Page No.# 1/10 GAHC010228602024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6651/2024 SANJOY BASUMATARY S/O- LATE LANCHA BASUMATARY @ LANCHA RAM BASUMATARY R/O- DEPOT ROAD WARD NO.5 P.O. AND P.S.- KOKRAJHAR DIST.- KOKRAJHAR ASSAM PIN- 783370 VERSUS THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM AGRICULTURE DEPARTMENT DISPUR GUWAHATI-06 2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PERSONAL DEPARTMENT DISPUR GUWAHATI-06 3:THE CHIEF ENGINEER AGRICULTURE DEPARTMENT ASSAM KHANAPARA GUWAHATI-22 4:THE EXECUTIVE ENGINEER KOKRAJHAR AGRICULTURE DIVISION KOKRAJHAR (BTR) Page No.# 2/10 ASSAM 5:THE SECRETARY TO THE B.T.R. AGRICULTURE DEPARTMENT KOKRAJHAR ASSAM ------------ Advocate for : S I AKAND Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 4 ORS BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR JUDGMENT & ORDER (Oral) Date : 06.01.2025 Heard Mr. S. I. Akand, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned Government Advocate appearing for the respondent nos. 1 to 4 and Mr. P. Nayak, learned Standing Counsel BTC appearing for the respondent nos. 5 to 8. 2. The petitioner in the present proceeding has assailed the decision arrived at by the State Level Committee (SLC) on compassionate grounds in its meeting held on 31.08.2024, rejecting the recommendation so made in favour of the petitioner for appointment on compassionate grounds by the jurisdictional District Level Committee (DLC). 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 Lancha Basumatary @ Lancha Ram Basumatary, while working as a Mechanic (Grade-III) in the establishment of the Executive Engineer, Agriculture Kokrajhar Division, had died in harness on 31.05.2002. It is projected that the petitioner thereafter, submitted an application Page No.# 3/10 for appointment on compassionate grounds. The said application of the petitioner not being considered, the petitioner approached this Court by way of instituting a Writ Petition being WP(C) No. 3166/2009. This Court, vide order dated 05.08.2009, was pleased to dispose of the said writ petition by directing the respondent authorities to process the claim of the petitioner for appointment on compassionate grounds in terms of the guidelines laid down by this Court in the case of Achyut Ranjan Das Vs State of Assam and Ors., reported in (2006) 4 GLT 674. Accordingly, the case of the petitioner came to be placed before the jurisdictional DLC in its meeting held 20.09.2023. The jurisdictional DLC, on consideration of the application of the petitioner, recommended his case for appointment on compassionate grounds and required the same to be placed before the SLC for further consideration. The SLC, on consideration of the case of the petitioner was pleased to reject the recommendation so made by the DLC on the ground that more than 22 years had lapsed since the date of death of the Government servant involved and the petitioner and his family having sustained through all these years, there was no occasion to grant appointment on compassionate grounds at that stage. The SLC further noted that the jurisdictional DLC had not recorded any justification towards the necessity existing for grant of appointment on compassionate ground to the petitioner after over 22 years of the death of the Government employee. Being aggrieved, the petitioner has instituted the present proceeding assailing the decision arrived at in his case by the SLC in its meeting held on 31.08.2024. The petitioner has also presented a challenge to the Office Memorandum dated 18.09.2024, 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, Page No.# 4/10 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. 4. The learned counsels appearing for the parties have reiterated the facts as noticed herein above. I have heard the learned counsels for the parties and also noticed the materials brought on record. 5. It is an admitted fact that the father of the petitioner had died in harness while serving as a Mechanic Grade-III in the establishment of the respondent no. 4 on 31.05.2022. The petitioner although had submitted his application praying for appointment on compassionate grounds, immediately, after death of his father, the said application was placed for consideration before the DLC only in its meeting held on 20.09.2023. Thereafter, the matter came to be placed before the SLC and the SLC, in its meeting held on 31.08.2024, considered the recommendation so made by the jurisdictional DLC in respect of the petitioner and on such consideration, drew the following conclusions:- (i) The SLC went through the order dated 05.08.2009 passed by the Hon’ble High Court in WP(C)3166/2009 wherein, it was directed to consider the case of the petitioner for appointment on compassionate ground as per guidelines. The DLC, in its meeting held on 20.09.2023, recommended the application of Sri Sanjoy Basumatary to be placed before the SLC. (ii) The SLC noted that the Govt. employee had expired on 31.05.2002, i.e. more than 22 years ago. The objective of compassionate appointments is to provide the bereaved family with immediate financial assistance to cope up with the situation. It is an accepted norm that in case several years have passed after the death of a Govt. employee, it would appear on the face of it that the family has managed to support itself all these years and has some means of subsistence and in such case, compassionate appointment are not ordinarily to be given. In the instant case, the DLC has not recorded any Page No.# 5/10 ground for recommendation, and in particular, has not made up a case to justify requirement of compassionate appointment after over 22 years of the death of the Govt. employee. (iii) In light of the above, the SLC rejected the case. 6. A perusal of the conclusions as drawn in the matter by the SLC would go to show that the case of the petitioner came to be rejected primarily on the ground of delay so occasioning in the matter. The SLC had noted that the father of the petitioner had expired on 31.05.2002 and by the time the case was so placed before the SLC, more than 22 years had elapsed. It further went to observe that the objective of compassionate appointment is to provide the bereaved family with immediate financial assistance and the family having able to support itself through the years; appointment on compassionate grounds is not ordinarily called for. It is to be noted that the SLC had further noted that the DLC while making its recommendation in the matter had not justified the necessity of appointment on compassionate grounds in respect of the petitioner herein, after around 11 years from the date of death of the Government employee. 7. The said reasoning as advanced by the SLC in its meeting held on 31.08.2024 finds support 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. Page No.# 6/10 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. 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. Page No.# 7/10 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 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 Page No.# 8/10 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 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: Page No.# 9/10 “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 31.05.2002. 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 22 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 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 2002. 10. At this stage, the challenge as presented by the petitioner to the Office Memorandum dated 18.09.2024 is being examined. Page No.# 10/10 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 no order as to costs. JUDGE Comparing Assistant