Gauhati High Court
WP(C)/4782/2023 on 12 August, 2025
GAHC010184382023
2025:GAU-AS:10626
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
W.P.(C) NO.4782 OF 2023
Sri Bibhuranjan Nath,
S/o- Late Balen Ch. Nath,
R/o- Fatashil Ganeshpara,
House No. 22, Ananda Daimary Path,
A.K. Deb Road, Guwahati-25, P.O.-
Ambari, P.S.- Fatashil Ambari, Dist-
Kamrup (M), Assam.
.......Petitioner
-Versus-
1. The State of Assam, represented by the
Commissioner and Secretary, Govt. of
Assam, Environment and Forest
Department, Guwahati, Dispur-06
2. The Chief Secretary, Govt. of Assam,
Dispur, Kamrup (M), Guwahati- 06,
Assam.
3. The Divisional Forest Officer, Forest
Resources Survey Division, Santipur,
Guwahati-09.
4. The Chief Conservator of Forest
Research, Education and Working Plan,
Panjabari, Guwahati-37.
5. The Chariman,
District Level Committee
Kamrup (M), Pin-781001, Assam.
Page 1 of 22
6. The Deputy Commissioner,
Kamrup (M), Pin-781001, Assam.
.......Respondents
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) : Mr. J. Kalita, Advocate.
For the Respondent(s) : Mr. D. Bora, Government Advocate.
Date of Hearing : 12.08.2025.
Date of Judgment : 12.08.2025.
JUDGMENT & ORDER (ORAL)
Heard Mr. J. Kalita, learned counsel, appearing for
the petitioner. Also heard Mr. D. Bora, learned Government
Advocate, appearing for the State respondents.
2. By way of this writ petition under Article 226 of the
Constitution of India, the petitioner, i.e., Bibhuranjan Nath,
is seeking appointment on compassionate grounds.
3. The brief facts of the case are that the petitioner's
father, i.e., the Late Balen Ch. Nath, who was working as a
Forester Grade-I in the Office of the Divisional Forest Officer
(DFO), Forest Resources Survey Division, Santipur, Guwahati,
died in harness on 21.11.2015. Thereafter, in the month of
January, 2016, the petitioner presented an application before
the authority seeking appointment on compassionate
grounds; however, since the same was allegedly not
registered, the petitioner on 08.08.2017 again applied for
appointment on compassionate grounds by filling out the
requisite Proforma (Annexure-B) to the writ petition.
Thereafter, the District Level Committee (hereinafter referred
to as the "DLC") placed the case of the petitioner in its
meeting dated 19.06.2018, whereby the case of the petitioner
has been rejected on the ground of late submission of
application. Thereafter, the petitioner submitted a
representation before the Deputy Commissioner, Kamrup (M)
on 28.09.2018, whereby stating, inter alia, that the delay
caused in submitting the second application was due to the
first application of the petitioner being misplaced by the
authority, and hence, prayed for reconsidering the matter and
allowing the application for employment to be processed. The
aforesaid representation filed by the petitioner having not
borne any fruits, the present writ petition has been filed
before this court on 16.08.2023.
4. Mr. J. Kalita, learned counsel, appearing for the
petitioner, submits that in the Forest Department, the
appropriate authority is the State Level Committee
(hereinafter referred to as the "SLC") and not the DLC for
considering the appointment on compassionate grounds, and
therefore, the rejection order of the DLC is without
jurisdiction. He further submits that the case of the petitioner
is squarely covered by the judgment & order dated
20.05.2025, passed by the co-ordinate bench of this court in
the case of Abhijit Kalita v. The State of Assam and
Ors., in WP(C)/4488/2023, and accordingly, prays for
disposing of the instant case similarly.
5. Per contra, Mr. D. Bora, learned Government
Advocate, appearing for the State respondents, submits that
in view of the delay of several years since the expiry of the
father of the petitioner, the present petition is liable to be
dismissed at the threshold as per the decision of the Apex
Court in the case State of West Bengal v. Debabrata
Tiwari and Ors., reported in 2023 SCC Online SC 219.
