Nayanmoni Das vs State Of Assam And 4 Ors

Heard Mr. H.K. Mahanta, learned counsel for the petitioner and Ms. M.D. Borah, learned standing counsel for the respondent nos. 1, 3 and 4 and Mr. D. Borah, learned Government advocate representing respondent nos. 1, 2 and 5.

Assailing the minutes dated 21.12.2018 of the State Level Committee for appointment on compassionate ground (SLC for short), the present writ petition has been filed under Article 226 of the Constitution of India.

In brief, the case of the petitioner is that while on duty, his father had died-in-harness on 17.03.2013. The petitioner, who was aged about 17 years, had applied for appointment on compassionate ground as per prevailing OM dated 02.03.2009. The District Level Committee for appointment on compassionate ground (DLC for short) by a speaking order dated 11.06.2018, which was in extension of DLC minutes dated 22.05.2018, had recommended the name of the petitioner for appointment on compassionate ground in Grade-IV post in the Inland Water Transport Department. However, on the ground that the petitioner was under-age on the date of application, the SLC by its minutes dated 21.12.2018, had rejected the candidature of the petitioner. Accordingly, the aggrieved petitioner has approached this Court.

The learned counsel for the petitioner has submitted that the SLC had not considered the case of the petitioner with sympathy he deserved. It is submitted that on 22.05.2018, the date the DLC meeting was held, the petitioner was a major of 22 years. It is submitted that the petitioner had utmost necessity of job as he was not only rendered fatherless, but the only earning member of the family had lost his life while on duty. Accordingly, it is submitted that technicalities ought not to have come in the way of the SLC to consider the case of the petitioner and to recommend the name of the petitioner for being appointed in Grade-IV post in Inland Water Transport Department on compassionate ground. It is also submitted that the respondent authorities had flouted the directions contained in the case of Achyut Ranjan Das Vs. State of Assam & Ors., 2006 (4) GLT 674 as timelines mentioned therein was not followed by the State respondents. It is also submitted that the case of the petitioner was to be considered as per OM dated 02.03.2009, which contained provisions for relaxation of age and thus, the SLC had committed an error of considering the case of the petitioner under OM dated 01.06.2015.

Per contra, the learned standing counsel for the Transport Department has referred to the statements made in the affidavit-in-opposition filed by the respondent nos. 1, 3 and 4 and it is submitted that on the date of application, the petitioner was 16 years- 8 months- 19 days of age. It is submitted that there is nothing in the OM dated 02.03.2009 by which application made by a minor could be considered. The learned standing counsel has placed reliance on the case of MGB Gramin Bank Vs. Chakrawarti Singh, (2014) 13 SCC 583, and Sanjay Kumar Vs. The State of Bihar & Ors., (2000) 7 SCC 192.

There is no dispute that on the date of application, the petitioner was not a major but a minor. The OM dated 02.03.2009 does not contain any clause that the age of the applicant would be considered as on the date when the DLC meeting is held to consider the case of the applicant. The Court is conscious of the decision of the Supreme Court of India in the case of Syed Khadim Hussain Vs. State of Bihar & Ors., (2006) 9 SCC 195, wherein the Supreme Court of India had taken note of the fact that as on the date of consideration, the appellant therein was above 18 years and directed the respondent authorities to consider his application and to give him appropriate appointment within 3 months. However on facts the said case appears to be distinguishable. In the said case, the mother of the appellant had applied for compassionate appointment within time, but it was rejected that it was not in the prescribed format. Thereafter, the appellant, who was then a minor, had applied for the post and it is under such factual matrix that it was held that the appellant was a major when his case was considered and therefore, direction was issued for his appointment. Thus, on facts the present case is distinguishable because of two reasons, firstly, as per the OM dated 02.03.2009, the application was to be submitted within 3 (three) months and that the petitioner having been born on 28.06.1996, would become a major of 18 years of age on 28.06.2014, and by this time, when his application becomes liable to be considered, the application would be beyond about 15 months. This is a relevant consideration because there cannot be a reservation for applying. Moreover, on the date of applying, the petitioner was not eligible for appointment. An observation to that effect is made by the Supreme Court of India in the case of Sanjay Kumar (supra). Secondly, as in the case of Syed Khadim Hussain (supra), the mother of the petitioner had not applied within time so as to apply the ratio of the said case.

It would be appropriate to quote relevant portion of observations made by the Supreme Court of India in paragraphs 5 to 9 of the case of MGB Gramin Bank Vs. Chakrawarty Singh, (2014) 13 SCC 583: 2013 STPL 18051 SC, which is extracted below (extracted from 2013 STPL 18051 SC):-

"5. ... The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right.

5.1. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds.

5.2. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.

In Umesh Kumar Nagpal v State of Haryana & Ors., (1994) 4 SCC 138, this Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court observed as under:-

"The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased..... The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs of the family engendered by the erstwhile employment which are suddenly upturned..... The only ground which can justify compassionate employment is the penurious condition of the deceased's family. The consideration for such employment is not a vested right. The object being to enable the family to get over the financial crisis."

An 'ameliorating relief' should not be taken as opening an alternative mode of recruitment to public employment. Furthermore, an application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated.

The Courts and the Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulation framed in respect thereof did not cover and contemplate such appointments.

In A. Umarani v Registrar, Co-operative Societies & Ors., AIR 2004 SC 4504, while dealing with the issue, this Court held that even the Supreme Court should not exercise the extraordinary jurisdiction under Article 142 issuing a direction to give compassionate appointment in contravention of the provisions of the Scheme/Rules etc., as the provisions have to be complied with mandatorily and any appointment given or ordered to be given in violation of the scheme would be illegal."

In light of the discussions above, the decision of the SLC meeting dated 21.12.2018, thereby rejecting the candidature of the petitioner on account of he being a minor on the date of the application cannot be faulted with. Accordingly, this writ petition fails and the same is dismissed, leaving the parties to bear their own cost.