Gauhati High Court
Page No.# 1/ vs The State Of Assam And 5 Ors on 23 January, 2025
Page No.# 1/11
GAHC010053942020
2025:GAU-AS:838
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2526/2020
SANJOY DAS
S/O. LT. DHARMESWAR DAS
VILL. AND P.O. DIPOTA
DIST. SONITPUR
ASSAM.
VERSUS
THE STATE OF ASSAM AND 5 ORS.
THROUGH THE SECRETARY
TO THE GOVT. OF ASSAM
FOREST AND ENVIRONMENT DEPTT.
DISPUR
GUWAHATI-06.
2:THE STATE LEVEL COMMITTEE FOR COMPASSIONATE APPOINTMENT
ASSAM
REP. BY ITS CHAIRMAN
THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI-06.
3:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS
ASSAM EHABARI
GUWAHATI-781008.
4:THE CONSERVATOR OF FORESTS
NORTHERN ASSAM CIRCLE
TEZPUR
PIN-784001
DIST. SONITPUR
ASSAM.
5:THE DIST. LEVEL COMMITTEE FOR COMPASSIONATE APPOINTMENT
Page No.# 2/11
REP. BY CHAIRMAN
THE DY. COMMISSIONER
SONTIPUR
TEZPUR
PIN-784001
DIST. SONITPUR
ASSAM.
6:THE DIVISIONAL FOREST OFFICER
SONITPUR WEST DIVISION
TEZPUR-784001
DIST. SONITPUR
ASSAM.
------------
Advocate for : MR. S C BISWAS
Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 5 ORS.
BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of hearing : 23.01.2025
Date of Judgment: 23.01.2025
Judgment & order(Oral)
Heard Mr. S. C. Biswas, learned counsel for the petitioner. Also heard
Mr. Dilip Mazumdar, learned Addl. Advocate General, Assam, assisted by Mr.
R. Dhar, learned Addl. Senior Government Advocate, appearing on behalf of
all the respondents.
2. The petitioner, herein, by way of instituting the present proceeding,
has presented a challenge to the decision arrived at by the State Level
Committee in its meeting held on 19.12.2015, rejecting the claim of the
petitioner for appointment on compassionate ground in any Grade-IV
vacant post in the Department concerned.
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3. As projected in the writ petition, the father of the petitioner Late
Dharmeswar Das, while working as a Forest Guard in the establishment of
the Divisional Forest Officer, Sonitpur West Division, Tezpur, had died-in-
harness on 24.11.2010. The petitioner in pursuance of the death of his
father in harness, submitted an application on 16.03.2011, praying for
consideration of his case for appointment on compassionate ground. The
case of the petitioner was considered by the jurisdictional District Level
Committee in its meeting held on 18.02.2012, wherein, the case of the
petitioner came to be recommended against an identified Grade-IV post in
the establishment of the Divisional Forest Officer, Sonitpur West Division,
Tezpur.
4. It is also projected in the writ petition that the case of the petitioner
not being further considered and placed before the State Level Committee,
he had approached this Court by way of instituting a writ petition before
this Court being WP(c)4245/2015. This Court, vide order, dated
12.02.2020, on noticing that the State Level Committee had already
considered the case of the petitioner and rejected his case for appointment
on compassionate ground; disposed of the said writ petition as having
become infructuous. However, liberty was granted to the petitioner to
challenge the Minutes of the State Level Committee, if so advised.
5. The State Level Committee had considered the case of the petitioner
in its meeting held on 01.04.2015. Thereafter, on such consideration, the
State Level Committee by noticing the time that has elapsed since the
death of the government servant; proceeded to hold that the case of the
petitioner would not mandate consideration for appointment on
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compassionate ground. Further, the application of the petitioner was also
held to have spent its force.
6. Being aggrieved, the petitioner has instituted the present proceeding
before this Court.
7. Mr. Biswas, learned counsel for the petitioner, has reiterated the facts
as noticed hereinabove and has submitted that the delay so occasioning in
consideration of the case of the petitioner for appointment on
compassionate ground is solely attributable to the respondent authorities
and the petitioner, herein, is in no way responsible for such delay.
