Dismissed¶57

The State of Assam and Anr. v. Abdul Alim Khan and 2 Ors.

Gauhati HC8 Apr 2025WA/131/2025

Case brief

AI extract

What is this about?

Compassionate appointment; ex-post facto approval; Finance (S.I.U.) approval expiry 31.07.2008; Chowkidar Grade-IV; Kacharigaon Senior Madrassa, Dhubri; Achyut Ranjan Das guidelines non-compliance; Article 226 mandamus; Chief Secretary as SLC Chairperson; regularization; service without salary; writ appeal dismissed; Gauhati High Court; WA/131/2025; WP(c)4572/2022; WP(c)4760/2007; WP(c)3875/2005.

What did the court decide?

None to the appellants; writ appeal dismissed with no order as to costs, leaving intact the learned Single Judge's directions dated 07.02.2024 for consideration of respondent No. 1's case for ex-post facto approval. ¶57

The State of Assam and Anr. Vs Abdul Alim Khan and… — Writ and Judicial Review | Gauhati HC (2025)

What the court decided

AI extract

Outcome

¶57

Issue for consideration

Whether the appointment of respondent No. 1 as Chowkidar vide order dated 11.06.2013, effected without following the procedure laid down in Achyut Ranjan Das, is ab initio void, conferring no right to continue in service or to claim salaries. +1 more

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Court's answer

The Director of Madrassa Education, Assam, in appointing respondent No. 1 pursuant to the writ court's directions in WP(c)4760/2007, had not ensured compliance with the procedure laid down in Achyut Ranjan Das (supra).

¶51

Ratio / Principle

After appointment vide order dated 11.06.2013, respondent No. 1 has continued in service at Kacharigaon Senior Madrassa, Dhubri, and the respondent authorities have neither recalled nor reviewed the appointment.

¶53

Key takeaways

Respondent No. 1 has been rendering service against the post of Chowkidar in Kacharigaon Senior Madrassa, Dhubri, without payment of any salaries till date.ratio¶53
The view taken by the learned Single Judge was called forth by the peculiar circumstances of the matter and does not call for any interference; the Division Bench is not persuaded to take a different view.ratio¶55
The instant writ appeal is devoid of any merit and stands dismissed, with no order as to costs.

Detailed headnote1 paragraphs

Gauhati High Court (Division Bench), Writ Appeal WA/131/2025 - State of Assam & Anr. v. Abdul Alim Khan & Ors. (decided 09.04.2025). After his father, the incumbent Chowkidar of Kacharigaon Senior Madrassa, Dhubri, was kidnapped and killed on 19.03.2006, respondent No. 1 was engaged as Chowkidar by Managing Committee resolution dated 22.08.2006. On WP(c)4760/2007, the writ court (order dated 12.09.2007) directed consideration of his compassionate appointment in terms of the guidelines in Achyut Ranjan Das v. State of Assam & ors (judgment & order dated 03.08.2006 in WP(c)3875/2005); the Director of Madrassa Education appointed him vide order dated 11.06.2013 without ensuring compliance with that procedure, stipulating Finance(S.I.U.) approval for the post. With salaries unreleased (validity of the S.I.U. approval pleaded to have expired on 31.07.2008), he filed WP(c)4572/2022; the learned Single Judge (order dated 07.02.2024), exercising Article 226 powers under peculiar circumstances, directed that papers be placed before the Chief Secretary as SLC Chairperson for regularization as compassionate appointment with Finance post-facto approval, expressly not as a precedent. The Division Bench, noting that the appointment was neither recalled nor reviewed and that respondent No. 1 served without salary, held that the Single Judge's view, taken in peculiar circumstances, called for no interference, and dismissed the writ appeal without costs.

Page No.# 1/9

GAHC010013992025

2025:GAU-AS:4550-DB

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

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Case No. : WA/131/2025

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THE STATE OF ASSAM AND ANR. REP BY THE SECRETARY TO THE GOVT OF ASSAM, DEPT OF SCHOOL EDUCATION, GUWAHATI, ASSAM-781006.

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2: THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI 78101

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VERSUS

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ABDUL ALIM KHAN AND 2 ORS. S/O LATE JASIM UDDIN KHAN, RESIDENT OF VILLAGE- KACHARIGAON, P.O-KAMADANGA, P.S- TAMARHAT, DIST- DHUBRI, ASSAM.

