Gauhati High Court
P.O- Nityananda vs The State Of Assam And 6 Ors on 6 January, 2025
Page No.# 1/12
GAHC010228602024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5835/2024
NIPAN MAZUMDAR
S/O- LATE JYOTISH MAZUMDER
VILLAGE- KALJIRAPARA
P.O- NITYANANDA
P.S- PATACHARKUCHI
DIST- BAJALI
ASSAM
PIN-781329
VERSUS
THE STATE OF ASSAM AND 6 ORS
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
CUM CHAIRMAN
STATE LEVEL SELECTION COMMITTEE ON COMPASSIONATE GROUND
DISPUR
GUWAHATI-06
2:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
FOREST DEPARTMENT
DISPUR
GUWAHATI-06.
3:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
PERSONAL DEPARTMENT
DISPUR
GUWAHATI-06.
4:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND HOD
Page No.# 2/12
AND HOD OF FOREST FORCE
ASSAM
REHABARI
GUWAHATI-08
5:THE DISTRICT LEVEL SELECTION COMMITTEE
ON COMPASSIONATE APPOINTMENT REP. BY THE CHAIRMAN CUM THE
PRINCIPAL SECRETARY
BODOLAND TERRITORIAL COUNCIL
KOKRAJHAR
DIST- KOKRAJHAR
BTAD
ASSAM
PIN-783370
6:THE SECRETARY
BODOLAND TERRITORIAL COUNCIL
KOKRAJHAR
DIST- KOKRAJHAR
BTAD
ASSAM
PIN-783370
7:THE DIVISIONAL FOREST OFFICER
CHIRANG DIVISION
P.O-KAJALGAON
DIST- CHIRANG
BTAD
ASSAM
PIN-783385
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Advocate for : MR. K R PATGIRI
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 6 ORS
BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
JUDGMENT & ORDER (Oral)
Date : 06.01.2025
Heard Mr. K. R. Patgiri, learned counsel for the petitioner. Also heard Mr. R.
Dhar, learned Government Advocate appearing for the respondent nos. 1 to 4 and
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Mr. P. Nayak, learned Standing Counsel BTC appearing for the respondent nos. 5
to 8.
2. The petitioner in the present proceeding has assailed the decision arrived at
by the State Level Committee (SLC) on compassionate grounds in its meeting
held on 31.08.2024, rejecting the recommendation so made in favour of the
petitioner for appointment on compassionate grounds by the jurisdictional District
Level Committee (DLC).
3. The brief facts requisite for adjudication of the issue arising in the present
proceeding is noticed as under:-
The father of the petitioner late Jyotish Mazumdar, while working as a
Forester Grade-II in the establishment of the Divisional Officer, Chirang Division,
Kajalgaon, had died in harness on 02.03.2013. It is projected that the petitioner
thereafter, submitted an application for appointment on compassionate grounds.
The said application of the petitioner came to be placed before the jurisdictional
DLC in its meeting held on 18.11.2016. The DLC in the said meeting had not
recommended the case of the petitioner. Thereafter, the petitioner submitted
representations before the authorities for consideration of his case for
appointment on compassionate ground. In pursuance to the representations as
submitted by the petitioner in the matter, the case of the petitioner was again
placed before the jurisdictional DLC in its meeting held on 20.09.2023. The said
DLC, on consideration of the case of the petitioner herein, had noted that in the
meeting held on 18.11.2016, the case of the petitioner was not recommended on
account of the fact that there was no vacancy available for the purpose, however,
there being a vacancy available, the jurisdictional DLC recommended the case of
the applicant to place before the SLC through the Welfare of Bodoland
Department, Dispur, for appointment on compassionate grounds against available
post of Grade-II in the Forest Department, BTC. The said recommendation of the
Page No.# 4/12DLC, so made in favour of the petitioner in its meeting held on 20.09.2023, came
to be placed before the SLC in its meeting held on 31.08.2024. The SLC, on
consideration of the case of the petitioner herein, was pleased to reject the
recommendation so made by the DLC on the ground that more than 11 years had
lapsed since the date of death of the Government servant involved and the
petitioner and his family having sustained through all these years, there was no
occasion to grant appointment on compassionate grounds at that stage. The SLC
further noted that the jurisdictional DLC had not recorded any justification
towards the necessity existing for grant of appointment on compassionate ground
to the petitioner after over 11 years of the death of the Government employee.
Being aggrieved, the petitioner has instituted the present proceeding
assailing the decision arrived at in his case by the SLC in its meeting held on
31.08.2024. The petitioner has also presented a challenge to a Office
Memorandum dated 18.09.2024, by which the Government of Assam had
adopted a policy to the effect that no cases for appointment on compassionate
grounds to family members of the State Government employees, who died in
harness on retired prematurely or, on being declared permanently incapacitated
from service, or missing or whose whereabouts is not known, prior to 31.03.2017,
shall be entertained by any administrative department/authority for any reason
nor, such cases shall be placed before the concerned SLC/DLC for
recommendation for appointment on compassionate grounds.
4. The learned counsels appearing for the parties have reiterated the facts as
noticed herein above. I have heard the learned counsels for the parties and also
noticed the materials brought on record.
5. It is an admitted fact that the father of the petitioner had died in harness
while serving as a Forester Grade-II in the establishment of the respondent no. 7
on 02.03.2013. The case of the petitioner was considered by the DLC in its
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meeting held on 18.11.2016, however, the case of the petitioner was not
recommended for appointment on compassionate grounds on account of the fact
that there was no vacant post available for the purpose.
6. As noticed herein above, the petitioner had again submitted representations
praying for consideration of his case for appointment on compassionate grounds
and accordingly, the case of the petitioner again came to be placed before the
jurisdictional DLC, in its meeting held on 20.09.2023. The DLC, accordingly, on
noticing that there was a vacant post available, proceeded to recommend the
case of the petitioner for appointment on compassionate grounds and required
the same to be placed before the SLC for further consideration. The matter
accordingly, came to be placed before the SLC and the SLC in its meeting held on
31.08.2024, considered the recommendation so made in respect of the petitioner
and on such consideration, drew the following conclusions:-
(i) It was noted that the DLC, in its meeting held on 20.09.2023, recommended
the application of Sri Nipan Mazumdar to be placed before the SLC.
(ii) The SLC noted that the Govt. employee had expired on 02.03.2013, i.e.
more than 11 years ago. The objective of compassionate appointments is to
provide the bereaved family with immediate financial assistance to cope up
with the situation. It is an accepted norm that in case several years have
passed after the death of a Govt. employee, it would appear on the face of it
that the family has managed to support itself all these years and has some
means of subsistence and in such case, compassionate appointment are not
ordinarily to be given. In the instant case, the DLC has not recorded any
ground for recommendation, and in particular, has not made up a case to
justify requirement of compassionate appointment after over 11 years of the
death of the Govt. employee.
(iii) In light of the above, the SLC rejected the case.
7. A perusal of the conclusions as drawn in the matter by the SLC would go to
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show that the case of the petitioner came to be rejected primarily on the ground
of delay so occasioning in the matter. The SLC had noted that the father of the
petitioner had expired on 02.03.2013 and by the time the case was so placed
before the SLC, more than 11 years had elapsed. It further went to observe that
the objective of compassionate appointment is to provide the bereaved family
with immediate financial assistance and the family having able to support itself
through the years; appointment on compassionate grounds is not ordinarily called
for. It is to be noted that the SLC had further noted that the DLC while making its
recommendation in the matter had not justified the necessity of appointment on
compassionate grounds in respect of the petitioner herein, after around 11 years
from the date of death of the Government employee.
8. The said reasoning as advanced by the SLC in its meeting held on
31.08.2024 finds support from the decision of the Hon’ble Supreme Court in the
case of State of West Bengal Vs Debabrata Tiwari & Ors., reported (2023)
SCC Online SC 219. The Hon’ble Supreme Court in the said decision had 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 dependents
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.
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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.
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 dependents 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 dependents 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 dependents 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,
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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 grant 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
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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. It was 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.
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.”
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9. 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 02.03.2013. The consideration that is now
sought to be made in respect of the petitioner herein, for appointment on
compassionate grounds is a consideration so required to be made after a lapse of
around 11 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 grounds be considered or
entertained by the respondent authorities.
10. At this stage, it is required to be noticed that this Court in the case of
Achyut Ranjan Das Vs State of Assam and 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 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 DLC
having not recommended the case of the petitioner when the same was initially
placed before it, in its meeting held on 18.11.2016, admittedly, on the ground of
absence of vacant post for consideration of the case of the petitioner herein, the
application of the petitioner must be held to have lost its force within 2(two)
years thereafter. The said prescription as made in the case of Achyut Ranjan
Das (supra) was reiterated by this Court in the case of Fazirul Nessa and Ors.
Vs State of Assam and Ors., reported in (2010) 4 GLT 340.
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11. 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 grounds in pursuance to death of his father, in
harness, occasioning in the year 2013.
12. At this stage, the challenge as presented by the petitioner to the Office
Memorandum dated 18.09.2024 is being examined.
13. This court herein above, in the facts and circumstances involved in the
present proceeding, having already concluded that the claim of the petitioner for
being appointed on compassionate grounds, on account of the delay so
occasioning in the matter, having been rendered to be a stale one, no direction in
this connection would be called to be issued, the challenge to the said Office
Memorandum dated 18.09.2024, in the considered view of this Court, cannot be
permitted to be so made by the petitioner herein. Even if the said Office
Memorandum is interfered with by this Court, it would be of no consequence,
insofar as, the claim of the petitioner is concerned, in view of the fact that his
case would not be called upon to be considered by the committees in place prior
to issuance of the said Office Memorandum dated 18.09.2024. Accordingly, the
challenge as presented in the present proceeding by the petitioner to the said
Office Memorandum dated 18.09.2024 is not entertained.
14. 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 would be
no order as to costs.
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JUDGE
Comparing Assistant