Minnatulla Mazumder Vs the State of Assam and 3 Ors.

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GAHC010117592025

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2025:GAU-AS:7608

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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)/3115/2025

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MINNATULLA MAZUMDER @ NINNATULLA MAZUMDER S/O- LATE ABDUL RAKIB MAZUMDER, VILL.- RAJESWARPUR, P.O. KATAGAON, P.S. LALA, DIST. HAILAKANDI, ASSAM

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VERSUS

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THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM AND 5 ORS DEPARTMENT OF SCHOOL EDUCATION, DISPUR, GUWAHATI-6.

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2:THE STATE OF ASSAM

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TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PERSONNEL DEPARTMENT DISPUR GUWAHATI-6.

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3:THE STATE LEVEL COMMITTEE (SLC) REPRESENTED BY CHIEF SECRETARY TO THE GOVT. OF ASSAM DISPUR GUWAHATI-6.

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4:THE DISTRICT LEVEL COMMITTEE (DLC) HAILAKANDI REPRESENTED BY ITS CHAIRMAN/ DISTRICT COMMISSIONER HAILAKANDI ASSAM

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5:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR

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GUWAHATI-6.

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6:THE DIRECTOR OF ELEMENTARY EDUCATION DEPARTMENT ASSAM KAHILIPARA GUWAHATI-19

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Advocate for the Petitioner : MR. A M BARBHUIYA, MS S R MAZARBHUIYA,MS A BEGUM Advocate for the Respondent : GA, ASSAM, SC, FINANCE,SC, ELEM. EDU

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Linked Case : WP(C)/5588/2023

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MINNATULLA MAZUMDER S/O LT. ABDUL RAKIB MAZUMDER VILL- RAJESWARPUR P.O.-KATAGAON DIST- HAILAKANDI ASSAM PIN-788160

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VERSUS

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THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM EDUCATION (ELEMENTARY) DEPARTMENT DISPUR GHY-6 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GHY-19 3:THE DISTRICT COMMISSIONER HAILAKANDI P.O. AND DIST-HAILAKANDI ASSAM PIN-788151 4:THE DISTRICT ELEMENTARY EDUCATION OFFICER

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HAILAKANDI P.O. AND DIST- HAILAKANDI ASSAM PIN-788151 -----------Advocate for : MR. N HOSSAIN Advocate for : SC ELEM. EDU appearing for THE STATE OF ASSAM AND 3 ORS

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B E F O R E

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Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI

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Advocate for the petitioner : Shri N. Sarma (WP(C)/5588/2023) Shri AM Barbhuiya (WP(C)/3115/2025) Advocate for the respondent : Ms. S. Konwar, G.A.-Assam. Ms. S. Chutia, SC-Education Deptt.

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Date of hearing : 11.06.2025 Date of Judgment : 11.06.2025

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Judgment & Order

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Both these writ petitions have been instituted by the same petitioner engaging different counsel. It is, however, pertinent to be mentioned that in the second writ petition, i.e, WP(C)/3115/2025, there is not even a whisper of the filing and pendency of the earlier writ petition, WP(C)/5588/2023. The subject matter involves a claim for appointment on compassionate ground.

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The projected case of the petitioner, in a nutshell, is that his father, Abdul Rakib Mazumdar, who was working as a Hindi Teacher of Hussain Ahmed (Provincialized) MEM School under the District Elementary Education

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Officer (DEEO), Hailakandi had died in harness on 01.08.2009. The petitioner who claims to be eligible had applied for appointment on compassionate ground on 02.12.2009. However, the District Level Committee (DLC), Hailakandi had rejected the claim of the petitioner in its meeting dated 05.10.2021 whereafter, the petitioner had filed WP(C)/184/2022. The said writ petition was disposed of vide an order dated 11.01.2022, remanding the matter to the DLC to give a fresh consideration to the application of the petitioner as per law. However, after such remand, the DLC in its meeting held on 07.05.2022, had again rejected the claim of the petitioner. The petitioner had filed a first WP(C)/5588/2023 in which notice was issued on 27.09.2023.

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Subsequently, the petitioner, through a different counsel, filed another writ petition, WP(C)/3115/2025 on 29.05.2025. However, as noted above, there is no disclosure of either the filing or pendency of the earlier writ petition, WP(C)/5588/2023.

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I have heard Shri N. Sarma, learned counsel for the petitioner in WP(C)/5588/2023 and Shri AM Barbhuiya, learned counsel in WP(C)/3115/2025. I have also heard Ms. S. Konwar, learned State Counsel and Ms. S. Chutia, learned Standing Counsel, Education Department.

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Shri Sarma, the learned counsel for the petitioner has submitted that during the pendency of the first writ petition, the DLC had recommended the case of the petitioner on 19.09.2023. in view of this, he submits that the same has become infructuous and should be dismissed accordingly.

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Shri Barbhuiya, learned counsel for the petitioner has submitted that the second writ petition had to be filed inasmuch as, after the

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recommendation of the name of the petitioner by the DLC on 19.09.2023, a notification dated 18.09.2024 has been issued abolishing the Scheme of appointment on compassionate ground in the State. He has contended that once the DLC had recommended the name of the petitioner, the Scheme could not have been discontinued.

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Per contra, both Ms. S. Konwar, learned State Counsel and Ms. S. Chutia, learned Standing Counsel, Education Department have submitted that the claim of the petitioner is untenable in law inasmuch as, there has been a considerable lapse of time since the death of a government servant and therefore, no direction for appointment on compassionate ground can be made at this juncture. The Departmental Counsel has submitted that the reasons cited for rejecting the case of the petitioner are relevant and germane and therefore, the submission that there is illegality cannot be countenanced. They have also raised the issue of suppression of material facts.