6. I have given my prudent consideration to the
argument advanced by both the learned counsels appearing
for the parties and also perused the material available on
record. I have also considered the case laws submitted at the
bar.
7. It is apparent that the father of the petitioner died
on 21.11.2015. It is further apparent that though initially an
application was filed in the month of January, 2016, the same
allegedly having been misplaced by the authority, a second
application was filed on 08.08.2017. It is further apparent that
the petitioner has not submitted any document/application or
proof whatsoever of the first application as claimed to have
been filed in the month of January, 2016. It is further
apparent that the second application was rejected by the DLC
by order dated 19.06.2018. It further appears that after the
DLC rejected the case of the petitioner, a representation was
filed on 26.09.2018 before the Deputy Commissioner, Kamrup
Metropolitan District, which reads as under: -
"To,
The Deputy Commissioner,
Kamrup Metropolitan District
Guwahati- 781001
Date: - 26th September, 2018
Sub: - Prayer for considering my application on
compassionate ground.
Respected Sir,
My name is Bibhuranjan Nath, S/o- Late Balen
Ch. Nath, (FR-I). My father passed away in November
21, 2015 and upon his passing, I was informed that I
was eligible for applying on compassionate grounds
for a job.
On January, 2016, on instructions of Mr. Alok
Rai (Deputy Ranger, FRS), I procured and presented
an application to the office for availing the job.
However, the office failed to register my application
after presenting it and later upon enquiry they seemed
to have lost / misplaced my first application.
Furthermore, the office staff weren't aware that
application for employment on compassionate ground
need to be presented to the office of the DC within a
year from the date of death of the ex-servicemen. For
this reason, the office staff misguided me and assured
that no such rule existed and that the application
could be processed at any time.
Hence upon presentation of my second
application, the office of the DC declined it for late
submission, all the while, it being a fault of the office
staff present at FRS, leaving me as a victim.
I pray that you look into the matter and allow
my application for employment to be processed.
Yours faithfully
Sd/- Bibhuranjan Nath"
8. Thus, it is apparent that since the DLC rejected the
case of the petitioner on the ground of delay, the petitioner,
vide the said representation, by explaining the grounds of
delay, prayed for reconsideration of the prayer for
appointment on compassionate grounds. It is pertinent that
the contention of the learned counsel appearing for the
petitioner as regards the DLC not being the appropriate
authority in the forest department in respect of appointment
on compassionate grounds is neither urged in the said
representation nor pleaded in the instant writ petition. Be that
as it may, it is well-settled law that a compassionate
appointment is not a source of recruitment and is not a
vested right that can be exercised anytime in the future.
9. Apt at this stage to refer to the decision of the Apex
Court in the case of Debabrata Tiwari (supra), wherein the
Apex Court, while dealing with the issue of whether
applications for compassionate appointments could be
considered after a delay of several years, has held that after a
delay of several years, either on the part of the applicant
claiming compassionate appointment or on the part of the
authorities in deciding such claims, the sense of immediacy is
diluted and lost. Paragraphs 30 to 40 of the aforesaid
judgment are reproduced hereunder for ready reference:-
"30. The majesty of death is that it is a great leveller
for, it makes no distinction between the young and the
old or the rich and the poor. Death being as a
consequence of birth at some point of time is inevitable
for every being. Thus, while death is certain, its timing
is uncertain. Further, a deceased employee does not
always leave behind valuable assets; he may at times
leave behind poverty to be faced by the immediate
members of his family. Therefore, what should be
done to ensure that death of an individual does not
mean economic death for his family? The State's
obligation in this regard, confined to its employees
who die in harness, has given rise to schemes and
rules providing for compassionate appointment of an
eligible member of his family as an instance of
providing immediate succour to such a family. Support
for such a provision has been derived from the
provisions of Part IV of the Constitution of India, i.e.,
Article 39 of the Directive Principles of State Policy.
