MADHUMITA BHATTACHARJEE v. THE STATE OF ASSAM & Ors.

#4) The learned counsel for the petitioner has submitted that this Court in the case of Hamidur Rahman & Ors. v. The State of Assam & Ors., W.P. (C) 1060/2008 decided by order dated 09.09.2008, had issued a direction to considered all pending cases as one time measure. Accordingly, it has been submitted that the said step was not taken by the SLC. It is also submitted that as per the decision of this Court in the case of Md. Amdad Ahmed v. The State of Assam & Ors., W.P.(C) 4500/2016, decided on 12.12.2018, held that in light of the decision in the case of Achyut Ranjan Das & Ors. v. State of Assam & Ors., 2006 (4) GLT 674, even the belated application deserves to be considered and could not have been rejected on ground of delay or being “spent force”. It has been submitted that under OM dated 01.06.2015, if there was no vacancy in the concerned office, vacancy in other office/ departments was required to be considered. Hence, it is submitted that the SLC minutes dated 03.10.2019 was not sustainable and therefore, as the RTI information dated 27.10.2017, from Deputy Director of Information and Public Relations, Barak Valley Region, Silchar reveals existence of as many as 5 (five) vacancy position of Grade-IV posts, a suitable direction be issued to appoint the petitioner. Page No.# 5/16 5) Per contra, the learned Government Advocate has opposed the prayer and has made her submissions to justify the rejection of the candidature of the petitioner. 6) As regards to the vacancy position which was disclosed in the RTI reply dated 27.10.2017 is considered, the Court is of the considered opinion that without the RTI question being annexed to the writ petition, a RTI reply cannot be read in isolation. Moreover, the said reply dated 27.10.2017 is by the Deputy Director of Information and Public Relations, Barak Valley Region, Silchar, which is in District Cachar. However, as per the cause title, the petitioner is a resident of Hailakandi. Therefore, the Court is unable to cull-out from the RTI reply alone if the 5 (five) vacancy in Grade-IV posts was for District Hailakandi or for the three Districts of Cachar, Karimganj and Hailakandi, which is usually called Barak Valley Districts. Moreover, the vacancy was for the period from various dates in the year 2016 till 12.10.2017, from which inference can be drawn that those recent posts was filled-up on 12.10.2017. Moreover, the appointment made on 12.10.2017 were not challenged. It may also be stated that it is not alleged in the writ petition that others were appointed on compassionate ground without considering the case of the petitioner. In this regard, the learned counsel for the petitioner could not show from any material on record that under which OM in force, although the husband of the petitioner had died on 14.04.2011, the case of the petitioner could be considered for vacancy in Barak Valley Region for vacancy that had purportedly arisen during 2016-17. Page No.# 6/16 7) It would be relevant to quote Principle-1 under clause -11, clause 15, and clause 24 of the OM dated 01.06.2015, which are as follows:- “Principle-1: All pending applications against existing 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 in 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 directions as laid down in the succeeding paragraphs.

#15. If sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Development/ Office to take up the matter with other Departments/Offices of the Government to provide at an early appointment on compassionate grounds to those in the waiting list. 24(a). As regards pending cases prior to issuance of the direction in Achyut Ranjan Das & 162 ors. Vs. State of Assam & Ors (i.e. 3rd August, 2006), the authorities/ Departments need to ensure the compliance of the directions contained in Principle 1 urgently. The High Court had fixed 30th September, 2010 within which all such pending cases were required to be considered. Those departments which have not yet complied with the Principle 1 and disposed off all such pending cases shall compete it within six months from the date of issue of this OM. (b) It may be noted that once consideration of a case as a one time measure under Principle-1 is over, such applications that may remain pending are not required to be considered if a period of more than two years has elapsed. Thus, it is clarified that so far as the pending cases covered by Principle No.10 are Page No.# 7/16 concerned, these cases cannot be rejected applying the test of the principle No.10. The Principle-10 will come into operation only in respect of cases other than the pending case covered by the principle-1 i.e. cases received after the judgment dated 3-8-2006. This implies that if applications are pending for a period of two years from the date of making an application but could not be considered for want of vacancies, all such applications will require no further consideration and must be understood that they have spent their force.” 8) Thus, it is seen that as per the mandate of Clause 24 of the said OM dated 01.06.2015, all the pending cases were to be considered within 6 (six) months of the said OM. This clause appears to be in compliance with para 7(I) of the case of Achyut Ranjan Das (supra). There is no material on record that the said exercise was not done. Therefore, if such an exercise was carried out as a one-time measure, there was no further mandate under the OM dated

01.06.2015 to repeat the similar exercise from time to time and thereby render the principle-10 of the OM dated 01.06.2015 as otiose. Clause 24(b) of the OM dated 01.06.2015 appears to be in consonance with the directions issued in para 7(X) of the case of Achyut Ranjan Das (supra). The said para 7(X) is also quoted in the case of Hamidur Rahman (supra). It appears from the judgment and order passed in the said case of Hamidur Rahman (supra), that in the said case the DLC had recommended the name of the petitioner therein in its meeting held on 23.02.2007, but the SLC had rejected the case of the petitioner in its meeting held on 01.12.2007 on the ground that the case was more than 2 (two) years old when DLC had taken up the case. It is in that context that the directions contained in para 7(X) of the case of Achyut Ranjan Das (supra) was reproduced and direction was issued to the SLC to de novo consider the case again. Page No.# 8/16 9) In this present case in hand, the facts are distinguishable from the case of Hamidur Rahman (supra), because in this case, the DLC, after adjourning the case of the petitioner in its meeting held on 29.12.2011, considered the case of the petitioner in its next meeting held on 03.04.2017, however, subject to availability of vacancy criteria of Grade-IV posts under respondent no.3 and condonation of age. 10) It would be relevant to quote the relevant directions as contained in para 7, 7(I) and 7(X) of the case of Achyut Ranjan Das (supra), which are quoted below:- “7. Having understood the principles governing compassionate 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 in 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. 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.” Page No.# 9/16 11) Therefore, once the case of the petitioner was considered and recommended by DLC minutes dated 29.12.2017, the subsequent DLC by its minutes dated 20.03.2018, appears to have rightly not considered the case of the petitioner. Therefore, by the time, the SLC had considered the candidature of the petitioner, the application of the petitioner was pending for more than 2 years and moreover, there was also no vacancy, as such the Court is unable to find any fault with the decision of the SLC in its minutes dated 03.10.2019. 12) The learned counsel for the petitioner had placed reliance on the case of Md. Amdad Ahmed (supra). In so far as the said case is concerned, the said decision was rendered under the peculiar facts of the said case. It appears that it was not pointed out before the Court that in terms of directions contained in para 7(I) of the case of Achyut Ranjan Das (supra), one time exercise was already conducted by the State. It also appears that the decision of this Court in the case of Foziron Nessa v. State of Assam & Ors., 2010 (4) GLT 340 and WP(C) No.262/2010 - Prabhuttam Brahma v. State of Assam and Ors., were also not brought to the notice of this Court wherein this Court had held that in the event the applications remained pending and cannot be considered for want of vacancy or otherwise for a period of two years from the date of submission of such applications, it has to be understood as to have spent its force and also the time limit for submission of such applications was fixed as twelve months from the date of the death of the Government servant. Page No.# 10/16 13) Moreover, the said decision cannot be a binding precedent because of the fact that the decision of the Supreme Court of India in the case