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2:THE COMMISSIONER AND SECRETARY FINANCE DEPARTMENT DISPUR GUWAHATI 06

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3:THE TREASURY OFFICER DHUBRI ASSAM

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Advocate for the Petitioner : MR. NAYAN JYOTI KHATANIAR, MR. R MAZUMDAR

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Advocate for the Respondent : , MR A U AHMED (O.P. 1),MS. H SARMA (O.P. 1)

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Page No.# 2/9

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BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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Date of hearing : 09.04.2025

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Date of Judgment & Order : 09.04.2025

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JUDGMENT & ORDER (ORAL)

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(N. Unni Krishnan Nair, J.)

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Heard Mr. Nayanjyoti Khataniar, learned standing counsel, Secondary Education Department, appearing on behalf of the appellants. Also heard Mr. A. U. Ahmed, learned counsel, appearing on behalf of respondent No. 1.

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2. In view of the order passed by this Court today in IA(c)824/2025 [in Writ Appeal No. 824/2025(Filing Number)]; Registry has registered the instant writ appeal today itself.

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3. With the consent of the learned counsels appearing for the parties; the matter is finally heard.

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4. The present intra-Court appeal has been instituted by the appellants, herein, assailing the order, dated 07.02.2024, passed by the learned Single Judge in WP(c)4572/2022.

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5. The respondent No. 1, herein, had approached the writ Court by way of instituting a writ petition being WP(c)4572/2022, praying for a direction upon the appellants, herein, to grant ex-post facto approval to his appointment against the post of Chowkidar in Kacharigaon Senior Madrassa, Dhubri, and also for grant of Finance(S.I.U.) approval to his

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Page No.# 3/9

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appointment and for the purpose of release of his arrears as well as his current salaries.

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6. The father of the respondent No. 1, herein, late Jasim Uddin Khan, while working as a Chowkidar in Kacharigaon Senior Madrassa, Dhubri, was kidnapped by some miscreants on 19.03.2006. Unfortunately, the father of the respondent No. 1, herein, could not be recovered alive and his dead body was subsequently found. The respondent No. 1, after the demise of his father, applied before the respondent authorities for consideration of his case for appointment against the post of Chowkidar held by his deceased father in Kacharigaon Senior Madrassa, Dhubri.

¶28

7. The Managing Committee of Kacharigaon Senior Madrassa, Dhubri, vide resolution, dated 22.08.2006, proceeded to engage the respondent No. 1, herein, as a Chowkidar in the said Madrassa and an engagement letter, in this connection, was issued to the respondent No. 1, herein, on 22.08.2006. The respondent No. 1, accordingly, joined his service as a Chowkidar in Kacharigaon Senior Madrassa, Dhubri, in terms of the said engagement letter, dated 22.08.2006.

¶29

8. The appointment of the respondent No. 1, herein, not being regularized; he had approached the writ Court by way of instituting a writ petition being WP(c)4760/2007. The said writ petition was disposed of by the writ Court vide order, dated 12.09.2007, directing the respondent authorities to consider the case of the respondent No. 1 in terms of the guidelines laid down by a single Bench of this Court in the case of Achyut Ranjan Das v. State of Assam & ors . [judgment & order, dated 03.08.2006,

¶30

Page No.# 4/9

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in WP(c)3875/2005]. The certified copy of the judgment & order, dated 03.08.2006, on being produced by the respondent No. 1, before the respondent authorities; the matter was processed and the Director of Madrassa Education, Assam, on 11.06.2013, proceeded to appoint the respondent No. 1, herein, as a Chowkidar(Grade-IV employee) in Kacharigaon Senior Madrassa, Dhubri.

¶32

9. In the order, dated 11.06.2013, issued by the Director of Madrassa Education, Assam, it was also stipulated that the post, in question, against which the respondent No. 1 was so appointed, had the approval of the Finance(S.I.U.) Department. The respondent No. 1, herein, accordingly, joined his service and has been discharging his duties, therein, till date.

¶33

10. The materials brought on record would go to reveal that for release of the salaries of respondent No. 1, herein, in pursuance of his appointment effected vide the order, dated 11.06.2013, communications were made between the appellants, herein, as well as with the Finance Department. However, on the plea that the validity of the Finance(S.I.U.) approval for the post, in question, having expired on 31.07.2008, the matter of disbursal of the salaries to the respondent No. 1, herein, was not taken forward. It is seen that the Director of Madrassa Education, Assam, vide communication, dated 11.12.2014, had requested the Secretary to the Government of Assam, Secondary Education Department, to grant ex-post facto approval to the respondent No. 1, herein.

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11. The salaries of the respondent No. 1, herein, not being released, he had approached the writ Court by way of instituting a writ petition being

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Page No.# 5/9

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WP(c)4572/2022, praying for the reliefs as noticed hereinabove.

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12. The appellants, herein, had filed an affidavit-in-opposition in the said writ petition being WP(c)4572/2022 and had taken a stand to the effect that the appointment of the respondent No. 1, herein, on compassionate ground being so effected without following the principles in the case of Achyut Ranjan Das (supra); the ex-post facto approval for such appointment cannot be granted and accordingly, the writ petition was prayed to be dismissed.

¶38

13. The learned Single Judge upon considering the matter and also upon hearing the learned counsel for the parties, was pleased to dispose of the said writ petition vide order, dated 07.02.2024, by directing the State Respondents to consider the case of the respondent No. 1, herein, for grant of ex-post facto approval to his appointment. The operative portion of the order, dated 07.02.2024, passed by the learned Single Judge in WP(c)4572/2022, being relevant, is extracted hereinbelow:

¶39

“ 14. Under such peculiar circumstances, this court, under the powers conferred on this court under Article 226 of the Constitution of India issue a Mandamus to the respondent department, namely, the respondent No.1, Commissioner and Secretary, Assam, Education (Secondary) department, to forward the relevant papers pertaining to the appointment and the service rendered by the petitioner to be placed before the Chief Secretary of the State. The Chief Secretary of the State, in his capacity, as the Chairperson of the SLC, will treat the order dated 11.06.2013 passed by the Director, Madrassa to the recommendation from the District Authority or the DLC and will thereafter pass necessary orders as required under the Office Memorandum prevalent at the relevant point in time for compassionate appointments. This specific order is passed by the court in view of the fact that the petitioner was permitted to work by the order passed by the Director of Madrassa dated 11.06.2013, and that order as on date has not been re-called or reviewed and the petitioner was made to work without payment of any salary. Upon the matter being placed before the Chief Secretary in his capacity as the Chairperson of the SLC, the SLC will pass necessary orders regularizing the approval of the petitioner as a compassionate appointment with effect from the date of the order being passed and the matter be forwarded to the Finance Department for grant of post- facto approval to the post in which the petitioner has been appointed. This order shall not be treated as a Precedent as this order is passed under peculiar facts and circumstances arising in this case before the

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Page No.# 6/9

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Court.

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15. This entire exercise be completed within a period of 60 (sixty) days from the date of receipt of a certified copy of this order.”

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14. Mr. Khataniar, learned standing counsel, Secondary Education Department, appearing for the appellants, herein, assailing the order, dated 07.02.2024, passed by the learned Single Judge in WP(c)4572/2022, has submitted that the initial appointment of the respondent No. 1, herein, against a Grade-IV post effected vide order, dated 11.06.2013, by the Director of Madrassa Education, Assam, being so effected in clear violation of to the procedure laid down in the case of Achyut Ranjan Das (supra); the said appointment is ab initio void and the same cannot confer any right upon the respondent No. 1, herein, to continue against the said Grade-IV post of Chowkidar and further that he would not be entitled to claim his salaries in pursuance of such void appointment.

¶44

15. Mr. Khataniar, learned standing counsel, Secondary Education Department, has submitted that the learned Single Judge although had noticed the fact that the appointment of the respondent No. 1, herein, was so effected vide order, dated 11.06.2013, on compassionate ground, in pursuance of the order, dated 19.09.2007, passed by the writ Court in WP(c)4760/2007; however, erred in not appreciating the fact the appointing authority had effected the appointment, in question, clearly in excess of jurisdiction vested upon it and also, without following the due procedure as mandated for appointment on compassionate ground.

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16. In view of the above position, Mr. Khataniar, learned standing counsel, Secondary Education Department, appearing for the appellants, herein, has

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Page No.# 7/9

¶47

submitted that the claim made by the respondent No. 1, herein, in WP(c)4760/2007, would not have mandated an acceptance by the writ Court and the writ petition being WP(c)4572/2022, was called upon to be dismissed.

¶48

17. Mr. Ahmed, learned counsel appearing for respondent No. 1, has supported the decision rendered by the learned Single Judge vide order, dated 07.02.2024, in WP(c)4572/ 2022, and has submitted that the directions so passed by the learned Single Judge vide the order, dated 07.02.2024, was so passed considering the peculiar circumstances arising in the matter and has further submitted that the learned Single Judge had also directed that the order, dated 07.02.2024, was not to be considered as a precedent.

¶49

18. We have heard the learned counsels appearing for the parties and also perused the materials available on record.

¶50

19. It is an admitted position that the learned Single Judge, vide order, dated 19.09.2007, passed in WP(c)4760/2007, had required the respondent authorities to consider the case of the respondent No. 1, herein, for appointment on compassionate ground in accordance with the guidelines laid down in the case of Das(supra).

