Gauhati High Court

WP(C)/7307/2023 on 9 January, 2024

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GAHC010282562023




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

                         Case No. : WP(C)/7307/2023

         1. TRISHNA SONOWAL,
         D/O- LATE KAMINI SONOWAL,
         R/O- VILL.- SEREN SONOWLA GAON,
         P.O.- DEKAPAM, DIST.- DHEMAJI, ASSAM.

         2: SUSHMITA DOLEY,
          D/O- LATE JYOTI NATH DOLEY,
         R/O- VILL.- UDAIPUR,
         P.O. AND P.S.- JONAI, DIST.- DHEMAJI, ASSAM.

         3: UPEN DOLEY,
          S/O- LATE NAYANTARA DOLEY,
         R/O- VILL.- RUDWAD DOLUNG,
         P.O. AND P.S.- JONAI, DIST.- DHEMAJI, ASSAM.
                                                          ........Petitioners


              -----VERSUS----

         1. THE STATE OF ASSAM,
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, ELEMENTARY EDUCATION DEPARTMENT,
         DISPUR,GUWAHATI- 06.

         2:THE DIRECTOR OF ELEMENTARY EUDCATION DEPARTMENT, ASSAM,
          KAHILIPARA, GUWAHATI- 19.

         3:THE DEPUTY COMMISSIONER, DHEMAJI, ASSAM.

                                                        ........Respondents

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-B E F O R E -

             HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR


For the Petitioners      : Mr. A. Ali, Advocate.
For the Respondents     : Mr. B. Kaushik, Standing Counsel, Education (Elementary)
                        Department, for respondent Nos.1 & 2.
                        : Mr. B. Deuri, Junior Government Advocate, Assam for
                        respondent No.3.


Date of Hearing          : 18.12.2023.
Date of Judgment        : 09.01.2024.


                             JUDGMENT & ORDER

Heard Mr. A. Ali, learned counsel for the petitioners. Also heard Mr. B. Kaushik, learned standing counsel, Education (Elementary) Department, representing the respondent Nos.1 & 2 and Mr. B. Deuri, learned Junior Government Advocate, Assam, representing the respondent No.3.

2. The petitioners, by way of instituting the present proceeding, have assailed the decision as arrived at by the State Level Committee in its meeting dated 26.08.2022 rejecting the applications submitted by the petitioners for appointment on compassionate ground on the ground that the petitioners were under aged at the time of submission of their respective applications.

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

The father of the petitioner No.1, Late Kamini Sonowal, while serving as Page No.# 3/11

an employee under the Elementary Education Department, died in harness on 04.12.2008. After the death of her father, the petitioner No.1 had submitted an application for appointment on compassionate ground. The father of the petitioner No.2, Late Jyoti Nath Doley, while serving as an employee under the Elementary Education Department, died in harness on 20.08.2011. After the death of her father, petitioner No.2 had submitted an application for appointment on compassionate ground. The mother of the petitioner No.3, Late Nayantara Doley, while serving as an employee under the Elementary Education Department, died in harness on 19.10.2007. After the death of his mother, the petitioner No.3 had submitted an application for appointment on compassionate ground.

4. The cases of the petitioners were considered by the District Level Committee, Dhemaji in its meeting held on 11.02.2022 and the same were recommended for appointment on compassionate ground against the vacant posts of Assistant Teachers in Lower Primary Schools. Thereafter, the said recommendations of the District Level Committee, Dhemaji was considered by the State Level Committee in its meeting held on 26.08.2022. The State Level Committee on consideration of the cases of the petitioners came to reject the applications as submitted by the petitioners on the ground that on the date of submission of their applications, the petitioners were all under aged and accordingly, their cases for appointment on compassionate ground cannot be considered. It is this decision of the State Level Committee that is being assailed in the present proceeding.

5. Mr. A. Ali, learned counsel for the petitioners has submitted that the cases of the petitioners being duly recommended by the District Level Committee, Dhemaji, the State Level Committee ought to have considered the Page No.# 4/11

same for appointment on compassionate ground on its merits and should not have rejected the claims of the petitioners basing on technicalities thereby depriving the petitioners and their family members the means of sustenance.

6. Learned counsel for the petitioners has submitted that in view of the recommendations made in favour of the petitioners by the District Level Committee, Dhemaji and there being existing vacant posts of Assistant Teachers in the L.P. Schools wherein the petitioners can be appointed on compassionate ground, the decision of the State Level Committee as arrived at in the cases of the petitioners is required to be interfered with, with further direction for appointment of the petitioners against the posts they were so recommended by the District Level Committee, Dhemaji in its meeting held on 11.02.2022.

7. Per contra, Mr. B. Deuri, learned Junior Government Advocate, Assam submits that the applications of the petitioners which were considered by the State Level Committee were the first applications filed by the petitioners immediately after the death of the Government servants involved and admittedly on the date when such applications were filed by the petitioners, they were under aged. Accordingly, in terms of the Scheme in place, such applications did not merit any consideration. It is further submitted that there is no error with regard to the reasons assigned by the State Level Committee while rejecting the cases of the petitioners and accordingly, the same does not call for any interference by this Court.

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

9. It is not in dispute that on the date of death of the Government servant Page No.# 5/11

concerned, the petitioners were all under aged. As per the statements made in paragraph 5 of the writ petition, it is an admitted position that the petitioners had submitted their respective applications immediately after the death of the Government servant concerned and it is the contention of the petitioners that they had submitted their respective applications before attaining the age of 18 years with the hope that by the time their applications are considered, they would cross the age of 18 years. The father/mother of the petitioners had expired on 04.12,2008, 20.08.2011 and 19.10.2007 respectively. There is nothing brought on record to show that the petitioners and/or their family members were pursuing the matter pertaining to appointment on compassionate ground of the petitioners diligently after submission of the applications by them in this connection. It is after long lapse of time that the cases of the petitioners came to be considered by the jurisdictional District Level Committee in its meeting held on 11.02.2022.

It is to be considered as to whether as of 10.02.2022, the right of the petitioners for being considered for appointment on compassionate ground subsisted or not.

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.

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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/mother of the petitioners had died on 04.12,2008, 20.08.2011 and 19.10.2007 respectively and there is no material on record to show that the family members of the petitioners were diligently pursuing the matter for appointment for one of the dependants on compassionate ground. After around 15 years, 12 years and 16 years from the date of death of the Government servant, the immediate necessity for providing an employment to a dependent in the family 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/mother on 04.12,2008, 20.08.2011 respectively, the acceptance of the claim of the petitioners at this distant point Page No.# 7/11

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 Page No.# 8/11

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 Page No.# 9/11

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 Page No.# 10/11

Tiwari (supra) to the facts of the present case, it is found that after the purported submission of the applications by the petitioners, there is nothing on record to show that the family of the petitioners were diligently pursuing their 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 petitioners that they had submitted their applications immediately after the death of their father/mother is accepted, it is clear that such belated applications could not have been considered by the District Level Committee in its meeting held on 11.02.2022, the right of the petitioners for being considered for appointment on compassionate ground did not subsist and accordingly, the recommendations made in their cases by the District Level Committee, Dhemaji is of no consequence and cannot be directed to be acted upon. As such, the conclusions reached by the State Level Committee in the cases of the petitioners in its meeting held on 26.08.2022, does not call for any interference by this Court.

15. Accordingly, the cases of the petitioners do not merit any consideration for appointment on compassionate ground and the cases 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 petitioners and/or their 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 claims of the petitioners. The petitioners having been able to eke out a living even though not Page No.# 11/11

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 cases of the petitioners for appointment on compassionate ground.