WP(C) 707/2010 BEFORE HON’BLE MR. JUSTICE B. K. SHARMA This batch of writ petitions pertains to the claim of the petitioners fo r appointment on compassionate ground. While in some of the cases, the prayer is for consideration of the cases of the petitioners as per the prevalent scheme, in other cases, the petitioners have assailed the legality and validity of the r ejection of their prayers for such appointment. The issue being one and the same , which is the extent of right of the petitioners for appointment on compassiona te ground and the validity and otherwise of rejection of their prayers for compa ssionate appointment, and as agreed to by the learned counsel for the parties, a ll the writ petitions have been heard together and are being disposed of by this common judgement and order. 2. This court in Achyut Ranjan Das Vs. State of Assam reported in 2006 (4) GLT 674 has already laid down certain guidelines towards consideration of the c ases for compassionate appointment. The State Government has adopted the said gu idelines and the cases for compassionate appointment are being considered on tha t basis. In Achyut Ranjan Das (supra), the court upon noticing the principles go verning compassionate appointment, has laid down the following guidelines on the basis of which claims relating to compassionate appointment are required to be considered. The said principles as enumerated in paragraph 7 of the judgement ar e reproduced below :- I) All pending applications against existing and available vacancies as per the quota earmarked including the cases of the petitioners in the present cases and all others, who may not be before the Court, shall be decided in accordance with the proposed directions to be laid down in the present order and also in a ccordance with the principles noted in the preceding paragraphs of this order. T his will be done within a period of 4 (four) months from today. The present dire ction naturally has to be considered as a one-time measure in view of the subseq uent direction as laid down in the succeeding paragraphs. II) The District Head of each Department will intimate the vacancies as and when such vacancies occur, to the Court Appointed District Level Committees for its scrutiny. There will be no delay in such intimation. III) The District Level Committee will be constituted by the Deputy Commissio ner of the District and the Superintendent of Police. The Deputy Commissioner hi mself will sit in the Committee. The District Head(s) of such departments in whi ch vacancies are available shall be co-opted as the Additional Members of the Co mmittee. IV) The District Level Committee will meet once every 2 (two) months on the last Saturday of the second month. V) The District Level Committee will decide as to who amongst the eligible candidates is entitled to compassionate appointment. To the extent possible such appointments will be recommended to be made within the District. In making the recommendations for appointments, the District Level Committee will take into ac count the financial condition of the family of the deceased and on a relative co nsideration of the cases will make its recommendation. There will be no selectio n and seniority of the claim will not be resorted to unless two or more eligib le candidates are at par. VI) To decide on the question of financial status of the family of a claiman t regard will be had to the following factors as laid down in B.M. Vs. Kunti Tiw ari (Supra) a) Gratuity amount received/receivable. b) Family pension payable. c) Provident Fund Amount received / receivable. d) Any ex-gratia payment made or payable. e) Proceeds of LIC Policy and other investments of the deceased. f) Income of the family from other sources. g) Employment of other family members. h) Size of the family and liabilities, if any. VII) The recommendations of the District Level Committee will be considered b y a State Level Committee consisting of the Chief Secretary and the Senior Finan cial Commissioner of the State. The Commissioner and Secretary of the Department (s) in which vacancies are available will be co-opted as Additional Members of t he State Level Committee. VIII) The State Level Committee will meet once every 3 (three) months. IX) All vacancies available against the quota of compassionate appointment m ust be filled up within a period of 6 (six) months from the date of occurrence o f the vacancy in accordance with the present directions. X) If the applications of eligible candidates remain pending and cannot be considered due to want of vacancies for a period of 2 (two) years from the date of making such applications, all such applications will require no further consi deration and must be understood to have spent their force . 3. In paragraph 8 of the judgement, it has been observed thus :- Before parting with the record, this Court would like to observe that in the pr esent group of cases the bulk of the claims pertains to non-consideration of cla ims made / applications filed for compassionate appointment. All such cases will naturally be governed by the directions contained in the present order. Few of the cases under consideration pertain to complaints with regard to rejection of the claims made or appointment of persons, who, the petitioners / claimants cont end do not have a better for appointment. There are also some claimants whose ap pointments have been approved by the State Government but appointment orders hav e not been forthcoming. Who has a better right for appointment and whether a particular claim has been r ightly rejected can be gone into by the Court only if there is a reasoned order setting out the relevant facts, a practice that seems to have become a thing of the past. However, as appointment of one person in preference to another will no t have the effect of abrogating the claim of the candidate passed over in view o f the present Direction No.I which would now require the State to consider all p ending claims afresh all the contentious questions raised need not be gone into. In so far as claims which have been approved by the State Government but appoin tment orders have not been forthcoming, the direction to re-examine all such cla ims and, thereafter, issue appointments orders in accordance with the laid down principles, will adequately take care of all such grievances . 