High Court
Case Details
WP(C) 3364/2013 BEFORE THE HON’BLE MR JUSTICE T VAIPHEI Heard Mr. J. Islam, learned counsel for the petitioner and Mr. JI Barbhuiya, lea rned standing counsel, Public Health Engineering Department (for short, ’PHE’) f or the respondents.
Facts
The controversy regarding the entitlement of the petitioner for compa 2. ssionate appointment is once again confronting this Court in this second writ pe tition. The facts of the case are hardly disputed. The petitioner is the wife of the Late Majibur Rahman Laskar, a Grade-IV employee (Khalasi) under the Departm ent of PHE, Silchar Division No. II, Cachar, Assam, who died-in-harness on 12.4. 01. Evidently, the petitioner had promptly filed an application for her appointm ent on compassionate ground. When her application was found to be not fruitful, she approached this Court in WP(C) No. 8325/01, and this Court by the order dat ed 15.5.02 disposed of the writ petition by directing the respondents to conside r the entitlement of the petitioner for the compassionate appointment in accorda nce with the scheme framed by them and pass necessary orders in connection there with. It was also directed therein that if for any reason cases of the other per sons are pending before the authority and for aforesaid reason consideration, fi nal orders could not be made within the time schedule as fixed, the authority sh ould inform the petitioner by necessary communication to be sent by registered p ost about the fate of her case. Apparently, this order was not complied with by the respondent authorities, whereupon the petitioner filed a contempt petition b eing Cont. Case (C) No. 662/2003 impleading the Commissioner and Secretary to th e Govt. of Assam, PHE, Dispur, in person as party respondent. This Court by the order dated 12.9.2003 noticing that the contempt petition was filed after more t han one year, closed the contempt case presumably on the ground that it was barr ed by limitation. Notwithstanding, the closure of the contempt case field by her , the petitioner obviously continued to keep her hope alive. 3. To raise her expectation further, the Executive Engineer, PHE, Silcha r Division No.II, in his letter dated 7.7.09 addressed to the petitioner informe d her that her application for appointment on compassionate ground had been forw arded to the Deputy Commissioner, Cachar, under Serial No.12 of the prescribed f ormat which was awaiting for the approval of the District Level Committee and as per her seniority, her case would be considered for appointment by the District Level Committee which would be intimated to her. In reality, this letter was no t taken seriously by the concerned authority. The Executive Engineer, PHE, Silch ar Div. No.II, Cachar, is admittedly not the competent authority to consider the case of the petitioner. However, as stated earlier, this letter has unnecessari ly kept her hope alive. When, no action was forthcoming to her expectation and e mboldened by the said letter of the Executive Engineer, PHE, she is now filing t his writ petition.
Legal Reasoning
(cid:28)We are of the view that the extraordinary situations require extraordinary remedies and it is open to the Government in real hard cases to deviate from the letter and spirit of the instructions and to provide relief in cases where it i s so warranted. To hold as a matter of law that the Government cannot deviate ev en minutely from the policy of providing appointment only against Class III and Class IV posts, would be to ignore the reality of life these days. It would be r idiculous to expect that a dependant of a deceased Class I Officer, should be of fered appointment against a Class III or IV post. While we leave it to the Gover nment to exercise its discretion judiciously in making appointments to Class I o r II posts on compassionate grounds, yet a word of caution needs to be struck. I t is to be noted that such appointments should be ordered in the rarest of rare cases, and in very exceptional circumstances. As a matter of fact, we would reco mmend that the Government should frame a policy even for such appointments. (cid:29) 5. It is obvious from the above observations that the High Court endorses the policy of the State Government to make compassionate appointment in posts eq uivalent to the posts held by the deceased employees and above Classes III and I V. It is unnecessary to reiterate that these observations are contrary to law. I f the dependant of the deceased employee finds it below his dignity to accept th e post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity. 6. For these very reasons, the compassionate employment cannot be granted a fter a lapse of a reasonable period which must be specified in the rules. The co nsideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financ ial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of tim e and after the crisis is over. (cid:29) 7. In my opinion, the factual position obtaining in this case is within the four corners of the observations of the Apex Court extracted in the foregoi ng. For the reasons stated in the foregoing, this writ petition is not maintaina ble on the ground of laches, and is hereby dismissed. No costs.
