Page No.# 1/ vs The State Of Assam And 3 Ors
2025 Latest Caselaw 2247 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam And 3 Ors on 23 January, 2025

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GAHC010053942020




                                                                   2025:GAU-AS:838
                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : WP(C)/1846/2020

            ZAKIR HUSSAIN CHOUDHURY
            S/O- LT. SAMSUR UDDIN CHOUDHURY, VILL. EAST ALGAPUR, P.O EAST
            ALGAPUR, DIST- CACHAR, ASSAM.

            VERSUS

            THE STATE OF ASSAM AND 3 ORS.
            TO BE REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM,
            IRRIGATION DEPTT., DISPUR, GHY.-06.

            2:THE CHIEF ENGINEER
             IRRIGATION DEPTT.
            ASSAM
             CHANDMARI
             GHY.-03.

            3:THE EXECUTIVE ENGINEER
             SILCHAR MECHANICAL DIVISION (IRRIGATION)
             KANAKPUR
             SILCHAR
             DIST- CACHAR
            ASSAM.

            4:THE DISTRICT LEVEL COMMITTEE
             CACHAR
             DIST.- CACHAR
            ASSAM. TO BE REP. BY ITS CHAIRMAN-CUM-DY. COMMISSIONER
             CACHAR
             DIST- CACHAR
            ASSAM

Advocate for the Petitioner   : MR A R BHUYAN, MR. M A I HUSSAIN

Advocate for the Respondent : SC, IRRIGATION, GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

Date of hearing : 23.01.2025 Date of Judgment : 23.01.2025

Judgment & order(Oral)

None appears for the petitioner, on call. However, Mr. Dilip Mazumdar, learned Addl. Advocate General, Assam, assisted by Mr. R. Dhar, learned Addl. Senior Government Advocate, are present on behalf of all the respondents.

2. The petitioner, herein, by way of instituting the present proceeding, has presented a challenge to the decision arrived at by the jurisdictional District Level Committee in its meeting held on 09.07.2019, by which, the case of the petitioner for appointment on compassionate ground, came to be rejected on the ground that the application so submitted by him was not received in time and the same had spent its force on expiry of 2 years from the date the said application was so preferred by the petitioner.

3. As projected in the writ petition, the father of the petitioner Late Samsur Uddin Choudhury, while working as an Assistant Fitter in the establishment of the Executive Engineer, Silchar Mechanical Division(Irrigation), Irrigation, Silchar, had died-in-harness on 26.01.2004. The petitioner in pursuance of the death of his father in harness, submitted an application on 10.06.2004, praying for consideration of his case for appointment on compassionate ground. The case of the petitioner was placed before the jurisdictional District Level Committee in its meeting held Page No.# 3/10

on 23.07.2010. However, the jurisdictional District Level Committee in the absence of any vacant post, did not consider the case of the petitioner for appointment on compassionate ground favourably. The petitioner, thereafter, approached this Court by way of instituting a writ petition being WP(c)7392/2013. This Court, vide order, dated 18.12.2013, disposed of the said writ petition by directing the respondent authorities to place the case of the petitioner in the next meeting of the jurisdictional District Level Committee.

4. It is also projected in the writ petition that the case of the petitioner was, thereafter, considered by the jurisdictional District Level Committee in its meeting held on 09.06.2014. However, no favourable recommendation was made in favour of the petitioner, herein, for appointment on compassionate ground. It is further projected in the writ petition that the case of the petitioner for appointment on compassionate ground was again considered by the jurisdictional District Level Committee in its meeting held on 09.07.2019, and therein, the case of the petitioner was rejected on the ground that the application so submitted by him, was not received in time and further, the said application had also lost its force on 2 years having elapsed since the date, the said application was so preferred by the petitioner, herein.

5. Being aggrieved, the petitioner has instituted the present proceeding before this Court.

6. Mr. Mazumdar, learned Addl. Advocate General, Assam, appearing for the State Respondents, has submitted that the case of the petitioner was Page No.# 4/10

rejected by the jurisdictional District Level Committee in its meeting held on 09.07.2019 on the ground that the application so submitted by the petitioner for appointment on compassionate ground, was not received in time and the same had lost its force on the expiry of 2 years from the date of when the same was so preferred by the petitioner, herein.

7. Mr. Mazumdar, learned Addl. Advocate General, Assam, has further submitted that the father of the petitioner had died-in-harness on 26.01.2004. The learned Addl. Advocate General, Assam, has also submitted that the immediacy for effecting appointment on compassionate ground insofar as the petitioner is concerned, has lost its force. The learned Addl. Advocate General, Assam, has relied upon the decision of the Hon'ble Supreme Court rendered in the case of State of W.B. v. Debabrata Tiwari & ors.[reported in (2023) SCC Online SC 219] and has further contended that in terms thereof; the delay so occasioning, has rendered the case of the petitioner for appointment on compassionate ground, to be a stale one and no further direction for consideration of his case for appointment on compassionate ground, would be called for in the matter.

8. Mr. Mazumdar, learned Addl. Advocate General, Assam, by placing reliance on an affidavit filed by the State Respondents in a similar matter before this Court being WP(c)5086/2022, which also covers the case of the petitioner, herein, has submitted that the case of the petitioner along with the other cases clubbed together, were considered by a High Level Committee constituted by the Chief Secretary to the Government of Assam. The High Level Committee on consideration of the case of the petitioner, had come to a conclusion that the rejection order as made in the case of Page No.# 5/10

the petitioner, herein, by the State Level Committee in its meeting held on 19.06.2018, was in order.

