High Court
Case Details
WP(C) 4692/2013 BEFORE THE HON’BLE MR. JUSTICE T. VAIPHEI
Legal Reasoning
Heard Ms M. Dev, the learned counsel for the petitioner and Mrs. H.M. Ph ukan, the learned Govt. Advocate appearing for the Respondents No.1, 2, 4 and 7. Also heard Dr. B. Ahmed, the learned Standing Counsel appearing for the Respond ents No.3, 5 and 6. The decision of the District Level Committee dated 28.5.2013 that the ag e of the petitioner being about 46 years as on 19.3.2013, her age could not be further relaxed after she has attained the age of 45 years, is called into quest ion in this writ petition. This is the second round of litigation initiated by t he petitioner, who has apparently been moving from pillar to post since 1999 for seeking the elusive Grade-IV post on compassionate ground.
Decision
Her husband died in harness on 10.9.1999, while he was working as a Chow kidar under the Executive Engineer, Irrigation Department, Dibrugarh Division. J ust after death of her husband, the petitioner applied for Grade-IV post under t he Respondent No.6 on compassionate ground by submitting all the required docume nts in the prescribed form to the Respondent No.5. Her application was not enter tained for about 10 years, which according to the petitioner, was a device emplo yed by the respondent authorities to deny her the appointment. She approached th is Court by filing WP(C) No.4844/2011 challenging the plea taken by the responde nt authorities that her case could not be entertained as she was found overage. This Court by the order dated 10.12.2012 disposed of the writ petition requiring the District Level Committee (DLC) to take up the case of the petitioner as a o netime measure in its next meeting and to take a decision thereon on merit. This Court has also made an observation to the effect that the compassionate appoint ment itself is an exception to the rules of recruitment, being based on compassi on, the question of further relaxation of age would not arise, if the D.L.C. was otherwise satisfied about the claim of the petitioner on merit. In my opinion, this order is crystal clear and it does not leave any roo m for interpretation. The Court therein has made it very clear that as the age b ar would not come in the way of appointing the petitioner if she is otherwise qu alified in all other respects. Unfortunately, the D.L.C. in its meeting held on 28.5.2013, rejected the case of the petitioner on the same ground that (cid:28)the uppe r age limit for appointment in Govt. service is upto 45 years subject to condona tion. However, DLC found that the applicant’s current age is above 46 years on d ate (i.e. 19.3.2013). Hence, DLC rejected the case (cid:29). This prompted the petitioner to approach this Court again by this writ p etition. In my opinion, the D.L.C. had either failed to notice the observations made by this Court relating to relaxation of age of the petitioner or deliberat ely disregarded such observations, which are binding upon them, in the absence o f appeal filed by them. In WP(C) No.2989/2010 (Smti. Moni Mala Sarma v. State o f Assam & others), this Court had made the following observation in paragraph 6 of its judgment and order dated 25.8.2010 :- (cid:28)6. Arguments advanced by the learned counsel appearing on behalf of the rival p arties have been duly noted. I have also gone through the other materials on rec ord. The indisputable facts on record are that the petitioner was 42 years-10 mo nths- 27 days at the time of making her application for appointment and that the petitioner being a Graduate in Arts is also eligible for appointment to the pos t of Assistant Teacher of ME/MV school and that the only reason for rejection of her application is due to overage. Even assuming without admitting that the Of fice Memorandum dated 4.1.92 is applicable to compassionate appointment, the pet itioner was certainly below 45 years of age at the time when she made the applic ation for appointment. This shows that she was entitled to relaxation of age up to the age of 45 years. The crucial point for determination of the age of the p etitioner for becoming eligible for compassionate appointment, in my opinion, is the date when the application for appointment was made by the petitioner. The fact that the respondents/authorities took their own time has no relevancy in de termining whether she is age barred; what is crucial is that she was below 45 ye ars of age when she made the application for appointment. In the instant case, when it cannot be disputed that she was about 42 year s 10 months 21 days when h er application was filed, her case ought to have been considered by relaxing age bar by invoking Office Memorandum dated 4.1.1992. Under the circumstances, the stand taken by the respondents-authorities that the petitioner is overage does not hold water, and accordingly fails. (cid:29) Thus, once an application has been filed by an applicant for compassiona te appointment within in time and if there is no valid reason for denying compas sionate appointment and the non-appointment for any reason not attributable to h im/her, the application cannot be rejected merely on the ground that he/she has become overage by the time he/she is entitled to be appointed. Any other interpr etation will result frustrate the policy behind compassionate appointment. For i nstance, if the decision-maker arbitrarily decides to deny compassionate appoint ment, all he has to do so is to simply sit over the application till the time th e applicant becomes overage and deny the appointment after he/she has become ove rage. This appears to be what happened in this case even though the petitioner h ad filed her application in time and is not otherwise not suitable for the appoi ntment. Consequently, the District Level Committee cannot reject the case of the petitioner for appointment on compassionate ground on the ground that she has b ecome overage. The impugned decision, therefore, suffers from the vice of non-ap plication of mind, or, is otherwise, arbitrary, which is not sustainable in law. Thus, the interference of this Court in this case is once again warranted. The last question which calls for consideration is that whether, on the facts and circumstances of the case, this Court can issue a positive direction f or the appointment of the petitioner on compassionate ground. As indicated earl ier, the petitioner has been denied of the compassionate appointment only on the ground of age bar. Once the age bar has been held not to come in the way of he r appointment on compassionate ground, there is no reason as to why this Court c annot issue a positive direction. The law is now well settled that when the rang e of choice available to a decision-maker is limited to only one choice, this Co urt certainly can issue a writ of Mandamus directing the respondent authorities to act in a particular manner. For what has been stated in the foregoing discussion, this writ petition succeeds. The District Level Committee shall now place the case of the petition er before the State Level Committee for her appointment to the post of Grade-IV. The entire exercise thereof shall be completed by them within a period of three months from the date of receipt of this judgment from the petitioner. The decis ion of the DLC dated 19.3.2013, accordingly, stands quashed.