Tayabur Rahman Barbhuiya v. The State of Assam and 4 Ors

PageoNo.#o1/6 GAHC010044302022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:ooWP(C)/2295/2022 TAYABURoRAHMANoBARBHUIYA S/O-oLATEoMAJORAFoALIoBARBHUIYA oR/O-oVILL.oANDoP.O.oMOHANPUR oP.S.oALGAPUR oDIST.-oHAILAKANDI oASSAM oPIN-o788150. oVERSUS THEoSTATEoOFoASSAMoANDo4oORS REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEo GOVERNMENToOFoASSAM oEDUCATIONoDEPARTMENTo(ELEMENTARY) oDISPUR oGUWAHATI-6. 2:THEoDIRECTORoOFoELEMENTARYoEDUCATION oASSAM KAHILIPARA oGUWAHATI-19. o3:THEoSTATEoLEVELoCOMMITTEEo(SLC) FORoCOMPASSIONATEoAPPOINTMENT oREPRESENTEDoBYoTHEoCHIEFoSECRETARYoTOoTHEoGOVT.oOFoASSAM oDISPUR oGUWAHATI-6. o4:THEoDISTRICToLEVELoCOMMITTEEo(DLC) HAILAKANDIoFORoCOMPASSIONATEoAPPOINTMENT oREPRESENTEDoBYoTHEoDEPUTYoCOMMISSIONER oHAILAKANDI oDIST.oHAILAKANDI Page No.# 2/6 ASSAM PIN-788151. 5:THE DISTRICT ELEMENTARY EDUCATION OFFICER HAILAKANDI DIST. HAILAKANDI ASSAM PIN-788151. ------------ Advocate for : MR. S B LASKAR Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 4 ORS

BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

09/02/2023

Heard Mr. F Z Mazumder, learned counsel for the petitioner. Also heard Mr. P N Sarma, learned Standing counsel, Department of School (Elementary) Education for the respondent Nos. 1, 2 & 5 and Mr. G Pegu, learned Government Advocate, Assam for the respondent Nos. 3 & 4. Father of the petitioner, Majoraf Ali Barbhuiya, an Assistant Teacher of 796 No. Dubriarpar Lower Primary School in the Hailakandi Education Block of District-Hailakandi, a provincialised Elementary School of the State, died-in-harness on 21.12.2002, leaving behind his two widows, six sons and six daughters. Petitioner is the eldest son of said Majoraf Ali Barbhuiya and was major at the time of death of his father. It is stated by the petitioner that on 02.01.2003, he applied for compassionate appointment to the post of Grade-III (Assistant Teacher) of Lower Primary School against available vacancy of 5% quota earmarked for compassionate appointment. He also stated that he passed Higher Secondary Final Examination in the year 1993 conducted by the Assam Higher Secondary Education Council with

33.2% marks. As such, he claimed that he is eligible for appointment to the post of Grade-III (Assistant Teacher) of Lower Primary School at the time of consideration of his case by the District Level Committee for compassionate appointment. The District Elementary Education Officer, Hailakandi submitted the proposal of the petitioner Page No.# 3/6 before the District Level Committee (DLC) for compassionate appointment, District-Hailakandi for consideration of his case by the said DLC for his appointment on compassionate ground. The said DLC in its meeting held on 05.10.2021 examined the application of the petitioner as per the guidelines issued by the Government vide Office Memorandum No. ABP.50/2006/Pt/182 dated 01.06.2015 that relates to the appointment of dependent of Government servant in the State of Assam, who die in harness, or retire prematurely on being permanently incapacitate as declared by a certificate issued by the State Level Standing Medical Board and receives invalid pension under the provisions of Rule 82 of the Assam Services (Pension) Rules, 1969 or missing and whose whereabouts is not known for at least 7 years. After considering the application of the petitioner for his compassionate appointment, the DLC, Hailakandi in its meeting held on 05.10.2021 in accordance with the O.M. dated 01.06.2015 rejected his claim for compassionate appointment considering it not fit for recommendation to the State Level Committee for compassionate appointment (SLC) on the ground that he was under qualified with 33.2% marks in his Class-XII Final Examination at the time of submission of his application. Petitioner submitted that following the law laid down by the Hon'ble Apex Court, this Court have passed judgments earlier where such application of the minors/dependent of a deceased Government employee were directed to be considered by the authorities concerned for appointment on compassionate ground. In that regard, petitioner has placed reliance on the judgment dated

29.01.2018 passed in WP(C) No. 364/2018 (Safiqul Islam Vs. State of Assam and 6 Ors.) and an order dated 13.05.2022 passed in WP(C) No. 479/2022 (Jakaria Imran Choudhury Vs. State of Assam and 4 Ors.). The petitioner has also placed reliance on the judgment of the Hon'ble Apex Court in the case of N.C. Santhosh Vs. State of Karnataka and Ors. reported in (2020) 7 SCC 617. Mr. Pegu, learned Government Advocate, Assam by placing an Office Memorandum No. AEE-388/2011/24 dated 16.05.2012 of the State Government in the Elementary Education Department placed before the Court that with regard to the compassionate appointment prior to 23.08.2010, the minimum qualification for an Assistant Teacher required for both Lower Primary and Upper Primary was Higher Secondary or its equivalent as laid down in the Assam Elementary (Provincialisation) Rules, 1977 as amended in 2005, before the norms of the NCTE duly notified as the requisite qualifications laid down in the RTE Act, 2009 came into force, that was prospective in nature. Page No.# 4/6 Said O.M. dated 16.05.2012 specified that with regard to the cases prior to 23.08.2010, any such appointee on compassionate ground shall have to acquire requisite qualification in terms of the RTE Act, 2009 and the Rules framed there under within a period of 5 years, failing which the consequences laid down in the scheme shall follow. Said O.M. dated 16.05.2012 also laid down the cases for compassionate appointment on or after 23.08.2010 up to 31.03.2015 and under that the requirement for appointment as an Assistant Teacher in Class-I to Class-V on compassionate ground was Senior Secondary or its equivalent with at least 50% marks or Graduate (irrespective of marks) and for the Assistant Teacher of Class-VI to Class-VIII candidates seeking appointment on compassionate ground has to be a Graduate, whereas with regard to the reserved category of candidates, relaxation of 5% in qualifying marks were granted. From the rejection order of the application of the petitioner for his compassionate appointment, it is seen that the DLC for compassionate appointment, Hailakandi on 05.10.2021 on examining the application of the petitioner in terms of the decision of this Court in the case of Achyut Ranjan Das Vs. State of Assam and Ors. reported in 2006(4) GLT 674 and as per the O.M. No. ABP.50/206/Pt/182 dated 01.06.2015 of the Personnel (B) Department of the State rejected the claim of the petitioner. On perusal of the said O.M. dated 01.06.2015, it is seen that it specifically provided that the beneficiaries of the scheme for compassionate appointment have to be otherwise eligible and suitable for appointment. The said O.M. dated 01.06.2015 also specifies that the educational qualification as prescribed by the concerned service Rules shall however not be relaxed. Further, the O.M. dated 01.06.2015 provides that every eligible dependent amongst others seeking appointment under the said O.M. shall make an application for appointment on compassionate grounds in the prescribed form with all enclosures within one year from the date of death or acceptance of retirement of the Government employee with consent letter of the retired employee. On perusal of the provisions of the Assam Elementary Education (Provincialisation) Rules, 1977, it is seen that w.e.f. 10.11.2005, the minimum educational qualification of a person to be eligible for appointment as a teacher in Elementary School was Higher Secondary or any other examination of equivalent standard having 45% marks in any of the qualifying examination for Page No.# 5/6 General categories and minimum 40% marks for reserved categories for a post of Assistant Teacher in Lower Primary and Upper Primary Schools. However, the amended provision of minimum qualification for person to be eligible for appointment as a teacher in Elementary School was again amended w.e.f. 25.10.2012 and thereafter again till the Right to Education Act, 2009 came into force. Assuming the petitioner submitted his application on 02.01.2003 for compassionate appointment to the post of Grade-III (Assistant Teacher) of Lower Primary School against available vacancy of 5% quota earmarked for compassionate appointment as stated by him in this writ petition, he having 33.2% marks in his Higher Secondary Examination was not eligible for such compassionate appointment. Petitioner on his own stated that he passed Higher Secondary Final Examination in the year 1993 with 33.2% marks and as such, he is not eligible for appointment to the post of Grade-III (Assistant Teacher) of Elementary School. It is well settled that there cannot be a reservation of vacancy with regard to compassionate appointment till such time an incumbent or applicant becomes a major after certain period or acquires the requisite eligibility after sometime unless there are some specific provisions in the Rules, Guidelines, Office Memorandum etc. for compassionate appointment under the die-in-harness scheme since appointment under compassionate ground is not a matter of right. The petitioner submitted that since his application was of 02.01.2003, therefore, following the provisions of the law laid down in the case of N.C. Santhosh (supra), the respondent authorities committed illegality in rejecting his case for compassionate appointment under the die-in-harness scheme of the State. In the case of N.C. Santhosh (supra), a three judges Bench of the Hon'ble Apex Court laid down that dependent of Government employee, in absence of any vested right accruing on the death of Government employee, can only demand consideration of his/her application but is disentitled to seek consideration in accordance with norms as applicable on the day of death of deceased employee. In the case of N.C. Santhosh (supra) at para 19, the Hon'ble Apex Court have held as follow:-

19."Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for Page No.# 6/6 compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is, however, disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee." Considering the said decision of the Hon'ble Apex Court in the case of N.C. Santhosh (supra) that on the date of consideration of the application for compassionate appointment by the DLC for compassionate appointment, Hailakandi on 05.10.2021, the concerned O.M. dated 01.06.2015 of the State Government in the Personnel (B) Department of the State regarding compassionate appointment under the die-in-harness scheme was applicable which clearly laid down as noted above that every eligible dependent seeking appointment under the said O.M. shall make an application for appointment on compassionate grounds in the prescribed form with all enclosures within one year from the date of death or acceptance of retirement of the Government employee with consent letter of the retired employee. Apparently, the petitioner at the time of filing of his application on 02.01.2003 for compassionate appointment on the death of his father, who died in harness on 21.12.2002 was a major and therefore, as per the O.M. dated 16.05.2012 of the State Government in the Elementary Education Department, he is not eligible for any such Government employment. Considering the above, this Court is of the view that the decision of the DLC for compassionate appointment, Hailakandi District dated 05.10.2021 communicated vide order No. HPE.1/2021 by the Deputy Commissioner & Chairman District Level Committee, Hailakandi on

11.10.2021 impugned in this petition does not call for any interference. Accordingly, this writ petition, being devoid of merit, stands dismissed. JUDGE Comparing Assistant