High Court · 2012

The petitioner is aggrieved by order dated 3.3.2009, by which hi s appointment as stipendiary teacher vide Annexure-J order dated 22.11.1999 was cancelled. Prior to cancellation of the order of appointment, he was issued with a show cause notice alleging that his appointment was not preceded by the proce dure of advertisement and selection etc. It was also alleged that his appointmen t was during the ban period and that the approval etc. was also not obtained fro m the State Level Empowered Committee. Further allegation made in the show cause notice is that his appointment was not approved by the authority of the then Bo doland Autonomous Council (BAC). Although copy of the reply furnished to the show cause notice ha s not been annexed to the writ petition, learned counsel for the petitioner has referred to the statement made in paragraph 4 of the writ petition, in which it has been stated that in the reply, he had stated that he was appointed against t he vacancy that was caused due to death of his father, who was serving in the sc hool as Headmaster. It was also contended that although the expression (cid:28)compassi onate ground (cid:29) was not reflected in the appointment order, but in fact having reg ard to the nature of the appointment, it was a case of compassionate appointment . The Finance Department has filed an affidavit, in which it has b een stated that the Managing Committee of the school could not have appointed th e petitioner against the vacant post of his father, who expired while in service . No other stand has been taken in the said affidavit. The petitioner was initially appointed against the vacancy that was caused on taking leave by his father on medical ground. Thus, in absence of the father of the petitioner due to ill health, the petitioner had served in the school as he was allowed to do so by the Managing Committee of the school. Ther eafter on expiry of his father, the petitioner was appointed initially by the Ma naging Committee of the school vide its resolution dated 15.11.1999 and thereaft er by the Deputy Inspector of Schools, Nalbari vide Annexure-J order dated 22.11 .1999. The petitioner was initially appointed as Assistant Teacher of the school on monthly stipend of Rs. 900/- per month. Thereafter on clearing the Junior Ba sic Training course he was provided with salary in the time scale of pay vide An nexure-L order dated 16.5.2000. The petitioner has also referred to some other orders to show pe rmanency to the post. On an earlier occasion, the services of such teachers incl uding that of the petitioner were terminated on the ground of being illegal appo intments. However, the same was done without issuing any notice to the appointee s. This Court by order dated 6.12.2007 interfered with the orders of termination . However, liberty was granted to the BTC authority to proceed with the matter i n accordance with law. It was pursuant to such liberty, show cause notices were issued to individual teachers and on receipt of the reply thereto, their service s were dispensed with. The petitioner is one such teacher. Mr. Ramchiary, learned counsel for the petitioner submits that s ince the petitioner was appointed on compassionate ground, his case ought to hav e been excluded from the purview of general termination on the ground of illegal appointment. He submits that although the expression (cid:28)compassionate appointment (cid:29) is not there in the appointment order, but on a total reading of the said orde r clearly depicts that the petitioner was appointed on compassionate ground. Ms. Bordoloi, learned Standing Counsel, BTC on the other hand su bmits that quick succession in such the appointment was materialized would go to show that it was not compassionate appointment, but the petitioner was one of t he beneficiaries of illegal appointments. Ms. Verma, learned Standing Counsel, Finance Department submits that the Managing Committee of the school could not have appointed the petitione r against the leave vacancy as it was not permissible in law. However, she submi ts that as regards the regular appointment of the petitioner, the Finance Depart ment does not have any instruction. I have considered the rival submissions made by the learned coun sel for the parties and have also perused the materials on record. The appointment of the petitioner by the Managing Committee of t he school was followed by Annexure-J order dated 22.11.1999. Although, there was mention of approval of the Chairman, Elementary Education Advisory Board, but i t was also mentioned in the order that the petitioner was appointed against the vacancy caused due to expiry of his father. Thus, there was element of compassio n towards appointment of the petitioner. The said order was followed by order da ted 16.5.2000 (Annexure-L), by which the petitioner was provided with time scale of pay. When the father of the petitioner died in harness and the petiti oner had applied for consideration of his case for appointment on compassionate ground, it was incumbent on the part of the authority to consider his case. Howe ver, it has been contended that the petitioner was appointed illegally and since he was continuing with such illegal appointment, his case for compassionate app ointment could not be considered. The very fact that the petitioner was appointed against the vaca ncy caused on the death of his father would go to show that he was appointed on compassionate ground, although the expression (cid:28)compassionate appointment (cid:29) does n ot find mention in the order of appointment. Thus, his case was required to be e xcluded from the purview of general termination of services of the teachers. Although the copy of the reply to the show cause notice has not been annexed to the writ petition, but as noted above, the petitioner has stated the grounds urged in the said reply in paragraph 7 of the writ petition. The BTC in its counter affidavit has stated that the service of the petitioner was terminated following due process of law and upon issuance of show cause notice. It has also been stated that the petitioner in his reply did not mention that he was appointed on compassionate ground. In the reply affidavit filed by the petitioner, the stand in the writ petition has been reiterated. It has been stated that his case was conside red for appointment on compassionate ground and thus his case is required to be excluded from the purview of general termination order. There is no dispute that the father of the petitioner died while in service and the petitioner admittedly applied for appointment on compassiona te ground and prior to that he was working against the leave vacancy that was ca used during the period of taking leave by his father on medical ground. It was a fter the expiry of the father of the petitioner, the petitioner was appointed as Assistant Teacher initially by the Managing Committee and thereafter by the Dep uty Inspector of Schools and he was continuing in his service on that basis. It is true that there was allegation of illegal appointment by t he then BAC authority and accordingly upon issuance of show cause notice etc. th e service of many teachers were terminated. The petitioner is one of them. Howev er, at the same time it cannot be lost sight of the fact that the petitioner was an aspirant for appointment on compassionate ground. His case ought to have bee n considered on that ground. As noted above, although the expression (cid:28)compassionate appointme nt (cid:29) is not there in the appointment order, but the fact that he was appointed ag ainst the vacancy caused due to death of his father is clearly mentioned in the said order. In view of the above, this writ petition is disposed of directin g the respondents to re-consider the case of the petitioner for appointment on c ompassionate ground. Let appropriate order in this regard be passed as expeditio usly as possible, preferably within 30.4.2012. To facilitate the said exercise, the impugned order dated 3.3.2009 is set aside and quashed. However, since the p etitioner is not in active service after his termination from service, upon cons ideration his case for appointment on compassionate ground, he will not be entit led to any back wages. Writ petition is disposed of.