R.M. Chhaya, CJ
1. Heard Mr. R.A. Choudhury, learned counsel for the appellant. Also heard Mr. D. Nath, learned Senior Government Advocate, Assam appearing
for the respondents.
2. Feeling aggrieved and dissatisfied by the judgment and order dated 10.09.2021 passed by the learned Single Judge in WP(C) 4472/2021 whereby
the learned Single Judge was pleased to dismiss the writ petition and being aggrieved, the original writ petitioner has preferred this intra-Court appeal.
3. The following facts emerge from the record of the appeal;
The appellant’s father Late Abdul Basith Choudhury was working as Section Assistant in PWD (Roads) in Karimganj sub-division in the district
of Karimganj, Assam. It is the case of the appellant that the services of his father came to be regularised vide order dated 04.03.1993 against the
sanctioned post. As the record unfolds the father of the appellant/original petitioner died in harness on 01.05.1993. It is the case of the
appellant/original petitioner that his father was the only source of livelihood for the family and after his death, the appellant/original petitioner filed
representation before the Assistant Executive Engineer, PWD (Roads), Karimganj with a prayer for compassionate ground under die-in-harness
scheme which was reserved for sons/unmarried daughters/widows/near relative of the government employee. It is the say of the appellant/original
petitioner that the Executive Engineer concerned forwarded the representation filed by the appellant to the Deputy Commissioner, Karimganj and the
Chairman of the District Level Committee for appointment on compassionate ground. It is the case of the petitioner that the case of the
appellant/original petitioner was considered by the District Level Committee on 20.01.2007 and on recommendation, the application of the appellant
was forwarded to the State Level Committee. It is the case of the appellant/original petitioner that his application was considered in the meeting of the
State Level Committee held on 13.02.2014 and the same came to be rejected on the ground that the post held by the father of the appellant was a
personal post and therefore, the same cannot be treated as a vacant post. After the said rejection of the case of the appellant/original petitioner on
13.02.2014, the petitioner approached this Court by way of filing the present writ petition in the year 2021, i.e. after a lapse of 7 years. The learned
Single Judge was pleased to dismiss the same on the ground of delay and observed that the claim of the petitioner is a stale claim and the same cannot
be entertained. Being aggrieved by the same, the present appeal is filed.
4. Mr. R.A. Choudhury, learned counsel for the appellant has contended that the learned Single Judge committed an error in dismissing the petition
merely on the ground of delay and has contended that the appeal be considered and appropriate direction be issued to the respondent authorities to
appoint the appellant on compassionate ground.
5. Mr. D. Nath, learned senior Government Advocate, Assam has opposed this appeal and has contended that the appeal being meritless deserves to
be dismissed. Mr. Nath has contended that the element of die-in-harness does not exist in the present case as the father of the appellant expired more
than ten years back and therefore, no case for interference is made out and the appeal be dismissed. Mr. Nath has also relied upon the affidavit-in-
opposition filed by the respondent authorities.
6. No other or further contentions/submissions or grounds have been raised by the learned counsel appearing for both the parties.
7. Upon considering the submissions made and on perusal of the impugned judgment and order as well as the record of the appeal, the following
admitted facts emerge;
i) that the father of the petitioner expired on 01.05.2003;
ii) that the State Level Committee rejected the application of the petitioner on 13.02.2014 and the present writ petition was filed in the year 2021, i.e.
after a lapse of more than seven years.
Though it is the case of the appellant that he had approached this Court earlier in the year 2010 by filing writ petition being WP(C) 3500/2010 and this
Court was pleased to dispose of the writ petition vide order dated 21.06.2010 observing that the case of the petitioner would be governed by earlier
judgment and order of this Court passed in Achyut Ranjan Das vs. State of Assam & Ors. reported in 2006 (4) GLT 674. However, the same would
not take the case of the appellant any further as after the said order of 21.06.2010, the State Level Committee considered the case of the appellant
and rejected the case of the appellant on 13.02.2014. The respondents have also disputed the fact that the post occupied by the father of the appellant
was a personal post which is automatically abolished after retirement/expiry of the person holding the same.
8. Be that it may be so, the fact remains that the petitioner challenged the decision of the State Level Committee taken on 13.02.2014 for the first time
before this Court by filing the present writ petition in the year 2021, admittedly after a period of seven years. Considering the fact that the father of the
petitioner expired on 01.05.2003, the period of ten years has passed by and therefore, the element of die-in-harness does not exist after ten years in
the case at hand.
