Pinak Dey vs State Of Assam And 4 Ors

Heard Mr. D Hussain, learned counsel for the petitioner, Mr. SS Roy, learned Junior Government Advocate for the respondent Nos. 1, 3 and 5 as well as Mr. J Roy, learned counsel for the respondent Nos. 2 and 4.

The father of the petitioner Gopika Ranjan Dey, who was working as a Peon (CD Wing)/Grade-IV worker in the office of the Katigorah Development Block, Cachar, Assam, died in harness on 07.11.2010 and on his death, the petitioner made an application for compassionate appointment on 19.11.2010. For reasons not discernible, the said application of the petitioner was not given a consideration for five years and thereafter, the DLC of Cachar district in its meeting held on 29.08.2015 had recommended the petitioner against the post of Peon, but provided that the recommendation would be 'subject to availability of vacancy at the office of Commissioner, P&RD Department.' A recommendation made by the DLC with an observation subject to availability of vacancy in our view would be a dereliction of duty by the DLC. The first dereliction appears when the application of the petitioner was not given a consideration for five years and the second dereliction of duty was when the DLC made its recommendation with an observation "subject to availability of vacancy".

The law provides that it is for the DLC to verify and satisfy itself as regards the availability of vacancy and such duty cannot be shifted by providing the recommendation to be made subject to availability of vacancy. Be that as it may, after another approximately five years, by the communication dated 29.05.2020, the petitioner was informed that the SLC in its meeting held on 15.02.2019 had rejected the claim of the petitioner for there being no vacancy available during the year 2010-11 for Grade-IV post. While the matter was being considered by the SLC, the illegality committed by the DLC could have been removed had the SLC given the consideration within the proper time period instead of waiting for another approximately five years.

The whole conduct of the respondent authorities appears to be against the spirit of the compassionate appointment to the extent that the manner in which the considerations were given, does not indicate any compassion being shown by the respondent authorities.

As the DLC had faulted on two counts, as indicated above, we deem it appropriate to remand the matter back to the DLC, Cachar district for giving an appropriate consideration as to whether any vacancy in the Grade-IV post was available in the office of the Commissioner of P&RD Department during the year 2010-11 and if yes, what had happened to the said vacancies. If any such post was actually available and the petitioner was deprived, a fresh consideration be given to the petitioner against such post. If the post was actually available, but in the meantime filled up by some other means, paragraph 15 of the Office Memorandum dated 01.06.2015 be invoked and the case of the petitioner be given a consideration against any other vacancy that may have been available in the other Departments in the year 2010-2011. The consideration be given in the next meeting of DLC, Cachar district.

In terms of the above, the writ petition stands disposed of.