ABINASH CHOUDHURY v. THE STATE OF ASSAM & Ors

Advocate for the Petitioner : MR. N HOSSAIN Advocate for the Respondent : SC, ELEM. EDU Page No.# 2/8 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

07.02.2024 ORDER None appears for the petitioner even on second call. Mr. A. Phukan, learned Standing Counsel Elementary Education department appears for the respondent Nos. 1, 2 and 4 and Ms. D. Das Barman, learned Senior Government Advocate appears for respondent No.3. The petitioner in the present proceedings has raised a grievance with regard to the rejection of his claim for appointment on compassionate ground by the jurisdictional District level Committee in its meeting held on 04.01.2022. As projected in the writ petition, the father of the writ petitioner Lt. Dhiren Choudhury while serving as a Head Teacher of Kaithpara (Provincialized) LP School died in harness on 08.11.2014. The mother of the petitioner approached before the respondent authority for appointment on compassionate ground and the case of the mother was considered by the jurisdictional District Level Committee in its meeting held on 12.10.2015 and on such consideration, the name of the mother was recommended for appointment against a Grade-IV post on compassionate grounds. However, such recommendation of the District Level Committee was rejected by the State Level Committee on scrutiny in its meeting held on

20.07.2017 on account of lack of vacancy. Page No.# 3/8 It is seen that the petitioner at the time of the death of his father was minor and accordingly after attaining majority the petitioner submitted an application on

25.10.2021 before the Deputy Commissioner, Kamrup (R) for appointment on compassionate ground. Such application submitted by the petitioner was placed before the Jurisdictional District Level Committee in its meeting held on

04.01.2022. The said committee on consideration of the application of the petitioner proceeded to reject the same with the following observation:

Hence, today’s DLC decided to reject the application of Smti Namita Choudhury, who has been proposed her son Abinash Choudhury as candidate as there are no provisions of change of candidature in different times for appointment under compassionate ground for a single candidate. Not Recommended.

Being aggrieved, the petitioner has instituted the present proceeding. It is seen that in the present case immediately after the death of the father of the petitioner, his mother had made an application for appointment on compassionate ground. This said application was duly considered by the jurisdictional District Level Committee and the mother of the petitioner was recommended for appointment on compassionate grounds against a Grade-IV vacancy, however, such recommendation came to be rejected by the State Level Committee on the ground of non availability of vacancy to accommodate her.

The said rejection by the State Level Committee had occasioned on 20.07.2017. However, the said rejection was never put to challenge before any forum including this Court. Accordingly, the said rejection has attained its finality. In the scheme holding the field there is no provision for consideration of the case of a 2nd member in a family for appointment on compassionate ground after the application made by another person in the family was considered and rejected. Accordingly, rejection of the application of the petitioner by the DLC holding that there is no provision for change of candidature in different time for appointment under compassionate ground does not warrant Page No.# 4/8 any interference. 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.

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 dependants of the deceased who may be eligible for Page No.# 5/8 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.

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.

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.

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 Page No.# 6/8 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.

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.

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 Page No.# 7/8 meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.