During a conflict between judicial pronouncement and office memorandum, the judicial pronouncement would prevail: High Court of Gauhati

Page No.# 1 4 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 5855 2021 MRIDULA CHOUDHURY W O. LT. TIRTHA NATH CHOUDHURY VILL. BARBANG KHANDOPAR P.O. BARBANG P.S. PATACHARKUCHI DIST. BARPETA ASSAM THE STATE OF ASSAM AND 5 ORS REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM ASSAM SECRETARIAT DISPUR GUWAHATI 781006 2:THE STATE LEVEL COMMITTEE FOR APPOINTMENT ON COMPASSIONATE GROUND REP. BY ITS CHAIRMAN GUWAHATI 06 3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM SECONDARY EDUCATION DEPTT ASSAM SECRETARIAT GUWAHATI 781006 4:THE DIRECTOR OF SECONDARY EDUCATION GUWAHATI 781019 KAMRUP2989 2010. 4. Paragraph 7 of the judgment dated 24.08.2010 in WP(C) 2989 2010 is provided as “7. That apart which is more important looking at the policy behind the scheme of compassionate appointment the Office Memorandum dated 4.1.92 cannot be made applicable for compassionate appointment. The object of the compassionate appointment scheme being to provide immediate succour to the family of the deceased if the concept of age bar applicable in the case of normal direct recruitment is imported in to the concept of compassionate appointment it is possible in many cases that the spouse of the deceased will be overaged when a case for making compassionate appointment arises. For example if a deceased employee dies at the age of 55 years leaving behind his widow who is 50 years old by application of the office Memorandum dated 4.1.92 she would not be entitled to get compassionate appointment also. In my opinion to accept the contention of the respondents authorities in this behalf will defeat the very object of providing immediate succour to the dependants of the deceased.” “…...The respondent authorities ought to have been more sensitive to the plight of widows like the petitioner she was and is still chasing a mirage of compassionate appointment even after the 6 years of the death of her husband. In the view that I have taken the petitioner has made out a clear case for interference of this Court.” 5. The judicial pronouncement clearly provides that in case of a compassionate appointment there would be no upper age limit unlike what is provided in a direct recruitment to Government service. 6. Mr. G Bokolial learned counsel for the respondents refers to the O.M. dated 01.06.2015 wherein in clause 16 it is provided as follows “(16) The upper age limit could be relaxed wherever found to be necessary as per the existing Government policy. The lower age limit shall however in no case be relaxed below 18 years. Age eligibility shall be determined with reference to the date of application and not the date of appointment. The State Level Committee shall be competent to grant relaxation of upper age limit for making such appointment as per existing Government policy. “ 7. We have noticed that there is a clear conflict between the clause 16 of O.M. dated 01.06.2015 and the judicial pronouncement of this Court in its judgment dated 24.08.2010 in WP(C) 2989 2010. In an event of a conflict between a judicial pronouncement providing for a proposition of law and that of an office memorandum the judicial pronouncement would Page No.# 4 4 8. Accordingly the rejection of the claim of the petitioner by the SLC in its meeting 04.01.2021 for the reason of overage is unsustainable in law. The rejection of the SLC on the claim of the petitioner in its meeting of 04.01.2021 is set aside and the matter stands remand back to the SLC for a fresh consideration 9. Writ petition stands allowed of in the above terms. JUDGE

Summary: The judicial pronouncement clearly provided that there would be no upper age limit in case of a compassionate appointment unlike what was provided in direct recruitment to Government service. Such an opinion was held by The Hon’ble High Court of Gauhati before The Hon’ble Mr. Justice Achintya Malla Bujor Barua in the matter of Mridula Choudhury Vs. The State Of Assam And 5 Ors [WP(C)/5855/2021].  The facts of the case were associated with the petitioner’s husband Tirtha Nath Choudhury who worked as a Demonstrator at Barpeta Vidyapith Higher Secondary School. He died on 12.04.2014. The petitioner submitted a compassionate appointment application on his death. In a meeting before DLC, the petitioner was recommended for the post of Grade-III Junior Assistant. However, a meeting later with SLC, the application was rejected since the petitioner was overaged. It was stated that in cases of compassionate appointment application there would be no upper age limit unlike the direct recruitment processes provided in Government services. It was noticed that a conflict rose due to the different decisions made during the meetings.  The Hon’ble Court considering all the submissions stated that the rejection of the claim of the petitioner by the SLC in its meeting 04.01.2021 for the reason of overage is unsustainable in law. The rejection of the SLC on the claim of the petitioner in its meeting of 04.01.2021 is set aside and the matter stands remand back to the SLC for fresh consideration.” Therefore, the Writ Petition stands allowed. Click here to read the Judgment