Smti Basanti Choudhury v. The Union of India and 5 Ors

ORDER Date : 08.04.2024

Heard Mr. R. De, learned counsel for the petitioner. Also heard Mr. S. S. Roy, learned CGC, appearing on behalf of all the respondents.

¶2The grievance as raised by the petitioner in the present proceedings, pertains to non-consideration of the case of the petitioner for compassionate appointment after the death of her husband in harness occasioning on

12.01.2004.

¶3The husband of the petitioner late Pawan Choudhury while working as a regular Mazdoor in the establishment of the Garison Engineer, Military Engineering Services, Narengi, had died in harness on 12.01.2004, leaving the petitioner and a minor son who was around 3 years old at the time of the death of the government servant.

¶4The petitioner in the light of the scheme for appointment on compassionate ground as applicable to the said establishment, submitted her application for being appointed on compassionate ground in the month of August, 2004.

¶5The petitioner's case not being considered for appointment on compassionate ground; she approached the respondent authorities at regular Page No.# 3/12 intervals praying for appointment on compassionate ground. The said appointment not occasioning till the year 2014; the petitioner vide her representation, dated 01.03.2014, approached the concerned authorities requesting that she be communicated with the current status of her said claim. In pursuance to the said communication and the processing made thereof by the respondent authorities; the petitioner was vide communication, dated

09.05.2014, informed that her case for appointment on compassionate ground was duly considered in the year 2007. However, on account of the number of vacancies available and there being other more deserving persons; the case of the petitioner was not recommended by the Board of Officers(BoO) for appointment on compassionate ground and it was further intimated that a speaking order, dated 08.08.2007, was issued in this connection by the concerned authorities. A copy of the said speaking order, dated 08.08.2007, was also forwarded to the petitioner along with the said communication, dated

09.05.2014.

¶6It is the contention of the petitioner that the copy of the speaking order, dated 08.08.2007, was never furnished to her prior to the issuance of the communication, dated 09.05.2014, and accordingly, being aggrieved by the said speaking order, dated 08.08.2007; the petitioner has instituted the present proceedings.

¶7Mr. De, learned counsel for the petitioner, has submitted that it is the mandate of the compassionate appointment policy in place that the petitioner's case was required to be considered at least for 3 times consecutively and thereafter, only her case could be closed. It is the further contention of the Page No.# 4/12 learned counsel for the petitioner that the case of the petitioner was not so considered consecutively for 3 times and accordingly, her case being not considered in the manner as mandated under the provisions of the policy for compassionate appointment in place with regard to the said establishment; this Court is required to pass appropriate directions to consider the case of the petitioner in terms of the policies as available in the matter.

¶8Mr. De, learned counsel, by referring to the Office Memorandums issued from time to time by the respondent authorities governing the manner in which the case of an applicant for appointment on compassionate ground is to be considered; submits that the subsequent Office Memorandums coming into place, have provided that no time limit for considering applications for appointment on compassionate ground can be fixed and such applications have to be considered from time to time after taking into account the family's latest financial/economic condition, number of dependents in the family and other relevant considerations.

¶9It is further submitted by Mr. Dey, learned counsel for the petitioner, that in the event, the authorities had undertaken the exercise as per the policy with regard to the policy of appointment on compassionate ground in place and an evaluation of the financial condition/economic status of the family of the petitioner was undertaken; it would have come to light that the petitioner was in need of an appointment on compassionate ground for her and her family's sustenance. Page No.# 5/12

¶10The respondent authorities having not undertaken the exercise as required under the policy for compassionate appointment in place; the petitioner was discriminated against and accordingly, it is prayed that this Court would in view of the applicable policy for appointment on compassionate ground, more specifically, the requirement of considering the case of an applicant without any limit of time; direct the respondent authorities to make an assessment of the financial condition of the family of the petitioner and thereafter, if found to be in need of an appointment on compassionate ground, direct the respondent authorities to extend such appointment to the petitioner, herein.

¶11Mr. Roy, learned CGC, appearing for the respondent authorities, by referring to the affidavit filed by the authorities in the matter, has submitted that the case of the petitioner was considered on 6(six) occasions by the Board of Officers (BoO) as constituted in the matter during the period from December, 2006, till June, 2007; however, in view of the fact of availability of less number of vacancies and there being more deserving candidates who were on evaluation, found to be in need for an appointment on compassionate ground, the petitioner could not be extended with an appointment on compassionate ground.

¶12Mr. Roy, learned CGC, has further submitted that the husband of the petitioner had expired in the year 2004 and at such a belated stage; the petitioner having been able to sustain herself, there would arise no occasion for this Court to issue directions for consideration of the case of the petitioner for appointment on compassionate ground.

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¶13I have heard the learned counsels appearing for the parties and also considered the materials made available on record.

¶14It is seen that the husband of the petitioner had expired on 12.01.2004 and thereafter, the petitioner had staked her claim for appointment on compassionate ground in the month of August, 2004, and thereafter, was pursuing the matter with the respondent authorities for such appointment. In the writ petition, the petitioner has contended that in terms of the policy for compassionate appointment in place; the case of the petitioner was required to considered for 3 times consecutively and the said exercise not having been undertaken; it has to be held that the case of the petitioner, for the purpose of appointment on compassionate ground, was not fairly considered.

¶15The petitioner has further contended that the speaking order purportedly issued to her on 08.08.2007 by the concerned authorities was never served upon her and the same was received by her only along with the communication, dated 09.05.2014.

¶16Further, the petitioner has contended that the Office Memorandums coming into force after the death of her husband; having mandated that appointment on compassionate ground is to be considered without limitation of time after evaluating the financial condition and economic status of the family and other parameters and in the event, it is found that the family of the deceased government employee even after a lapse of considerable period of time; is not in a position to maintain themselves, a consideration of an eligible Page No.# 7/12 dependent is to be considered for appointment on compassionate ground; the case of the petitioner is still required to be considered for appointment on compassionate ground.

¶17The speaking order, dated 08.07.2007, has brought on record, the consideration as made in the case of the petitioner with a further stipulation that on account of the lapse of time that has taken place, no vested right being available which can be exercised at a future date for appointment on compassionate ground and the Board of Officers(BoO) having duly considered the case of the petitioner; it was held by the competent authority that the case of the petitioner does not deserve employment assistance on compassionate ground. Accordingly, the case of the petitioner for appointment on compassionate ground was rejected.

¶18It is a settled position of law that a policy of appointment on compassionate ground is envisaged to grant immediate relief to the family of a deceased employee in view of the position they find themselves on account of the death of the only bread earner in the family and such a policy is conceived so as to provide the family of the deceased government servant, a source of livelihood.

¶19It also being a settled position of law that appointment on compassionate ground should be provided immediately to redeem the family in distress, this Court is now required to consider as to whether after 20 years from the date of the death of the government servant; a direction is now required to be issued to Page No.# 8/12 the respondent authorities to appoint the petitioner on compassionate ground.

¶20The Hon'ble Supreme Court in the case of Haryana State Electricity Board v. Hakim Singh, reported in (1997) 8 SCC 85; placed much emphasis on the need for immediacy in the manner in which the claims for appointments on compassionate ground are made by the dependents and decided by the concerned authorities. The Hon'ble Supreme Court cautioned in the said case that it should not be forgotten that the objective of the compassionate appointment is to give succor to tide over the sudden financial crisis that had befallen on the family upon the untimely demise of its sole earning member. Accordingly, the Hon'ble Supreme Court in the said case has held that it would not be justified to issue directions towards appointing claimants on compassionate ground 14 years after the death of a government employee. It was further held that such a direction would amount to treating a claim for compassionate appointment as though it was a matter of inheritance based on a line of succession.

¶21The Hon'ble Supreme Court in the case of State of W.B. v. Debabrata Tiwari & ors.[reported in (2023) SCC Online SC 219], upon considering the earlier decision 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. Page No.# 9/12 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.

¶33The 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.

¶34As 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.

¶35Considering 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 Page No.# 10/12 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.

¶36Laches 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."

¶37Whether 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.

¶38In 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 Page No.# 11/12 important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction."

¶39While 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.

¶40Further, 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."

¶22Applying the ratio of the decision of the Hon'ble Supreme Court in the case of Debabrata Tiwari(surpa), more particularly, the observations as made in paragraphs 35 to 39, thereof, this Court is of the considered view that the sense of immediacy, in the present case, is diluted and lost. Accordingly, the grant of compassionate appointment in the present case, as noted by the Hon'ble Supreme Court in the case of Hakim Singh(supra), would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on the lines of succession which is contrary to the Constitution of India. It is further held that 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 servant as a consequence of his death, a claim for appointment on compassionate ground cannot be entertained after a lapse of a considerable period of time since the death of the government servant, more so, when the family had been able to sustain itself during the long period after the death of the Government servant. Page No.# 12/12

¶23This Court further notices that there is nothing on record to show that the petitioner was diligently pursuing the matter with the authorities and/or had after 2004, instituted proceedings raising grievance with regard to the failure on the part of the authorities to consider her case for appointment on compassionate ground till the filing of the present proceedings. Further, the case of the petitioner having been duly considered by the constituted committee and her case rejected, the petitioner's case cannot be, now, at this distant point of time, be directed to be again considered by the respondents.

¶24As noticed by the Hon'ble Apex Court in the case of Debabrata Tiwari (supra), the operation of a policy/scheme for compassionate appointment is founded on consideration of immediacy and in the present proceedings, the sense of immediacy is lost and/or diluted.

¶25The petitioner and/or his family having not pursued the matter in the long absence occasioning after the death of the father of the petitioner, the petitioner having been able to eke out a living even though not favoured with an appointment on compassionate ground; this Court is of the considered view that this is not a fit case to direct the respondent authorities to again consider the case of the petitioner for appointment on compassionate ground.

¶26Accordingly, the writ petition is devoid of any merit and the same stands dismissed. There shall be no order as to costs. JUDGE Comparing Assistant

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