Md. Mustafa Kamal vs State Of Assam And Ors

Heard Mr. A Ali, learned counsel for the petitioner. Also heard Mr. SB Bhattacharjee, learned counsel for the respondent No.1 and 2 and Mr.K

Nayak, learned counsel for the respondent Nos. 5 an 6.

The petitioner’s case in brief is that on the death of his father on 06.01.2016, while working in the Gauhati Commerce College, the petitioner

submitted an application for compassionate appointment on 17.01.2006. Petitioner’s application for compassionate appointment was rejected by

the DLC on the ground that he had submitted his application beyond the time limit. The meeting minutes of the DLC held on 18.02.2015 states that the

proposal of the petitioner could not be considered as the specified period of two years had already elapsed as provided by the Government letter

No.ABP.92/2012/32 dated 20.12.2012.

Petitioner’s counsel submits that the petitioner is presently working in Gauhati Commerce College on temporary basis. He submits that the

petitioner’s case for compassionate appointment should be considered on merit or in the alternative, his service in the college as Grade-IV

employee should be regularized.

Counsels for the respondents on the other hand submit that as the petitioner is working in a temporary capacity, the petitioner cannot have any

legitimate claim for compassionate appointment. They also submit that regularization cannot be granted in view of the fact that the petitioner does not

come within the purview of paragraph 53 of the Judgment of the Apex Court in the case of State of Karnataka â€"vs- Uma Devi (3) , reported in

(2006) 4 SCC 1.

I have heard the learned counsels for the parties.

The rejection of the petitioner’s application for compassionate appointment on the ground that the petitioner’s application had elapsed after

two years of being submitted is not proper, inasmuch as, the petitioner’s application should have been considered on merit, in view of the

guidelines laid down by this Court in the case of Achyut Ranjan Das â€"vs- State of Assam & Ors, reported in 2006 ( 4) GLT 674. However, as held

by the Apex Court and this Court in various judgments, the very object of compassionate appointment is to mitigate the immediate hardship caused to

the family of the Government servant. However, in the present case, the petitioner has been given temporary employment in a Grade-IV post by the

Gauhati Commerce College. Accordingly, it can be said that the petitioner has been given the opportunity to mitigate the immediate loss caused to the

petitioner by the death of his father. Further, this Court has held in the case of Achyut Ranjan Das (supra) that as compassionate appointments are

required to be made within the earliest possible time, “the delay in making such appointment would be fatal. With the passage of time, State and the

Courts must understand that the family of the deceased has been able to meet the crisis caused by the death of the sole bread earner.â€​

In the present case, the petitioner’s father died in 2006 and the petitioner has been given appointment to a Grade â€"IV post in Gauhati Commerce

College on 17.01.2006. Thus, with regard to the prayer of the petitioner for compassionate appointment, this Court finds that due to flux of time, the

petitioner does not have a case for being considered for compassionate appointment in his favour, when he has employment. With regard to the

petitioner’s prayer for regularization, the case of the petitioner cannot be considered by this Court as he does not come within the exception

carved out in paragraph-53 of the Uma Devi (3) (supra) as the petitioner has not worked for 10 years in his post when the Judgment of Uma Devi (3)

was given in the year 2006.

In the case of State of Karnataka â€"vs- M.L. Kesari & Ors. reported in (2010) 9 SCC 247, the Apex Court while interpreting paragraph 56 of Uma

Devi (3) (supra) held as follows:-

“ It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following

conditions are fulfilled :

(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of

any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service

voluntarily and continuously for more than ten years.

(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned

posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But

where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without

undergoing the process of open competitive selection, such appointments are considered to be irregular.â€​

In view of reasons cited above, the present writ petition stands dismissed.