Salimuddin Saikia v. The State of Assam and 6 Ors

ORDER Date : 31.07.2024

Heard Mr. R. Sarma, learned counsel for the petitioner. Also heard Mr. J. K. Goswami, learned Government Advocate, along with Ms. A. Talukdar, learned Government Advocate; appearing on behalf of respondents No. 1, 2, 3, 4, 5 & 6; and Mr. P. Nayak, learned standing counsel, Finance Department, appearing on behalf of respondent No. 7.

¶2The petitioner, herein, by way of instituting this present proceeding, has raised a grievance with regard to non-consideration of his application for appointment against any Grade-IV post on compassionate ground. Page No.# 3/9

¶3As projected in the writ petition; the father of the petitioner Abdul Motlib Saikia, while serving as a Grade-IV employee(Peon) in the establishment of the Deputy Director, Town & Country Planning, Barpeta, had died in harness on 02.06.2000. The petitioner, thereafter, submitted an application for appointment on compassionate ground. The application of the petitioner was considered by the jurisdictional District Level Committee, in its meeting held on 08.05.2007. The said committee, on such consideration, proceeded to recommended the case of the petitioner for appointment on compassionate ground and for placement of the same, for consideration before the State Level Committee. However, the State Level Committee had not taken any further decision on the application as submitted in the matter by the petitioner and recommended by the jurisdictional District Level Committee.

¶4The recommendations of the jurisdictional District Level Committee being not taken to its logical conclusion; the petitioner, had approached this Court by way of instituting a writ petition being WP(c)193/2014. This Court, vide order, dated, 03.02.2014, disposed of the said writ petition with an observation that if the case of the petitioner has not been so considered; the respondent authorities shall give due consideration to the same within the time-frame prescribed therein. It is contended that the respondent authorities inspite of the directions passed by this Court in the above-noted writ petition; had not given due consideration to the case of the petitioner for appointment on compassionate ground.

¶5Being aggrieved by the delay so occasioning in consideration of his Page No.# 4/9 case; the petitioner has instituted the present proceeding.

¶6I have heard the learned counsels appearing for the parties and also perused the materials available on record.

¶7It is seen that the father of the petitioner had died-in-harness on

02.06.2000 and thereafter, on an application being submitted by the petitioner, herein, his case was considered by the jurisdictional District Level Committee in its meeting held on 08.08.2007 and a recommendation in favour of the petitioner for appointment on compassionate ground against an identified vacancy, came to be so made. The matter was, thereafter, forwarded by the District Level authorities to the Commissioner & Secretary to the Government of Assam, Housing & Urban Affairs Department, for placing of the same before the State Level Committee. However, it is seen that the matter was, thereafter, not processed which led to the institution by the petitioner of a writ petition being WP(c)193/2014 before this Court. This Court on noticing the facts as arising in the matter, had, vide order, dated 03.02.2014, disposed of the said writ petition, requiring the State Level Committee to take a decision on the recommendations as made in the matter in respect of the petitioner, herein, within the time-frame prescribed.

¶8It is also seen that the petitioner, thereafter, had not pursued the matter and it was only on 14.06.2023, that he had purportedly submitted a representation, praying for consideration of his case for appointment on compassionate ground.

Page No.# 5/9

¶9The admitted facts as involved in the matter, reveals that the father of the petitioner had died-in-harness on 02.06.2000 and thereafter, around 24 years have passed by. The family of the petitioner, herein, had sustained during the prolonged period after the death of the government servant and accordingly, it is held that the immediacy as required to be followed in the matter of compassionate appointment stands diluted and the claim of the petitioner, herein, has been rendered stale.

¶10The materials on record reveal that the family of the petitioner had sustained for the last about 24 years and as such, the immediate object behind the grant of appointment on compassionate ground being to mitigate the hardship caused to the family due to death of the bread earner in the family and also, it being a settled position of law that compassionate appointment cannot be claimed at any point of time after the death of the government servant, the object being to enable the family to get over the financial crisis occasioning at the time of the death of the deceased of the Government servant; a direction for consideration of the case of the petitioner for appointment on compassionate ground at this distant point of time, is not called for.

¶11The claim of the petitioner as on date, is a stale claim and the same if allowed to be considered at this distant point of time, would amount to treating compassionate appointment as though it were a matter of inheritance based on the line of succession.

¶12In the case on hand, the family having survived for such a long period of time after the death of the father of the petitioner had occasioned on Page No.# 6/9

02.06.2000; the acceptance of the claim of the petitioner at this distant point of time, would not be in furtherance of the object behind the purport of a scheme for providing appointment on compassionate ground.

¶13The issues as arising in the present proceeding is covered by the recent decision of the Hon'ble Apex Court rendered in the case of Stat [reported in (2023) SCC Onli ], wherein the Hon'ble Court 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.

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.

Page No.# 7/9

¶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 depen-dants 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 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 Page No.# 8/9 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 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." Page No.# 9/9

¶14As 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.

¶15In that view of the matter, the issue involved in the present proceeding, being a stale issue; this Court refrains from proceeding to issue any direction requiring consideration of the case of the petitioner for appointment on compassionate ground in pursuance to the death of his father in harness, occasioning in the year 2000; this writ petition is found to be devoid of merit and the writ petition accordingly stands dismissed. However, there shall be no order as to costs.

JUDGE

Comparing Assistant

PageoNo.#o1/9 GAHC010261672023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/6749/2023o SALIMUDDINoSAIKIAo S/OoABDULoMOTLIBoSAIKIAo VILLoANDoP.O.oDAMPUR,o P.S.oHAJOo DIST.oKAMRUP,oASSAMo PIN-781102o CONTACToNO.o9435559293 VERSUSo THEoSTATEoOFoASSAMoANDo6oORSo REPoBYoTHEoCHIEFoSECRETARYoTOoTHEoGOVT.oOFoASSAM,oDISPUR,o GUWAHATI-6. 2:THEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM oHOUSINGoANDoURBANoAFFAIRSoDEPARTMENT oDISPUR oGUWAHATI-6. 3:THEoSTATEoLEVELoCOMMITTEE oREP.oBYoTHEoCHIEFoSECRETARYoTOoTHEoGOVT.oOFoASSAM oDISPUR oGUWAHATI-6. 4:THEoDIRECTORoOFoTOWNoANDoCOUNTRYoPLANNING oASSAM oDISPUR oGUWAHATI-6. Page No.# 2/9 5:THE DISTRICT LEVEL COMMITTEE REP. BY THE DY. COMMISSIONER BARPETA ASSAM-781301 6:THE DEPUTY DIRECTOR OF TOWN AND COUNTRY PLANNING BARPETA DISTRICT OFFICE ASSAM-781001 7:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI- Advocate for the Petitioner : MR. R SARMA, Advocate for the Respondent : GA, ASSAM, MR P NAYAK (R-7)SC,FINANCE DEPT, ASSAM,MR. J K GOSWAMI (R-1-6) ASGA, ASSAM,SC, FINANCE BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR