Diposh Ree vs State Of Assam And 4 Ors

Heard Mr. N.H. Barbhuiya, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned Additional Senior Govt. Advocate appearing for the respondent nos.1 and 4 and Ms. M.D. Borah, learned standing counsel for the Transport Department, respondent nos.2, 3 and 5.

By filing this writ petition under Article 226 of the Constitution of India, the petitioner is seeking direction upon the respondents to consider his claim for appointment on compassionate ground in available vacancies as per Officer Memorandum dated 01.05.2015.

The case of the petitioner in brief is that his father had died in harness on 21.11.2013. On 12.02.2014, the petitioner applied for appointment on compassionate ground. The concerned respondent no.5 had forwarded the proposal before the respondent no.4. The matter was taken up in the DLC meeting dated 09.06.2014. However, the vacancy position was not submitted and it was directed that the case of the petitioner be placed in the next DLC meeting. It is projected that the application of the petitioner was thereafter never placed before the DLC. The petitioner has submitted a representation on 01.03.2020, but still no steps were taken up by the respondent authorities and accordingly, the present writ petition has been filed under Article 226 of the Constitution of India.

Although the Court finds that the petitioner has been able to project that it was not a fault on his part that the application of the petitioner for compassionate appointment was not taken up and considered, nonetheless, as per the ratio laid down in the case of Achyut Ranjan Das & Ors. Vs. State of Assam & Ors, 2006 (4) GLT 674, this Court had held inter alia that if the applications of eligible candidates remain pending and cannot be considered due to want of vacancies for a period of 2 (two) years from the date of making such applications, all such applications will require no further consideration and must be understood to have spend their force. Accordingly, the present writ petition deserves no further consideration as the matter pertains to the year 2014 and the petitioner has approached this Court after almost 7 (seven) years.

In the case of Achyut Ranjan Das (supra), where amongst others, the categorical directions are to the following effect:

"(7) Having understood the principles governing compensate appointment as deducible from the pronouncements of the Apex Court and in the light of what has been discussed above, this court is of the view that it will only be just and appropriate to lay down the under noted principles on the basis of which, henceforth, claims relating to compassionate appointment will have to be considered:

I. All pending applications against existing and available vacancies as per the quota earmarked including the cases of the petitioners in the present cases and all others, who may not be before the Court, shall be decided in accordance with the proposed directions to be laid down in the present order and also in accordance with the principles noted n the preceding paragraphs of this order. This will be done within a period of 4 (four) months from today. The present direction naturally has to be considered as a one-time measure in view of the subsequent direction as laid down in the succeeding paragraphs.

II. The District Head of each Department will intimate the vacancies as and when such vacancies occur, the Court appointed District Level Committees for its scrutiny. There will be no delay in such intimation.

III. The District Level Committee will be constituted by the Deputy Commissioner of the District and the Superintendent of Police. The Deputy Commissioner himself will sit in the Committee. The District Head(s) of such departments in which vacancies are available shall be co-opted as the Additional Member of the Committee.

IV. The District Level Committee will meet once every 2 (two) months on the last Saturday of the second month.

V. The District Level Committee will decide as to who amongst the eligible candidates is entitled to compassionate appointment. To the extent possible such appointment will be recommended to be made within the District. In making the recommendations for appointments, the District Level Committee will take into account the financial condition of the family of the deceased and on a relative consideration of the cases will make its recommendation. There will be no selection and "seniority of the claim" will not be resorted to unless two or more eligible candidates are at par.

VI. To decide on the question of financial status of the family of a claimant regard will be had to the following factors as laid down in G.M. Vs. Kunti Tiwari (supra) (a) Gratuity amount received/receivable. (b) Family pension payable. (c) Provident Fund Amount received/receivable.

(d) Any ex-gratia payment made or payable. (e) Proceeds of LIC Policy and other investments of the deceased. (f) Income of the family from other sources. (g) Employment of other family members. (h) Size of the family and liabilities, if any.

VII. The recommendations of the District Level Committee will be considered by a State Level Committee consisting of the Chief Secretary and the Senior Financial Commissioner of the State. The Commissioner and Secretary of the Department(s) in which vacancies are available will be coopted as Additional Members of the State Level Committee.

VIII. The State Level Committee will meet once every 3 (three) months.

IX. All vacancies available against the quota of compassionate appointment must be filled up within a period of 6 (six) months from the date of occurrence of the vacancy in accordance with the present directions.

X. If the applications of eligible candidates remain pending and cannot be considered due to want of vacancies for a period of 2 (two) years from the date of making such applications, all such applications will require no further consideration and must be understood to have spent their force."

Accordingly, it was incumbent on part of the competent authority to place vacancy position and the DLC and SLC were required to take up pending applications within a time bound period as mandated as per ratio laid down in the case of Achyut Ranjan Das (supra). As the respondents are found to have flouted the mandate of the ratio laid down in the case of Ancyut Ranjan Das (supra), this appears to be a fit case to apply the legal maxim of 'Ubi jus, ibi remedium', meaning that when a person has been wronged or his right was being affected, could approach the ordinary Civil Court on the principle of law that where there is a right there is a remedy.

Accordingly, the Court is inclined to observe that notwithstanding the dismissal of the writ petition, the petitioner shall be at liberty to approach the competent Court of jurisdiction to claim compensation and/ or damages, if so advised.

With the aforesaid observation, this writ petition stands dismissed at the motion stage without issuing notice on the respondents.