Research › Search › Judgment

Gauhati High Court · body

2025 DIGILAW 171 (GAU)

Jitu Tapan Das v. State of Assam

2025-01-30

SANJAY KUMAR MEDHI

body2025
JUDGMENT : SANJAY KUMAR MEDHI, J. The instant petition under Article 226 of the Constitution of India has been filed with a claim for appointment on compassionate ground. 2. The projected case of the petitioner, in a nutshell is that his father, Lalit Chandra Das, who was working as Grade-IV in the Raidongia H. Saikia H.S. School in the district of Nagaon had died in harness on 26.01.2012. The petitioner who claims to be eligible had applied for appointment on compassionate ground and the District Level Committee (DLC) vide meeting held on 09.08.2012 had recommended the case of the petitioner. In the said meeting however, the candidature of the respondent no. 8 was rejected. It is the case of the petitioner that the DLC had another meeting on 23.04.2013 in which however, the claim of the petitioner was rejected while that of the respondent no. 8 was recommended. Be that as it may, it appears that both the minutes were taken into consideration by the State Level Committee (SLC) on 26.08.2014 in which the case of the respondent no. 8 was recommended. 3. Being aggrieved, the present writ petition was instituted. It may however be mentioned that at the time of filing of the writ petition, the respondent no. 8 was not made a party respondent and in the meantime, she was appointed. Subsequently, I.A.(C)/549/2017 was filed for impleadment which was allowed by this Court on 07.04.2017. 4. I have heard Shri M. Dutta, learned counsel for the petitioner. I have also heard Shri JK Goswami, learned Additional Senior Government Advocate, Assam, Shri PN Sharma, learned Standing Counsel, Elementary Education Department and Shri S. Ahmed, learned counsel for the respondent no. 8. 5. The learned counsel for the petitioner has submitted that the impugned decision is not supported by any justifiable grounds or reasons, no reasons were assigned as to why the DLC had adopted another Resolution on 23.04.2013 rejecting the candidature of the petitioner despite the earlier Resolution dated 09.08.2012 his candidature was recommended. It is also submitted that the recommendation of the SLC in favour of the respondent no. 8 by ignoring the candidature of the petitioner is also not backed by any reasons which would appeal to a prudent man. It is also submitted that the recommendation of the SLC in favour of the respondent no. 8 by ignoring the candidature of the petitioner is also not backed by any reasons which would appeal to a prudent man. He submits that once the candidature of the petitioner was recommended by the DLC, it was incumbent upon the SLC to consider the case of the petitioner in the proper perspective. 6. Per contra, Shri Goswami, learned State Counsel has, at the outset, submitted that as on date, there is no provision for appointment on compassionate ground and in this regard he has placed before this Court Office Memorandum dated 18.09.2024. He accordingly contends that the writ petition itself has become infructuous. He otherwise contends that the reasons cited for rejecting the case of the petitioner are relevant and germane and therefore, the submission that there is illegality cannot be countenanced. He submits that lack of vacancy is a valid ground as the existing vacancies are filled up within the quota amongst large number of aspirants. He further submits that the objective of the scheme for appointment on compassionate ground is to give immediate relief to a bereaved family which has lost its sole bread winner, who was a Government servant. It is submitted in the instant case that the death was in 2012 and in the meantime, more than 12 years have passed and therefore, there is no requirement in law for such consideration. He has also submitted that affidavit-in-opposition was filed by the respondent no. 1 on 17.06.2016. He has relied upon the case of State of West Bengal Vs. Debabrata Tiwari reported in (2023) SCC Online SC 219. 7. Shri S. Ahmed, learned counsel for the respondent no. 8 while endorsing the submission of the learned State Counsel has contended that the appointment of the respondent no. 8 as such is not the subject matter of challenge and therefore, no relief can be granted to the petitioner qua the appointment of his client. He has informed that vide order dated 07.04.2017 passed in I.A.(C)/549/2017, the respondent no. 8 was only impleaded as party respondent. However, there was no amendment made to the writ petition to challenge the appointment. 8. He has informed that vide order dated 07.04.2017 passed in I.A.