9. Mr. Mazumdar, learned Addl. Advocate General, Assam, in the above premises, has submitted that the present writ petition is bereft of any merit and the same is required to be dismissed.

10. I have heard the submissions advanced by the learned Addl. Advocate General, Assam, and also perused the materials available on record.

11. It is a settled position of law that public service appointment should be made strictly on the basis of open invitation of an application and on merits. The appointment on compassionate ground cannot be a source of recruitment. It is merely an exception to the requirement of law keeping in view the fact of the death of the employee while in service, leaving his family without any means of livelihood. In such cases, the object is to enable the family to get over the sudden financial crises. Such appointments on compassionate ground, therefore, have to be made in accordance with the Rules, Regulations, or, administrative instructions taking into consideration, the financial condition of the family of the deceased. The favourable treatment to the dependent of the deceased employee must have a clear nexus with the object sought to be achieved thereby i.e. relief against destitution. At the same time, however, it should not be forgotten that as against the destitute family of the deceased employee, there are millions and millions of other families which are equally, if not more, destitute. The exception to the Rule made in favour of the family of the deceased employee is in consideration of the service Page No.# 6/10

rendered by him and the legitimate expectation, and the change in the status and affairs of the family endangered by the erstwhile employment, which are suddenly upturned. The claims for of appointment on compassionate ground would mandate that there be no delay in effecting such appointment, the object being to mitigate the hardships faced by the family due to the death of the bread earner.

12. The Hon'ble Supreme Court in a recent decision in the case of Debabrata Tiwari(supra), on the issue involved in the present proceeding, has drawn the following conclusions:

"32. On consideration of the aforesaid decisions of this Court, the following principles emerge:

i. That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions and must be resorted to only in order to achieve the stated objectives, i.e., to enable the family of the deceased to get over the sudden financial crisis.

ii. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis.

iii. Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate employment cannot be claimed or offered after a lapse of time and after the crisis is over.

iv. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.

v. In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source.

33. The object underlying a provision for grant of compassionate employment is to Page No.# 7/10

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 Page No.# 8/10

regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy."

37. Whether the above doctrine of laches which disentitled grant of relief to a party by Equity Court of England, could disentitle the grant of relief to a person by the High Court in the exercise of its power under Article 226 of our Constitution, came up for consideration before a Constitution Bench of this Court in Moon Mills Ltd. v. M. R. Meher, President, Industrial Court, Bombay, AIR 1967 SC 1450. In the said case, it was regarded as a principle that disentitled a party for grant of relief from a High Court in the exercise of its discretionary power under Article 226 of the Constitution.

38. In State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 this Court restated the principle articulated in earlier pronouncements in the following words:

"9.... the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the Petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this Rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, In its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. Itwas pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction."

39. While we are mindful of the fact that there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution, ordinarily, a writ petition should be filed within a reasonable time, vide Jagdish Lal v. State of Haryana, (1997) 6 SCC 538; NDMC v. Pan Singh, (2007) 9 SCC 278.

40. Further, simply because the Respondents-Writ Petitioners submitted their applications to the relevant authority in the year 2005-2006, it cannot be said that they diligently perused the matter and had not slept over their rights. In this regard, it may be apposite to refer to the decision of this Court in State of Uttaranchal v. Shiv Charan Singh Bhandari, (2013) 12 SCC 179, wherein the following observations were made:

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"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."

13. Applying the said decision of the Hon'ble Supreme Court in the case of Debabrata Tiwari(supra) to the facts of the present case, it is seen that the father of the petitioner had expired on 26.01.2004. The consideration that is now sought to be made in respect of the petitioner herein, for appointment on compassionate ground is a consideration so required to be made after a lapse of around 21 years. The sense of immediacy in the matter of compassionate appointment in respect of the petitioner has been lost. Such delay is attributable to both the authorities of the State as well as the petitioner; however, entertaining the claim at this point of time would be of no avail, because, admittedly, the petitioner has been able to eke out a living even though he was not favoured with an appointment on compassionate grounds. Accordingly, this Court is of the considered view that it is not a fit case to direct the claim of the petitioner for appointment on compassionate ground be considered or entertained by the respondent authorities.

14. At this stage, it is required to be noticed that this Court in the case of Achyut Ranjan Das & ors. v. State of Assam & ors., reported in 2006(4) GLT 674, while laying down the principles required to be followed for consideration of claims relating to compassionate appointment had laid down that if the application of eligible candidates remained pending and cannot be considered due to want of vacancies for a period of 2(two) years from the date of making of such application, all such applications would require no further consideration. The jurisdictional District Level Committee Page No.# 10/10

rejected the case of the petitioner when the same was placed before it, in its meeting held on 09.07.2019, inter alia, on the ground that the application of the petitioner seeking appointment on compassionate ground, was not preferred within the time frame prescribed. However, even if such application, as contended by the petitioner was so preferred proximate to the date of the death of the Government employee in harness, it must also be held to have lost its force after lapse of 2(two) years from the date of it was so preferred. The said prescription as made in the case of Achyut Ranjan Das(supra), was reiterated by this Court in the case of Fazirul Nessa & ors. v. State of Assam & ors ., reported in (2010) 4 GLT 340.

15. In view of the foregoing discussions and conclusions reached hereinabove by this Court, this Court is of the considered view that the issue involved in the present proceeding being a stale issue, it would not be permissible for this Court to issue any direction requiring consideration of the case of the petitioner for appointment on compassionate ground in pursuance to death of his father, in harness, occasioning in the year 2004.

16. In view of the above conclusions, this writ petition is held to be devoid of any merit and accordingly, the same stands dismissed. However, there shall be no order as to costs.

JUDGE

Comparing Assistant