GAHC010052592019

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/1694/2019

MEENHAZ UDDIN BARBHUIYA S/O. LT. MAHTAB UDDIN BARBHUIYA, R/O. VILLAGE- SATKORAKANDI-II, P.O. SATKORAKANDI-II, DIST.- CACHAR, ASSAM, PIN- 788013.

VERSUS

THE GAUHATI HIGH COURT AND 2 ORS. (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH), REP. BY THE REGISTRAR GENERAL OF GAUHATI HIGH COURT, GUWAHATI-1.

2:THE REGISTRAR (ADMINISTRATION)-CUM-IN-CHARGE

CENTRALISED RECRUITMENT GAUHATI HIGH COURT GUWAHATI-1.

3:THE PRINCIPAL JUDGE

FAMILY COURT CACHAR P.O. SILCHAR DISTRICT- CACHAR ASSAM PIN- 788001

Advocate for the Petitioner : DR. B U AHMED

Advocate for the Respondent : SC, GHC

BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

ORDER

01.02.2021

(1) Heard Mr. M.H. Laskar, learned counsel appearing for the writ petitioner. Also heard Mr. U.K. Nair, learned Senior Standing Counsel for the Gauhati High Court appearing for all the respondents.

(2) The matter pertains to the rejection of the petitioner's application for compassionate appointment vide the impugned letter dated 15.02.2019 issued by the respondent No. 3. The petitioner's case in brief is that his father who was working as a Superintendent in the Office of the Family Court, Cachar died in harness on 21.11.2010. The petitioner's mother thereafter submitted an application dated 06.12.2010, for appointment of the petitioner on compassionate basis, though the petitioner was an adult at the time the petitioner's father expired.

(3) As the petitioner's application for compassionate appointment was not being considered, the petitioner filed WP(C) No. 5455/2012. Prior to the filing of WP(C) No. 5455/2012, the Division Bench of this Court in the case of "Babita Nath –vs- State of Assam and 3ors", WP(C) No. 1978/2012, vide order dated 17.02.2014, stated that this Court and the Supreme Court had held that under Article 235 of the Constitution, the High Court alone was vested with the jurisdiction to deal with the matter of appointment and service conditions of the Judicial Officers, Ministerial and Sub-ordinate staff in the District Judiciary. Accordingly, it held that in cases for appointment on compassionate ground, the intervention of the authorities of the executive would be totally unnecessary, as it would be in conflict with the powers of the High Court under Article 235 of the Constitution of India. The Division Bench, thus held that in cases of compassionate appointment, the District Judge or the Chief Judicial Magistrate, upon receipt of applications for compassionate appointment, should consider the requests and send the proposals to the High Court.

(4) This Court, thereafter disposed of the petitioner's case, i.e WP(C) No.

5455/2012, vide order dated 02.06.2014, directing the Principal Judge, Family Court, Cachar to consider the petitioner's case in terms of the direction passed by the Division Bench on 17.02.2014 in WP(C) No. 1978/2013, "Babita Nath"(supra).

(5) As nothing was done in terms of the order dated 02.06.2014 passed in WP(C) No. 5545/2012, the petitioner filed contempt case i.e. Cont.Cas(C) No. 627/2015 which was disposed of vide order dated 02.05.2016 as follows:-

"In the affidavit filed on behalf of respondent Nos. 1 & 2 it is stated that following the order of this Court Committee for Centralized Recruitment had asked the office of the Principal Judge, Family Court, Silchar to consider the case of the petitioner on merit. But during that period, the earlier Principal Judge was transferred and in her place the deponent was posted. The decision of the Committee or of the Court was not brought to the knowledge of the deponent immediately. After coming to know about the decision of this Court, case of the petitioner was considered but appointment could not be offered as there was no vacancy within the 5% quota earmarked for compassionate appointment in Class-III and Class-IV posts. It is stated that office strength in the establishment of Principal Judge, Family Court, Cackar is 16 out of which 7 posts are in GR-III and GR-IV. Since 15.06.2010 there has been no vacancy in Gr-III and GR-IV posts in the said establishment against this the case of the petitioner could be considered. It is therefore submitted that there is no willful and deliberate violation of the Court's order though delay has occurred through inadvertence.

At this stage, Mr. Medhi, learned counsel for the respondents fairly submits that as and when vacancy arises in Gr-II and GR-IV posts in the establishment of Principal Judge, Family Court, Cachar, case of the petitioner would be re-examined.

On due consideration, Court is of the view that there is no willful or deliberate violation of the Court's order by the respondents. Explanation furnished in the affidavit is accepted.

In view of the stand taken by the respondents, let the case of the petitioner for compassionate appointment be considered as and when vacancies in Gr-III or Gr-IV arise in the said establishment.

Contempt petition is closed."

(6) Subsequent to the above, the Gauhati High Court issued a scheme/guidelines to be followed by the appointing authorities while dealing with the issue of compassionate appointment to the dependents of permanent staff of the Gauhati High Court (Principal Seat) at Gauhati and the District Court establishments of Assam vide notification dated 03.01.2017.

(7) A vacancy arose in the post of Process Server on 18.07.2018. Later another vacancy arose in the post of Nazir in the office of the Principal Judge, Family Court, Cachar. The petitioner's case was subsequently considered for compassionate appointment. However, the same was rejected, vide the impugned letter dated 15.02.2019, on the ground that the petitioner's father did not have a balance of minimum of 3 years of service period at the time of his death, as required under Clause-3(vi) of the notification dated 03.01.2017.

(8) The petitioner's counsel submits that the notification dated 03.01.2017 cannot be applied to the petitioner's case, inasmuch as, the petitioner's application had been made way back in the year 2010 and the petitioner's father had expired in the year 2010. He submits that the petitioner's case would have to be considered in terms of the office memorandum dated 02.03.2009 issued by the Government of Assam, Department of Personnel. Further, the notification dated 03.01.2017 issued by the Gauhati High Court did not have any retrospective effect and it would cover only those cases where the employee of the Court expired after 03.01.2017. In this respect he has relied upon the judgment of the Apex Court in the case of Indian Bank & Ors. –vs- Promila & Anr., reported in 2020 2 SCC 729. He accordingly submits that the case of the petitioner would have to be considered afresh in terms of the office memorandum dated 02.03.2009 issued by the Government of Assam.

(9) Mr. U.K. Nair, learned Senior Counsel for the respondents submits that as the OM dated 02.03.2009 issued by the Government of Assam provides that compassionate appointment should be limited to 5% of the vacancies occurring in a year and if the Office Memorandum dated 02.03.2009 was applicable to the petitioner's case, there was no infirmity in the petitioner's case not being considered, as there was no vacancy in the sanctioned Gr-III and Gr-IV posts in the Office of the Principal Judge, Family Court, Cachar since 15.06.2010 till the year 2018. He also submits that the Division Bench of this Court in Babita Nath (supra), having held that the compassionate appointment with respect to the dependents of the High Court and the District Judiciary, being vested solely with the High Court under Article 235 of the Constitution, the scheme and guidelines laid down by the Government, with regard to the compassionate appointment, could not be applied to the judiciary. He also submits that as the scheme/guidelines for compassionate appointment in respect of the High Court and the District Courts came into operation only on 03.01.2017 and the vacancy having arose in the year 2018, the petitioner's case was rightly considered in terms of the notification dated 03.01.2017.

(10) I have heard the learned counsels for the parties.

(11) The Govt. of Assam OM dated 02.03.2009 states that compassionate appointment should be limited to 5% of the vacancies occurring in a year. Accordingly, the Government departments were to work out year wise vacancies and calculate the 5% quota to be reserved for compassionate appointment. Besides the above, this Court in the case of Achyut Ranjan Das & Ors. Vrs. State of Assam, reported in 2006 (4) GLT 674 had laid down 10 Guidelines to be followed by the State Government while making compassionate appointments. The 10th Guideline is as follows:- "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."

(12) The Order dated 02.05.2016 passed in Contempt Case (C) No. 627/2015 states as follows:-

"….After coming to know about the decision of this Court, case of the petitioner was considered but appointment could not be offered as there was no vacancy within the 5% quota earmarked for compassionate appointment in Class-III and Class-IV posts. It is stated that office strength in the establishment of Principal Judge, Family Court, Cachar is 16 out of which 7 posts are in Gr-III and Gr-IV. Since 15.06.2010 there has been no vacancy in Gr-III and Gr-IV posts in the said establishment against which the case of the petitioner could be considered. It is therefore submitted that there is no willful and deliberate violation of the Court's order though delay has occurred through inadvertence.

At this stage, Mr. Medhi, learned counsel for the respondents fairly

submits that as and when vacancy arises in Gr-III and Gr-IV posts in the establishment of Principal Judge, Family Court, Cachar, case of the petitioner would be re-examined.

On due consideration, Court is of the view that there is no willful or deliberate violation of the Court's order by the respondents. Explanation furnished in the affidavit is accepted.

