Brajen Patowary v. The State of Assam and 3 Ors

ORDER Date : 22.04.2024

Heard Ms. K. Devi, learned counsel for the petitioner. Also heard Ms. P. Das, learned standing counsel, Secondary Education Department, appearing on behalf of Respondents No. 1, 2 & 3; and Ms. Deepanjalee Das Barman, learned Addl. Senior Government Advocate, appearing on behalf of Respondent No. 4. Page No.# 2/11

¶2As agreed to by the learned counsels appearing for the parties; this writ petition is taken-up for final consideration and disposal.

¶3The petitioner by way of instituting this present proceedings, has raised a grievance with regard to the action/inaction on the part of the respondent authorities in not considering his case for appointment on compassionate ground.

¶4As projected in the writ petition; the father of the petitioner Late Tapan Patowary while working as an UDA in the establishment of the Inspector of Schools, Nalbari District Circle, Nalbari, had died in harness on 27.12.2008. Pursuant to the death of the father of the petitioner; the mother of the petitioner, on 01.07.2009, submitted an application on behalf of the petitioner for his appointment on compassionate ground. It is contended in the writ petition that the petitioner had also submitted an application on 01.07.2009, for the same purpose.

¶5The case of the petitioner was placed before the District Level Committee(DLC) in its meeting held on 13.07.2012 and therein, although the case of the petitioner was considered, however, no recommendation came to be made in his favour. It is also contended by the petitioner in the writ petition that after the placement of his case in the meeting of the District Level Committee(DLC) held on 13.07.2012; the case of the petitioner was never considered in any of the subsequent meetings so held.

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¶6The petitioner has further contended in the writ petition that the respondent authorities ought to have considered his case in the subsequent meetings of the District Level Committee(DLC) held in pursuance to the meeting so held on 13.07.2012 and the non-consideration of the case of the petitioner by the authorities, has resulted in a valuable right as vested on the petitioner for being appointed on compassionate ground, to be lost.

¶7The petitioner, in the writ petition, by way of filing an additional affidavit on 09.04.2012, in the matter, has also contended that he had filed several representations in the matter before the authorities praying for compassionate appointment starting from the representation as filed by him on 07.08.2014, followed by the representations dated, 07.08.2016, 07.08.2018, 03.02.2020 and

03.02.2022.

¶8This Court has considered the materials as available on record including the materials brought on record by the petitioner vide the additional affidavit, dated 09.04.2012. It is seen that the petitioner, at regular intervals, had approached the jurisdictional Inspector of Schools, praying for a consideration of his case for appointment on compassionate ground. Such applications were made by the petitioner at specified intervals.

¶9Although the petitioner has submitted that he had filed several representations before the authorities, but, it is not contended in the writ petition as to why in the absence of a favourable response being received from the authorities; given the condition the family of the petitioner was stated to be Page No.# 4/11 in upon the death of the government servant, the petitioner had not instituted appropriate proceedings before this Court.

¶10Further, there is no explanation available on record as to why the grievance of the petitioner on account of non-consideration of his case, was not agitated by the petitioner before this Court by way of filing an appropriate application during the period after 2008 till institution of the present proceeding on 11.12.2023.

¶11The materials on record reveal that the family of the petitioner had sustained for the last about 15 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, is not called for.

¶12The 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.

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¶13In the case on hand, the family having survived for such a long period of time after the death of the father of the petitioner on 27.12.2008, 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.

¶14The issues as arising in the present proceedings is covered by the recent decision of the Hon'ble Apex Court rendered in the case of State of W.B. v. Debabrata Tiwari & ors.[reported in (2023) SCC Online SC 219], 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.

Page No.# 6/11 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 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 Page No.# 7/11 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 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 Page No.# 8/11 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."

¶15Applying the ratio as contained in the decision of the Debabrata Tiwari(supra) to the facts of the present case, it is found that there is nothing on record to show that the petitioner was diligently pursuing the matter with the authorities and/or had after 2008, instituted appropriate proceedings before this Court raising grievance with regard to the failure on the part of the authorities to consider his case for appointment on compassionate ground. Accordingly, the case of the petitioner does not merit any consideration for appointment on compassionate ground and the case cannot be now directed to be considered by the respondents.

¶16As noticed by the Hon'ble Apex Court in Debabrata Tiwari(supra), the operation of a policy/scheme for compassionate appointment is founded on consideration of immediacy.

¶17This Court, at this stage; would now consider the contention of the petitioner in the additional affidavit filed that he was regularly approaching the authorities by way of filing representations to demonstrate that the matter was being pursued by him. It is settled position of law that mere filing of representations alone would not save the period of limitation. In this connection, reference is made to the decision of the Hon'ble Supreme Court in the case of State of Uttaranchal & anr. v. Shiv Charan Singh Bhandari & ors., Page No.# 9/11 as reported in (2013) 12 SCC 179. The relevant paragraphs of the said decision, is extracted hereinbelow: "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 arise time.

¶23In State of T. N. Seshachalam, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: (SCC p. 145, para 165) "16……. filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."

¶18To further appreciate the issue of delay and laches; this Court would now like to refer to the observations made by the Hon'ble Supreme Court in the case of C. Jacob v. Director of Geology and Mining & anr., reported in (2008) 10 SCC 115; wherein, the Hon'ble Supreme Court considered the case of a terminated employee who after decades, filed a representation which was decided after a decision was rendered on the representation. The terminated employee preferred an original application before the Tribunal and the same was entertained by passing an order. In respect of such belated representation, the Hon'ble Supreme Court in the above-cited case, has noted as under: "9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any "decision" on rights and obligation of parties. Little do they realize the consequences of such a direction to "consider". If the representation is consideration and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to "consider". If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the Page No.# 10/11 huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.

¶15The present case is a typical case of "representation and relief". The petitioner keeps quiet for 18 years after the termination. A stage is reached when no record is available regarding his previous service. In the representations which he makes in 2000, he claims that he should be taken back to service. But on rejection of the said representation by order dated 9-4-2002, he filed a writ petition claiming service benefits, by referring the said order of rejection as the cause of action. As noticed above, the learned Single Judge examined the claim, as if it was a live claim made in time, finds fault with the respondents for not producing material to show that termination was preceded by due enquiry and declares the termination as illegal. But as the petitioner has already reached the age of superannuation, the learned Single Judge grants the relief of pension with effect from 18-7-1982, by deeming that he was retired from service on that day. We fail to understand how the learned single Judge could declare a termination in 1982 as illegal in a writ petition filed in 2005. We fail to understand how the learned single Judge could find fault with the Department of Mines and Geology, for failing to prove that a termination made in 1982, was preceded by an enquiry in a proceedings initiated after 22 years, when the Department in which the petitioner had worked had been wound up as long back as in 1983 itself and the new Department had no records of his service."

¶19In view of the position as clarified by the Hon'ble Supreme Court of India in the above-noted judgments, mere filing of the representations by the petitioner in the matter, would not give rise to a situation wherein his claim for being extended with an appointment on compassionate ground to subsist and the issue involved, cannot, at present, be held to be a live issue. The issue involved in the present proceedings, 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 2008.

¶20The petitioner and/or his family members having not pursued the matter diligently before the authorities and/or instituted appropriate proceedings before this Court in the long absence occasioning after the death of the father of the petitioner in 2008, the petitioner having been able to eke out a living even Page No.# 11/11 though not favoured with an appointment on compassionate ground; this Court, therefore, does not deem it to be a fit case to direct the respondent authorities to consider the case of the petitioner for appointment on compassionate ground.

¶21In that view of the matter, 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

Page No.# 1/11 GAHC010281102023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7207/2023 BRAJEN PATOWARY S/O- LATE TAPAN PATOWARY, R/O- KALAG, P.O. KALAG, DISTRICT- NALBARI, ASSAM, PIN- 781351 VERSUS THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE PRINCIPAL AND SECRETARY TO THE GOVT. OF ASSAM, SECONDARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI-6 2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19 3:THE INSPECTOR OF SCHOOLS NALBARI DISTRICT CIRCLE NALBARI ASSAM 4:THE DEPUTY COMMISSIONER CUM CHAIRMAN DISTRICT LEVEL COMMITTEE NALBARI Advocate for the Petitioner : MRS. K DEVI Advocate for the Respondent : SC, SEC. EDU. BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR