein the State in its own wisdom had thought it proper to give to the next kith and kin of the Government employee who died in harness some relief through employment. Therefore, taking an overall view of the matter, I find substance in the writ petition and consequently, the writ petition is disposed of with a direction to the respondent authorities, more particularly, the respondent No.5 to consider the case of the petitioner afresh in the next SLC meeting. It is also hereby provided that since the petitioner in the meantime has obtained Graduation in Commerce, the petitioner will be at liberty to submit his testimonials before the respondent No.1. The respondent No.1, thereafter shall place the same before respondent No.5 within a period of 15 days from the date of receipt of such testimonials and a certified copy of this order. It is also expected that SLC will conduct its meeting at regular intervals as was directed in the case of Achyut Ranjan Das (supra). It is needless to state herein that impugned SLC meeting minutes dated 31.10.2015 so far as it relates to the case of the petitioner is also hereby set aside. 7. With the above observation and direction, the writ petition stands disposed of.