Gauhati High Court

WP(C)/7349/2023 on 9 January, 2024

 GAHC010284052023




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



                            WP(C) No.7349 of 2023
                            Ahmed Ibrahim Mazarbhuiya,
                            Son of Late Nazmul Ibrahim Mazarbhuiya,
                            Resident of Hailakandi Town, Ward: 11, PO:
                            R.P. Road, PS & District: Hailakandi, Assam.

                                                      ........Petitioner
                                    -Versus-

                            1. The State of Assam, to be represented by
                            the Commissioner & Secretary to the
                            Government of Assam, School (Elementary)
                            Education Department, Dispur, Guwahati -
                            781006.

                            2. The Director of Elementary Education,
                            Assam, Kahilipara, Guwahati - 781019.

                            3. The District Level Committee for
                            compassionate        Appointment  (DLC),
                            Hailakandi, represented by its Chairman-
                            cum-Deputy Commissioner, Hailakandi, PO,
                            PS & District: Hailakandi, Assam.

                            4. The District Elementary Education
                            Officer, Hailakandi, PO, PS & District:
                            Hailakandi, Assam.
                                                   ........Respondents

-BEFORE-

HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR For the Petitioner : Mr. M.H. Laskar, Advocate. For the Respondents : Mr. A. Phukan, Standing Counsel, Education (Elementary) Department, for respondent Nos.1, 2 & 4.

: Mr. B. Deori, Junior Government Advocate, Assam for respondent No.3.

       Date of Hearing         : 03.01.2024.

       Date of Judgment        : 09.01.2024.


                             JUDGMENT & ORDER

Heard Mr. M.H. Laskar, learned counsel for the petitioner. Also heard Mr. A. Phukan, learned standing counsel, Education (Elementary) Department, representing the respondent Nos.1, 2 & 4 and Mr. B. Deori, learned Junior Government Advocate, Assam, representing the respondent No.3.

2. The petitioner, by way of instituting the present proceeding, has assailed the decision as arrived at by the District Level Committee, Hailakandi with regard to the application submitted by him praying for appointment on compassionate ground pursuant to the death of his father. The application of the petitioner was rejected on the ground that at the time of submission of the same, the applicant was under

aged.

3. The facts requisite for consideration of the issue arising in the present proceeding is noticed herein below.

The father of the petitioner Late Nazmul Haque Mazarbhuiya, while serving as Superintendent, Hailakandi Town Madrassa, died in harness on 21.08.2012. Pursuant to the death of the said Government servant, his wife Nur Nehar Begum Laskar submitted an application on 08.11.2012 praying for consideration of her case for appointment on compassionate ground. It is projected in the writ petition that the said application of the mother of the petitioner not being considered, the petitioner submitted an application in the year 2020 for being considered for appointment on compassionate ground.

4. The case of the petitioner for appointment on compassionate ground was considered by the District Level Committee, Hailakandi in its meeting held on 05.10.2021 and the same was rejected on the ground that the petitioner at the time of submission of his application was under aged. It is this rejection by the District Level Committee, Hailakandi that is under challenge in the present proceeding.

5. Mr. Laskar, learned counsel for the petitioner, by reiterating the facts narrated above, has submitted that the respondent authorities were duty bound to consider the application of his mother submitted on 08.11.2012 and for non- consideration of the same, the family of the petitioner cannot be blamed. The necessity for an appointment on compassionate ground existing in the family led to the petitioner submitting an application for appointment on compassionate ground in the year 2020, which was rejected without application of mind by the District Level Committee, Hailakandi in its meeting held on

05.10.2021. It is the further submission of the learned counsel for the petitioner that on the date of consideration of his application by the District Level Committee, he was within the age prescribed for appointment in Government service. As such, the rejection of his application on the ground of being under aged is clearly unsustainable inasmuch as the requisite criterion ought to be considered as existing on the date of such consideration.

Mr. Laskar, in support of his submission, has relied upon the decision of this Court in the case of Imdad Hussain Laskar -Vs- The State of Assam & Ors. [WP(C) No.651/2016] and Azad Hussain Laskar -Vs- The State of Assam & Ors. [WP(C) No.409/2019].

6. Per contra, Mr. B. Deori, learned Junior Government Advocate, Assam, relying on the records as furnished to him by the respondents, has submitted that the initial application made by the petitioner was so made on 17.09.2012. The date of birth of the petitioner being 05.12.2000, admittedly on the date of submission of his initial application, he was clearly under aged. Accordingly, it is submitted that the District Level Committee, Hailakandi had not committed any error in rejecting the application of the petitioner and the same requires no interference by this Court.

