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2018 DIGILAW 1329 (GAU)

Kamaleswar Roy v. State of Assam

2018-09-07

NELSON SAILO

body2018
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. HR Ahmed, the learned counsel for the writ petitioner and Mr. MR Adhikari, the learned State counsel appearing for all the respondents. 2. The facts of the case as projected by the writ petitioner may be narrated at the outset. The father of the petitioner was serving as Gram Sevak under the administrative jurisdiction of the respondent No. 5 at Debottar Hasda in the district of Dhubri. However, while working as such, he expired on 16.01.2010. Thereafter, the petitioner submitted a representation before the Agriculture Inspector at Dhubri on 08.03.2010 seeking compassionate appointment against any Grade-IV post. The case of the petitioner was placed before the District Level Committee (DLC) at Dhubri for consideration. The DLC consequently held its meeting on 17.08.2011 and the petitioner was recommended for appointment on compassionate ground against an existing vacant post of Grade-IV in the establishment of the respondent No.5. 3. Thereafter, the recommendation of the DLC was forwarded by the respondent No.5 to the respondent No-3 on 14.10.2011 by placing the same before the State Level Committee (SLC). However, as no decision was taken by the SLC on the recommendation made by the DLC, the petitioner being aggrieved, approached this Court by filing WP (C) 2629 of 2015. Against the writ petition, the State respondents filed their affidavit-in-opposition on 15.10.2015 whereby, the minutes of the SLC meeting held on 15.02.2014 was annexed. According to the respondents, the SLC could not recommend the petitioner for compassionate appointment for want of vacancy. To challenge the decision of the SLC, the petitioner has initiated the present writ petition for the second time. 4. Appearing for the petitioner Mr. HR Ahmed, the learned counsel submits that against the establishment of the respondent No. 5 in the district of Dhubri, there was one vacancy in the Grade-IV post for the year 2009 and there were two vacancies for the year 2011. Therefore, the SLC could not have rejected the case of the petitioner on the ground that there was no vacancy. To substantiate his submission, the learned counsel refers to Annexure-2 of the affidavit-in-opposition filed by the respondent Nos. 2, 3 and 5 on 01.08.2016. Therefore, the SLC could not have rejected the case of the petitioner on the ground that there was no vacancy. To substantiate his submission, the learned counsel refers to Annexure-2 of the affidavit-in-opposition filed by the respondent Nos. 2, 3 and 5 on 01.08.2016. He further submits that SLC vide its meeting minutes dated 15.02.2014 recommended one Smti Anupama Pradhani for appointment on compassionate ground against the vacant post of Grade-IV for the year 2009 and therefore, the SLC ought to have recommended the petitioner as well against the two vacancies for the year 2011. The SLC in rejecting the case of the petitioner had referred to the guidelines issued by the Personnel (B) Department. Referring to the guidelines issued in the form of Office Memorandum dated 09.09.1983 which is annexed as Annexure-7 to the writ petition, the learned counsel submits that since there were two clear vacancies for the year 2011 and that both the vacancies were not filled up, there was no restriction for filling up of the vacancies as provided by Clause-4 of the said Office Memorandum. Therefore, the SLC was wrong in applying the Office Memorandum to reject the case of the petitioner. He therefore submits that the SLC may be directed by this Court to reconsider the case of the petitioner for compassionate appointment against the available vacancies. 5. Mr. MR Adhikari, the learned State counsel by referring to the affidavit-in-opposition filed by the respondent Nos. 2, 3 and 5 on 01.08.2016 submits that death of an employee does not straight away entitle his family to be considered for compassionate appointment. The authority concerned has to consider as to whether the family of the deceased employee is facing financial crisis etc. on account of the employee's expiry. Therefore, the factors relevant for such consideration are timely application, financial status and destitution suffered by the family members of the deceased employee. He submits that the State Government has laid down the guidelines for considering compassionate appointment vide Office Memorandum dated 09.09.1983 through the Personnel (B) Department. According to the Office Memorandum, not more than 5% of the vacancies in Grade-III and Grade-IV arising in a year can be filled up on compassionate basis. The restriction however will not apply where only one vacancy each in the two categories of post are filled up on compassionate basis in a year. According to the Office Memorandum, not more than 5% of the vacancies in Grade-III and Grade-IV arising in a year can be filled up on compassionate basis. The restriction however will not apply where only one vacancy each in the two categories of post are filled up on compassionate basis in a year. The SLC on 15.02.2014 considered the case of the petitioner but however, due to non admissibility of 5 % vacancy in the Grade-IV post as per the guidelines, the petitioner could not be recommended for appointment. 6. I have heard the submissions of the learned counsels for the rival parties and I have perused the materials available on record including the records produced by Mr. MR Adhikari, the learned State counsel. 