AJIJ JAMAN BARBHUIYA vs THE STATE OF ASSAM and ORS

At first blush, this case, touching on the issue of appointment on compassionate ground, appears to be misconceived and without merit, having

regard to the scheme of compassionate appointment. A closer look reveals otherwise and conveys a message of serious concern and sparks an

apprehension whether the State respondents are sincere in their effort to implement the scheme ensuring that persons who are deserving of such

appointments are not hopelessly abandoned. It is also a matter of concern whether the process of compassionate appointments is misused to suit

the interest of vested circles. The facts in the instant case gives an impression that the State respondents are not too serious about it and are going

about in a slipshod manner, allowing applications to gather dust for years and then summarily reject it as having spent its force. If that be so, it

cannot be permitted and those responsible must be made accountable. There can be no unfettered discretion immune from judicial review on the

part of the State respondents in picking and choosing persons for making compassionate appointment. It must always be uppermost in mind that

time is always of essence for making compassionate appointment because the very object of such appointments are to save the family from

immediate distress, which normally visits the family with the loss of the bread earner. Penury and destitution are the yardsticks on which

compassionate appointment is required to be made within the earliest possible time, as delay in making such appointment would not only be fatal

but defeat the very purpose of the scheme of compassionate appointment. This state of affairs would require attention and deliberation of the

highest Executive functionaries in the State.

In the case at hand, the appellant''s father died in harness on 06.08.2009 and during the relevant period he was serving as a Forester under

Cachar Social Forestry Division. The appellant made application on 07.10.2009 in proper format giving all necessary particulars to establish his

candidature for compassionate appointment. His case was placed before the District Level Committee, Cachar as late as on 30.07.2014. For

making recommendations for appointments under the establishment of the Divisional Forest Officer, Social Forestry Division, Silchar, the District

Level Committee considered the cases of four persons, which included the appellant as well. Against the resultant vacancies existing as on

November, 2013, the appellant was recommended for appointment to the post of Forest Guard. In the Minutes of the meeting of the District Level

Committee, the vacancy position of Forest Guard as on November, 2013 was shown as 18 nos. Two years elapsed awaiting the final approval of

the State Level Committee. When no information was forthcoming, the appellant instituted WP(C) 5703/2016, which was disposed of on

21.09.2016 with direction to the Chief Secretary to the Government of Assam and to the Principal Chief Conservator of Forests, Assam to place

the appellant''s case before the State Level Committee, if the same had not been considered earlier. The Court directed that the appellant''s case

be considered as per the guidelines framed by this Court and Office Memorandums issued by the State Government, in its next meeting, if it had

not been considered earlier. The appellant was constrained to institute the second writ petition i.e. the related WP(C) 3607/2017 when he came to

learn that the State Level Committee had met on 09.12.2015 and rejected the cases of 38 applicants, including that of the appellant, on the ground

that since the bread earner in the family died long back in the year 2009/2010, therefore, their cases cannot be considered for appointment on

compassionate ground at such belated stage. The said writ petition was dismissed on 16.06.2017 by recording that the decision taken by the State

Level Committee on 09.12.2015 was consistent with the legal principles governing compassionate appointment. The learned Single Judge also

observed that when the family of the deceased employee managed to sustain itself for 6/7 years without the benefit of a Government job, the denial

of the benefit of the compassionate appointment to such category of persons cannot be said to be unreasonable. It is against this order that the

present appeal is laid.

During the course of hearing, Mr. R. Dhar, learned Additional Senior Government Advocate, Assam have produced a copy of the Minutes of

the meeting dated 11.08.2017 of the State Level Committee. The said Minutes provides the necessary information with regard to the case of the

appellant. It is shown that the case of the appellant pertained to the year 2009 and the State Level Committee considered his case in the meeting

held on 01.04.2015 and thereafter on 09.12.2015. However, the appellant was not selected due to want of vacancy. Again, following the Court''s

order dated 21.09.2016, as aforestated, the appellant''s case was considered but, yet again, the State Level Committee held that in the absence of

any vacancies and coupled with the fact that more than 8 years have elapsed, the appellant''s case no longer falls within the period of consideration

for compassionate appointment. Accordingly, the State Level Committee treated his case as having spent its force.

At the very outset, we make it clear that this Court is not oblivious of the fact that if a family has managed to sustain itself for more than couple

of years consequent upon the demise of the bread earner in the family, such family perhaps have overcome the initial financial trauma and is not in

urgent need of a Government job. What we are concerned in the present case is the sheer lackadaisical attitude demonstrated by the State

respondents in handling a case seeking compassionate appointment, causing inordinate delay in the process. To go back to the relevant dates in the

instant case, death occurred to the appellant''s father on 06.08.2009 and about two months thereafter necessary application in proper format was

submitted for appointment on compassionate ground. Instead of bringing the application to its logical conclusion within the earliest possible time not

later than two years, the respondent authorities sat over the matter and it was only on 30.07.2014, that is well after four years, it was placed

before the District Level Committee. Due recommendation was made by the District Level Committee, having regard to the suitability of the

appellant as well as vacancy position obtaining as on November, 2013. As approval of the State Level Committee was required prior to making

appointment on compassionate ground, the same was placed before the State Level Committee on 01.04.2015 and again on 09.12.2015.

However, the appellant''s case was not considered favourably due to want of vacancies. There are no materials on record to show that the

decision of the State Selection Committee was communicated to the appellant. As the appellant was in complete dark about the fate of his case

before the State Level Committee, he instituted WP(C) 5703/2016. Pursuant to order of the Court dated 21.09.2016, his case was again

considered on 11.08.2017 but with the same result that for want of vacancy and the elapse of more than 8 years, the case of the appellant was

beyond consideration having spent its force.

Application made by the appellant for appointment on compassionate ground well within time on 07.10.2009 was brought to an end only on

11.08.2017. The inordinate delay in the disposal of the application certainly cannot be attributed to the appellant. Further, non-application of mind

is also demonstrated by the State Level Committee in rejecting his case due to want of vacancy when an exercise had already been conducted by

the District Level Committee certifying the suitability of the appellant and existence of vacancies in the post of Forest Guards under the

establishment of the Divisional Forest Officer, Social Forestry Division, Silchar. Rejection of an application without due application of mind and as

a matter of course and by employing the expressions ""want of vacancy"" and ""spent its force"", are easy methods to deprive a candidate from his

legitimate entitlement. Such course of action would only go to frustrate and defeat the very object governing compassionate appointments. These

shortcomings finds best illustration in the present case where the candidature of the appellant was rejected for want of vacancy despite favourable

recommendation being made by the District Level Committee having regard to existence of vacancies and on ground of elapse of time, for which

the appellant cannot be found fault at.

On the facts above, we are of the considered view that the case of the appellant for appointment on compassionate grounds was not handled

judiciously and by going into the merits of his case. Rejection merely on technical grounds and on ground of want of vacancy does not find support

from available records. It also does not inspire the confidence of this Court.

We allow this writ appeal and set aside the order dated 16.06.2017 passed in WP(C) 3607/2017 with direction to the Secretary to the

Government of Assam, Environment and Forest Department to place the case of the appellant before the State Level Committee in its very next

sitting, whereafter the State Level Committee shall consider and decide the appellant''s case strictly on merits by having regard to the

recommendation made by the District Level Committee, Cachar. Ordered accordingly.