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2020 DIGILAW 730 (GAU)

Sowaiba Sultana v. State of Assam

2020-10-20

ACHINTYA MALLA BUJOR BARUA

body2020
JUDGMENT : 1. Heard Mr, A.M. Barbhuiya, learned counsel for the petitioner, Mr. D. Gogoi, learned counsel for the Forest Department and Mr. S.S. Roy, learned counsel for the respondent Nos. 3 and 5. 2. The father of the petitioner, who was working as a Draftsman in the office of the Conservator of Forest in the district of Cachar, died in harness on 6.12.2012. The petitioner being his daughter, made an application for compassionate on 4.2.2013, 22.9.2014 and 27.10.2014, respectively. The application of 27.10.2014 was given a consideration by the DLC of Cachar district in its meeting held on 11.8.2016 and the claim of the petitioner was rejected on the ground that at the time of his death, the father of the petitioner did not have the minimum balance of service of three years, which is a requirement as provided in the Government Police Office Memorandum No. ABP.50/2006/Pt/82, dated 1.6.2015. 3. We have gone through the clause (1) of the Office Memorandum dated 1.6.2015, which is extracted as below:- “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 re-employment 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.” 4. Admittedly, the clause (1) of the Office Memorandum dated 1.6.2015 provides that in the event the deceased employee does not have a balance of three years of service, any application made for compassionate appointment on his death requires no consideration. But the rejection by the DLC is assailed in this writ petition on the ground that the application of the petitioner, which was rejected, is dated 27.10.2014 whereas the Office Memorandum is dated 1.6.2015. According to Mr. A.M. Barbhuiya, learned counsel for the petitioner, in service law jurisprudence, the law prevailing as on the date of entitlement would prevail and not the law as it stood on the date of consideration. 5. Although the said principle is otherwise applicable in service law jurisprudence, but to make it applicable in respect of compassionate appointment, it may not be ipso facto applicable. 6. 5. Although the said principle is otherwise applicable in service law jurisprudence, but to make it applicable in respect of compassionate appointment, it may not be ipso facto applicable. 6. Be that as it may, we have taken note of that the application of the petitioner for compassionate appointment was dated 27.10.2014 and ordinarily the claim for compassionate appointment, considering the very nature for which it is being considered, requires a consideration at the earliest. Had the application of the petitioner dated 27.10.2014 been given its consideration within an acceptable reasonable period of time of its submission, the Office Memorandum dated 1.6.2015 would not have been in place. Merely because it is a laches on the part of the respondents in not giving a prompt consideration to the application for compassionate appointment and delaying the matter to the extent that in the meantime the requirement of law has changed, the claim of the petitioner was put a disadvantage because of the laches. From the point of the view of the said principle of law, we are of the view that it is incorrect on the part of the DLC Cachar to reject the claim of the petitioner by invoking the provisions of clause (1) of the Office Memorandum dated 1.6.2015. 7. In view of such conclusion, we remand the matter back to the DLC of Cachar district for a fresh consideration of the claim of the petitioner for compassionate appointment strictly as per law and as per her entitlement without resorting the provisions of clause (1) of the said Office Memorandum dated 1.6.2015. The matter be placed in the next available DLC of Cachar district. In terms of the above, the writ petition stands disposed of.