Service Law – Compassionate Appointment – Held: Existence of a policy issued by the State Government is a sine qua non for making appointments on compassionate basis – However, in the present case, there was no policy existing to govern compassionate appointment to posts under local authorities in the State of West Bengal – Hence, in the absence of such a policy, compassionate appointment cannot be granted to the respondents-heirs of the deceased employees who worked in the concerned municipalities – Further, the object 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 leaving the family in penury and without any means of livelihood – Thus, operation of a policy/scheme for compassionate appointment is founded on considerations of immediacy – However, in the instant case, the respondents approached the High Court only in the year 2015, after a lapse of nearly ten years from the date of making the application for compassionate appointment in 2005-2006 – Such delay would disentitle the respondents to the discretionary relief u/Art.226 – Entertaining a claim made in 2005-2006, in the year 2023, would be of no avail because admittedly, the respondents have been able to eke out a living even though they did not successfully get appointed to the services of the Municipality on compassionate grounds – Sense of immediacy in the matter of compassionate appointment has been lost in the present case – Claim of the respondents for appointments on compassionate grounds not fit to be considered – West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 – West Bengal Municipal, Employees’ (Recruitment) Rules, 2005 – Constitution of India – Article 226 – Delay/Laches.
Service Law – Compassionate appointment: Principles enumerated.
Object and rationale behind scheme for – Discussed. Determination of claims – Factors – Discussed.
Applications for – Manner in which dealt by State authorities, reproached – Held: Delay on the part of the authorities of the State to decide claims for compassionate appointment frustrates the very object of a scheme of compassionate appointment – Government officials are to act with a sense of utmost proactiveness and immediacy while deciding claims of compassionate appointment to ensure that the wholesome object of such a scheme is fulfilled. Allowing the appeals, the Court
HELD: 1.1 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. 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. 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. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years. 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 ORS. ETC. ETC.
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 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. 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. [Paras 7.2-7.4][630-F-H; 631-A-H; 632-A-C]
1.2 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 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. [Para 7.5][632-C-G]
Haryana State Electricity Board vs. Hakim Singh, (1997)
8 SCC 85 : [1997] 4 Suppl. SCR 377 – relied on.
1.3 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. The Respondents-Writ Petitioners, upon submitting their applications in the year 2005-2006 did nothing further to pursue the matter, till the year 2015 i.e., for a period of ten years. Notwithstanding the tardy approach of the authorities of the Appellant-State in dealing with their applications, the Respondent-Writ Petitioners delayed approaching the High Court seeking a writ in the nature of a mandamus against the authorities of the State. In fact, such a prolonged delay in approaching the High Court, may even be regarded as a waiver of a remedy, as discernible by the conduct of the Respondents-Writ Petitioners. Such a delay would disentitle the Respondents-Writ Petitioners to the discretionary relief under Article 226 of the Constitution. Further, the order of the High Court whereby the writ petition filed by some of the Respondents herein was disposed of with a direction to the Director of Local Bodies, Government of West Bengal to take a decision as to the appointment of the Respondents-Writ Petitioners, cannot be considered to have the effect of revival of the cause of action. The operation of a policy/scheme for compassionate appointment is founded on considerations of immediacy. A sense of immediacy is called for not only in the manner in which the applications are ORS. ETC. ETC.
processed by the concerned authorities but also in the conduct of the applicant in pursuing his case, before the authorities and if needed before the Courts. In the present case, the applications for compassionate appointment were made by the RespondentsWrit Petitioners in the year 2005-2006. Admittedly, the first concrete step taken by the Chairman of the Burdwan Municipality was in the year 2013, when the said authority forwarded a list of candidates to be approved by the Director of Local Bodies, Burdwan Municipality. The Respondents-Writ Petitioners knocked on the doors of the High Court of Calcutta only in the year 2015, i.e., after a lapse of nearly ten years from the date of making the application for compassionate appointment. The Respondents-Writ Petitioners were not prudent enough to approach the Courts sooner, claiming that no concrete step had been taken by the Appellant-State in furtherance of the application by seeking a Writ in the nature of Mandamus. The sense of immediacy in the matter of compassionate appointment has been lost in the present case. This is attributable to the authorities of the Appellant-State as well as the Respondents-Writ Petitioners. Now, entertaining a claim which was made in 2005-2006, in the year 2023, would be of no avail, because admittedly, the Respondents-Writ Petitioners have been able to eke out a living even though they did not successfully get appointed to the services of the Municipality on compassionate grounds. Hence, this is therefore not fit cases to direct that the claim of the Respondents-Writ Petitioners for appointments on compassionate grounds, be considered or entertained. [Paras 8, 10-13][634-BC, F-H; 635-A-B; 636-H; 637-A-F]
Moon Mills Ltd. vs. M. R. Meher, President, Industrial Court, Bombay, AIR 1967 SC 1450 – followed.
State of M.P. vs. Nandlal Jaiswal, (1986) 4 SCC 566 : [1987] 1 SCR 1; Jagdish Lal vs. State of Haryana, (1997) 6 SCC 538; NDMC vs. Pan Singh, (2007) 9 SCC
278 : [2007] 3 SCR 711; State of Uttaranchal vs. Shiv Charan Singh Bhandari, (2013) 12 SCC 179 : [2013]
9 SCR 609 – relied on.
1.4 Delay on the part of the authorities of the State to decide claims for compassionate appointment would no doubt frustrate the very object of a scheme of compassionate appointment. Government officials are to act with a sense of utmost proactiveness and immediacy while deciding claims of compassionate appointment so as to ensure that the wholesome object of such a scheme is fulfilled. [Para 14][637-D-H; 638-A]
1.5 Applications for compassionate appointment are to be considered in light of the policy holding the field on the date on which the application is filed. In the present case, the applications were filed in the year 2006. Therefore, they would have to be decided in light of Circular No. 97-Emp. read with Circular No. 142-Emp. Circular No. 97- Emp. read with Circular No. 142-Emp. concern the procedure governing compassionate appointment, only qua State Government employees. Given that the said Circular does not govern compassionate appointment to posts under local authorities, compassionate appointment cannot be granted to posts under local authorities. The existence of a policy issued by the State Government is a sine qua non for making appointments on compassionate basis. The appointments must follow the stipulations made in the policy. In the absence of a policy governing compassionate appointment to posts under a local authority, no appointment could be made to such an authority on compassionate grounds. Having held that Circular Nos. 301Emp, 302-Emp and 303-Emp. cannot be held to be applicable to local authorities, the findings of the Division Bench of the High Court to the effect that given that Circular No. 301-Emp., 302Emp. and 303 Emp. were not specifically withdrawn, they would continue to remain applicable and therefore, compassionate appointment in respect of municipalities would be governed by the scheme under Circular Nos. 301-Emp., 302- Emp. and 303Emp cannot be affirmed. [Paras 16.2 and 16.4][644-F-G; 645-FH; 646-A-B]
Mumtaz Yunus Mulani vs. State of Maharashtra, (2008)
11 SCC 384 : [2008] 5 SCR 241; State Bank of India vs. Surya Narain Tripathi, 2014 (15) SCC 739 – relied on.
1.6 There was no policy existing to govern compassionate appointment to posts under local authorities in the State of West ORS. ETC. ETC.
Bengal and hence, in the absence of such a policy, compassionate appointment cannot be granted. Assuming that there was such a policy, it would be of no redeeming purpose to direct that the applications for appointment on compassionate grounds be considered and decided several years after they were filed. The impugned judgment and common order of the High Court is set aside. The order of the Single Judge of the High Court is restored. [Paras 16.5, 17][646-C-F]
Sushma Gosain vs. Union of India, (1989) 4 SCC 468; Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 : [1994] 3 SCR 893; State of Haryana vs. Ankur Gupta, AIR 2003 SC 3797 : [2003] 3 Suppl. SCR 333; Jagdish Prasad vs. State of Bihar, (1996) 1 SCC 301 : [1995] 5 Suppl. SCR 177; I.G. (Karmik) vs. Prahalad Mani Tripathi, (2007) 6 SCC 162 : [2007] 5 SCR 978; State of Jammu and Kashmir vs. Sajad Ahmed Mir, AIR 2006 SC 2743 : [2006] 3 Suppl. SCR 576; State of Himachal Pradesh vs. Shashi Kumar, (2019) 3 SCC 653 : [2019] 2 SCR 432 – relied on.
Malaya Nanda Sethy vs. State of Orissa, AIR 2022 SC 2836; Ashok Lenka vs. Rishi Dikshit, AIR 2006 SC 2382 : [2006] 1 Suppl. SCR 142 – referred to.
Gobinda Hazra vs. State of West Bengal, W.P. No. 13147 (W) of 2017; Debabrata Tiwari vs. The State of West Bengal judgement dated 30th September, 2019,
passed in MAT 859 of 2018 with CAN 6137 of 2018 – referred to.
Lindsay Petroleum Co. vs. Prosper Armstrong, (1874) 3 PC 221 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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