¶51

20. The Director of Madrassa Education, Assam, while proceeding to appoint the respondent No. 1, herein, in pursuance of the directions passed by the writ Court in WP(c)4760/2007; had not ensured compliance with the procedure as laid down in the case of Achyut Ranjan Das (supra). However,

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Page No.# 8/9

¶53

what has to be noticed is that the respondent No. 1, herein, after being appointed vide order, dated 11.06.2013, is continuing in his service in Kacharigaon Senior Madrassa, Dhubri, and the respondent authorities have, neither, recalled, nor, reviewed the appointment of respondent No. 1, herein. It is seen that the respondent No. 1 has been rendering his service against the post of Chowkidar in Kacharigaon Senior Madrassa, Dhubri, without payment of any salaries till date. The learned Single Judge on noticing the said position and exercising his powers under Article 226 of the Constitution of India, under peculiar circumstances existing in the matter, had proceeded to pass the directions as passed vide order, dated 07.02.2024, in WP(c)4572/2022.

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21. The learned Single Judge had further directed that the order, dated 07.02.2024, was not to be treated as a precedent as the said order was passed under peculiar circumstances arising in the matter before the writ Court.

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22. In view of the directions passed by the learned Single Judge vide order, dated 07.02.2024, in WP(c)4572/2022, and the peculiar circumstances existing in the matter; we are not persuaded by Mr. Khataniar, learned standing counsel, Secondary Education Department, appearing for the appellants, herein, to take a different view in the matter. In our considered view, the view taken by the learned Single Judge in the matter being a view so called upon to be taken in the peculiar circumstances arising in the matter; the same would not call for any interference.

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Page No.# 9/9

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23. In view of the above discussions, the instant writ appeal is held to be devoid of any merit and accordingly, the same stands dismissed. However, there shall be no order as to costs.

¶58

JUDGE CHIEF JUSTICE

¶59

Comparing Assistant

Procedural history

How this case reached the court

AI extract

Order under challenge
Order dated 07.02.2024 of the learned Single Judge in WP(c)4572/2022 disposing of the writ petition by directing the State Respondents to consider respondent No. 1 for ex-post facto approval to his appointment; mandamus under Article 226 to place papers before the Chief Secretary as SLC Chairperson for regularization as compassionate appointment with Finance post-facto approval, within 60 days; order expressly not to be treated as precedent.¶23
Gauhati High Court - learned Single Judge (writ court) · 07.02.2024
Prior proceeding
Father of respondent No. 1, late Jasim Uddin Khan, working as Chowkidar in Kacharigaon Senior Madrassa, Dhubri, kidnapped on 19.03.2006 and later found dead.¶26
Prior proceeding
Managing Committee of Kacharigaon Senior Madrassa resolved on 22.08.2006 to engage respondent No. 1 as Chowkidar; engagement letter issued and services joined on 22.08.2006.¶28
Prior proceeding
Appointment not regularized; respondent No. 1 instituted WP(c)4760/2007; writ court disposed of it vide order dated 12.09.2007 directing consideration in terms of the guidelines in Achyut Ranjan Das v. State of Assam & ors (judgment & order dated 03.08.2006 in WP(c)3875/2005).¶29
Prior proceeding
On production of certified copy of the 03.08.2006 judgment, the Director of Madrassa Education, Assam appointed respondent No. 1 as Chowkidar (Grade-IV employee) on 11.06.2013, stipulating Finance(S.I.U.) approval for the post; he joined and has discharged duties since.¶31
Prior proceeding
Disbursal of salaries to respondent No. 1 not taken forward on the plea that the validity of the Finance(S.I.U.) approval for the post expired on 31.07.2008.¶33
Prior proceeding
Director of Madrassa Education, Assam, vide communication dated 11.12.2014, requested the Secretary to the Government of Assam, Secondary Education Department, to grant ex-post facto approval to respondent No. 1.¶33
Prior proceeding
Salaries not released; respondent No. 1 instituted WP(c)4572/2022 praying for ex-post facto approval to his appointment as Chowkidar, grant of Finance(S.I.U.) approval, and release of arrears and current salaries.¶24
Prior proceeding
Appellants filed affidavit-in-opposition in WP(c)4572/2022 contending that the compassionate appointment was effected without following the principles in Achyut Ranjan Das (supra) and hence ex-post facto approval cannot be granted.¶37
Prior proceeding
In view of the order passed the same day in IA(c)824/2025 [in Writ Appeal No. 824/2025 (Filing Number)], the Registry registered the instant writ appeal; with consent of counsel the matter was finally heard.¶21

The State of Assam and Anr. v. Abdul Alim Khan and 2 Ors.

Case brief

What is this about?

What did the court decide?

The State of Assam and Anr. v. Abdul Alim Khan and 2 Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

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