31. It may be apposite to refer to the following
decisions of this Court, on the rationale behind a
policy or scheme for compassionate appointment and
the considerations that ought to guide determination
of claims for compassionate appointment.
i. In Sushma Gosain v. Union of India, (1989) 4
SCC 468, this Court observed that in all claims
for appointment on compassionate grounds,
there should not be any delay in appointment.
That the purpose of providing appointment on
compassionate grounds is to mitigate the
hardship caused due to the death of the bread
earner in the family. Such appointment should,
therefore, be provided immediately to redeem
the family in distress.
ii. In Umesh Kumar Nagpal v. State of Haryana,
(1994) 4 SCC 138, this Court observed that the
object of granting compassionate employment is
to enable the family of a deceased government
employee to tide over the sudden crisis by
providing gainful employment to one of the
dependants of the deceased who is eligible for
such employment. That mere death of an
employee in harness does not entitle his family
to such source of livelihood; the Government or
the public authority concerned has to examine
the financial condition of the family of the
deceased and it is only if it is satisfied that, but
for the provision of employment, the family will
not be able to meet the crisis, that a job is to be
offered to the eligible member of the family,
provided a scheme or rules provide for the
same. This Court further clarified in the said
case that compassionate appointment is not a
vested right which can be exercised at any time
after the death of a government servant. That
the object being to enable the family to get over
the financial crisis which it faces at the time of
the death of the sole breadwinner,
compassionate employment cannot be claimed
and offered after lapse of considerable amount
of time and after the crisis is overcome.
iii. In Haryana State Electricity Board v. Hakim
Singh, (1997) 8 SCC 85, ("Hakim Singh") this
Court placed much emphasis on the need for
Immediacy in the manner in which claims for
compassionate appointment are made by the
dependants and decided by the concerned
authority. This Court cautioned that it should
not be forgotten that the object of
compassionate appointment is to give succour to
the family to tide over the sudden financial
crisis that has befallen the dependants on
account of the untimely demise of its sole
earning member. Therefore, this Court held that
it would not be justified in directing
appointment for the claimants therein on
compassionate grounds, fourteen years after
the death of the government employee. That
such a direction would amount to treating a
claim for compassionate appointment as though
it were a matter of inheritance based on a line
of succession.
iv. This Court in State of Haryana v. Ankur
Gupta, (2003) 7 SCC 704 AIR 2003 SC 3797
held that in order for a claim for compassionate
appointment to be considered reasonable and
permissible, it must be shown that a sudden
crisis occurred in the family of the deceased as
a result of death of an employee who had
served the State and died while in service. It
was further observed that appointment on
compassionate grounds cannot be claimed as a
matter of right and cannot be made available to
all types of posts irrespective of the nature of
service rendered by the deceased employee.
v. There is a consistent line of authority of this
Court on the principle that appointment on
compassionate grounds is given only for
meeting the immediate unexpected hardship
which is faced by the family by reason of the
death of the bread earner vide Jagdish Prasad
v. State of Bihar, (1996) 1 SCC 301. When an
appointment is made on compassionate
grounds, it should be kept confined only to the
purpose it seeks to achieve, the idea being not
to provide for endless compassion, vide I.G.
(Karmik) v. Prahalad Mani Tripathi, (2007) 6
SCC 162. In the same vein is the decision of this
Court in Mumtaz Yunus Mulani v. State of
Maharashtra, (2008) 11 SCC 384, wherein it
was declared that appointment on
compassionate grounds is not a source of
recruitment, but a means to enable the family of
the deceased to get over a sudden financial
crisis.
vi. In State of Jammu and Kashmir v. Sajad
Ahmed Mir, (2006) 5 SCC 766: AIR 2006 SC
2743, the facts before this Court were that the
government employee (father of the applicant
therein) died in March, 1987. The application
was made by the applicant after four and half
years in September, 1991 which was rejected
In March, 1996. The writ petition was filed in
June, 1999 which was dismissed by the
learned Single Judge in July, 2000. When the
Division Bench decided the matter, more than
fifteen years had passed from the date of death
of the father of the applicant. This Court
remarked that the said facts were relevant and
material as they would demonstrate that the
family survived in spite of death of the
employee. Therefore, this Court held that
granting compassionate appointment after a
lapse of a considerable amount of time after the
death of the government employee, would not
be in furtherance of the object of a scheme for
compassionate appointment.
