Partly allowed

Rokibul Islam v. the State of Assam and 4 Ors.

Gauhati HC3 May 2019WP(C)/2899/2015

Case brief

AI extract

What is this about?

This writ petition challenges the rejection of compassionate appointment. The Court applied a previous judgment regarding the 5% vacancy restriction for compassionate appointments and directed the District Level Committee to reconsider the petitioner's case afresh and set aside the relevant minutes. Petition dismissed with directions.

What did the court decide?

Minutes of District Level Committee dated 18.04.2013 interfered; PETitioner to be reconsidered by DLC at next meeting.

Rokibul Islam Vs the State of Assam and 4 Ors. — Pension and Retirement Benefits | Gauhati HC (2019)

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Page No.# 1/4

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GAHC010013842015

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

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Case No. : WP(C) 2899/2015

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1:ROKIBUL ISLAM

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S/O LT. ABDUL BAREQUE, VILL. KALGACHIA, P.O. and P.S. KALGACHIA, DIST- BARPETA, ASSAM

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VERSUS

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1:THE STATE OF ASSAM AND 4 ORS

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REP. BY THE SECY. CUM - CHAIRMAN OF THE STATE LEVEL COMMITTEE FOR COMPASSIONATE APPOINTMENT, ASSAM, DISPUR, GHY-6

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2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM HEALTH DEPTT. DISPUR GHY-6

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3:THE DIRECTOR OF MEDICAL AND HEALTH SERVICES ASSAM HENGRABARI GHY-6

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4:THE JT. DIRECTOR OF HEALTH SERVICES BARPETA ASSAM 5:THE DISTRICT LEVEL COMMITTEE REP. BY THE CHAIRMAN CUM DY. COMMISSIONER BARPETA FOR APPOINTMENT ON COMPASSIONATE GROUND DIST- BARPETA ASSA

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Advocate for the Petitioner : MR.G SAROWAR

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Advocate for the Respondent : MR.J M A CHOUDHURY

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Page No.# 2/4

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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03.05.2019

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Heard Mr. H.R. Ahmed, learned counsel for the petitioner. Also heard Mr. G. Bordoloi, learned Govt. Advocate appearing for the State and Ms. S. Sarma, learned Standing Counsel for the Health Department.

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Issue Rule returnable forthwith. In view of the nature of grievance raised in this writ petition, with consent of the learned counsel for both sides, the matter has been taken up for hearing.

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In this writ filed under Article 226 of the Constitution of India, the case projected by the petitioner is that his father, namely, Late Abdul Bareque was serving as a Dresser (Grade-IV) post at Kalgachia PHC, Barpeta under the State Health Department. He had died-in-harness on 14.10.2010. Being qualified, the petitioner had approached the authorities on 24.02.2011 and applied for being appointed in Grade-IV post on compassionate ground. The case of the petitioner was placed before the District Level Committee, Barpeta for appointment compassionate ground. The said DLC, in its meeting dated 18.04.2013 did not recommend the proposal for appointment of the petitioner for want of vacant post of Grade-IV. Challenging the said reasons assigned by the DLC for not considering the proposal of the petitioner, the learned counsel for the petitioner has referred to the minutes of the DLC meeting on compassionate ground for Barpeta district held on 18.04.2013, wherein it is mentioned that there were total three vacancies in Grade-IV post in the year 2011 in the Office of the Joint Director of Health Services, Barpeta, however, with the remark therein that the eligible vacant post was nil. The learned counsel for the petitioner has referred to the Office Memorandum No. ABP357/80/137 dated 09.09.1983 and submits that as per the said Office Memorandum, the petitioner was entitled to be appointed in terms of Clause-4 thereof.

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It is further submitted that as per Clause-4 of the said Office Memorandum dated 09.09.1983, the restrictions of not appointing more than 5% of the vacancies on compassionate ground would not

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Page No.# 3/4

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apply where only one vacancy in terms of Clause-4 of the said O.M. is to be filled up under the said scheme in a year and it is also submitted that as there are three vacancies, the case of the petitioner was required to be considered in terms of the said Office Memorandum dated 09.09.1983. It is further submitted that the non applicability of restriction when there are one vacancy to be filled up has been decided by this Court in the case of Kamaleswar Roy Vs. State of Assam and 4 Ors., WP (C) 7802/2015 decided on 07.09.2018 wherein this Court held that a plain reading of Clause-4 would go to show that only 5% vacancies in Grade-III and Grade-IV post can be filled up on compassionate basis and it was further held that the said restriction would not apply if one vacancy each in both the category of posts is filled up in a year, further holding that as two vacancies for the year 2011 in that case were not filled up, there was no restriction for filling up the same.

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The learned counsel for the State as well as the learned Standing Counsel for the Health Department has opposed this application on the ground that the DLC has assigned reasons for not considering the recommendation for appointment of the petitioner and it is submitted that if there are three vacancies, 5% cannot be interpreted to be entitling one post to be reserved for appointment on compassionate ground.

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The learned Standing Counsel for the Health Department further submitted that in so far as the Health Department is concerned, the proposal was sent to the DLC and therefore, the Health Department has no further liability as the matter of appointment on compassionate ground would depend on the decision by the DLC.

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Having considered the submissions made by the learned counsel for all sides, it is seen that this Court in the case of Kamaleswar Roy (supra) has interpreted that the restriction of 5% vacancies in Grade-IV post has held to not apply if there is more than one vacancy, the DLC is required to follow the said direction of this Court. For the sake of convenience, the relevant paragraphs of the case of Kamaleswar Roy (supra) is reproduced below:-

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“11. For the sake of repetition, a plain reading of Clause-4 would go to show that only 5 % vacancies in Grade-III and Grade–IV post can be filled up on compassionate basis. This restriction will not apply if one vacancy each in both the category of posts is filled up in a year. Therefore, as the two vacancies for the year 2011 were not filled up, there is no restriction for filling up the same.

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Page No.# 4/4

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In that view of the matter, the writ petition is disposed of with a direction to the respondents, more particularly, the respondent No.1 to reconsider the case of the petitioner afresh in the light of the observation made herein above in the next SLC sitting to be held.

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Consequently, the decision of the SLC meeting minutes dated 15.02.2014 in so far as the writ petitioner is concerned is set aside.”

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In that view of the matter, this writ petition stands disposed of with a direction to the District Level Committee For Appointment on Compassionate Ground, Barpeta represented by Chairman-cumDeputy Commissioner, Barpeta (respondent No.5) to reconsider the case of the petitioner afresh in the light of decision rendered in the case of Kamaleswar Roy (supra). The proposal relating to the petitioner would be taken up again in the next DLC meeting on compassionate appointment to be held in the Barpeta District in respect of the establishment of the Joint Director of Health Services, Barpeta.

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Consequently, the minutes of the District Level Committee for Barpeta district held on 18.04.2013 is interfered with the order in so far as the case of the petitioner, namely, Rokibul Islam is concerned.

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Rule is, accordingly, made absolute in above terms. Petition stands disposed of.

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There shall be no order as to cost.

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JUDGE

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Comparing Assistant

Rokibul Islam v. the State of Assam and 4 Ors.

Case brief

What is this about?

What did the court decide?

Rokibul Islam v. the State of Assam and 4 Ors.

Case brief

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