Remanded

Surovi Bora v. the State of Assam and 3 Ors.

Gauhati HC11 Aug 2021WP(C)/2193/2020

Case brief

AI extract

What is this about?

The Gauhati High Court held that pension receipt is no bar for compassionate ground appointment. Rejection due to vacancy shortage is a technical, not merit-based, rejection. Petitioner's case is remanded for reconsideration by the District Level Committee.

What did the court decide?

The case for reconsideration of petitioner's appointment on compassionate ground directed to be taken up in the next meeting of the District Level Committee.

Surovi Bora Vs the State of Assam and 3 Ors. — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010072942020

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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)/2193/2020

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SUROVI BORA

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W/O- LT. DIBYAJYOTI BORA, R/O- VILL- FLAT NO. 101, MANISHA APARTMENT, JAYANAGAR, NEAR NRL PETROL PUMP, P.S. DISPUR, P.O. KHANAPARA, DIST.- KAMRUP (M), GHY-22, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 3 ORS

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REP. BY THE HONBLE MINISTER, TRANSPORT AND INDUSTRY DEPTT., GOVT. OF ASSAM, DISPUR, GHY-06

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2:THE STATE OF ASSAM

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REP. BY THE JOINT SECY. TO THE GOVT. ASSAM TRANSPORT AND INDUSTRY DEPTT. DISPUR GHY-781000

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3:THE OFFICE OF DISTRICT TRANSPORT OFFICER MORIGAON ASSAM REP. BY DY. COMMISSIONER MORIGAON ASSAM

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4:THE DISTRICT LEVEL COMMITTEE OFFICE OF THE DY. COMMISSIONER MORIGAON ASSA

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Advocate for the Petitioner : MR W R MEDHI

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

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ORDER

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Date : 11-08-2021

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Heard Sri W.R. Medhi, learned counsel for the petitioner. Also heard Ms. M.D. Bora, learned Standing Counsel for the Transport Department and Ms. A. Talukdar, learned State Counsel.

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Considering the facts and circumstances and also the nature of dispute involved, this Court proposes to take up this matter for final disposal at the admission stage itself.

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The issue involved in this case is appointment on compassionate ground. It is the case of the petitioner that her husband Dibyajyoti Bora was working as an Enforcement Inspector in the Transport Department. Unfortunately on 16-09-2016 he died in harness. Thereafter, the petitioner being eligible for appointment in any post on compassionate ground had submitted her candidature. As there was no response, the petitioner had approached this Court on an earlier occasion by filing W.P. (C) 1416/2019, which was disposed of vide order dated 13.03.2019, whereby this Court had directed the respondent authorities to issue a speaking order in connection with the appointment of the petitioner on compassionate ground.

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In compliance of the order passed by this Court, a speaking order dated 10-06-2019 has been passed, whereby the case of the petitioner has been rejected on the ground of shortage of vacancies. It is the case of the petitioner that she had subsequently made an application under Right to Information Act seeking the information regarding the number of vacancies. On getting the response to such application, it was revealed that the vacancies were existing.

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Sri Medhi, the learned counsel for the petitioner has drawn the attention of this Court to the speaking order dated 10-06-2019, which has mentioned lack of vacancy. At the same time, attention of the Court has been drawn to the reply dated 15-02-2020 made to RTI application with which the Annexure has been given showing the number of vacancies. It is contended that when the vacancies are existing, rejection of the case of the petitioner was

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not reasonable at all. The learned counsel accordingly prays for an interference by this Court for directing re-consideration of the case of the petitioner.

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On the other hand the submission of the learned Standing Counsel, Transport Department, Ms. Bora, is that there is no absolutely error or illegality on the part of the Department. It has been contended that the vacancy position has been examined from the context of the date of the speaking order, which is 10-06-2019, whereas the position of the vacancies shown in the Annexure to the RTI Act reply is of 15-02-2020. It is argued that vacancy position at two different times cannot be the same, and therefore, it cannot be contended that the reasons assigned in the speaking order dated 10-06-2019 were erroneous or illegal. The learned Standing Counsel further submits that as per the Office Memorandum dated 01-06-2015 governing the field of compassionate appointment Clause-15 thereof lack of vacancy cannot be a ground to reject the appointment on compassionate ground. It is submitted that as per the said Clause, if any case could not be considered due to lack of vacancy, such incumbents may be kept in waiting list and it is open to the administrative department to take up the matter with other Departments or offices to provide an early appointment on compassionate ground. The learned Standing counsel further submits that the petitioner is receiving pension and no hardship are being faced.

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For ready reference Clause-15 to the Office Memorandum ABP50/2006Pt/182 dated 01-06-2015 is as under : -

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”(15) If sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment, it is open to the administrative Department/Office to take up the matter with other Departments/Offices of the Government to provide at an early appointment on compassionate grounds to those in the waiting list.”

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Ms. A. Talukdar, learned Standing Counsel endorses the submission of Ms Bora and defends the impugned speaking order.

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After considering the rival submission, this Court is of the opinion that receipt of pension cannot be bar or obstacle for consideration of a case for appointment on compassionate ground. This Court is also of the view that apart from the leeway stipulated by Clause 15 of the aforesaid Notification, this Court also holds that rejection of candidature on the ground of lack of vacancies cannot be termed to be a rejection on merits. The same, at

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most, can be treated to be a rejection on technical grounds which cannot bar further reconsideration.

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In view of the aforesaid facts and circumstances and also taking into consideration the vacancy position as available in February 2020, this Court is of the view that the case of the petitioner is liable to be re-considered at the stage of District Level Committee. It is however, made clear that the earlier rejection of the case of the petitioner shall not stand in the way of the petitioner and it will depend on the number of vacancies available and the quota made for appointment, which is 5%.

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The exercise which has been directed to undertake will be done in the next meeting of the District Level Committee and further fresh steps be taken in accordance with law.

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JUDGE

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Comparing Assistant

Surovi Bora v. the State of Assam and 3 Ors.

Case brief

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Surovi Bora v. the State of Assam and 3 Ors.

Case brief

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