vii. In Shashi Kumar, this Court speaking
through Dr. D.Y. Chandrachud, J. (as His
Lordship then was) observed that
compassionate appointment is an exception to
the general rule that appointment to any public
post in the service of the State has to be made
on the basis of principles which accord with
Articles 14 and 16 of the Constitution. That the
basis of the policy is that it recognizes that a
family of a deceased employee may be placed
in a position of financial hardship upon the
untimely death of the employee while in service.
That it is the immediacy of the need which
furnishes the basis for the State to allow the
benefit of compassionate appointment. The
pertinent observations of this Court have been
extracted as under:
'41. Insofar as the individual facts pertaining to
the Respondent are concerned, it has emerged
from the record that the Writ Petition before the
High Court was instituted on 11 May 2015. The
application for compassionate appointment was
submitted on 8 May 2007. On 15 January 2008
the Additional Secretary had required that the
amount realized by way of pension be included in
the income statement of the family. The
Respondent waited thereafter for a period in
excess of seven years to move a petition Under
Article 226 of the Constitution. In Umesh Kumar
Nagpal (supra), this Court has emphasized that
the basis of a scheme of compassionate
appointment lies In the need of providing
immediate assistance to the family of the
deceased employee. This sense of immediacy is
evidently lost by the delay on the part of the
dependant in seeking compassionate appointment.
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 the deceased
employee being employed 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
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.'
10. Reading the aforesaid judgment of the Apex Court, it
appears that the object of providing a grant of compassionate
appointment is to enable the family of the deceased employee
to tide over the sudden crisis due to the death of the
breadwinner which has left the family in penury and without
any means of livelihood. It is thus with this very object that
unless some source of livelihood is provided, the family could
not be in a position to make both ends meet, and
appointment on compassionate grounds is provided.
However, the same is not a vested right. Thus, where a long
lapse of time has occurred since the death of the deceased
employee, the sense of immediacy for seeking compassionate
appointment ceases to exist and loses its significance, thereby
disentitling the applicant for appointment on compassionate
grounds. It is apposite to mention that the Apex Court in the
aforesaid decision has clearly held that in a case where
reasons for prolonged delay are either on the part of the
applicant in claiming compassionate appointment or the
authorities in deciding such a claim, the claim for
compassionate appointment is not maintainable.
11. In the present case, it is apparent that the father of
the petitioner expired almost 09 years and 8 months ago, and
during the interregnum period, the petitioner has been able to
sustain his livelihood. It is further apparent that after the DLC
rejected the case of the applicant on 19.06.2018 for
appointment on compassionate grounds, the instant writ
petition was filed on 16.08.2023, almost 5 years later.
Apparent, thus, the sense of immediacy in the instant case
has also been lost and diluted.
12. The prayer of the learned counsel for the petitioner
to the effect that the instant case be disposed of in terms of
the judgment and order passed in the case of Abhijit Kalita
(supra) is totally misplaced. It appears that the co-ordinate
bench of this court has disposed of the said case of Abhijit
Kalita (supra) as per the direction passed in paragraph 9 of
the judgment & order passed by the co-ordinate bench of this
court in the case of Abdul Kadir Bokshi (supra). It further
appears that the case of Abdul Kadir Bokshi (supra) was
disposed of on the basis of the consent given by the parties in
writ petitions where the Office Memorandum dated
18.09.2024 was put to challenge. Paragraphs 4 and 5 of
Abhijit Kalita (supra) are reproduced hereunder for ready
reference: -
"[4.] The learned counsel has also drawn the attention
of this Court to the Order dated 03.04.2025 passed by
a Co-ordinate Bench of this Court in WP(C) No.
342/2025 (Abdul Kadir Bokshi vs. State of Assam &
4 Ors.) wherein, a number of case were disposed of
by a common order. Challenge made by the petitioners
therein was to the O.M dated 18.09.2024 by which
the scheme for compassionate appointment had been
done away with for all those family members of the
Government servants, who died in harness prior to
01.04.2017. This Court, by taking into account the
proposal made by the learned Advocate General,
Assam on an earlier date, which is to the effect that
all the applications for compassionate appointment, in
relation to the cases which are pending in this Court,
challenging the impugned O.M dated 18.09.2024 shall
be considered by the concerned authorities on merit.
The same would be done by taking into account the
various guidelines for compassionate appointment
prior to 01.04.2017 that were applicable in the State
of Assam and the various decisions passed by the
Hon'ble Supreme Court and the High Court.
Accordingly, the said bunch of writ petitions was
disposed of in terms of the direction passed in
paragraph no. 9 of the said judgment which is being
abstracted as below:-
„9. In view of the consent of the learned
counsels for the parties, all the writ petitions
that are pending as on today, i.e., 03.04.2025,
in the Gauhati High Court, which have put to
challenge the impugned OM dated 18.09.2024,
are to be decided as follows:-
(i) All the applications for compassionate
appointment submitted by the petitioners
shall be considered and disposed of by
the concerned DLC/SLC on merit, by
taking into consideration the various
guidelines prior to 01.04.2017, laid down
by the State Government for
compassionate appointment and the
judgments of the Hon'ble Supreme Court
and the High Court. Consequently, the
rejection of all compassionate
appointments by the DLC/SLC, which
have been put to challenge and are
pending in the Gauhati High Court as on
03.04.2025, are set aside.
(ii) The entire process for considering the
various applications for compassionate
appointment and the decision to be taken
in each case by the concerned authorities,
should be completed within a period of
six months from the date of receipt of a
certified copy of this order by the
concerned District Commissioner, who is
also the Chairman of the DLC, if the
matter pertains to the DLC. In other
cases, the Chief Secretary to the
Government of Assam, who is the
Chairman of the SLC, if the matter
pertains the SLC.‟
[5.] Considering the above submission, the present
writ petition appears to be squarely covered as well
and accordingly, the same is being disposed of in
terms of paragraph no. 9 of the Order dated
03.04.2025, which is abstracted herein above."
13. Reading the aforesaid, it is apparently clear that the
co-ordinate bench in Abhijit Kalita (supra) has not decided
the case on merit; however, it has disposed of the same in
terms of the consent order rendered in Abdul Kadir Bokshi
(supra). Paragraphs 9 and 10 of Abdul Kadir Bokshi
(supra) read as under: -
"9. In view of the consent of the learned counsels for
the parties, all the writ petitions that are pending as
on today, i.e., 03.04.2025, in the Gauhati High Court,
which have put to challenge the impugned OM dated
18.09.2024, are to be decided as follows:-
(i) All the applications for compassionate
appointment submitted by the petitioners shall
be considered and disposed of by the concerned
DLC/SLC on merit, by taking into consideration
the various guidelines prior to 01.04.2017, laid
down by the State Government for
compassionate appointment and the judgments
of the Hon'ble Supreme Court and the High
Court. Consequently, the rejection of all
compassionate appointments by the DLC/SLC,
which have been put to challenge and are
pending in the Gauhati High Court as on
03.04.2025, are set aside.
(ii) The entire process for considering the various
applications for compassionate appointment
and the decision to be taken in each case by the
concerned authorities, should be completed
within a period of six months from the date of
receipt of a certified copy of this order by the
concerned District Commissioner, who is also
the Chairman of the DLC, if the matter pertains
to the DLC. In other cases, the Chief Secretary
to the Government of Assam, who is the
Chairman of the SLC, if the matter pertains the
SLC.
