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IN THE HIGH COURT OF GAUHATI PRINCIPAL BENCH AT GUWAHATI
SANJAY KUMAR MEDHI, J.
Dipul Ali Ahmed
Versus
State of Assam, represented by the Commissioner and Secretary to the Govt. of Assam and Others
WP(C)/3312/2020, WP(C)/5492/2018, and WP(C)/4037/2018
Decided on : 09-08-2021
Compassionate Appointment - Right to Choose Post - [TRANSPORT DEPARTMENT] - [Assam Transport Department Act, Section 5(1)(a); Assam Transport Department Rules, Rule 7(2)] - The court considered the appointment on compassionate ground and the right of the appointee to choose a particular post. The judgment highlighted the legal provisions and their interpretations, emphasizing that appointment on compassionate ground is meant to mitigate the distress and hardships caused due to the death of the breadwinner of the family while still in service. The court concluded that the appointee, as a beneficiary of the scheme for compassionate appointment, cannot have the right to choose a particular post, and the appointment should be made strictly on the basis of the open invitation of applications and merit. The judgment also emphasized that appointment on compassionate ground is a concession and not a right, and it should be kept confined only to the purpose it seeks to achieve.
Fact of the Case:
The petitioner sought appointment on compassionate ground after the death of his father, who was working in the Transport Department. The petitioner was appointed as an Enforcement Checker instead of Assistant Enforcement Inspector, leading to multiple writ petitions.
Finding of the Court:
The court found that the appointee on compassionate ground does not have the right to choose a particular post, and the appointment should be made strictly on the basis of open invitation of applications and merit. The court dismissed all the writ petitions.
Issues: The main issue was whether an appointee on compassionate ground has the liberty to choose a particular post.
Ratio Decidendi: The court held that appointment on compassionate ground is meant to mitigate the distress and hardships caused due to the death of the breadwinner of the family while still in service. The appointee does not have the right to choose a particular post, and the appointment should be made strictly on the basis of open invitation of applications and merit.
Final Decision: All the writ petitions were dismissed by the court.
JUDGEMENT :
SANJAY KUMAR MEDHI, J.:
1. All the three writ petitions have been filed by the same petitioner successively one after the other in connection with the consideration and appointment of the petitioner on compassionate ground. The question which has ultimately arisen for consideration in these writ petitions is whether an appointee on compassionate ground can have the liberty to choose a particular post. The basic facts of the present writ petitions can be culled down in the following manner:
2. The father of the petitioner, who was working in the Transport Department, as Assistant Enforcement Inspector, died in harness on 04.05.2015. The petitioner, accordingly, applied for appointment on compassionate ground as he had possessed the necessary qualifications. The District Level Committee, Barpeta (DLC), in its meeting held on 08.12.2015 duly considered the case of the petitioner which was forwarded by the District Transport Officer, Barpeta (DTO). After such consideration, the DLC recommended the name of the petitioner for appointment on compassionate ground in an existing vacancy in Grade-III by earmarking the post as Assistant Enforcement Inspector. Thereafter, the State Level Committee (hereinafter SLC) considered the recommendation of the DLC and approved the case of the petitioner for appointment in any Grade-III post. Accordingly, vide an order date 28.11.2017, the petitioner was appointed as an Enforcement Checker in the Scale of Pay (PB-2) Rs. 14,000/- to Rs. 49,000/- + Grade Pay Rs. 5,600/- with other allowances.
3. Being aggrieved by the fact that the petitioner was not offered the post of Assistant Enforcement Inspector, and was appointed only as an Enforcement Checker, the petitioner had approached this Court by filing the first writ petition namely, WP (C) 4037/2018. This Court, while issuing notice, had observed that pendency of the writ petition shall not be a bar to appoint the petitioner as Assistant Enforcement Inspector.
4. It was, at this stage that the authorities have published an advertisement for filling up various posts, including eight posts of Assistant Enforcement Inspector. Confronted with the aforesaid advertisement published in the Assam Tribune in its issue dated 19.07.2018, the petitioner had again approached this Court by filing the second writ petition, namely, WP(C)/5492/2018. This Court vide order dated 20.08.2018 had directed the respondents to keep one post of Assistant Enforcement Inspector vacant. However, consequently, the same advertisement dated 19.07.2018 was cancelled and a fresh advertisement dated 15.07.2020 was published for filling up various posts, including 30 nos. of posts of Assistant Enforcement Inspector, constraining the petitioner to file the third writ petition, being, WP(C)/3312/2020 challenging the same move.
5. I have heard Shri R Islam, learned counsel for the petitioner whereas the contesting respondents are represented by Ms. MD Bora, learned Standing Counsel, Transport Department, Assam.
6. Shri Islam, the learned counsel for the petitioner submits that at no point of time, the eligibility of the petitioner for appointment in the post of Assistant Enforcement Inspector has been questioned. Rather, it is submitted that the DLC in its meeting dated 08.12.2015 had not only recommended the case of the petitioner for appointment but had also mentioned the vacancy in the post of Assistant Enforcement Inspector in the Grade-III cadre. The subsequent recommendation by the SLC was similar in nature by mentioning Grade-III. However, the actual appointment was not done in the post of Assistant Enforcement Inspector but as Enforcement Checker vide order dated 28.11.2017. Though it is not disputed that the post of Enforcement Checker is a Grade-III post, there is a distinction in the scale of pay which is lower for Enforcement Checker. The learned counsel has drawn the attention of this Court to the scales of pay mentioned in the advertisement dated 15.07.2020 which reveal
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