Burhan Uddin Barbhyuiya vs State Of Assam And 3 Ors.

1] Heard Mr. M.J. Quadir, the learned counsel for the petitioner. Also heard Mr. R.R. Gogoi, the learned counsel who appears on behalf of Mr. P.N.

Goswami, the learned Standing Counsel, PHE Department, for the respondent Nos. 2 & 3. Mr. N. Goswami, the learned Government Advocate,

appears for the respondent Nos. 1 and 4.

2] Although the learned Standing Counsel for the PHE Department was asked to producethe relevant records of the case and for which, time was

given, Mr. R.R. Gogoi, the learned counsel however, submits that the Department is yet to trace out the relevant records. Having regard to the nature

of grievance projected by the writ petitioner, there appears to be no impediment in disposing of the writ petition even without production of the relevant

records.

3] The facts of the case may be narrated at the outset. The petitioner’s father died inharness on 04.06.2006 while he was working as a Pump

Operator in the establishment of the Executive Engineer, Public Health Engineering (PHE) Department in Hailakandi. The petitioner being the eldest

son of the deceased employee submitted an application for compassionate appointment before the Executive Engineer concerned on 01.08.2006. The

application of the petitioner was pending for quite sometime till it was finally considered by the District Level Committee (DLC) which held its meeting

on 30.11.2012. Upon considering the case of the petitioner, the DLC rejected his application on the ground that it was belated case and therefore, the

application had already spent its force besides there being lack of vacancy.

4] Mr. M.J. Quadir, the learned counsel for the petitioner, submits that the DLC was notjustified in coming to such a finding inasmuch as the petitioner

admittedly submitted his application for compassionate appointment in time i.e. on 01.08.2006 after his father expired on 04.06.2006. The delay in

having the DLC meeting cannot be the ground to reject the case of the petitioner as it is none of his fault. The learned counsel for the petitioner by

referring to the DLC recommendation made for the year 2014, which is annexed as Annexure-B to the affidavit-in-reply filed by the petitioner against

the affidavit-in-opposition of the respondent No.4 submits that a similarly placed person whose father expired while working in a personal post was

duly recommended and appointed by the DLC concerned.

The learned counsel by further referring to Annexure-4 of the writ petition which is at chart showing the number of departmental employees who

expired or retired and showing the particulars of the persons who were appointed on compassionate basis submits that as many as 8 employees under

the PHE Department including the father of the petitioner expired in the year 2006 and therefore, there was no dearth of vacancies to consider the

case of the writ petitioner for appointment. Since, the DLC which made its recommendation in the year 2014 considered the case of a similar

applicant whose father was working against a personal post, the petitioner should also be given similar consideration.

5] Mr. R.R. Gogoi, the learned counsel on the other hand submits that according to theinstructions he has received, the petitioner submitted his

application on 04.12.2006 and therefore, the petitioner cannot have the benefit on being considered in terms of the Office Memorandum dated

01.06.2015 (Annexure-1) wherein, it was provided that application pending as on 03.08.2006 i.e. the date of judgment rendered in Achyut Ranjan Das

and Others Vs. The State of Assam and Others reported in 2006 (4) GLT 674 consideration can be made as one time measure. Nevertheless, the

case of the petitioner was placed before the DLC which held its meeting on 30.11.2012 but however, on account of long pendency of the application

and lack of vacancy, his application was rejected. In such circumstances, the interference of this Court on the finding of the DLC is not called for.

6] Mr. N. Goswami, the learned Government Advocate, also supports the submission ofMr. R.R. Gogoi and submits that since the case of the writ

petitioner was duly considered by the DLC, the petitioner cannot be said to have any grievance.

7] I have considered the submissions made by the learned counsel for the rival partiesand I have perused the materials available on record.

8] From the submissions made by the parties what can be noticed is that the date ofsubmission of the application for compassionate appointment

according to the writ petitioner is 01.08.2006 while the learned counsel for the PHE Department contends that it was 04.12.2006. However, from a

perusal of the DLC minutes dated 30.11.2012 annexed as Annexure-3 to the writ petition, it is clear that date of application apparently is 01.08.2006

and not 04.06.2006. As the petitioner’s application could not have been considered by the DLC which held its meeting on 30.11.2012. Therefore,

the controversy in this regard need not detain this Court in concluding the case. So far as the claim for compassionate appointment of the petitioner on

account of his father having expired in harness while working in a personal post is concerned, the writ petitioner has shown that similarly placed

person namely Sri Abdul Kayum Mazumdar son of Late Abdul Hoque Mazumdar who was working in a personal post as Grade-IV (Khalasi) was

recommended for compassionate appointment for the year 2014. Therefore, having regard to the vacancy position due to the expiry of the incumbents

as shown in Annexure-4 of the writ petition, the DLC could not have rejected the claim of the writ petition for being appointed on compassionate basis

much less, on account of delay. In short, the delay in having the DLC meeting cannot be the ground for rejecting the case of the writ petitioner

moreso, when a similarly placed candidate as indicated above have been duly considered and recommended.

9] Under the facts and circumstances, the rejection of the application of the writpetitioner by the DLC in its meeting held on 30.11.2012 is found to be

unsustainable and accordingly, the same is set aside. In the result, the writ petition is disposed of with a direction to the respondent No.4 to place the

case of the writ petitioner for consideration in the next sitting of the DLC meeting against any Grade-IV post available. To facilitate the DLC and to

make the consideration, the respondent No.2 shall extend his assistance and shall forward the application of the writ petitioner if not already available

with respondent No.4.

10] With the above observation and direction, the writ petition stands allowed.