10. It is made clear that in view of the consent of the
parties, this Court has not gone into the merits of any
of the petitioners' cases that are being disposed of by
way of this order and as such, the applications for
compassionate appointment should be disposed of by
the concerned authorities on merit, as they deem it fit
and proper. The decision/s to be taken by the
concerned authorities should be based on reasons
and the decision taken should be communicated to the
petitioners thereafter. It is also directed that while
deciding the applications for compassionate
appointment, the respondents cannot take recourse to
the impugned OM dated 18.09.2024, though the
judgment provided therein, i.e., the case of
Debabrata Tiwari (supra), can be
considered/applied by the concerned authorities. It is
again made clear that this order cannot be used as a
precedent for cases that are filed on 04.04.2025 and
thereafter. It shall only apply to cases that are
pending before this Court as on 03.04.2025."
14. Reading the aforesaid, it is apparently clear that the
direction passed in Abdul Kadir Bokshi (supra) was in
respect of all the writ petitions seeking compassionate
appointments that are pending as of 03.04.2025 in this court,
where the said Office Memorandum dated 18.09.2024 was
under challenge. Thus, the directions contained in paragraph
9 of Abdul Kadir Bokshi (supra) cannot be made applicable
in respect of writ petitions pending as of 03.04.2025 seeking
compassionate appointments where Office Memorandum
dated 18.09.2024 are not under challenge and/or writ
petitions that are filed on 04.04.2025 and thereafter.
15. Pertinent that though the instant writ petition
seeking compassionate appointment was filed prior to
03.04.2025 and the same is pending adjudication in this
court; however, the Office Memorandum dated 18.09.2024 is
not under challenge in the instant writ petition. Therefore, the
directions contained in Abdul Kadir Bokshi (supra) are not
applicable to the facts of the instant case.
16. Apt to refer to the decision of the Apex Court in the
case of Municipal Corporation of Delhi v. Gurnam Kaur,
reported in (1989) 1 SCC 101, wherein the Apex Court has
held hereunder: -
"10. It is axiomatic that when a direction or
order is made by consent of the parties, the court does
not adjudicate upon the rights of the parties nor does
it lay down any principle. Quotability as 'law' applies
to the principle of a case, its ratio decidendi. The only
thing in a judge's decision binding as an authority
upon a subsequent judge is the principle upon which
the case was decided. Statements which are not part
of the ratio decidendi are distinguished as obiter dicta
and are not authoritative. The task of finding the
principle is fraught with difficulty because without an
investigation into the facts, as in the present case, it
could not be assumed whether a similar direction
must or ought to be made as a measure of social
justice. That being so, the direction made by this Court
in Jamna Das case¹ could not be treated to be a
precedent. The High Court failed to realise that the
direction in Jamna Das case was made not only with
the consent of the parties but there was an interplay
of various factors and the court was moved by
compassion to evolve a situation to mitigate hardship
which was acceptable by all the parties concerned.
The court no doubt made incidental observation to the
Directive Principles of State Policy enshrined in Article
38(2) of the Constitution and said:
Article 38(2) of the Constitution mandates the
State to strive to minimise, amongst others, the
inequalities in facilities and opportunities
amongst individuals. One who tries to survive
by one's own labour has to be encouraged
because for want of opportunity destitution may
disturb the conscience of the society. Here are
persons carrying on some paltry trade in an
open space in the scorching heat of Delhi sun
freezing cold or torrential rain. They are being
denied continuance at that place under the
specious plea that they constitute an
obstruction to easy access to hospitals. A little
more space in the access to the hospital may be
welcomed but not at the cost of someone being
deprived of his very source of livelihood so as to
swell the rank of the fast growing unemployed.
As far as possible this should be avoided which
we propose to do by this short order.
This indeed was a very noble sentiment but incapable
of being imple-inented in a fast growing city like the
Metropolitan City of Delhi where public streets are
overcrowded and the pavement squatters create a
hazard to the vehicular traffic and cause obstruction
to the pedestrians on the pavement.
