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2018 DIGILAW 184 (GAU)

SUN BHAGAWATI v. GAUHATI UNIVERSITY

2018-01-31

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT & ORDER : 1. Heard Mr. S Bora, learned counsel for the petitioners. Also heard Mr. LP Sarma, learned Standing counsel, Gauhati University and Mr. NJ Khataniar, learned Standing counsel, Higher Education Department. 2. The petitioners, who are 35 in numbers were all appointed by the respondent Gauhati University on compassionate ground to different Grade-C and Grade-D posts on a fixed pay basis. 3. It is stated by Mr. LP Sarma, that the Gauhati University also follows the compassionate appointment schemes as adopted by the Govt. of Assam. In other words, such scheme would require 5% of the available Grade III and Grade IV posts to be reserved for compassionate appointment. 4. Ordinarily the compassionate appointment is understood to be a regular and permanent appointment which is done by following the procedure of its own. Accordingly when a person is appointed on compassionate basis it cannot be understood that the said appointment was for a temporary purpose or an adhoc basis or for any other purpose. 5. It is stated by Mr. LP Sarma, learned counsel for the Gauhati University that as because of the amendment brought into the Gauhati University Act, 1947 by inserting Section 44 therein, the University is required to maintain the teaching and non-teaching staff at the ratio of 1:1.5 and in order to establish the said ratio, the University cannot appoint any non-teaching employee afresh against any sanctioned vacant post without obtaining the prior approval of the State Government. 6. It is contended by Mr. Sarma that in view of the provisions of Section 44 of the Gauhati University Act, 1947 the appointments given to the petitioners were initially made on a fixed pay basis with the understanding that when the approvals are received from the Govt. of Assam the appointments would be regularized. The Gauhati University takes a stand that although the matter was placed before the appropriate authority in the Govt. of Assam, but the concerned approvals have not been received as yet and that is the reason why the services of the petitioners have not been regularized. 7. On a reading of Section 44 of the Gauhati University Act, 1947, it indicates that a legal duty is entrusted on the appropriate authority in the Govt. of Assam to consider as to whether the approval for such appointment is to be granted or it is not to be granted. 7. On a reading of Section 44 of the Gauhati University Act, 1947, it indicates that a legal duty is entrusted on the appropriate authority in the Govt. of Assam to consider as to whether the approval for such appointment is to be granted or it is not to be granted. A legal duty having been entrusted, the authorities in the State Government cannot sit over the matter and refrain from taking a decision as to whether the approvals are required to be granted or not. 8. Mr. NJ Khataniar, learned Standing counsel for the Higher Education Department states that the authorities in the Govt. of Assam have not decided on the question of the approvals as because they are waiting for some minutes of the meeting between the Minister of Education and the Employees 9. The reasons given by the respondents in the view of this Court stands in the way for the authorities in the Higher Education Department for not taking a decision as to whether the approvals are to be granted or not. If any such resolution of the meeting is required, it is for the respondent authorities to procure the same and take their decision thereof, but it cannot be accepted that the respondent authorities will not take any decision which they are statutorily required to do under Section 44 of the Gauhati University Act, 1947. 10. In such view of the matter, this writ petition is disposed of by directing the Commissioner and Secretary to the Govt. of Assam in the Higher Education Department to take a decision as regards grant of approval to the appointments of the petitioners on compassionate basis. 11. The aforesaid exercise be carried out by the Commissioner and Secretary within a period of 3 (three) months from the date of receipt of a certified copy of this order. 12. In terms of the above, this writ petition stands disposed of.