7. From the materials available on record, it can be seen that there was one vacancy in the Grade-IV post under the establishment of the respondent No.5 for the year 2009 and for the year 2011, there was two vacancies. The DLC duly recommended the petitioner for compassionate appointment against the available vacant post of Grade-IV which fell vacant on the retirement of the incumbent on 31.03.2011. The petitioner submitted his application for compassionate appointment on 08.03.2010 and the DLC recommended him for compassionate appointment in its meeting held on 17.08.2011. Therefore, it can be seen that there was no delay on the part of the petitioner when he approached the respondent authorities for compassionate appointment as his father had expired on 16.01.2010. Therefore, there is no occasion for rejecting his case on the ground of delay. In so far as the financial status and hardship of the petitioner is concerned, the same will require no examination , inasmuch as it is not the case of the respondents that the petitioner did not face financial hardship on account of his father's death. In so far as the vacancy position is concerned, there is also no dispute that there were two vacancies in the Grade-IV posts for the year 2011. The only ground for rejecting the petitioner's application by the SLC was due to non-admissibility of 5 % vacancy as per the guidelines issued by the Personnel (B) Department. In order to appreciate this ground taken by the SLC in rejecting the petitioner's application, Clause-4 of the Office Memorandum dated 09.09.1983 may be reproduced below for ready perusal: "4. The only ground for rejecting the petitioner's application by the SLC was due to non-admissibility of 5 % vacancy as per the guidelines issued by the Personnel (B) Department. In order to appreciate this ground taken by the SLC in rejecting the petitioner's application, Clause-4 of the Office Memorandum dated 09.09.1983 may be reproduced below for ready perusal: "4. Not more than 5% of the vacancies in Class-III services (not above the level of Lower Division Assistant) or in Class-IV services arising in a year will be filled up under this scheme. This restriction will not apply where only one vacancy each in Class-III or Class-IV is filled up under the scheme in a year". 8. What has been provided by the above guidelines is that the restriction of filling up of vacancies in the Grade-III and Grade-IV post to the extent of 5% will not be applicable when one vacancy each in the Grade-III and Grade-IV are filled up in a year on compassionate basis. This provision by itself cannot be understood as a restriction for not considering the case of the petitioner against the two available vacancies for the year 2011. Apart from filling up one vacancy which occurred in the year 2009 under the establishment of the respondent No. 5 in the Dhubri district, no other vacancy including the two vacancies which occurred for the year 2011 has been filled up. This fact can be seen from the minutes of the SLC dated 15.02.2014. There is no material on record to show that the two posts available for the year 2011 have been filled up as well. Therefore, the SLC could not have rejected the petitioner's application for want of vacancies as per the guidelines. 9. At this stage, it may be noticed that in terms of the order passed by this Court on 16.12.2017, respondent No.2 has also filed an affidavit-in-opposition on 04.01.2018. This Court vide order dated 16.12.2017 sought for a clarification as to whether the recommendation of the DLC in favor of the petitioner is within the 5 % vacancies for compassionate appointment. However, the said affidavit-in-opposition of the respondent No.2 does not contain any clarification but it merely reiterates the decision of the SLC dated 15.02.2014. This Court vide order dated 16.12.2017 sought for a clarification as to whether the recommendation of the DLC in favor of the petitioner is within the 5 % vacancies for compassionate appointment. However, the said affidavit-in-opposition of the respondent No.2 does not contain any clarification but it merely reiterates the decision of the SLC dated 15.02.2014. The official records produced by the learned State counsel also do not throw any light to the controversy in the issue and it only reiterates the decision taken by the SLC as well. 10. Under the facts and circumstances, I am of the considered opinion that the SLC in its held meeting held on 15.02.2014 could not have rejected the case of the petitioner by applying Clause-4 of the Office Memorandum dated 09.09.1983 which is said to be the guidelines issued by the Department of personnel (B) of the State Government. 11. For the sake of repetition, a plain reading of Clause-4 would go to show that only 5 % vacancies in Grade-III and Grade IV post can be filled up on compassionate basis. This restriction will not apply if one vacancy each in both the category of posts is filled up in a year. Therefore, as the two vacancies for the year 2011 were not filled up, there is no restriction for filling up the same. 12. In that view of the matter, the writ petition is disposed of with a direction to the respondents, more particularly, the respondent No.1 to reconsider the case of the petitioner afresh in the light of the observation made herein above in the next SLC sitting to be held. Consequently, the decision of the SLC meeting minutes dated 15.02.2014 in so far as the writ petitioner is concerned is set aside. 13. No cost.