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The rival contentions of the learned counsel for the parties have been duly considered.

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The materials on record make it clear that the death of the father of the petitioner was on 01.08.2009 and the petitioner claimed to have applied for appointment on compassionate ground on 02.12.2009. However, the consideration and rejection of the case of the petitioner by the DLC was in the year 2021. There is no explanation forthcoming from the petitioner as to what steps were taken during the intervening period of more than a decade to pursue the claim. Be that as it may, the order of rejection dated 05.10.2021 was the subject matter of WP(C)/184/2022 in which this Court had passed an order on 11.01.2022 to consider the case of the petitioner

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afresh. Thereafter, the DLC had again rejected the claim of the petitioner on 07.05.2022 which is the subject matter of challenge in the 1^st WP(C)/5588/2023.

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However, suppressing the aforesaid fact of pendency of WP(C)/5588/2023, the second writ petition has been filed. Though it may be argued that the cause of action is not identical, the petitioner was under a duty to disclose the said fact as the jurisdiction exercised by this Court under Article 226 of the Constitution of India is a equity jurisdiction wherein a party approaching this Court is required to come with clean hands and candid disclosure.

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There is another aspect of the matter with regard to the very objective of the scheme for compassionate appointment. The very objective of the scheme, which is an exception to the general mode of recruitment, is to give immediate succor to a family which has lost its sole breadwinner who was a Government servant and such objective would not survive after a gap of 16 years.

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The law on compassionate appointment has been elaborately explained by Hon’ble Supreme Court in the recent case of State of West Bengal Vs. Debabrata Tiwari reported in (2023) SCC Online SC 219. In the said case, almost all the earlier cases on the subject of compassionate appointment have been discussed and the principles have been laid down. It has been reiterated that an appointment on compassionate ground is a departure from the normal rule and is an exception which is meant only to enable the bereaved family to tie over the sudden financial crisis on the death of a government servant while in

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service. It has also been clarified that it is not a vested right and the aspect of delay would be of paramount consideration. The relevant portion of the said judgment is extracted hereinbelow-

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“7.2. On consideration of the aforesaid decisions of this Court, the following principles emerge:

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(i) That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions and must be resorted to only in order to achieve the stated objectives, i.e. to enable the family of the deceased to get over the sudden financial crisis.

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(ii) Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis.

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(iii) Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate employment cannot be claimed or offered after a lapse of time and after the crisis is over.

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(iv) That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep

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such a case pending for years.

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(v) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members. together with the income from any other source.”

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On the aspect of delay, the Hon’ble Supreme Court in the aforesaid case of Debabrata Tiwari (supra), while examining the said aspect from the context of the scheme has also laid down that even if the delay is on account of the authorities, the sense of immediacy is diluted and lost. The relevant part as observed in paragraph 7.5 of the aforesaid judgment is extracted herein below:-

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“7.5. Considering the second question referred to above, in the first instance, regarding whether applications for compassionate appointment could be considered after a delay of several years, we are of the view that, in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Further, the financial circumstances of the family of the deceased, may have changed, for the better, since the time of the death of the government employee. In such circumstances, Courts or other relevant authorities are to be guided by the fact that for such prolonged period of delay, the family of the deceased was able to sustain themselves, most probably by availing gainful employment from some other source. Granting compassionate appointment in such a case, an noted by this Court

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in Hakim Singh would amount to treating a claim for compassionate appointment as thought it were a matter of inheritance based on a line of succession which is contrary to the Constitution. Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee.”

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An appointment on compassionate ground is a departure from the normal mode of recruitment wherein a certain quota (5%) is reserved and the objective is to enable a bereaved family losing their sole breadwinner who was a Government servant to overcome the immediate financial crisis. It has been laid down that such appointment cannot be held to be a matter of any vested right and it is not a source of recruitment.

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In the instant case, the issue regarding delay is required to be considered vis-à-vis the observation made by the Hon’ble Supreme Court in paragraph 7.5 of the case of Debabrata Tiwari (supra). It has been clearly laid down that in case of prolonged delay either on the part of the applicant or the authorities, the sense of immediacy is diluted and lost. In view of such law laid down by the Hon’ble Supreme Court, this Court has no other option but to hold that any further direction for consideration of the case of the petitioner on compassionate ground after a period of about 16 years from the death of a Government servant would not be in sync with the objective of the scheme for compassionate appointment.

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This Court is also of the view that the petitioner would not have any

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locus to maintain the challenge sought to be made in the second writ petition regarding the notification dated 18.09.2024 inasmuch as, the petitioner would otherwise not be entitled to get the benefit of compassionate appointment after a lapse of about 16 years from the death of the government servant which has been dealt with in details above.

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This Court also deprecates the conduct of the petitioner who has filed the second writ petition without disclosing the pendency of the first writ petition simply by change of counsel. In a similar circumstance wherein review petition was filed by change of counsel, the Hon’ble Supreme Court in the case of T.N. Electricity Board and Anr. Vs. N. Raju Reddiar and Anr. reported in (1997) 9 SCC 736 , had deprecated the practice and had made the following observations.

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“2. Once the petition for review is dismissed, no application for clarification should be filed, much less with the change of the advocate-on-record. This practice of changing the advocates and filing repeated petitions should be deprecated with heavy hand for purity of administration of law and salutary and healthy practice.”

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Accordingly, this Court is not inclined to grant any relief to the petitioner.

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The writ petitions accordingly stand dismissed.

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JUDGE

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Comparing Assistant

Minnatulla Mazumder v. the State of Assam and 3 Ors.

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Minnatulla Mazumder v. the State of Assam and 3 Ors.

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