Gauhati High Court
Page No.# 1/ vs The State Of Assam And 4 Ors on 22 January, 2025
Page No.# 1/10
GAHC010190782019
2025:GAU-AS:630
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6047/2019
RAMEN BORDOLOI
S/O LT. MADHAB CH. BORDOLOI, R/O VILL. KHATAGURI BEBEJIA, P.O.
KHATAGURI BEBEJIA, P.S. SADAR, DIST. NAGAON, ASSA, PIN-782142
VERSUS
THE STATE OF ASSAM AND 4 ORS.
THROUGH THE COMMISSIONER AND SECRETARY TO THE GOVT. OF
ASSAM, PWD, ASSAM, DISPUR, GUWAHATI-6
2:THE STATE LEVEL COMMITTEE FOR COMPASSIONATE APPOINTMENT
REP. BY ITS CHAIRMAN THE CHIEF SECRETARY TO THE GOVT. OF
ASSAM DISPUR GUWAHATI-6
3:THE CHIEF ENGINEER PWD (RURAL ROADS) ASSAM CHANDMARI
GUWAHATI-3
4:THE DISTRICT LEVEL COMMITTEE FOR COMPANSSIONATE
APPOINTMENT NAGAON
REP. BY ITS CHAIRMAN THE DEPUTY COMMISSIONER
NAGAON ASSAM PIN-780220
5:THE SUPERINTENDENT ENGINEER NAGAON STAATE ROAD DIVISION
P.O. NAGAON P.S. NAGAON ASSAM PIN-78200
Advocate for the Petitioner : MR. SK N MOHAMMAD, MR S JAFRI,MR A IKBAL,MR. SK S N
MOHAMMAD
Advocate for the Respondent : GA, ASSAM,
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BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of hearing : 22.01.2025
Date of Judgment : 22.01.2025
Judgment & order(Oral)
None appears for the petitioner, on call. However, Mr. Dilip Mazumdar,
learned Addl. Advocate General, Assam, assisted by Mr. R. Dhar, learned
Addl. Senior Government Advocate, are present on behalf of all the
respondents.
2. The petitioner, herein, by way of instituting the present proceeding,
has presented a challenge to the speaking order, dated 22.11.2018, issued
by the Under Secretary to the Government of Assam, PWRD, Dispur,
communicating to the petitioner the rejection of his claim for appointment
on compassionate ground by the State Level Committee in its meeting held
on 19.06.2018, on the ground of non-availability of vacant post within the
5% quota mandated for appointment on compassionate ground and also
the delay of 13 years occasioning since the death of his father, in harness.
3. As projected in the writ petition, the father of the petitioner Late
Madhab Ch. Bordoloi, while working as 4th Grade employee in the
establishment of the Executive Engineer, Public Works Department, Nagaon
State Road Division, Nagaon, had died-in-harness on 01.06.2005. The
petitioner in pursuance of the death of his father in harness, submitted an
application praying for consideration of his case for appointment on
compassionate ground. The case of the petitioner was considered by the
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jurisdictional District Level Committee in its meeting held on 09.01.2015,
wherein, the case of the petitioner came to be recommended against an
identified Grade-IV post in the said establishment.
4. It is also projected in the writ petition that the case of the petitioner
not being further considered, had approached this Court by way of
instituting a writ petition before this Court being WP(c)6597/2018. This
Court, vide order, dated 03.10.2018, on noticing the issue arising in the
present proceeding, had disposed of the said writ petition by directing the
respondent authorities to place the case of the petitioner before the State
Level Committee in its next meeting held for the purpose of consideration
of his case for appointment on compassionate ground, if not already
considered in terms of the recommendations made by the District Level
Committee, Nagaon, in its meeting held on 09.01.2015.
5. It is the case of the petitioner in pursuance of the order passed by
this Court in the above-noted writ petition, the respondent authorities in
the Public Works Department by way of issuance of the speaking order,
dated 22.11.2018, intimated to the petitioner that his case was so
considered in its meeting held by the State Level Committee on
19.06.2018, and his case was rejected on the ground that there was no
vacant post available within the 5% quota mandated for appointment on
compassionate ground and further, on the ground that 13 years had
elapsed since the date of the death of the petitioner’s father, in harness.
6. Being aggrieved, the petitioner has instituted the present proceeding
before this Court.
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7. 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 19.06.2018
on the ground that his case was rejected on the ground that there was no
vacant post available within the 5% quota mandated for appointment on
compassionate ground and further, on the ground that 13 years had
elapsed since the date of the death of the petitioner’s father, in harness.
8. Mr. Mazumdar, learned Addl. Advocate General, Assam, has further
submitted that the father of the petitioner had died-in-harness on
01.06.2005. 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.
9. 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
the other cases clubbed together, were considered by a High Level
Committee constituted by the Chief Secretary to the Government of Assam.
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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
19.06.2018, was in order.
10. 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.
11. I have heard the submissions advanced by the learned Addl. Advocate
General, Assam, and also perused the materials available on record.
12. 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 objects sought to be achieved
thereby i.e. relief against destitution. At the same time, however, it should
not be forgotten that as against the destitute family of the deceased, there
are millions and millions of other families which are equally, if not more,
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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.
13. 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.
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
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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
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:
Page No.# 8/10
“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.
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
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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.”
14. 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 01.06.2005. 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 20 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.
15. 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
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
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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 19.06.2018, 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.
16. 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 2005.
17. 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
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