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2018 DIGILAW 882 (GAU)

MD. MUSTAFA KAMAL v. STATE OF ASSAM

2018-05-30

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT AND ORDER : 1. Heard Mr. A. Ali, learned counsel for the petitioner. Also heard Mr. SB Bhattacharjee, learned counsel for the respondent No.1 and 2 and Mr.K Nayak, learned counsel for the respondent Nos. 5 an 6. 2. The petitioners case in brief is that on the death of his father on 06.01.2016, while working in the Gauhati Commerce College, the petitioner submitted an application for compassionate appointment on 17.01.2006. Petitioners application for compassionate appointment was rejected by the DLC on the ground that he had submitted his application beyond the time limit. The meeting minutes of the DLC held on 18.02.2015 states that the proposal of the petitioner could not be considered as the specified period of two years had already elapsed as provided by the Government letter No.ABP.92/2012/32 dated 20.12.2012. 3. Petitioners counsel submits that the petitioner is presently working in Gauhati Commerce College on temporary basis. He submits that the petitioners case for compassionate appointment should be considered on merit or in the alternative, his service in the college as Grade-IV employee should be regularized. 4. Counsels for the respondents on the other hand submit that as the petitioner is working in a temporary capacity, the petitioner cannot have any legitimate claim for compassionate appointment. They also submit that regularization cannot be granted in view of the fact that the petitioner does not come within the purview of paragraph 53 of the Judgment of the Apex Court in the case of State of Karnataka vs. Uma Devi (3), reported in (2006) 4 SCC 1 . I have heard the learned counsels for the parties. 5. The rejection of the petitioners application for compassionate appointment on the ground that the petitioners application had elapsed after two years of being submitted is not proper, inasmuch as, the petitioners application should have been considered on merit, in view of the guidelines laid down by this Court in the case of Achyut Ranjan Das vs. State of Assam & Ors, reported in 2006 (4) GLT 674. However, as held by the Apex Court and this Court in various judgments, the very object of compassionate appointment is to mitigate the immediate hardship caused to the family of the Government servant. However, in the present case, the petitioner has been given temporary employment in a Grade-IV post by the Gauhati Commerce College. However, as held by the Apex Court and this Court in various judgments, the very object of compassionate appointment is to mitigate the immediate hardship caused to the family of the Government servant. However, in the present case, the petitioner has been given temporary employment in a Grade-IV post by the Gauhati Commerce College. Accordingly, it can be said that the petitioner has been given the opportunity to mitigate the immediate loss caused to the petitioner by the death of his father. Further, this Court has held in the case of Achyut Ranjan Das (supra) that as compassionate appointments are required to be made within the earliest possible time, "the delay in making such appointment would be fatal. With the passage of time, State and the Courts must understand that the family of the deceased has been able to meet the crisis caused by the death of the sole bread earner." 6. In the present case, the petitioners father died in 2006 and the petitioner has been given appointment to a Grade IV post in Gauhati Commerce College on 17.01.2006. Thus, with regard to the prayer of the petitioner for compassionate appointment, this Court finds that due to flux of time, the petitioner does not have a case for being considered for compassionate appointment in his favour, when he has employment. With regard to the petitioners prayer for regularization, the case of the petitioner cannot be considered by this Court as he does not come within the exception carved out in paragraph-53 of the Uma Devi (3) (supra) as the petitioner has not worked for 10 years in his post when the Judgment of Uma Devi (3) was given in the year 2006. 7. In the case of State of Karnataka vs. M.L. Kesari & Ors. reported in (2010) 9 SCC 247 , the Apex Court while interpreting paragraph 56 of Uma Devi (3) (supra) held as follows:- "It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following conditions are fulfilled : (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular." 8. In view of reasons cited above, the present writ petition stands dismissed.