11. Pronouncements of law, which are not part
of the ratio decidendi are classed as obiter dicta and
are not authoritative. With all respect to the learned
Judge who passed the order in Jamna Das case and
to the learned Judge who agreed with him, we cannot
concede that this Court is bound to follow it. It was
delivered without argument, without reference to the
relevant provisions of the Act conferring express
power on the Municipal Corporation to direct removal
of encroachments from any public place like
pavements or public streets, and without any citation
of authority. Accordingly, we do not propose to uphold
the decision of the High Court because, it seems to us
that it is wrong in principle and cannot be justified by
the terms of the relevant provisions. A decision should
be treated as given per incuriam when it is given in
ignorance of the terms of a statute or of a rule having
the force of a statute. So far as the order shows. no
argument was addressed to the court on the question
whether not any direction could properly be made
compelling the or Municipal Corporation to construct a
stall at the pitching site of a pavement squatter.
Professor P. J. Fitzgerald, editor of the Salmond on
Jurisprudence. dence. 12th edn. explains the concept
of sub silentio at p. 153 in these words:
A decision passes sub silentio, in the technical
sense that has come to be attached to that
phrase, when the particular point of law
involved in the decision is not perceived by the
court or present to its mind. The court may
consciously decide in favour of one party
because of point A, which it considers and
pronounces upon. It may be shown, however,
that logically the court should not have decided
in favour of the particular party unless it also
decided point B in his favour; but point B was
not argued or considered by the court. In such
circumstances, although point B was logically
involved in the facts and although the case had
a specific outcome, the decision is not an
authority on point B. Point B is said to pass sub
silentio.
12. In Gerard v. Worth of Paris Ltd. (k).", the
only point argued was on the question of priority of
the claimant's debt, and, on this argument being
heard, the court granted nted the order. No
considertion was given to the question whether a
garnishee order could properly be made on an account
standing in the name of the liquidator. When,
therefore, this very point was argued in a subsequent
case before the Court of Appeal in Lancaster Motor Co.
(London) Ltd. v. Bremith Ltd., the court held itself not
bound by its previous decision. Sir Wilfrid Greene,
M.R.. said that he could not help thinking that the
point now raised had been deliberately passed sub
silentio by counsel in order that the point of substance
might be decided. He went on to say that the point
had to be decided by the earlier court before it could
make the order which it did nevertheless, since it was
decided "without argument, without reference to the
crucial words of the rule, and without any citation of
authority", it was not binding and would not be
followed. Precedents sub silentio and without
argument are of no moment. This rule has ever since
been followed. One of the chief reasons for the
doctrine of precedent is that a matter that has once
been fully argued and decided should not be allowed
to be reopened. The weight accorded to dicta varies
with the type of dictum. Mere casual expressions
carry no weight at all. Not every passing expression of
a judge, however eminent, can be treated as an ex
cathedra statement, having the weight of authority."
17. Reading the aforesaid judgment, it is apparent that it
is the principle only upon which the case has been decided
that is binding as an authority upon a subsequent judge. It is
clear that the co-ordinate bench has not decided the case of
Abhijit Kalita (supra) on merit but has disposed of the
same in terms of the consent order in Abdul Kadir Bokshi
(supra). Undoubtedly, orders made with consent from parties
are also not binding upon a subsequent judge. That apart, it
is also evident that the decision of the Apex Court in the case
of Debabrate Tiwari (supra) was also not referred to by the
learned counsels appearing in the case of Abhijit Kalita
(supra).
18. Be that as it may, since the decision of the co-
ordinate bench in Abhijit Kalita (supra) is not on merit, and
the same is on the basis of the consent order of Abdul Kadir
Bokshi (supra), the same is of no consequence in the facts
of the present case. I cannot also be unmindful of the fact
that there has been a delay of several years since the death
of the petitioner's father. Thus, I have no hesitation to hold
that the claim of the petitioner for appointment on
compassionate grounds is time-barred and the same is not
maintainable as per the ratio laid down in the case of
Debabrate Tiwari (supra). Hence, the writ petition is not
maintainable, and accordingly, the writ petition stands
dismissed.
19. Resultantly, the writ petition stands disposed of. No
order as to costs.
JUDGE
Comparing Assistant
