High Court
Case Details
WP(C) 1000/2006 BEFORE HON’BLE MR.JUSTICE T. VAIPHEI JUDGMENT AND ORDER 1
Facts
In this writ petition, the petitioner is aggrieved by the refusal of the State-respondents to give regular appointment to her with consequential benefit s.
Legal Reasoning
2. The facts giving rise to this writ petition may be briefly noticed at th e outset. The petitioner is the daughter of the late Gongesh Bhattacharjee, a po lice constable working in the establishment of the Superintendent of Police, Cac har District, Silchar (respondent 6), who died in harness on 25-1-1981 due to ca ncer. He left behind him his wife and his minor children including the petitione r. Initially, the petitioner was temporarily appointed as Women Home Guard in th e Office of the respondent No. 6 a fixed wages of Rs1,300/- per month on compass ionate ground. On 20-12-1993, she filed representation to the Director General o f Police, Assam (respondent 3) for considering her appointment to the post of Lo wer Division Assistant-cum-Typist in the Office of respondent 6. The representat ion was forwarded to the respondent 3 for consideration. Between 26-9-1997 and 3 0-12-2000, she was called for interview for several times, but she was never app ointed, which compelled her to approach this Court in WP(C) No. 6490 of 2001. Th is Court by the order dated 14-9-2001 had directed the respondent authorities to consider the case of the petitioner for appointment to the said post. 3. When the direction of this Court did not meet the desired result, she was constrained to approach the Committee on Petition, Assam Legislative Assemb ly for her appointment. The Committee on Petition vide it 38th report forwarded by the letter dated 11-4-2005 issued by the Additional Secretary, Assam Legislat ive Assembly directed the respondent authorities to consider her for appointment to the post of LDA-cum-Assistant under respondent 6 as her position was found t o be in Serial No. 1 of the Select List in the test held on 30-12-2000. Even aft er the intervention of the Committee on Petition also, there was no improvement in her case. This prompted her to petition the Deputy Inspector General of Polic e to that end, but with no effect. This is how this second round of litigation i s preferred by the petitioner. It is contended by the petitioner that the respon dent authorities has been denying regular appointment to the petitioner till now arbitrarily and illegally.
Decision
4. The writ petition is resisted by the State-respondents by filing separat e affidavits-in-opposition by the respondent No. 6 and by the respondent No. 3 a nd 5. The stance taken by the respondent No. 6 in his affidavit is that the case of the petitioner does not attract the scheme of compassionate appointment. Mor eover, contended the answering respondent, the ban on appointment imposed by the Government of Assam has not been lifted. In the case of respondent 3 and 5, the ir contentions in their affidavit are that at the time of the death of the fathe r of the petitioner, she was a minor and was aged about 8 years only and that sh e was engaged as Women Home Guard under the establishment of respondent 6 only i n 1993 and is still now continuing in that post. It is pointed out by the respon dent 3 and 6 that the petitioner had appear in the viva voce test along with oth er candidates in the written and typing test at the Assam Police Headquarters on 16-6-1998, but the Selection Board did not select her and that the petitioner w as interviewed again on 30-12-2000 for the post of LDA-cum-Typist. The answering respondent did not deny that the petitioner was selected in that interview and was included in the Select List so prepared but could not be appointed as there was ban on recruitment vide the order dated 6-12-1999. On the direction of this Court, the case of the petitioner was again considered and rejected by responden t 6 on 30-12-2003 on the ground that though her father died on 25-1-1981, his fa mily had been surviving for 20 long years with available resources. These are th e sum and substance of the case of the answering respondent. 5. It is the contention of Mr. N. Dhar, the learned counsel for the petitio ner, that the petitioner was selected for appointment to the post of LD Assistan t in accordance with the recognized recruitment process consistent with Articles 14 and 16 of the Constitution of India, and her right to be appointed against t he post in question to which she was selected cannot be taken away on the pretex t that the said panel had expired in the meantime or that the post had in the me antime been filled up by someone else. It is submitted by the learned counsel th at the refusal of the respondent authorities to appoint the petitioner to the po st of LDA on the basis of the Select List in question is, therefore, arbitrary, illegal and discriminatory and that this is a fit case for issuing a writ of man damus upon the respondents to appoint the petitioner to the post of LDA-cum-Typi st. On the other hand, Mr. Nur Mohammad, the learned State Counsel submits that the Select List could not be acted upon for the simple reason that the ban on re cruitment got intervened and barred the respondent authorities from appointing t he petitioner during the life of the Select List, for which they cannot be fault ed with. As the Select List was valid only for a period of one year, argues the learned counsel, it is now too late in the day for the petitioner to claim appoi ntment on the basis thereof which had expired some 12 years back. He, therefore, submits that the writ petition is without merit and is liable to be dismissed. 6. The undisputed facts on record are that the father of the petitioner die d on 25-1-1981 while he was serving as a police constable under the respondent N o. 6; that in the year 1993, she was temporarily appointed in as Women Home Guar d in the Office of the Superintendent of Police, Cachar District at a fixed wage of ‘1,300/- only per month (she is said to be still continuing till now) on com passionate ground; that since 1993, she was time and again asked to face intervi ew for the post of LDA-cum-Typist, and was finally selected for that post in the interview held on 30-12-2000 and was accordingly included in the Select List pr epared therefor; that she could not be given appointment on the basis of the sai d Select List as the ban on recruitment had intervened in the meantime and that even after the ban was lifted, she was not given the appointment. Having denied the appointment legitimately due to her for the last over 20 years for no fault of her, the respondents have now the audacity to take the stance that the family of the deceased have been able to survive for the last over 30 years and, there fore, it is no longer necessary to give her the appointment for which she was du ly selected in the years 2000! 7. What the respondent authorities have completely overlooked or convenient ly suppressed is that the family of the deceased must have survived for these lo ng years due to the engagement of the petitioner as Women Home Guard on a fixed wage. In my opinion, the view taken by the respondent authorities is arbitrary a s well as irrational and betrays insensitivity and lack of compassion. The petit ioner has since 1993 been marching up and down and driven from pillar to post to pursue the elusive appointment on the basis of the Select List prepared in the year 2000; such Select List could be ignored by the respondent authorities only for cogent reason. In my opinion, when the denial of the petitioner to the post of LDA-cum-Typist cannot be attributed to her act of commission or omission but clearly attributable to the inaction of the respondent authorities, the long pas sage of time cannot simply have the effect of extinguishing her right to appoint ment to post in question on the basis of the said Select List. It may be noted t hat the petitioner has been pursuing her claim uninterruptedly for the last over 20 years, and is never guilty of laches or negligence. Consequently, the petiti oner has made out a clear case for the intervention of this Court. At this stage , it may also be noticed that no other reason is assigned by the respondent auth orities for not acting upon the said Select List. It is a settled proposition of law that when the range of discretion is reduced to such an extent that only on e decision is possible, the Court can specifically direct the respondent authori ties to act in a particular manner.? See Union of India v. Anglo-Afghan Agencies , AIR 1968 SC 718. 8. The result of the foregoing discussion is that this writ petition is all owed. The respondent authorities are, therefore, directed to appoint the petitio ner to the post of LDA-cum-Typist, subject to police verification, in the Office of the Superintendent of Police, Cachar, Silchar within a period of 2 months fr om the date of receipt of this judgment. It is made clear that if no such post i s immediately available also, a supernumery post may be created by the responden t authorities to accommodate her within that period. No costs.