4. The aforesaid guidelines have been laid down and the observations have b een made upon a detailed discussion of the principal Office Memorandum dated 09. 09.1983 laying down the criteria for compassionate appointment and consideration thereof. In the judgement the grey areas that are not covered by the OM have also been noted. It is only thereafter and taking into account the principles go verning compassionate appointment as deducible from the pronouncement of the Ape x Court and what has been discussed in the judgement, the aforesaid guidelines r elating to the compassionate appointment have been laid down. 5. When a confusion was created in respect of consideration of all pending applications in terms of Principle No.I by rejecting such claims applying the te st of Principle No. X, as per which if applications of eligible candidates canno t be considered due to want of vacancies for a period of two years from the date of making such applications, same are not required to be considered any further , this court had to intervene once again by way of the judgement reported in 200 9(3) GLT 306 (Ajit Pator & Ors. Vs. State of Assam & Ors.). It was clarified tha t in terms of Principle No. I, all pending cases were to be considered in accord ance with the other specific directions contained in paragraph 7 of the judgemen t and that once consideration of a case as a one time measure is over, such appl ications that may remain pending are not required to be considered, if a period of more than two years had elapsed. Thus, it was clarified that so far as the pe nding cases covered by Principle No. I, are concerned, the said cases cannot be rejected applying the test of the Principle No. X. The Principle No. X will come into operation only in respect of cases other than the pending cases covered by Principle No.I. 6. In the instant batch of writ petitions, some of the grounds of attack ag ainst the orders of rejection of the claim for compassionate appointment are non -assignment of reasons for rejection ; non-consideration of the cases on the bas is of seniority of claims ; rejection of cases on ground of the candidate being over aged ; cases not placed before the District Level Committee (DLC) and State Level Committee (SLC) ; although the DLC recommended the cases but SLC rejected the same, etc. 7. It will be pertinent to mention here that the Govt. of Assam in the Depa rtment of Personnel has issued the Office Memorandum dated 2.3.2009 on the subje ct of Revised Guidelines for Appointment on Compassionate Ground to the widow or son or unmarried daughter or adopted son / adopted unmarried daughter of a Govt . servant who dies in harness with a view to give immediate financial assistance to the family of the deceased in a Class-III / Class-IV posts (not above the le vel of LDA), limiting such appointment to 5% of vacancies occurring in a year. A s per the OM, this restriction will, however, not apply where only one vacancy i s to be filled up in a year. As per the said OM, the department can appoint one person on compassionate ground against 5% quota upto 20 (twenty) vacancies in a year. The OM emphasises the need for prompt action on the applications for compa ssionate appointment and not to keep them pending for years together. The follow ing guidelines have been laid down in the OM. 1. Applications for appointment under the Scheme in prescribed Format shoul d be submitted within a period of 3 months from the date of death of the person, to the respective Office / Departments under which the person dies in harness. Applications submitted after 3 months should not be considered. 2. The 5% of the vacancies in Class-III and Class-IV posts occurring in a y ear must be reserved for appointment on compassionate ground. The Ceiling of 5% of direct recruitment vacancies for making compassionate appointment should not be exceeded. 3. A person selected for appointment on compassionate ground should be adju sted in the recruitment roster against the appropriate category viz. SC/ST(P)/ST (H)/OBC/MOBC/General depending upon the category to which he/she belongs. For ex ample if he/she belongs to SC category he/she will be adjusted against S.C. rese rvation point and if he/she belongs to ST/OBC category he/she should be adjusted against ST/OBC point and if he/she belongs to General category he/she will be a djusted against the vacancy point meant for General category. 4. Since compassionate appointment is made in relaxation of prescribed proc edure of recruitment, as such approval of Finance (SIU) Deptt. Will not be neces sary when there is a clear sanctioned vacancy to consider the proposal subject t o the condition that the vacant post against which appointment on compassionate ground is to be made has been retained upto-date/retained permanently. 5. As per direction of Hon’ble High Court dtd. The 3rd Aug/2006 in W.P.(C) No. 3875 of 2005 and 162 other connected cases, guidelines have already been iss ued to follow the process and examination of compassionate appointment cases by all Deptts. And authorities vide Notification No. ABP.50/2006/58 dtd. 11.10.2006 , which should be strictly adhered to. 6. All cases of compassionate appointment of a District should be routed th rough the District Level Committee to the respective Administrative Deptts. For proper verification so that the Administrative Deptts. Can prepare a statement o f eligible candidates to be appointed on compassionate ground with the approval of State Level Committee. 