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IN THE HIGH COURT OF GAUHATI
Suman Shyam, J.
Ahid Ahmed Majumdar – Appellant
Versus
State of Assam and Others – Respondents
W.P. (C) No. 1514 of 2017
Decided On : 20-12-2017
Compassionate Appointment Scheme of the Government of Assam – IOCL Employees Superannuation Benefit Fund Scheme – Compassionate Appointment – By filing this writ petition, the petitioner has approached this Court for the second time being aggrieved by the rejection of his application seeking appointment on compassionate ground – The petitioner being eligible for appointment under the compassionate appointment scheme of the Government of Assam, had submitted an application on 14.7.2015 praying for appointment of compassionate ground – Counsel for the petitioner submits that as per the Government notification holding the field on 21.05.2015 i.e. the date of death of the petitioners father, the time limit for filing an application seeking appointment on compassionate ground was one year from the date of death of the sole bread earner – Therefore, the subsequent OM dated 01.06.2015 which seeks to take away a right already accrued in favour of the petitioner on the date of his fathers death on the basis of a subsequent notification was impermissible in the eye of law – Held, By issuing the Office memorandum, The Government of Assam had introduced a scheme for appointment of the sons, daughters and near relatives of Government servant who die in harness by relaxing the prescribed Rules of recruitment – Under the said scheme, 5% of the vacancies in the Grade-III and IV categories were to be filled up on compassionate ground by applying the criteria mentioned therein – In the case in hand, as noted above, a right had vested upon the petitioner to apply under the scheme on the date of death of his father and such right to apply was available to him until 20.05.2016 – On the date of death of petitioners father that was the policy of the Government – Therefore, as long as the application is submitted within the time prescribed by the existing policy decision of the Government, the same cannot be rejected on the basis of a subsequent policy decision which was not in existence on the date on which the petitioner had acquired his eligibility to apply – In other words, the petitioner could not have been divested of an accrued right to apply for compassionate appointment on the basis of the existing Government Circular by placing reliance upon a eligibility criteria which was not in existence on the date on which he had acquired the eligibility – Having regard to the facts and circumstances of the present case, Court is of the opinion that a similar view, as in the case of Samarjyoti Medhi (Supra), is called for even in the present case since this is also a case where the right of the petitioner is being sought to be defeated by taking shelter under a changed policy decision which was not in existence on the date of accrual of the right – For the reasons stated herein above, Court is of the considered opinion that the impugned decision of the DLC in rejecting the petitioners application for compassionate appointment is unsustainable in law and the same is accordingly set aside – The matter is remanded back for fresh consideration of the petitioners application by the DLC – Writ Petitions Allowed
JUDGMENT :
Suman Shyam, J.
1. Heard Mr. N. Deka, learned counsel appearing for the petitioner. I have also herd Mr. N. Sarma, learned Standing Counsel, Elementary Education Department, Assam, appearing for respondent nos. 1, 4, 5, 6 and 7 as well as Mr. C.K.S. Baruah, learned Government Advocate, Assam, representing respondent nos. 2, 3 and 8.
2. By filing this writ petition, the petitioner has approached this Court for the second time being aggrieved by the rejection of his application seeking appointment on compassionate ground.
3. The brief facts of the case, giving rise to the filing of the writ petition, may be noticed here-under. The petitioner's father late Selim Uddin Mazumdar had died in harness on 21.05.2015 while serving as the Head Teacher in the No. 62 Dudhpatil L.P. School, Udarbond in the district of Cachar. Faced with severe financial constraints on account of the untimely death of the sole bread earner of the family, the petitioner being eligible for appointment under the compassionate appointment scheme of the Government of Assam, had submitted an application on 14.7.2015 praying for appointment of compassionate ground. His application was placed before the District Level Committee (DLC) of Cachar district, but the same was rejected by the DLC in its meeting held on 29.08.2015 on the ground that the petitioner did not have the requisite qualification for being appointed in the Grade-III post of Assistant Teacher. Since the petitioner was in desperate need of a job so as to save his family, hence, he had submitted a representation dated 07.12.2015 requesting the authorities to appoint him against a Grade-IV post by reviewing the earlier decision of the DLC. But when no action was taken on his representation, the petitioner had approached this Court by filing WP (C) 65/2016, which was disposed of by the learned Single Judge by the order dated 08.01.2016 with a direction that the petitioner's case be considered for appointment in a Grade-IV post by placing the matter in the next sitting of the DLC.
4. In terms of the order dated 08.01.2016 passed by this court, the petitioner's application was again placed before the DLC in its meeting held on 11.08.2016 but the DLC had once again rejected the same on the ground that the same was barred under the Office Memorandum dated 01.06.2015 bearing No. ABP.50/2006/Pt/182 issued by the Government of Assam since the petitioner's father did not have 3 years of balance service at the time of his death. Aggrieved thereby, the petitioner has once again approached this Court by filing the instant writ petition.
5. Mr. Deka, learned counsel for the petitioner submits that as per the Government notification holding the field on 21.05.2015 i.e. the date of death of the petitioner's father, the time limit for filing an application seeking appointment on compassionate ground was one year from the date of death of the sole bread earner. Therefore, the subsequent OM dated 01.06.2015 which seeks to take away a right already accrued in favour of the petitioner on the date of his father's death on the basis of a subsequent notification was impermissible in the eye of law. In support of his aforesaid argument Mr. Deka has relied upon the decision of the Hon'ble Supreme Court in the case of Canara Bank and Another vs. M. Mahesh Kumar, (2015) 7 SCC 412 and another decision of this Court in the case of Samarjyoti Medhi vs. Indian Oil Corporation Ltd. (2015) 5 GLT 417 to contend that the petitioners application could not have been rejected on the basis of OM date 01.06.2015, which would only have prospective effect.
6. The respondents have not filed any counter-affidavit but the learned State Counsel have advanced oral arguments defending the impugned order by contending that the petitioner's application seeking appointment on compassionate ground was filed on 14.7.2015 i.e. after the OM dated 1.6.2015 came into force and as such, the said OM would be applicable in his case.
7. I have considered the s
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