8. Mr. Biswas, learned counsel, has further submitted that the grounds
on which the case of the petitioner was rejected by the State Level
Committee in its meeting held on 01.04.2015, would not merit an
acceptance in-as-much as there were vacant posts available for
consideration of the case of the petitioner and it was reiterated that the
delay so occasioning in considering the case of the petitioner for
appointment on compassionate ground not being attributable to the
petitioner, herein; the decision as arrived at by the State Level Committee
in its meeting held on 19.12.2015, rejecting the claim of the petitioner for
appointment on compassionate ground in any Grade-IV vacant post in the
Department concerned, would require an interference from this Court.
9. In the above premises, Mr. Biswas, learned counsel for the petitioner,
has submitted that the case of the petitioner for appointment on
compassionate ground, would now be required to be directed to be placed
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before the State Level Committee for further consideration.
10. Mr. Mazumdar, learned Addl. Advocate General, Assam, appearing for
the State Respondents, has submitted that the case of the petitioner was
rejected by the State Level Committee in its meeting held on 01.04.2015
on the ground that there were no vacant posts available within the 5%
quota mandated for appointment on compassionate ground and further, on
the ground that around 5 years had elapsed since the date of the death of
the petitioner’s father, in harness.
11. Mr. Mazumdar, learned Addl. Advocate General, Assam, has further
submitted that the father of the petitioner had died-in-harness on
24.11.2010. The learned Addl. Advocate General, Assam, has also
submitted that the immediacy for effecting appointment on compassionate
ground insofar as the petitioner is concerned, has lost its force. The learned
Addl. Advocate General, Assam, has relied upon the decision of the Hon’ble
Supreme Court rendered in the case of State of W.B. v. Debabrata Tiwari
& ors.[reported in (2023) SCC Online SC 219] and has further contended
that in terms thereof; the delay so occasioning, has rendered the case of
the petitioner for appointment on compassionate ground, to be a stale one
and no further direction for consideration of his case for appointment on
compassionate ground, would be called for in the matter.
12. Mr. Mazumdar, learned Addl. Advocate General, Assam, by placing
reliance on an affidavit filed by the State Respondents in a similar matter
before this Court being WP(c)5086/2022, which also covers the case of the
petitioner, herein, has submitted that the case of the petitioner along with
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the other cases clubbed together, were considered by a High Level
Committee constituted by the Chief Secretary to the Government of Assam.
The High Level Committee on consideration of the case of the petitioner,
had come to a conclusion that the rejection order as made in the case of
the petitioner, herein, by the State Level Committee in its meeting held on
01.04.2015, was in order.
13. Mr. Mazumdar, learned Addl. Advocate General, Assam, in the above
premises, has submitted that the present writ petition is bereft of any merit
and the same is required to be dismissed.
14. I have heard the learned counsels appearing for the parties and also
perused the materials available on record.
15. It is a settled position of law that public service appointment should
be made strictly on the basis of open invitation of an application and on
merits. The appointment on compassionate ground cannot be a source of
recruitment. It is merely an exception to the requirement of law keeping in
view the fact of the death of the employee while in service, leaving his
family without any means of livelihood. In such cases, the object is to
enable the family to get over the sudden financial crises. Such
appointments on compassionate ground, therefore, have to be made in
accordance with the Rules, Regulations, or, administrative instructions
taking into consideration, the financial condition of the family of the
deceased. The favourable treatment to the dependent of the deceased
employee must have a clear nexus with the object sought to be achieved
thereby i.e. relief against destitution. At the same time, however, it should
Page No.# 7/11
not be forgotten that as against the destitute family of the deceased
employee, there are millions and millions of other families which are
equally, if not more, destitute. The exception to the Rule made in favour of
the family of the deceased employee is in consideration of the service
rendered by him and the legitimate expectation, and the change in the
status and affairs of the family endangered by the erstwhile employment,
which are suddenly upturned. The claims for of appointment on
compassionate ground would mandate that there be no delay in effecting
such appointment, the object being to mitigate the hardships faced by the
family due to the death of the bread earner.
16. The Hon’ble Supreme Court in a recent decision in the case of
Debabrata Tiwari(supra), on the issue involved in the present proceeding,
has drawn the following conclusions:
“32. On consideration of the aforesaid decisions of this Court, the following principles
emerge:
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.
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.
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.
iv. That compassionate appointment should be provided immediately to redeem the
family in distress. It is improper to keep 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.
33. The object underlying a provision for grant of compassionate employment is to
enable the family of the deceased employee to tide over the sudden crisis due to the
death of the bread-earner which has left the family in penury and without any means
of livelihood. Out of pure humanitarian consideration and having regard to the fact
that unless some source of livelihood is provided, the family would not be in a position
to make both ends meet, a provision is made for giving gainful appointment to one of
the dependants of the deceased who may be eligible for such appointment. Having
regard to such an object, it would be of no avail to grant compassionate appointment
to the dependants of the deceased employee, after the crisis which arose on account
of death of a bread-winner, has been overcome. Thus, there is also a compelling need
to act with a sense of immediacy in matters concerning compassionate appointment
because on failure to do so, the object of the scheme of compassionate would be
frustrated. Where a long lapse of time has occurred since the date of death of the
deceased employee, the sense of immediacy for seeking compassionate appointment
would cease to exist and thus lose its significance and this would be a relevant
circumstance which must weigh with the authorities in determining as to whether a
case for the grant of compassionate appointment has been made out for
consideration.
34. As noted above, the sine qua non for entertaining a claim for compassionate
appointment is that the family of the deceased employee would be unable to make two
ends meet without one of the dependants of the deceased employee being employed on
compassionate grounds. The financial condition of the family of the deceased, at the
time of the death of the deceased, is the primary consideration that ought to guide
the authorities’ decision in the matter.
35. 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, as noted by this
Court in Hakim Singh would amount to treating a claim for compassionate
appointment as though 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.
36. Laches or undue delay, the blame-worthy conduct of a person in approaching a
Court of Equity in England for obtaining discretionary relief which disentitled him for
Page No.# 9/11grant of such relief was explained succinctly by Sir Barnes Peacock, in Lindsay
Petroleum Co. v. Prosper Armstrong, (1874) 3 P.C. 221 as under:
“Now the doctrine of laches in Courts of Equity is not an arbitrary or a
technical doctrine. Where it would be practically unjust to give a remedy,
either because the party has, by his conduct, done that which might fairly be
regarded as equivalent to a waiver of it, or where by his conduct and neglect he
has, though perhaps not waiving that remedy, yet put the other party in a
situation, in which it would not be reasonable to place him if the remedy were
afterwards to be asserted, in either of these cases, lapse of time and delay are
most material. But in every case, if an argument against relief, which
otherwise would be just, is founded upon mere delay, that delay of course not
amounting to a bar by any statute or limitations, the validity of that defence
must be tried upon principles substantially equitable. Two circumstances,
always important in such cases, are, the length of the delay and the nature of
the acts done during the interval, which might affect either party and cause a
balance of Justice or injustice in taking the one course or the other, so far as it
relates to the remedy.”
37. Whether the above doctrine of laches which disentitled grant of relief to a party
by Equity Court of England, could disentitle the grant of relief to a person by the High
Court in the exercise of its power under Article 226 of our Constitution, came up for
consideration before a Constitution Bench of this Court in Moon Mills Ltd. v. M. R.
Meher, President, Industrial Court, Bombay, AIR 1967 SC 1450. In the said case, it
was regarded as a principle that disentitled a party for grant of relief from a High
Court in the exercise of its discretionary power under Article 226 of the Constitution.