7. I have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the materials available on record.

8. The facts as available in the matter are not in dispute. The father of the petitioner had died on 21.08.2012 and the mother of the petitioner had submitted her application on 08.11.2012. It is also brought on record that the petitioner had, prior to submission of the application by his mother, also submitted an application praying for appointment on compassionate ground on 17.09.2012.

9. It is settled law that it is the initial application that is to be considered for appointment on compassionate ground and the eligibility of the applicant would be construed as possessed by him on the date of making such application. What is required to be noticed in the present case is that be it either the application of the petitioner or of his mother, which admittedly were made in the year 2012 after the death of the Government servant concerned, there is nothing brought on record to demonstrate that the family of the petitioner were pursuing the matter pertaining to appointment on compassionate ground diligently. It is only in the year 2023 that the petitioner had approached this Court by way of instituting the present proceeding raising a grievance against non- consideration of the application, as submitted by him for appointment on compassionate ground. There is no explanation in the writ petition as to how the matter was pursued after 2012 till 2023. Further as of 2021, the right of the petitioner to seek appointment on compassionate ground cannot be held to be subsisting and accordingly the decision of the jurisdictional District Level Committee requires no examination.

10. The object behind formulation of a Scheme for affording appointment on compassionate ground is to mitigate the hardship caused due to the death of the bread earner in the family. It is settled law that compassionate appointment is not a source of recruitment and the Scheme is only formulated to ensure that the dependents of a deceased Government servant are not deprived of the means of livelihood on the death of the bread earner in the family. The appointment offered on compassionate grounds enables the family of a deceased Government servant to overcome the sudden financial crisis occasioning on account of the untimely death of the bread earner of the family. Accordingly, the grant of appointment on compassionate ground should be limited to achieve the said purpose and for no other reason. The appointment made on compassionate ground is not so made by treating the same to be a matter of inheritance on the line of succession. It is to be noted that appointments on compassionate ground have to be made with a sense of immediacy because on failure to do so, the object of the Scheme for compassionate appointment would be frustrated. Where a long lapse of time has occurred since the date of death of the Government employee, the sense of immediacy for seeking compassionate appointment would cease to exist and thus, loose its significance.

11. 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 being employed on compassionate ground.

The financial condition of the family of the deceased, at the time of the death of the deceased, is the primary consideration required to be noted. In the case on hand, the father of the petitioner had died on 21.08.2012 and there is no material on record to show that the family members of the petitioner were diligently pursuing the matter for appointment for one of the dependants on compassionate ground. After around 11(eleven) years from the date of death of the Government servant, the immediate necessity for providing an employment to a dependant in the family immediately, cannot be said to be subsisting after such long lapse.

12. In the case in hand, the family having survived for such a long period of time after the death of the father on 21.08.2012, the acceptance of the claim of the petitioner at this distant point of time, would not be in furtherance of the object behind the purport of a scheme for providing appointment on compassionate ground.

13. The issues arising herein is covered by the recent decision of the Hon'ble Apex Court rendered in the case of State of W.B. -Vs- Debabrata Tiwari & Ors., reported in (2023) SCC Online SC 219, wherein the Hon'ble Court upon considering earlier decisions available in the matter had concluded as follows:

"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 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 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 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.'

14. Applying the ratio as contained in the decision of the Debabrata Tiwari (supra) to the facts of the present case, it is found that after the purported submission of the application by the mother of the petitioner and also by the petitioner there is nothing on record to show that the family of the petitioner was diligently pursuing the matter with the authorities and/or had agitated the matter on the failure on the part of the authorities to consider their case for appointment on compassionate ground. Further, even if the contention of the petitioner that he had submitted his application for appointment on compassionate ground only in the year 2000 is accepted, still there is nothing brought on record to demonstrate as to how the matter was being pursued by the petitioner for around 9(nine) years till his case was rejected by the District Level Committee, Hailakandi in the year 2021. In view of the decision of the Hon'ble Apex Court in the case of Debabrata Tiwari (supra), the decisions of this Court, as referred to by Mr. Laskar, learned counsel for the petitioner is not alluded to.

15. Accordingly, the case of the petitioner does not merit any consideration for appointment on compassionate ground and the case cannot be now directed to be considered by the respondents.

16. As noticed by the Hon'ble Apex Court in Debabrata Tiwari (supra), the operation of a policy/ scheme for compassionate appointment is founded on consideration of immediacy.

17. The petitioner and/or his family having not pursued the matter diligently after the death of the Government servant, at this distant point of time, no direction can be issued for consideration of such stale claim of the petitioner. The petitioner having been able to eke out a living even though not favoured with an appointment on compassionate ground, I do not think this is a fit case to direct the respondent authorities for consideration of the case of the petitioner for appointment on compassionate ground.