Md. Fazrul Islam v. The State of Assam and 3 Ors

ORDER Date : 05.01.2024

Heard Mr. A. R. Bhuiyan, learned counsel for the petitioner. Also heard Mr. S.M.T. Chistie, learned standing counsel, Secondary Education Department, appearing on behalf of all the respondents.

The petitioner by way of instituting this writ petition, has raised a grievance with regard to non-consideration of his case for appointment on compassionate ground in existing Grade-IV vacancy.

The father of the petitioner Late Afjal ali while serving as an Assistant Teacher in Mugdi Milan Higher Secondary School, Nalbari, died in harness on

16.02.2011. Thereafter, the petitioner had submitted an application, praying for appointment on compassionate ground on 05.04.2011.

It is the projected case of the petitioner that the jurisdictional District Level Scrutiny Committee (DLSC) in its meeting held on 13.07.2013, had recommended the case of the petitioner for appointment on compassionate ground. However, the said recommendation was considered by the State Level Scrutiny Committee(SLSC) in its meeting held on 13.09.2013 and the case of the petitioner was rejected on account of non-availability of vacancies. The case of the petitioner was again considered by the State Level Scrutiny Committee(SLSC) in its meeting held on

26.08.2014. However, the case of the petitioner for the grounds stated therein was again rejected. Page No.# 3/7 The petitioner raising the similar grievance, had approached this Court by way of filing a writ petition being WP(c)1031/2016. However, the said writ petition on the prayer made by the petitioner, vide order, dated 04.03.2016, was permitted to be withdrawn by the petitioner with liberty to pursue his matter before the authorities. The petitioner thereafter on 24.08.2016, submitted an application before the Inspector of Schools, Nalbari District Circle, Nalbari, praying for consideration of his case for appointment on compassionate ground. The petitioner, as projected in the writ petition, thereafter submitted a representation on

12.10.2023. There is nothing brought on record to demonstrate that the matter was being diligently pursued by the petitioner till the present writ proceeding was instituted by him on 18.12.2023. Further, 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 him before the authorities concerned or before this Court by way of filing an appropriate application during the period after 2016 till institution of the present proceeding on 18.12.2023.

The materials on record reveal that the family of the petitioner had sustained for the last about 12 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, it is settled law that compassionate appointment cannot be claimed at any point of time after the death of the government servant. The object being enable the family to get over the financial crisis occasioning at the time of the death of the deceased of the Government servant.

The claim of the petitioner as on date is a stale claim and the same if allowed Page No.# 4/7 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.

In the case in hand, the family having survived for such a long period of time after the death of the father of the petitioner on 16.02.2011, 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.

The issues arising herein 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. 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.# 5/7

¶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. 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.

¶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 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 Page No.# 6/7 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.# 7/7 Applying 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 2016, instituted proceedings 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.

As 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.

The 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, I do not think this is a fit case to direct the respondent authorities for consideration of the case of the petitioner for appointment on compassionate ground.

Accordingly, the writ petition is without any merit and the same stands dismissed. There shall be no order as to costs.

JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010285072023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/7387/2023o MD.oFAZRULoISLAMo SONoOFoLATEoAFJALoALI,o RESIDENToOFoVILLAGEoSIDIALoKUCHIoLACHIMA,o P.S.-oMUKALMUA,o DISTRICT-oNALBARI,oASSAM. VERSUSo THEoSTATEoOFoASSAMoANDo3oORSo REPRESENTEDoBYoTHEoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM,o EDUCATIONo(SECONDARY)oDEPARTMENT,o DISPUR,oGUWAHATI-o781006. 2:THEoDIRECTORoOFoSECONDARYoEDUCATION oASSAM oKAHILIPARA oGUWAHATI-o781019. 3:THEoINSPECTORoOFoSCHOOLS oNALBARIoDISTRICToCIRCLE oNALBARI. 4:THEoDEPUTYoSECRETARYoTOoTHEoGOVT.oOFoASSAM oSECONDARYoEDUCATIONoDEPARTMENT-CUM-MEMBERoSECRETARY oSTATEoLEVELoCOMMITTEE o DISPUR oGUWAHATI-o781006o AdvocateoforotheoPetitionerooooo:oMRoAoRoBHUYANo AdvocateoforotheoRespondento:oSC,oSEC.oEDU.oo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR