Abdul Kayum Choudhury vs The State Of Assam And 6 Ors
2022 Latest Caselaw 4273 Gua

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GAHC010213792022




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/6917/2022

         ABDUL KAYUM CHOUDHURY
         S/O LATE ABDUL KHALIQUE CHOUDHURY, R/O VILL- ALGAPUR PART-IV,
         P.O.-KALIBARI BAZAR, P.S.-ALGAPUR, DIST- HAILAKANDI, ASSAM-788150


         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, POWER DEPARTMENT, DISPUR, GUWAHATI-6

         2:THE ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
          REPRESENTED BY ITS CHAIRMAN
          BIJULEE BHAWAN
          GUWAHATI
          DIST- KAMRUP (M)
         ASSAM-781001

         3:THE MANAGING DIRECTOR
         ASSAM POWER DISTRIBUTION COMPANY LTD (APDCL)
          BIJULEE BHAWAN
          GUWAHATI
          DIST-KAMRUP (M)
         ASSAM-781001

         4:THE CHIEF GENERAL MANAGER (HRA)
         ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
          BIJULEE BHAWAN
          GUWAHATI
          DIST- KAMRUP (M)
         ASSAM-781001

         5:THE GENERAL MANAGER
          SILCHAR ZONE
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             APDCL
             CAR
             DIST- CACHAR
             ASSAM

            6:THE CHIEF EXECUTIVE OFFICER (CEO)
             BADARPUR ELECTRICAL CIRCLE
            APDCL
             CAR
             BARDARPUR
             DIST- KARIMGANJ
            ASSAM

            7:THE SUB-DIVISIONAL ENGINEER (SDE)
             PANCHGRAM ELECTRICAL SUB-DIVISION
             BADARPUR
            ASSA

Advocate for the Petitioner   : MR. M H LASKAR

Advocate for the Respondent : SC, APDCL




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                          ORDER

Date : 04-11-2022

Heard Mr. MH Laskar, learned counsel for the petitioner, who prays that the petitioner's application dated 26.05.2001 for compassionate appointment should be considered by the respondents.

2. The petitioner's counsel submits that the petitioner's father died-in- harness on 13.07.21995. The petitioner's mother thereafter made an application for compassionate appointment in favour of the petitioner's elder brother, Shri Abdus Sattar Choudhury on 07.11.1995. The petitioner herein filed an application for compassionate appointment on 26.05.2001.

3. The petitioner's counsel submits that the petitioner's application should Page No.# 3/8

be considered by the Assam Power Distribution Company Limited (APDCL), in terms of the meeting dated 05.07.2021 chaired by the Hon'ble Chief Minister of Assam with senior Government officials, wherein it was decided that all pending applications for compassionate appointment prior to 2017 should be decided within 3 (three) months.

4. The petitioner's counsel submits that this Court in its order dated 24.09.2021 passed in WP(C) No. 4838/2021, had directed the State Govt. to consider the case of an applicant, who had submitted an application for compassionate appointment on 23.02.2003, in view of the death of her husband on 22.12.1994. This Court had given the said direction to the Elementary Education Department, in terms of the resolution taken in the meeting dated 05.07.2021 chaired by the Hon'ble Chief Minister of Assam with senior Government officials. Thus, he prays that a similar direction should be passed by this Court. He also submits that as per the order dated 07.05.2018 passed in WA No. 117/2018, the Division Bench of this Court has held that the issue as to whether an applicant is entitled for compassionate appointment or not, can best be decided by the District Level Committee constituted especially for examining applications pertaining to compassionate appointment and as such, the learned Single Judge could not have dismissed the applicant's writ petition, seeking a direction to be issued to the respondents to consider the petitioner's application.

5. Mr. SP Sharma, learned counsel for the respondents submits that the respondents are a company and they are not bound by the resolution made in the meeting minutes dated 05.07.2021 chaired by the Hon'ble Chief Minister of Assam with senior Government officials. He submits that the APDCL is not a Government Department. He also submits that the petitioner has approached this Court, 21 years after filing his alleged application for compassionate Page No.# 4/8

appointment and as such, the same is hit by delay and laches. He further submits that in terms of the judgment of the Apex Court in the case of Fertilizers and Chemicals Travancore Ltd. & Ors. Vs. Anusree K.B., reported in 2022 Livelaw (SC) 819, the Apex Court has held that an applicant cannot be entitled to appointment on compassionate ground, if such appointment is made after a period of 14/24 years, as the object of granting compassionate appointment was to enable the family to tide over the sudden crisis caused by the death of the bread earner. The Apex Court thus held that the object and purpose for which appointment on compassionate ground is provided is lost after a period of 14/24 years.

6. The counsel for the APDCL further submits that in the case of Umesh Kumar Nagpal Vs. State of Haryana & Ors ., reported in (1994) 4 SCC 138, the Apex Court had held that compassionate employment cannot be granted after a lapse of a reasonable period of time. The consideration for such employment is not a vested right which can be exercised at any time in future. He accordingly prays that the writ petition should be dismissed due to delay and laches.

7. I have heard the learned counsels for the parties.

8. This Court in its order dated 24.09.2021 passed in WP(C) No. 4838/2021 had directed the Elementary Education Department of the Government of Assam to consider the application for compassionate appointment submitted on 23.02.2003, on the basis of the resolution taken by the Hon'ble Chief Minister and the Government Officers on 05.07.2021. However, the said resolution cannot be said to be applicable to the APDCL, which is a registered company having it's own bylaws. Assuming the said resolution is applicable to the facts of this case, the question as to whether this Court can refuse to exercise it's Page No.# 5/8

discretion, due to delay, has to be considered.

9. The Division Bench of this Court in WA No. 117/2018 had held that the Single Judge could not have dismissed an applicant's writ petition, praying for consideration of his application for compassionate appointment, as the same was to be decided by a District Level Committee. Here again, this Court would have to consider the above observation vis-a-vis the decisions of the Apex Court, regarding exercise of discretion under Article 226 of the Constitution.

10. In this case, the petitioner has prayed for a direction to be issued to the APDCL, for considering the petitioner's application. However, the power under Article 226 of the Constitution of India is a discretionary power and this Court has the power to either exercise or not exercise its discretion to issue directions on the ground of delay, as held by the Apex Court in various decisions. In the case of State of M.P. Vs. Bhailal Bhai, reported in AIR (1964) SC 1006, the Apex Court has held that the power to give relief under Article 226 is a discretionary power, especially in the case of issuing writs in the nature of mandamus. It also held that the Court should not ordinarily lend its aid to a party by this extraordinary writ of mandamus, if there has been unreasonable delay.

11. In the case of Shankara Coop. Housing Society Ltd. Vs. M. Prabhakar, reported in (2011) 5 SCC 607, the Apex Court has held that delay and laches is one of the factors for refusal to exercise discretionary power under Article 226. It further held that the High Court may refuse to invoke its extraordinary powers, if there is such negligence or omission on the part of the applicant to assert his rights taken in conjunction with lapse of time and other circumstances. It further held that inordinate and unexplained delay in approaching the writ Court is an adequate ground for refusing to exercise Page No.# 6/8

discretion.

12. In the present case, the petitioner's father had expired on 13.07.1995 and the petitioner's mother had made an application in favour of the petitioner's elder brother on 07.11.1995. Nothing has been stated by the petitioner as to what has happened to the application made in favour of the petitioner's elder brother and whether his elder brother pursued the matter with the authorities, with regard to the said application. The petitioner has allegedly filed his application for compassionate appointment on 26.05.2001. Thereafter, the petitioner has kept silent for more than 21 years and has filed this writ petition only on 28.10.2022. Though the APDCL should have ordinarily considered the petitioner's application for compassionate appointment, the same has not been done. However, there is a corresponding duty on the part of the petitioner to pursue with diligence, his claim for compassionate appointment, instead of sleeping over it for the last 21 years. It has been stated time and again by the Apex Court that a person should not sleep over his rights. In the case of M/S GMG Industries Vrs. M/S Isaa Green Power Solutions & Ors ., reported in (2015) 15 SCC 659, the Apex Court has held that when there is no negligence, inaction or want of bonafide imputable to a party, the delay has to be condoned. The discretion to condone delay is to be exercised like any other judicial discretion, with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence. In the present case, the very fact that the petitioner has approached this Court after more than 21 years of filing his application for compassionate appointment, clearly goes to show that the petitioner has not acted with due diligence. He has been inactive and negligent in approaching this Court. As such, this Court is of the view that the Page No.# 7/8

present case is hit by delay and laches.

13. The petitioner in the writ petition has also not given any explanation as to why he has approached this Court, 21 years after he has submitted his application for compassionate appointment in the year 2001. As such, not only has the petitioner been negligent, but has also not made any attempt to explain the unreasonable delay in approaching this Court.

14. In the case of Fertilizers and Chemicals Travancore Ltd. (supra), which was decided by the Apex Court on 30.09.2022, the Apex Court has held that compassionate appointment is an exception to the general rule of appointment and it is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The Apex Court further held that on considering the object and purpose for which appointment on compassionate ground is provided, the respondent in the said case was not entitled to appointment on compassionate ground on the death of her father, who died in the year 1995. It further states that if such appointment is made now and/or after a period of 14/24 years, the same would be against the object/purpose for which appointment on compassionate ground is provided. In the present case, the petitioner's father also died in the same year as the respondent's father in Fertilizers and Chemicals Travancore Ltd. (supra) .

15. In the case of Umesh Kumar Nagpal (supra), the Apex Court has held that compassionate appointment cannot be granted after a lapse of a reasonable period of time. The consideration of such appointment is not a vested right which can be exercised at any time in future. The object is to enable the family to get over the financial crisis which it faces at the time of the Page No.# 8/8

death of the sole bread earner and that compassionate employment cannot be claimed after a lapse of time and after the crisis is over.

16. On considering the fact that the petitioner's father expired in the year 1995 and the petitioner is approximately 40 years of age as per the affidavit given in the writ petition, it can be safely said that the petitioner has been able to survive for more than 27 years, after the occurrence of the sudden crisis due to the death of his father in 1995. In view of the unreasonable and unexplained delay in approaching this Court after 21 years and keeping in view the decisions of the Hon'ble Apex Court, this Court is not inclined to exercise it's discretion, by giving a direction that the petitioner's application should be considered by the APDCL for compassionate appointment. The question of deciding the petitioner's application for compassionate appointment is left entirely to the discretion of the APDCL, in view of the delay and laches of more than 21 years in approaching this Court.

17. The writ petition is accordingly disposed of.

JUDGE

Comparing Assistant