Page No.# 1/10 GAHC010228602024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6646/2024 SUBHASIS NATH S/O- LATE KSHITISH CHANDRA NATH VILL.- MUKTACHERRA P.O. UMEDNAGAR P.S. LALA DIST. HAILAKANDI ASSAM VERSUS THE STATE OF ASSAM AND 4 ORS TO BE REPRESENTED BY SECRETARY TO THE GOVERNMENT OF ASSAM ANIMAL HUSBANDRY AND VETERINARY DEPARTMENT ASSAM DISPUR GUWAHATI-06. 2:THE DIRECTOR OF ANIMAL HUSBANDRY AND VETERINARY DEPARTMENT ASSAM CHENIKUTHI GUWAHATI-03. 3:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PERSONNEL (B) DEPARTMENT DISPUR GHY-781006. 4:THE DEPUTY COMMISSIONER HAILAKANDI CUM CHAIRMAN DISTRICT LEVEL COMMITTEE FOR COMPASSIONATE APPOINTMENT DIST. HAILAKANDI ASSAM Page No.# 2/10 5:THE DISTRICT ANIMAL HUSBANDRY AND VETERINARY OFFICER HAILAKANDI ASSAM ------------ Advocate for : MR. K MIRA Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 4 ORS BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 06.01.2025 Heard Mr. K. Mira, learned counsel for the petitioner. Also heard Ms. M. M. Kakoti, learned Standing Counsel for the A. H. & Vety Department representing the respondent nos. 1, 2 & 5 and Mr. D. Borah, learned Government Advocate representing the respondent nos. 3 & 4. 2. The petitioner by way of instituting the present proceeding has presented a challenge to an Office Memorandum dated 18.09.2024, issued by the Commissioner & Secretary to the Government of Assam, by which the Government of Assam had adopted a policy to the effect that no cases for appointment on compassionate grounds to family members of the State Government employees, who died in harness on retired prematurely or, on being declared permanently incapacitated from service, or missing or whose whereabouts is not known, prior to 31.03.2017, shall be entertained by any administrative department/authority for any reason nor, such cases shall be placed before the concerned SLC/DLC for recommendation for appointment on compassionate grounds. The petitioner has further prayed for a direction to the Page No.# 3/10 respondent authorities for placing of his application seeking appointment on compassionate grounds before the jurisdictional District Level Committee (DLC) for consideration. 3. The brief facts requisite for adjudication of the issue arising in the present proceeding is noticed as under:- The father of the petitioner late Kshitish Chandra Nath, while working as a Veterinary Field Assistant (VFA) in the establishment of Animal Husbandry & Veterinary, Hailakhandi, Assam, had died in harness on 08.04.2009. In pursuance to the death of the father of the petitioner, the elder brother of the petitioner Shri Debashis Nath had submitted an application on 03.06.2010, for consideration of his case for appointment on compassionate grounds. However, as projected in the writ petition, the said application submitted by the petitioner was not considered in the manner required by the respondent authorities. Thereafter, said elder brother of the petitioner on 05.07.2023, submitted an application before the Deputy Commissioner, Hailakhandi, stating therein that he having separated from his family, he requested that his name be not further considered for appointment on compassionate grounds. The elder brother of the petitioner, accordingly, requested that the name of the present petitioner be considered for appointment on compassionate ground. The petitioner thereafter, submitted an application on 17.07.2023, praying for appointment on compassionate grounds. It is to be noted herein, that the application as filed by the petitioner herein, was so filed after around 13 years from the date of death of his father. It is further projected in the writ petition that the case of the petitioner was not placed before the jurisdictional DLC for consideration. The Office Memorandum dated 18.09.2024 having now been issued by the respondent authorities, and in terms thereof, it being not permissible further to consider the cases of dependents of government servants, who had died on harness prior to Page No.# 4/10 31.03.2017, the petitioner has instituted the present proceeding, praying for the reliefs as noticed herein above. 4. At the outset, it is to be noted that in pursuance to the death of the father of the petitioner which had so occasioned on 08.04.2009, the elder brother of the petitioner had submitted an application on 03.06.2010 for appointment on compassionate grounds. The said application remained pending without a due consideration till 05.07.2023. On 05.07.2023, the elder brother of the petitioner by submitting a representation, requested the jurisdictional Deputy Commissioner to not consider his case any further for appointment on compassionate grounds and to consider the case of his younger brother i.e., the petitioner herein, for appointment on compassionate grounds. 5. It is to be noticed that under the scheme of appointment on compassionate grounds, the application is not transferable and only one member of the family is entitled to apply for being considered for appointment on compassionate grounds upon the death in harness of the government servant involved. The application as submitted by the petitioner herein, was so submitted only on 17.07.2023 i.e., after around 14 years from the date of death of his father and the same is to be reckoned as a fresh application. In the above view of the matter, the said application of the petitioner submitted beyond the periods so prescribed for submission of applications for appointment on compassionate ground by a claimant, would not merit a consideration. 6. The father of the petitioner having died in harness on 08.04.2009, it is seen that the family of the petitioner inspite of not being favoured with an appointment on compassionate grounds had sustained themselves for the last around 15 years. The objective of compassionate appointment is to provide the bereaved family with immediate financial assistance and the family having been able to support itself through the years; appointment on compassionate grounds Page No.# 5/10 is not called for. 7. Support with regard to the said conclusion reached by this Court is drawn from the decision of the Hon’ble Supreme Court in the case of State of West Bengal Vs Debabrata Tiwari & Ors., reported (2023) SCC Online SC 219. The Hon’ble Supreme Court in the said decision had 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 dependents 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.# 6/10 33. The 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 dependents 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 dependents 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 dependents 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 Page No.# 7/10 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 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 Page No.# 8/10 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.” 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: “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.” 8. 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 08.04.2009, the consideration that is now sought to be made in respect of the petitioner herein, for appointment on compassionate grounds is a consideration so required to be made after a lapse of around 15 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 Page No.# 9/10 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 grounds be considered or entertained by the respondent authorities. 9. In view of the foregoing discussions and conclusions reached herein above 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 grounds in pursuance to death of his father, in harness, occasioning in the year 2009. 10. At this stage, the challenge as presented by the petitioner to the Office Memorandum dated 18.09.2024 is being examined. 11. This court herein above, in the facts and circumstances involved in the present proceeding, having already concluded that the claim of the petitioner for being appointed on compassionate grounds, on account of the delay so occasioning in the matter, having been rendered to be a stale one, no direction in this connection would be called to be issued, the challenge to the said Office Memorandum dated 18.09.2024, in the considered view of this Court, cannot be permitted to be so made by the petitioner herein. Even if the said Office Memorandum is interfered with by this Court, it would be of no consequence, insofar as, the claim of the petitioner is concerned, in view of the fact that his case would not be called upon to be considered by the committees in place prior to issuance of the said Office Memorandum dated 18.09.2024. Accordingly, the challenge as presented in the present proceeding by the petitioner to the said Office Memorandum dated 18.09.2024 is not entertained. 12. 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 would be Page No.# 10/10 no order as to costs. JUDGE Comparing Assistant