Arguments
The learned counsel for the petitioner would like to contend that th 5. ere is no delay as such inasmuch as by the said letter dated 7.7.09, the petitio ner has the legitimate expectation that she would be appointed on compassionate ground if a direction is passed by this Court to that effect. The learned counse l for the petitioner further submits that the petitioner is an illiterate lady a nd a mother of two minor children, who are in need of financial support and in h er pursuit for their survival, she did not have the time or means to prosecute h er case nor was she expected to know about the law of laches, which themselves c onstitute sufficient cause for not coming to this Court in time. She, therefore, submits that the case is neither hit by res judicata nor by laches. In respect of the point on res judicata, the learned counsel for the petitioner forcefully submits that the principle of res judicata is not applicable in the instant case as the earlier writ petition of the petitioner was not finally heard or decided by this Court. There is, I think, force in the contention of the learned counse l for the petitioner as far as the question of res judicata is concerned: it cou ld be said that the issue was never argued, heard or finally determined in the e arlier writ petition. Nevertheless, I am afraid, the petitioner is not yet out o f the wood. 6. The learned standing counsel for the respondent authorities has rais ed the issue of laches and waiver/acquiescence by pointing out that 12 years hav e passed since the direction of this Court and as such the writ petition based o n same subject-matter is liable to be dismissed. He further submits that in term s of the decision of the Apex Court in the case of Umesh Kumar Nagpal v. State o f Haryana and others reported in (1994) 4 SCC 138 and State Bank of India and ot hers v. Jaspal Kaur reported in (2007) 9 SCC 571, the writ petition is undoubted ly barred by the principle of laches. The learned standing counsel, therefore, strenuously urges this Court to dismiss the writ petition. 7. I have carefully considered the submissions of the learned counsel ap pearing for the rival parties and have also gone through the materials on record . What cannot be overlooked in this case is that when this Court passed the dir ection in question in 2002, and the same was not complied with by the respondent authorities, the petitioner had filed a said contempt case, it happened that th e contempt petition had turned out to be time barred and was rightly closed by t his Court. Therefore, the direction of this Court can be said to have spent its force once it was not implemented within a period of limitation as far as this C ourt is concerned. As a matter of fact, the petitioner could also be said to hav e acquiesced in to the inaction of the respondent authorities over the years. Th is may not, however, preclude the respondent authorities from considering the ca se of the petitioner, if there is vacancy to accommodate her and she is otherwis e eligible for the post. But then the decision of the Apex Court in Umesh Kumar Nagpla (supra) cannot be overlooked in a case of this nature. The relevant obser vations are found at paragraphs 4, 5 & 6 of the said judgment, which are reprodu ced hereunder: (cid:28)4. It is for these reasons that we have not been in a position to apprecia te judgments of some of the High Courts which have justified and even directed c ompassionate employment either as a matter of course or in posts above Classes I II and IV. We are also dismayed to find that the decision of this Court in Sushm a Gosain v. Union of India1 has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of cou rse or in employment in posts above Classes III and IV. In the present case, the High Court has rightly pointed out that the State Government’s instructions in question did not justify compassionate employment in Class II posts. However, it appears from the judgment that the State Government had made at least one excep tion and provided compassionate employment in Class II post on the specious grou nd that the person concerned had technical qualifications such as M.B.B.S., B.E. , B.Tech. etc. Such exception, as pointed out above, is illegal, since it is con trary to the object of making exception to the general rule. The only ground whi ch can justify compassionate employment is the penurious condition of the deceas ed’s family. Neither the qualifications of his dependant nor the post which he h eld is relevant. It is for this reason that we are unable to understand the foll owing observations of the High Court in the impugned judgment: