The prevailing policy at the time of consideration of the application governs compassionate appointment, and delayed communication of rejection does not invalidate the decision.

JUDGMENT :

KALYAN RAI SURANA, J.

Heard Mr. A.M. Barbhuiya, learned counsel for the petitioner. Also heard Mr. S.S. Roy, learned Government Advocate appearing for the respondents.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for setting aside and quashing of (i) communication dtd. 16/11/2018 issued by the Additional Labour Commissioner, Guwahati, and (ii) minutes of the SLC meeting dtd. 7/12/2010 in so far as it relates to rejection of the candidature of the petitioner for appointment on compassionate ground.

3. The case of the petitioner is that her husband, while working as a Lower Division Assistant (LDA for short) in the office of the Labour Officer, Hailakandi (respondent no. 4), had died-in-harness on 29/6/2003. Thereafter, the petitioner had applied for appointment on compassionate ground in any Grade-IV post. It is projected that OM dtd. 9/9/1983 was prevailing at the time when the husband of the petitioner had died and when she had applied for compassionate appointment. Thereafter, the case of the petitioner was put up before the DLC. The DLC in its meeting held on 5/3/2010, recommended the name of the petitioner for being appointed against a single vacancy of Grade-IV which had occurred during the year 2000. However, as the appointment did not materialize, the petitioner had submitted a representation dtd. 18/10/2018 before the Labour Commissioner, Assam (respondent no. 3) for appointing her on compassionate ground. However, she was informed vide letter dtd. 16/11/2018 that the SLC, by its minutes dtd. 7/12/2010, had rejected her candidature on the ground of there being no vacancy position available in the office of the Labour Officer, Hailakandi (respondent no. 4) till 2003 (within two years of the death of her husband). Accordingly, the learned counsel for the petitioner has submitted that the rejection of the case of the petitioner was illegal and the delay in approaching this Court has been explained by submitting that the SLC minutes dtd. 7/12/2010 was communicated to the petitioner only vide communication dtd. 16/11/2018 and therefore, the petitioner had filed this writ petition on 2/9/2019.

4. The learned counsel for the petitioner has submitted that the relevant policy for compassionate appointment, which would govern the case of the petitioner would be the policy prevailing at the time when the husband of the petitioner had died. In support of his submissions, reliance was placed on the case of State Bank of India and Anr. Vs. Jaspal Kaur, (2007) 9 SCC 571. It was also submitted that in this case delay was caused by the respondent authorities in taking a decision, as such, the principle of nullus comm-odum capere potest de injuria sua propia would attract which means that one cannot take advantage of his own wrong and on the said point, reliance is placed on the case of Dwipen Chandra Kalita Vs. The State of Assam and Ors., W.P.(C) 6173/2016, decided on 27/4/2018, by the coordinate Bench of this Court wherein despite a delay of 20 years, the matter relating to claim for consideration for appointment on compassionate ground was remanded back to the Secondary Education Department for a fresh consideration. Accordingly, it is submitted that the petitioner is entitled to relief as prayed for.

5. Per contra, the learned Government Advocate has opposed the prayer and has made his submissions to justify the rejection of the candidature of the petitioner.

6. It may be mentioned that this writ petition was initially dismissed vide order dtd. 12/10/2020, amongst others, on the ground of delay in approaching this Court and that appointment on compassionate ground cannot be made after 17 long years. The said order was assailed in intra Court appeal and the Division Bench of this Court vide judgment and order dtd. 28/1/2021, allowed W.A. No. 177/2020 and by setting aside the order dtd. 12/10/2020 and remanded this writ petition for a fresh decision. The said appellate