High Court · 2012

This order will dispose of WP(C) Nos. 258/2012, 655/2012 and 4436/2012. At the outset, the background facts may be briefly noted. WP(C) No. 258 of 2012. Petitioner was engaged as Muster Roll worker in the Office of the Executive Engi neer, Public Health Engineering (PHE) Department, Belsor Division, Belsor, Nalba ri (respondent No.5) in the year 1987. He was thereafter appointed as work charg e Khalashi in the year 1990. From 20.3.1993, his service was placed in technical branch of the Office and since then, he is working as such. After rendering ser vice for about 18 years, petitioner submitted representation before the responde nt No. 5 for promotion to the next higher post of Lower Division Assistant (LDA) . On 31.10.2010, the Head Assistant of the Division Shri Dhirendra Nath Patgiri re tired from service on superannuation. A District Level Selection Committee was e arlier constituted for selection of candidates for appointment to the anticipate d vacant post of Head Assistant and the consequential vacancies anticipated agai nst the posts of Upper Division Assistant (UDA) and LDA. District level Selectio n Committee in its meeting held on 29.10.2010 made recommendations for filling u p the above posts on promotion. In respect of the post of LDA, the petitioner wa s recommended for promotion. Respondent No. 5 submitted proposal dated 23.11.201 0 before the Chief Engineer (respondent No. 2) for filling up the vacancies on p romotion. It was pointed out that in respect of the vacancy anticipated against the post of LDA, the District level Selection Committee had resolved to promote the petitioner. However, by letter dated 6.12.2010, the Chief Engineer approved the proposal for promotion to the post of Head Assistant and UDA only, leaving o ut promotion to the post of LDA. Aggrieved by the non-approval of his case for p romotion to the post of LDA, petitioner filed the related writ petition seeking a direction to the respondents to promote him to the post of LDA. This Court by order dated 23.1.2012, while issuing notice, directed that status quo as on 23.1.2012 in the resultant vacancy of LDA in the Belsor Public Health Engineering Division should be maintained. Respondents No. 2 and 5 have filed separate affidavits. In his affidavit, respon dent No. 5 has stated that the total sanctioned strength of LDA in the Belsor Di vision is 6(six) out of which 1(one) post fell vacant. Sri Kabinda Deka, that is the writ petitioner was selected and recommended by the District Level Selectio n Committee on 29.10.2010 for promotion from Khalashi to LDA. Respondent No. 5 s tated that earlier when 1(one) post of LDA had fallen vacant due to promotion fr om LDA to UDA, the resultant vacancy was filled up by promotion from amongst the Grade IV employees of the Division, selected and recommended by the District Le vel Selection Committee and approved by the Chief Engineer. Respondent No. 5 fur ther stated that in so far proposal for promotion of the petitioner is concerned , the same is pending for approval before the higher authority. In his affidavit, the Chief Engineer (respondent No. 2) has admitted that on 29. 10.2010 and Selection Committee meeting was held for promotion of UDA to Head As sistant, from LDA to UDA and from Grade IV to LDA, recommending the name of the writ petitioner for appointment on promotion against the resultant vacant post o f LDA. But he stated that it was not confirmed whether the Finance (SIU) Departm ent had accorded approval or not. It was, however, stated that the Finance Depar tment had accorded approval for filling up of 52 vacancies in various posts, val idity of which approval has been extended upto 31.12.2012. Respondent No. 2 has further stated that while the case of the petitioner was under consideration, he moved this Court. He also states that Smt. Anamika Haloi has staked claim to th e post on compassionate ground and in this connection, she has filed WP(C) No. 6 55/2012 that is the second writ petition. It is further stated that the State Le vel Selection Committee constituted for considering cases for appointment on com passionate ground recommended Smt. Anamika Haloi on 11.9.2012 for appointment on compassionate ground in the post of Junior Assistant if the office of the respo ndent No. 5 (Mr. J.I. Borbhuyan, learned departmental counsel has pointed out th at the post of LDA has since been redesignated as Junior Assistant). WP(C) No. 655 of 2012 As notice above, Smt. Anamika Haloi has filed the related writ petition claiming appointment on compassionate ground on account of death of her father in harnes s on 7.01.2006, while serving as Assistant Engineer in the Public Health Enginee ring Department. Her case is that her application for appointment on compassiona te ground was processed and placed before the District Level Committee, Nalbari. But no decision was taken thereon. She, therefore, filed the writ petition seek ing a direction to the respondents to consider her case for appointment on compa ssionate ground. When the writ petition was moved, Mr. J.I, Borbhuiya, learned Standing Counsel, Public Health Engineering Department raised objection as to the entitlement of t he petitioner for compassionate appointment on the ground that she had got marri ed in the meanwhile. Placed with the situation, learned counsel for the petition er prayed for time to obtain instruction as to whether the petitioner has got ma rried or not. Subsequently, on orders of the Court, petitioner has filed 2(two) affidavits. In her affidavit dated 10.4.2012, she has stated that at the time wh en she made the application for appointment on compassionate ground, she was unm arried but subsequently she married one Shri Hem Kumar Deka. In her second affid avit dated 14.6.2012, petitioner stated that her husband is working in a private garage as supervisor, drawing salary in the range of Rs. 8000/- to Rs. 10,000/- per month. Sri Kabinda Deka, petitioner of the WP(C) No. 258/2012, got himself impleaded as respondent No. 5 in the present writ petition. WP(C) No. 4436 of 2012 This writ petition has been filed by Sri Kabindra Deka, the petitioner of WP(C) No. 258/2012, challenging the legality and validity of the order dated 11.9.2012 passed by the Secretary to the Government of Assam, Public Health Engineering D epartment approving the recommendation of the State Level Committee for appointm ent of Smt. Anamika Haloi, petitioner of WP(C) No. 655/2012, in the post of Juni or Assistant in the office of the respondent No. 5 on compassionate ground. The challenge has been made on the ground that the said order could not have been is sued in view of the status quo order passed by this Court on 23.1.2012 in WP(C) No. 258/2012. It is further contended that when selection had already taken plac e recommending Sri Kabindra Deka for appointment on promotion to the post in que stion, the said post cannot be filled up by compassionate appointment. Noticing the previous status quo order, this Court by order dated 18.9.2012 dire cted that status quo in respect of the said vacancy shall be maintained. Smt. Anamika Haloi is arrayed as respondent No. 7 in the writ petition. She has filed her counter affidavit. She has stated that Sri Kabindra Deka is not a regu lar grade IV employee and, therefore, is not entitled for promotion to the post of LDA, which is a grade III post. It is contended that Rule 9 of the Ministeria l Staff (Chief Public Health Engineer’s Office) Service Rules, 1969 provides for appointment to the post of LDA by selection on the basis of merit from amongst the eligible grade IV staff, having passed Higher Secondary or equivalent examin ation and having rendered atleast 7(seven) years of continuous service. Since Sr i Kabindra Deka is a work charge and not a regular grade IV employee, he cannot claim promotion to the post of LDA. She has justified her selection for appointm ent on compassionate ground by the District Level Committee and later by the Sta te Level Committee. Heard Ms. N.S. Thakuria, learned counsel for the petitioner in WP(C) No. 258/201 2 and 4436/2012 and respondent No. 5 in WP(C) No. 655/2012. Also heard Mr. D. Ch oudhury and Mr. K. Choudhury, learned counsels for the petitioner in WP(C) No. 6 55/2012 and respondent No. 7 in WP(C) No. 4436/2012. Mr. G. Sarma, learned Gover nment Advocate has appeared for the Deputy Commissioner, Nalbari whereas Mr. J.I . Borbhuiya, learned Standing Counsel has represented the Public Health Engineer ing Department. Ms. Thakuria, learned counsel for Sri Kabindra Deka submits that her client has been selected for promotion to the post of LDA. There is no reason why such appo intment should be denied to him. She submits that when there is a regular recrui tment process, claimant seeking appointment on compassionate ground cannot stake a claim for appointment against such vacancy. In any case, she submits that the appointment of Smt. Anamika Haloi on compassionate ground is in violation of th e status quo order of this Court and, therefore, should be interfered with. Refe rring to Rule 9 of the 1969 Service Rules, she submits that the post of LDA is r equired to be filled up from amongst the eligible grade IV candidates. As Sri Ka bindra Deka has been found more suitable by the Selection Committee and accordin gly recommended for promotion, the authority should make the consequential appoi ntment. She also submits that the petitioner in WP(C) No. 655/2012 did not discl ose her marital status at the time of filing the writ petition. She further subm its that in the Scheme for compassionate appointment, married daughters are excl uded from consideration. Therefore, the petitioner in WP(C) No. 655/2012 is not entitled for appointment on compassionate ground. Mr. Choudhury, learned counsel appearing for the petitioner in WP(C)No. 655/2012 on the other hand submits that Sri Kabindra Deka has no locus-standi to questio n the appointment of his client, because he is a work charge employee and not a regular grade IV staff. He submits that under Rule 9 of the 1969 Service Rules, only 10% of the vacancies are meant to be filled up by promotion and the post in question is not included within that category. According to him, since this pos t has been earmarked to be filled up by appointment on compassionate ground, the authority has rightly recommended the petitioner for appointment against such v acancy on compassionate ground. Mr. Choudhury has also relied upon a decision of the Bombay High Court dated 1.8.2011 In Writ Petition No. 1284/2011 (Aparna Nar endra Zambrenee & Another Vs. Assistant Superintendent Engineer & Others) to con tend that if the claimant was unmarried at the time of making the application fo r compassionate appointment, her case cannot be excluded from consideration if s he subsequently marries. Mr. J.I. Borbhuiya, learned Standing Counsel, PHE submits that as per instructio ns received, Shri Kabindra Deka was regularized as Khalasi on 1.12.2003. He fulf ills the eligibility criteria for the promotion in question and accordingly, he was selected by a duly constituted committee for promotion to the resultant vaca ncy in the post of LDA, which course of action is authorized under the 1969 Serv ice Rules. He submits that Smt. Anamika Haloi being married, she is not entitled to the benefit of compassionate appointment as the scheme does not provide for extending the benefit of compassionate appointment to married daughters. Moreove r, he submits that she had not approached this Court with clean hands inasmuch a s there was suppression of this vital fact, which she was subsequently compelled to disclose when objection was raised. His further submission is that appointme nt on compassionate ground is an exception to the general rule of recruitment an d no appointment on compassionate ground can be claimed as a matter of right. The submissions made have been considered. Though the petitioner in WP(C) No. 655/2012 did not disclose her marital status at the time of filing the writ petition and disclosed the same only after object ion was raised, this Court however would not like to dismiss the writ petition o n the ground of non-disclosure of material fact considering the claim of compass ionate appointment. The object of providing compassionate appointment is too well-known and needs no reiteration. It is to enable the family in distress of the deceased employee to tide over the immediate financial crisis. It is not a source of recruitment. It is only meant to provide immediate succour to the family of the deceased employ ee purely on humanitarian consideration. By its very nature, appointment on comp assionate ground cannot be claimed as a matter of right; it is an exception to t he general rule of recruitment. Having said that, considering the hard ground re alities of the country, necessity for compassionate appointment cannot be ruled out altogether. And, therefore, it has been persisted by the authorities. However, in the case in hand, it appears from the documents placed on record tha t while considering the case of Smt. Anamika Haloi for appointment on compassion ate ground, the fact that selection was already made for appointment on promotio n to the post was not placed before the Committee. The fact that the petitioner (Smt. Anamika Haloi) had subsequently married and as per her own admission, her husband is an earning member, was also not brought to the notice of the State Le vel Committee. Recommendation for compassionate appointment was made without tak ing into consideration the aforesaid relevant factors. The decision of the Bombay High Court is distinguishable on facts inasmuch as in the present case, there are two claimants for the same post, one through the pr ocess of recruitment and the other based on the claim of compassion. Moreover, i n the revised guidelines for appointment on compassionate ground dated 2.3.2009 (Annexure 7 in WP(C) No. 655/2012), consideration for appointment on compassiona te ground is available only to the widow or son or unmarried daughter or adopted son or adopted unmarried daughter of a Govt. servant who dies in harness. Witho ut expressing any opinion on the justification or otherwise of excluding other c ategories from the said benefit, as noticed above, it can be said that this fact or was also not taken into consideration while the recommendation for compassion ate appointment was made. On the other hand, it is also not very clear from the pleadings and from the doc uments placed on record as to whether the post in question is required to be fil led up by promotion from amongst grade IV staff only. Rule 9 of the 1969 Service Rules provides for three modes of appointment to the post of LDA, namely,- 1) direct recruitment, 2) by selection from amongst the typists, and 3) by selection from amongst the grade IV staff. This exercise appears not to have been done by the authorities. Thus, a totally unwarranted situation has been created by authorities themselves . In such circumstances and in the face of inadequate materials before the Court as noticed above, without expressing any opinion on the merit of the rival clai ms, the matter is remanded back to the Secretary to the Govt. of Assam, Public H ealth Engineering Department to examine the claims of both the petitioners in th e light of the discussions made above and, thereafter, to take an appropriate de cision in the matter of appointment to the post of LDA (Junior Assistant) in the Office of the Executive Engineer, Public Health Engineering Department, Belsor Division, Nalbari within a period of 8 (eight) weeks from the date of receipt of a certified copy of this order. The said authority may requisition the relevant record and call for such report from the subordinate authorities as may be cons idered necessary before taking the decision. Till such decision is taken, the st atus-quo order in respect of the post of LDA (Junior Assistant) in the Office of the Executive Engineer, Public Health Engineering Department, Belsor Division, Nalbari shall continue. Writ petitions are accordingly disposed of. No cost.