In view of the stand taken by the respondents, let the case of the petitioner for compassionate appointment be considered as and when vacancies in Gr-III or Gr-IV arise in the said establishment.

Contempt petition is closed."

(13) A perusal of the Order dated 02.05.2016 passed in Contempt Case (C) No. 627/2015 shows that the petitioner's application for compassionate appointment could not be considered as there was no vacancies in Class-III and Class-IV posts from 15.06.2010 till the contempt case was disposed of. Keeping in view Guideline No. 10 passed by this Court in Achyut Ranjan Das & Ors. (Supra), it is quite apparent that the petitioner's application for compassionate appointment had spent it force. However, the Division Bench Judgment in Babita Nath (Supra) having held that Executive instructions could not be applied to compassionate appointments made in the High Court and the District Court, the Govt. of Assam OM dated 02.03.2009 cannot be applied to the petitioner's case. The Order passed in Babita Nath (Supra) also impliedly did away with the directions/guidelines passed in Achyut Ranjan Das & Ors. (Supra), while considering compassionate appointments to be made in the Principal Seat of the Gauhati High Court

and the District Courts of Assam. As such, the petitioner's application could not be said to have spent it's force.

(14) The question that arises before this Court is as to whether any scheme or guideline had been laid down by the Division Bench in its Order dated 17.02.2014 passed in Babita Nath (Supra) for making compassionate appointment in the High Court and the Subordinate Courts of Assam. The operative part of the Order dated 17.02.2014 passed Babita Nath (Supra) is to the following effect:-

"A Division Bench of this Court in Bipul Kumar V. State of Assam and others, 2007 (2) GLT 51, has scrupulously referred to the judgment of the Supreme Court in State of West Bengal v. Nripendra Nath Bagchi and R.M. Gurjar v. High Court of Gujrat, AIR 1966 SC 447, and held that under Article 235 of the Constitution, the High Court alone is vested with the jurisdiction to deal with the matter of appointment and service conditions of judicial officer, and ministerial and subordinate staff in the district judiciary. Therefore, the question of appointment on compassionate grounds being referred to district-level committees and the State-level committee will not be proper. The guidelines laid by this Court in Bipul Kumar v. State of Assam and others, 2007 (2) GLT 51 will apply only to civil servants working under the executive, and not those working under the control of the judiciary. It is, therefore, made clear that in case of compassionate appointment, the District Judge, or the Chief Judicial Magistrate, upon receipt of applications, shall consider the request and send the proposals to the High Court. Registry shall place the matter before concerned administrative Judge and later on before Hon'ble Chief Justice for necessary

orders.

This procedure is required in order to obviate any of the improprieties and/or illegalities in making appointment on compassionate grounds. The writ petition is accordingly disposed of.

Registry to place the order before Chief Justice and communicate the order to the District Judges and the Chief Judicial Magistrates in the State."

(15) A perusal of the above clearly shows that no scheme/guideline is discernible in the order passed by the Division Bench in Babita Nath (Supra) for compassionate appointment to be made in the High Court and the Subordinate Courts. The first scheme/guidelines, which was to be followed for making compassionate appointments in the High Court and the District Courts of Assam, either prior to or subsequent to the Order dated 17.02.2014 passed in Babita Nath (Supra), was by way of the notification dated 03.01.2017 made by the High Court. Thus, compassionate appointment in the Subordinate Judiciary would have to be made only in terms of the Notification dated 03.01.2017, as there could not have been any proper consideration for compassionate appointment made in vacuum. In the case of Indian Bank & Others Vs. Promila & Another (Supra), the Apex Court has held that applications for compassionate appointment have to be made in terms of the prevalent scheme, which was in existence at the time of death of the person in employment and not on the basis of a subsequent scheme. In the present case, the facts as stated above clearly shows that there was no scheme or guideline made by the High Court for making compassionate appointment in the High Court or the District Court of Assam, prior to the Notification dated 03.01.2017. If the Government of Assam

Notification dated 02.03.2009 read with Guideline No. 10 in the case of Achyut Ranjan Das & Ors. (Supra) is to be followed, the petitioner's application has to be rejected as having spent it force due to no vacancies being available in Grade-III and Grade-IV post from the year 2010 till 2018. On the other hand, as the petitioner's father did not have a balance of 3 years of service at the time of his death, as required under Clause (vi) of the Notification dated 03.01.2017, this Court does not find any infirmity with the decision of the respondent No. 3 in rejecting the petitioner's application for compassionate appointment.

(16) In view of the reasons stated above, this Court does not find any reason to exercise it's discretion. The writ petition is accordingly dismissed.

JUDGE

Comparing Assistant