7. All vacancies available against the 5% quota on compassionate appointmen t are to be filled up within a period of six months from the date of occurrence of vacancies. If the applications of eligible candidates remain pending and can not be considered due to want of vacancy or otherwise for a period of two years from the date of making such application, all msuch applications will require no further consideration and must be understood to have spent their force. 8. However, if no candidate is available for appointment under compassionat e scheme, then the posts may be filled up in the usual manner as per provision o f Rules. 9. All the Administrative Deptts /Directorates/ Appointing authorities shou ld examine the cases including the proposal received from the District Level Com mittee with their recommendation as indicated in this Department’s Notification mentioned at para-5 above before placing the same in the State Level Committee b y them. 10. In case of any confusion, power of interpretation lies with Personnel (B ) Department . 8. In terms of the guideline No.1, applications for appointment under the s cheme is to be submitted in the prescribed format within a period of 3 (three) m onths from the date of death of the Govt. servant. Further, as per guideline No. 4, the approval of Finance (SIU) Department will not be necessary when there is clear sanctioned vacancy to consider the proposal. However, such dispensation of requirement of approval of the Finance Department has been done away with by Of fice Memorandum dated 1.10.2009 which reads as follows :- GOVERNMENT OF ASSAM DEPARTMENT OF PERSONNEL (PERSONNEL-B) DISPUR :: GUWAHATI. No. ABP.357/80/Vol.I/314 Dated, Dispur, the 1st October,2009. OFFICE MEMORANDUM Subject : Revised guidelines for appointment on compassionate ground of a son, daughter or a Government Servant. A revised guidelines have been issued vide O.M. NO. ABP.357/80/Vol.I/303 Dated 2 -3-2009 for appointment on compassionate ground to the son & daughter of a Gover nment Servant who dies in harness. Para 4 of the Office Memorandum stipulates th at since compassionate appointment is made in relaxation of prescribed procedure of recruitment, as such approval of Finance (SIU) Department will not be necess ary when there is a clear sanctioned vacancy to consider the proposal subject to the condition that the vacant post against which appointment on compassionate g round is to be made has been retained upto date / retained permanently. On further consideration it has been decided to amend Para 4 of that Office Memo randum which be read as below : Since compassionate appointees cannot be differentiated with that of other fres h appointees who are recruited as per provisions of rules & procedures, as such mandatory requirement of obtaining approval / appraisal No. of Finance (SIU) Dep artment before making appointment on compassionate ground will be required for r elease of Salary by the concerned Treasury Officer to avoid possible irregularit ies, like fraudulent drawal of salaries making regular appointments etc . All ot her conditions will remain same. Sd/- Rajiv Bora Commissioner & Secretary to the Govt. of Assam, Personnel (B) Department . 9. From the materials on record and as submitted by Mr. M.R. Pathak, learne d Standing Counsel, Education Department, some of the pending cases have been re jected by the department applying the guideline No.1 of OM dated 2.3.2009, which stipulates submission of application for compassionate appointment within three months from the date of death of the Govt. employee. Learned counsel for the p etitioners have taken objection to the application of guideline No.1 even in the pending cases. Objections have also been raised to the restriction imposed limi ting the time limit of 3 (three) months for submission of application. 10. While it is true that the various schemes for compassionate appointment is to provide immediate financial assistance to the members of the family whose sole bread earner dies in harness and thus there is need for immediate submissi on of application for compassionate appointment as a measure for such considerat ion, but limiting the same only to the extent of 3 (three) months and that too w ithout any clause for relaxation of such time limit, may cause hardship to many deserving cases. 11. In the parent 1983 scheme, under Clause-7, it has been laid down that if several years have passed after the death of the government servant, it would a ppear on the face of it that the family has managed to support and has some mean s of assistance and thus in such a case, compassionate appointment will not ordi narily be justified. However, no time limit has been fixed for submission of app lication. In a given case, it may not be possible for the bereaved family member s to submit application for compassionate appointment within the stipulated peri od of three months and in absence of any clause for relaxation of such time limi t, the case of a deserving family will automatically stands rejected. Within suc h short span of three months, it may not be possible for the family to assess as to whether it could survive even without the assistance of a compassionate appo intment. 12. Immediately after the death of the sole bread earner, the family members are forced to engage themselves to observe official formalities towards submiss ion of pension papers, documents relating to final settlement dues, assess the assets and liabilities of the bread earner etc. Such formalities coupled with th e bereavement naturally take time. By the time, the family overcomes the tight s ituation, in which it finds itself, much time is consumed. 13. In many cases, the sole bread earner serves elsewhere leaving behind his family members in rural areas. Such family members, after the death of the sole bread earner are required to visit the office to collect informations, document s pertaining to his or her service particulars towards claiming final settlement dues. The lethargy with which the files relating to final settlement dues for f inal payment of the same move, is known to all. Further, the State represents co llective cause of the community and the decisions are taken by the Officers/ aut horities at a slow pace and the encumbered process of pushing the files from tab le to table consumes considerable time causing delay. All these factors aad ins ult to the injury and bring un-told woes and miseries to the bereaved family. In such a situation, it will be too much to expect the family to apply for compass ionate appointment within a period of three months from the date of death of the sole bread earner. 14. I have consulted the various schemes of compassionate appointment in whi ch no such time limit of 3 (three) months has been fixed. Even in the various Ap ex Court decisions, while emphasising that the very concept of compassionate app ointments loses its force after several years of death of the sole bread earner, it has not been emphasised that application for compassionate appointment must be submitted within a time limit. 15. As per the aforesaid scheme of 2.3.2009, the application for compassiona te appointment must be submitted within three months from the date of death of t he govt. servant, failing which such applications will not be considered. Consid ering the matter in its entirety, I am of the considered opinion that such a cla use is opposed to the very concept of the scheme for compassionate appointment. In the given facts and circumstances, I am of the opinion that a time limit of o ne year for submission of applications for compassionate appointment from the da te of death of the sole bread earner will be the appropriate time limit. Accordi ngly, Clause-I of the OM dated 2.3.2009 shall stand modified to that extent. 16. This now leads us to the question as to whether the pending cases and / or the cases in respect of which the applications were filed prior to the date o f issuance of the OM dated 2.3.2009, should be considered applying the guideline No.I. The OM dated 2.3.2009 does not have any retrospective application and thu s the guideline No.I cannot be applied to the pending cases and the said cases w ill have to be considered without taking into account the said OM dated 2.3.2009 but will have to be considered as per the prevalent scheme coupled with the gui delines issued in Achyut Ranjan Das (Supra). If any application has been rejecte d applying the Guideline No. I of the OM dated 2.3.2009, those applications will have to be considered afresh in terms of this judgement and order. 17. In the above context, the decision of the Apex Court in State Bank of In dia Vs. Jaspal Kaur reported in (2007) 9 SCC 571 may be referred to. In the said decision, interfering with the decision of the High Court towards consideration of the case of the respondent on the basis of the scheme prevailing in 2005, wh ile deciding application of the deceased of the respondent filed in 2000, held t hat the matter should be decided within the parameter of the scheme prevailing w hen the application for compassionate appointment was filed and not as prevailin g on the date of decision of the court. 18. A submission was made that in terms of OM dated 2.3.2009, no compassiona te appointment can be made to the post of Assistant Teachers, although in the sa me pay scale like that of LDA, upto which level appointment on compassionate gro und can be considered but the learned counsel for the petitioners by producing t he OM dated 17.2.2000, issued by the Govt. of Assam in the same department i.e. the Department of Personnel, contended that the submissions so made is mis-place d. As per the said OM dated 17.2.2000, the benefit of compassionate appointment shall also be extended to the eligible family members of the deceased teachers w ho dies in harness, for appointment to the post of Teacher in ME/MV/MEM/LP/Junio r Basic Secondary School. For a ready reference, the OM dated 17.2.2000 is quote d below :- GOVERNMENT OF ASSAM DEPARTMENT OF PERSONNEL :: PERSONNEL(B) DISPUR ::: GUWAHATI No. ABP.357/80/107 Dated Dispur,the 17th Feb/2000. OFFICE MEMORANDUM Subject : EXTENSION OF THE BENEFIT OF THE SCHEME FOR APPOINTMENT ON COMPAS SIONATE GROUND TO THE ELIGIBLE FAMILY MEMBERS OF THE DECEASED TEACHERS. In partial modification of this Department’s O.M. No. ABP.357/80/pt/79 dtd. 8.4. 96 read with the provision of original O.M. No. ABP.357/80/137 dtd. 9.9.83, the undersigned is directed to say that the State Government, after careful consider ation of all aspects in the matter, have decided that henceforth the benefit of the compassionate appointment shall be extended to the eligible family members o f the deceased teacher who dies in harness for appointment to a post of teacher in a ME/MV/MEM/LP/Junior Basic Secondary School subject to norms and procedure a nd qualifications as specified by the Department of Education (Secondary and Ele mentary). Sd/- Illegible (B. K. Gohain ) Secretary to the Govt. of Assam Personnel (B) Department. 19. Coupled with the above, the learned counsel for the petitioners has also brought on record the order dated 11.6.2009 issued by the Director of Elementar y Education, Assam, by which as many as 15 appointments have been made to the po st of Assistant Teacher in Upper Primary and Lower Primary Schools on compassion ate ground. Thus, it cannot be said that there cannot be any compassionate appoi ntment to the post of Assistant Teacher in the aforementioned Schools. It is her eby clarified that the appointment on compassionate ground in a Class-III / Clas s-IV post, not above the level of LDA shall also include the post of Assistant T eacher in ME/MV/MEM/LP/Junior Basic Secondary Schools. 20. As regards the grievance