9. We are fortified in our view by the ratio laid down by the Hon’ble Apex Court in the case of Fertilizers and Chemicals Travancore Ltd. & Ors.
vs. Anusree K.B., reported in 2022 LiveLaw (SC) 819 wherein the Apex Court has observed in paragraphs 7, 8 and 9 as under;
7. While considering the issue involved in the present appeal, the law laid down by this Court on compassionate ground on the death of the
deceased employee are required to be referred to and considered. In the recent decision, this Court in the case of Director of Treasuries in
Karnataka and Anr. Vs. V. Somyashree, 2021 SCC Online SC 704, had occasion to consider the principle governing the grant of
appointment on compassionate ground. After referring to the decision of this Court in N.C. Santhosh Vs. State of Karnataka, (2020) 7 SCC
617, this Court has summarised the principle governing the grant of appointment on compassionate ground as under:-
(i) that the compassionate appointment is an exception to the general rule;
(ii) that no aspirant has a right to compassionate appointment;
(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14
and 16 of the Constitution of India;
(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State’s policy and/or satisfaction
of the eligibility criteria as per the policy;
(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate
appointment.
8. As per the law laid down by this Court in catena of decisions on the appointment on compassionate ground, for all the government
vacancies equal opportunity should be provided to all aspirants as mandated under Articles 14 and 16 of the Constitution. However,
appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate
ground is a concession and not a right.
8.1 In the case of State of Himachal Pradesh and Anr. Vs. Shashi Kumar reported in (2019) 3 SCC 653, this Court had an occasion to
consider the object and purpose of appointment on compassionate ground and considered the decision of this Court in the 4 case of Govind
Prakash Verma Vs. LIC, reported in (2005) 10 SCC 289, in paras 21 and 26, it is observed and held as under:-
“21. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289, has been considered subsequently in
several decisions. But, before we advert to those decisions, it is necessary to note that the nature of compassionate appointment had been
considered by this Court in Umesh Kumar Nagpal v. State of Haryana [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138]. The
principles which have been laid down in Umesh Kumar Nagpal [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138] have been
subsequently followed in a consistent line of precedents in this Court. These principles are encapsulated in the following extract: (Umesh
Kumar Nagpal case [Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138], SCC pp. 139-40, para 2)
“2. … As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No
other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to
follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be
followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such
exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of
livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is
provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the
dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to
enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the
deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or
the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but
for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family.
The posts in Classes III and IV are the lowest posts in nonmanual and manual categories and hence they alone can be offered on
compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The
provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The
favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be
achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must
be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally,
if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services
rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile
employment which are suddenly upturned.â€
26. The judgment of a Bench of two Judges in Mumtaz Yunus Mulani v. State of Maharashtra [(2008) 11 SCC 384] has adopted the
principle that appointment on compassionate grounds is not a source of recruitment, but a means to enable the family of the deceased to get
over a sudden financial crisis. The financial position of the family would need to be evaluated on the basis of the provisions contained in
the scheme. The decision in Govind Prakash Verma [Govind Prakash Verma v. LIC, (2005) 10 SCC 289 : 2005 SCC (L&S) 590] has been
duly considered, but the Court observed that it did not appear that the earlier binding precedents of this Court have been taken note of in
that case.â€
9. Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of
appointment in the public services and is in favour of the dependents of a deceased dying in harness and 5 leaving his family in penury and without any
means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is
provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the
dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the
family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased.
9.1 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the observations made
hereinabove and the object and purpose for which the appointment on compassionate ground is provided, the respondent shall not be entitled to the
appointment on compassionate ground on the death of her father, who died in the year 1995. After a period of 24 years from the death of the
deceased employee, the respondent shall not be entitled to the appointment on compassionate ground. If such an appointment is made now and/or
after a period of 14/24 years, the same shall be against the object and purpose for which the appointment on compassionate ground is provided.
9.2 Under the circumstances, both, the learned Single Judge as well as the Division Bench of the High Court have committed a serious error in
directing the appellants to reconsider the case of the respondent for appointment on compassionate ground. The impugned judgment and order passed
by the High Court is unsustainable.â€
10. In case at hand also, the father of the appellant as aforesaid expired on 01.05.2003 and hence, if appointment on compassionate ground is now
made after a period of ten years, the same shall be de hors the very objects of principles of die-in-harness scheme. As held by the Hon’ble Apex
Court in catena of decisions, the compassionate appointment is not an alternative mode of recruitment but it is granted in cases where the bereaved
family who has lost the sole bread-earner comes out of the financial crisis and can maintain the family. Even at the cost of repetition, it is not
believable that even after ten years such conditions exist in case of the appellant.
11. We are in total agreement with the conclusion arrived at by the learned Single Judge. No case for interference is made out. The appeal being
bereft of any merit, deserves to be dismissed and is hereby dismissed.
Parties to bear their own costs.