38. In State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 this Court restated the
principle articulated in earlier pronouncements in the following words:
“9…. the High Court in exercise of its discretion does not ordinarily assist the
tardy and the indolent or the acquiescent and the lethargic. If there is
inordinate delay on the part of the Petitioner and such delay is not
satisfactorily explained, the High Court may decline to intervene and grant
relief in exercise of its writ jurisdiction. It was stated that this Rule is
premised on a number of factors. The High Court does not ordinarily permit a
belated resort to the extraordinary remedy because it is likely to cause
confusion and public inconvenience and bring, In its train new injustices, and if
writ jurisdiction is exercised after unreasonable delay, it may have the effect of
inflicting not only hardship and inconvenience but also injustice on third
parties. Itwas pointed out that when writ jurisdiction is invoked, unexplained
delay coupled with the creation of third-party rights in the meantime is an
important factor which also weighs with the High Court in deciding whether or
not to exercise such jurisdiction.”
39. While we are mindful of the fact that there is no period of limitation provided for
filing a writ petition under Article 226 of the Constitution, ordinarily, a writ petition
should be filed within a reasonable time, vide Jagdish Lal v. State of Haryana, (1997)
6 SCC 538; NDMC v. Pan Singh, (2007) 9 SCC 278.
Page No.# 10/11
40. Further, simply because the Respondents-Writ Petitioners submitted their
applications to the relevant authority in the year 2005-2006, it cannot be said that
they diligently perused the matter and had not slept over their rights. In this regard,
it may be apposite to refer to the decision of this Court in State of Uttaranchal v. Shiv
Charan Singh Bhandari, (2013) 12 SCC 179, wherein the following observations were
made:
“19. From the aforesaid authorities it is clear as crystal that even if the court
or tribunal directs for consideration of representations relating to a stale claim
or dead grievance it does not give rise to a fresh cause of action. The dead
cause of action cannot rise like a phoenix. Similarly, a mere submission of
representation to the competent authority does not arrest time.”
17. Applying the said decision of the Hon’ble Supreme Court in the case of
Debabrata Tiwari(supra) to the facts of the present case, it is seen that the
father of the petitioner had expired on 24.11.2010. The consideration that
is now sought to be made in respect of the petitioner herein, for
appointment on compassionate ground is a consideration so required to be
made after a lapse of around 14 years. The sense of immediacy in the
matter of compassionate appointment in respect of the petitioner has been
lost. Such delay is attributable to both the authorities of the State as well
as the petitioner; however, entertaining the claim at this point of time
would be of no avail, because, admittedly, the petitioner has been able to
eke out a living even though he was not favoured with an appointment on
compassionate grounds. Accordingly, this Court is of the considered view
that it is not a fit case to direct the claim of the petitioner for appointment
on compassionate ground be considered or entertained by the respondent
authorities.
18. At this stage, it is required to be noticed that this Court in the case of
Achyut Ranjan Das & ors. v. State of Assam & ors., reported in 2006(4)
GLT 674, while laying down the principles required to be followed for
consideration of claims relating to compassionate appointment had laid
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down that if the application of eligible candidates remained pending and
cannot be considered due to want of vacancies for a period of 2(two) years
from the date of making of such application, all such applications would
require no further consideration. The State Level Committee rejected the
case of the petitioner when the same was placed before it, in its meeting
held on 01.04.2015, the application of the petitioner must also be held to
have lost its force after 2(two) years from the date of it was so preferred.
The said prescription as made in the case of Achyut Ranjan Das(supra),
was reiterated by this Court in the case of Fazirul Nessa & ors. v. State of
Assam & ors., reported in (2010) 4 GLT 340.
19. In view of the foregoing discussions and conclusions reached herein
above by this Court, this Court is of the considered view that the issue
involved in the present proceeding being a stale issue, it would not be
permissible for this Court to issue any direction requiring consideration of
the case of the petitioner for appointment on compassionate ground in
pursuance to death of his father, in harness, occasioning in the year 2010.
20. In view of the above conclusions, this writ petition is held to be
devoid of any merit and accordingly, the same stands dismissed. However,
there shall be no order as to costs.
JUDGE
Comparing Assistant