(C)/549/2017, the respondent no. 8 was only impleaded as party respondent. However, there was no amendment made to the writ petition to challenge the appointment. 8. Shri Dutta, learned counsel for the petitioner in his rejoinder has submitted that so far as OM dated 18.09.2024 is concerned, the same is the subject matter of challenge in the number of writ petitions in this Court. 9. The rival contentions of the learned counsel for the parties have been duly considered. 10. The materials on record make it clear that the death of the father of the petitioner was on 26.01.2012. The consideration for rejection of the application of the petitioner is lack of vacancy. Such reasons cannot be said to be irrelevant or extraneous and no substantial materials have been able to be demonstrated by the petitioner to overcome the same which is a factual matter. It also transpires that though the respondent no. 8 was impleaded as party respondent, there is no challenge to the appointment and therefore, no effective relief can be granted to the petitioner in that regard. 11. There is another aspect of the matter with regard to the very objective of the scheme for compassion appointment. The very objective of the scheme, which is an exception to the general mode of recruitment, is to give immediate succor to a family which has lost its sole breadwinner who was a Government servant and such objective would not survive after a gap of more than 12 years. 12. The law on compassionate appointment has been elaborately explained by Hon’ble Supreme Court in the recent case of Debabrata Tiwari (supra). In the said case, almost all the earlier cases on the subject of compassionate appointment have been discussed and the principles have been laid down. It has been reiterated that an appointment on compassionate ground is a departure from the normal rule and is an exception which is meant only to enable the bereaved family to tie over the sudden financial crisis on the death of a government servant while in service. It has also been clarified that it is not a vested right and the aspect of delay would be of paramount consideration. The relevant portion of the said judgment is extracted hereinbelow- “7.2. It has also been clarified that it is not a vested right and the aspect of delay would be of paramount consideration. The relevant portion of the said judgment is extracted hereinbelow- “7.2. 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.” 13. On the aspect of delay, the Hon’ble Supreme Court in the while examining the said aspect from the context of the scheme has also laid down that even if the delay is on account of the authorities, the sense of immediacy is diluted and lost. The relevant part as observed in paragraph 7.5 of the aforesaid judgment is extracted herein below:- “7.5. The relevant part as observed in paragraph 7.5 of the aforesaid judgment is extracted herein below:- “7.5. 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, an noted by this Court in Hakim Singh would amount to treating a claim for compassionate appointment as thought 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.” 14. An appointment on compassionate ground is a departure from the normal mode of recruitment wherein a certain quota (5%) is reserved and the objective is to enable a bereaved family losing their sole breadwinner who was a Government servant to overcome the immediate financial crisis. It has been laid down that such appointment cannot be held to be a matter of any vested right and it is not a source of recruitment. 15. In the instant case, the issue regarding delay is required to be considered vis-à-vis the observation made by the Hon’ble Supreme Court in paragraph 7.5 of the case of Debabrata Tiwari (supra). It has been clearly laid down that in case of prolonged delay either on the part of the applicant or the authorities, the sense of immediacy is diluted and lost. It has been clearly laid down that in case of prolonged delay either on the part of the applicant or the authorities, the sense of immediacy is diluted and lost. In view of such law laid down by the Hon’ble Supreme Court, this Court has no other option but to hold that any further direction for consideration of the case of the petitioner on compassionate ground after a period of more than 12 years from the death of a Government servant would not be in sync with the objective of the scheme for compassionate appointment. 16. In the conspectus of the aforesaid discussion including the aspect that the appointment of the respondent no. 8 is not the subject matter of challenge, this Court is of the opinion that no effective relief can be granted to the petitioner. 17. The writ petition accordingly stands dismissed.