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2020 DIGILAW 760 (GAU)

Kiron Sarmah v. State Of Assam

2020-11-17

MICHAEL ZOTHANKHUMA

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Mr. N. K. Murry, learned counsel for the petitioner and Mr. S. S. Roy, for the respondents. 2. The petitioner, by way of this writ petition, has prayed for a direction to be issued to the respondents, to consider the case of the petitioner for compassionate appointment, after the petitioner's father had died in harness on 16.06.2013, while serving in the Assam Police, Govt. of Assam, as a sub-inspector (AB) under the 5th AB Battalion. 3. The petitioner's counsel submits that at the time of the petitioner's father death on 16.06.2013, the petitioner was under age and he applied for compassionate appointment only on 05.08.2014, when the petitioner became a major. Thereafter, representations were sent to the respondents to consider his application. The petitioner's counsel submits that the respondents have not sent the petitioner's application for compassionate appointment to the DLC for consideration. He accordingly prays for a direction to be issued to the respondents to send petitioner's application to the DLC for its consideration. 4. The petitioner's counsel submits that though this Court in the case of Faziron Nessa Vs. State of Assam & Ors., (2010) 4 GauLT 340 , had given a time limit of 12 months for submission of applications for compassionate appointment from the date of death of a Govt. servant, the petitioner's application, which had been submitted after expiry of one year and two months after the death of his father, could be considered to be within time, in terms of the Division Bench judgment of this Court in the case of Sri Vivek Kumar Vs The State of Assam and 4 Ors in WA No. 354/2015 and the Single Bench judgment in Trailokya Nath Vs. State of Assam & Ors., (2016) 5 GauLT 310 . 5. The petitioner's counsel also submits that as the petitioner is the son of his father late AB SI Gauranga Sharma, the petitioner's name and his mother's name have been mentioned as next of kin in the Pension book made in connection with late AB SI Gauranga Sharma. 6. Mr. S. S. Roy, the learned counsel for the respondent submits that on the death of the late AB SI Gauranga Sharma, the wife of the deceased applied for compassionate appointment on 05.09.2013 and the same was rejected by DLC on 13.11.2014. 6. Mr. S. S. Roy, the learned counsel for the respondent submits that on the death of the late AB SI Gauranga Sharma, the wife of the deceased applied for compassionate appointment on 05.09.2013 and the same was rejected by DLC on 13.11.2014. He submits that the petitioner applied for compassionate appointment for the first time only on 09.08.2019 and the petitioner enclosed photo-copies of his alleged earlier applications dated 05.09.2013, 05.08.2014, 13.01.2015 and 17.07.2018 in this writ petition. However, the only application for compassionate appointment made by the petitioner and which was received by the respondents was the one dated 09.08.2019. Mr. S. S. Roy, the learned counsel for the respondents also submits that the petitioner's name does not find mention in the service sheet/record of the late AB SI Gauranga Sharma. He also submits that as the petitioner's application for compassionate appointment had been filed only on 26.08.2019 i.e., five years after the death of the late AB SI Gauranga Sharma, the petitioner's application has to be rejected due to delay and laches. 7. I have heard the counsels for the parties. 8. There are a few issues to be decided in this writ petition and some of them are:- i. Whether the petitioner's first application for compassionate appointment dated 05.08.2014, which has been filed, according to the petitioner, 14 months after the death of his late father, was within the time limit prescribed in Faziron Nessa (Supra)? ii. Whether there are disputed questions of fact involved? iii. Whether the petitioner is the son of the late AB SI Gauranga Sharma? iv. Whether the writ petition is hit by delay and laches? 9. In the case of Faziron Nessa Vs. State of Assam & Ors., (2010) 4 GauLT 340 , this Court has, after considering the Govt. notifications and guidelines laid down in an earlier case, i.e., Achyut Ranjan Das Vs. State of Assam and Others, (2006) 4 GauLT 674 , extended the time limit for submission of applications for compassionate appointment to twelve months, to be counted from the date of death of the Govt. servant. In the present case, it is not in dispute by the parties that on the death of the late AB SI Gauranga Sharma, the wife (petitioner's mother) had applied for compassionate appointment within the time limit i.e. on 05.09.2013 and the same had been rejected by the DLC on 13.11.2014. servant. In the present case, it is not in dispute by the parties that on the death of the late AB SI Gauranga Sharma, the wife (petitioner's mother) had applied for compassionate appointment within the time limit i.e. on 05.09.2013 and the same had been rejected by the DLC on 13.11.2014. Interestingly, the petitioner has not specified in his pleadings (writ petition) as to who had submitted the application for compassionate appointment on 05.09.2013. As there has been no denial of the averments made by the respondents that the wife of late AB SI Gauranga Sharma had submitted an application for compassionate appointment on 05.09.2013, it is clear that the application was submitted by wife of the late AB SI Gauranga Sharma on 05.09.2013. Also while the application of the petitioner's mother had been rejected on 13.11.2014, no challenge has been made to the said rejection by the petitioner's mother till date. 10. The petitioner, on the other hand, has claimed that he had made his first application for compassionate appointment 14 months after the death of the late AB SI Gauranga Sharma, i.e. on 05.08.2014. This was apparently due to the fact that the petitioner was a minor at the time of his father's death and attained majority only on 03.08.2014. 11. In the case of Sri Vivek Kumar Vs The State of Assam and 4 Ors in WA No. 354/2015, the Division Bench of this Court held that as the first application dated 17.01.2012 made by the under-aged appellant for compassionate appointment, which was rejected by the DLC, was within three months from the date of death of his father and, had been followed up by another application dated 11.02.2011 when he became a major, which was after the expiry of 12 months from the date of death of his father, the DLC should have considered the second application filed on 17.01.2012 to be in continuation of the first application made earlier on 11.02.2011. Accordingly, it held that the appellant's application for compassionate appointment should have been considered. However, in the present case, the petitioner did not submit any application for compassionate appointment within time, while being a minor. 12. Accordingly, it held that the appellant's application for compassionate appointment should have been considered. However, in the present case, the petitioner did not submit any application for compassionate appointment within time, while being a minor. 12. In the case of Trailokya Nath (Supra), this Court while noting the decision of this Court in Faziron Nessa & Others (Supra), wherein applications for compassionate appointment were required to be submitted within a period of 12 months from the date of death of the Govt. servant, held that the time period specified in Faziron Nessa & Others (Supra) was only in the form of a guideline, to ensure orderliness in considering claims for compassionate appointment and also to eliminate belated submission of applications, as belated submissions of applications defeated the purpose of compassionate appointments. This Court in Trailokya Nath (Supra) also held that a direction to the authorities to entertain claims for compassionate appointment beyond the specified period would depend upon the facts and circumstances of each case. 13. In the case of Sanjay Kumar Vs State of Bihar,2000 7 SCC 19, the Apex Court has held that there could not be reservation of a vacancy till such time the claimant becomes a major as the very basis of compassionate appointment is to see that the family gets immediately relief. The Court in Sanjay Kumar Vs State of Bihar (Supra) also took note of the fact that on the date the application for compassionate was made by the son, he was not eligible for appointment. The Apex Court also noted as follows: "It is also significant to notice that on the date when the first application was made by the petitioner on 02.06.1988, the petitioner was a minor and was not eligible for appointment." A reading of the above judgement shows that an application for compassionate appointment can be made only by a person who is eligible for appointment. In this case, by the time the petitioner became a major, the time period for submission of an application for compassionate appointment had expired, Thus, there could not have been reservation of a vacancy beyond the prescribed time limit, till such time the petitioner became a major, as that would defeat the purpose of compassionate appointments. In this case, by the time the petitioner became a major, the time period for submission of an application for compassionate appointment had expired, Thus, there could not have been reservation of a vacancy beyond the prescribed time limit, till such time the petitioner became a major, as that would defeat the purpose of compassionate appointments. On the other hand, as contended by the respondents, the petitioner's only application for compassionate appointment was received by them on 09.08.2019, i.e. five years after the death of the late AB SI Gauranga Sharma. 14. Though the judgements of this Court in Sri Vivek Kumar (Supra) and Trailokya Nath (Supra) appear to support the case of the petitioner, in view of the judgment of the Apex Court in Sanjay Kumar Vs State of Bihar (Supra), this Court would have to abide by the decision of the Apex Court and not the judgements of this Court. Also the Division Bench, in the case of Sri Vivek Kumar Vs. The State of Assam and 4 Ors in WA No. 354/2015, did not hold that the time period stipulated for submission of applications for compassionate appointments could be extended. Further, it is settled law that a decision is only an authority for what it decides and not what logically follows from it. A little difference in facts lessens the precedential value of a decision. It should also be kept in mind that the petitioner's mother's application for compassionate appointment was still pending at the time the petitioner submitted his alleged first application for compassionate appointment. 15. Accordingly, in view of the above decisions of the Apex Court, this Court is of the view that the petitioner's application not being in time, the same could not be considered, as there cannot be reservation of a vacancy till a minor becomes a major. 16. The above being said, while the petitioner's case is that he had first submitted his application for compassionate appointment on 05.08.2014, the case of the respondents is that the only application for compassionate appointment that they received from petitioner was dated 09.08.2019. The different stands taken by the parties herein clearly shows that there are disputed questions of fact, which cannot be decided in this writ petition and the same would have to be decided in a Civil Court. 17. The different stands taken by the parties herein clearly shows that there are disputed questions of fact, which cannot be decided in this writ petition and the same would have to be decided in a Civil Court. 17. The question whether the petitioner is the son of late AB SI Gauranga Sharma seems to have been clinched by the fact that the petitioner's name is in the Pension book. 18. Besides the above, it is seen that while the petitioner's case is that he had filed his first application for compassionate appointment on 05-09-2014, he has approached this Court only on 26.08.2019, i.e. approximately 5 years after filing his first application for compassionate appointment. It has to be kept in mind that the very concept of compassionate appointment looses its force after several years after the death of the sole bread earner, as it implies that the family has been able to overcome the immediate loss of the bread earner. Keeping the above in view, this Court is also of the view that the present writ petition is hit by delay and laches. 19. Due to the above reasons, this Court does not find any reason to allow the writ petition. The same is accordingly dismissed.