Supreme Court of India
THE STATE OF WEST BENGALversusDEBABRATA TIWARI & ORS. ETC. ETC.
- Citation
- 2023 INSC 202
- Decided
- 3 March 2023
- Disposal
- Appeal(s) allowed
- Bench
- KRISHNA MURARI
Holding
Compassionate appointments require a specific State policy, which does not exist for West Bengal local authorities, and the petitioners’ claim is barred by the loss of immediacy due to prolonged delay.
Summary
The petitioners, heirs of municipal employees who died in service, sought compassionate appointments under a scheme intended to provide immediate financial relief to dependents. Their applications were filed in 2005‑2006, but the authorities took years to act, and the petitioners approached the High Court only in 2015. The Supreme Court held that a State Government policy is essential for compassionate appointments and that no such policy existed for local authorities in West Bengal; consequently, no appointment could be made. Even assuming a policy existed, the ten‑year delay destroyed the requisite immediacy of the scheme, rendering the claim untenable. The Court therefore set aside the High Court’s order directing consideration of the applications and restored the earlier order dismissing the petitions. The appeal by the State of West Bengal was allowed.
Issues considered
- The existence of a State Government policy governing compassionate appointments for municipal employees in West Bengal.
- Whether the petitioners’ delayed claim (over ten years) can be entertained under the doctrine of laches and the requirement of immediacy in compassionate appointment schemes.
- Whether the circulars 301‑Emp., 302‑Emp., 303‑Emp., 97‑Emp. and 142‑Emp. constitute a valid scheme applicable to local authorities.
Legislation cited
Subjects
compassionate appointmentservice lawdelaylachespolicymunicipal employeesArticle 226West Bengalimmediacyfinancial crisis
Judgment
[2023] 2 S.C.R. 611 611
THE STATE OF WEST BENGAL A
v.
DEBABRATA TIWARI & ORS. ETC. ETC.
(Civil Appeal Nos. 8842-8855 of 2022)
MARCH 03, 2023 B
[KRISHNA MURARI AND B. V. NAGARATHNA, JJ.]
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
C
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 D
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
E
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 F
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
G
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. H
611
612 SUPREME COURT REPORTS [2023] 2 S.C.R.
A Service Law – Compassionate appointment: Principles
enumerated.
Object and rationale behind scheme for – Discussed.
Determination of claims – Factors – Discussed.
B 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
C
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
D 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.
E
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
F 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.
G
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
H
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 613
ORS. ETC. ETC.
underlying a provision for grant of compassionate employment is A
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
B
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 C
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
D
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 E
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
F
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 G
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
H
614 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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
B
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
C 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
D
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
E 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
F 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
G 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
H
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 615
ORS. ETC. ETC.
processed by the concerned authorities but also in the conduct A
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 Respondents-
Writ Petitioners in the year 2005-2006. Admittedly, the first
concrete step taken by the Chairman of the Burdwan Municipality
B
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 C
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
D
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 E
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-B-
C, F-H; 635-A-B; 636-H; 637-A-F]
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 G
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 H
616 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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]
B 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.
C 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
D 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. 301-
E Emp, 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., 302-
Emp. and 303 Emp. were not specifically withdrawn, they would
continue to remain applicable and therefore, compassionate
F appointment in respect of municipalities would be governed by
the scheme under Circular Nos. 301-Emp., 302- Emp. and 303-
Emp cannot be affirmed. [Paras 16.2 and 16.4][644-F-G; 645-F-
H; 646-A-B]
Mumtaz Yunus Mulani vs. State of Maharashtra, (2008)
G 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
H
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 617
ORS. ETC. ETC.
Bengal and hence, in the absence of such a policy, compassionate A
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
B
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. C
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; D
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. E
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. F
Lindsay Petroleum Co. vs. Prosper Armstrong, (1874) 3
PC 221 – referred to.
Case Law Reference
[2019] 2 SCR 432 relied on Para 4.2
G
[1994] 3 SCR 893 relied on Para 7.1 (ii)
[1997] 4 Suppl. SCR 377 relied on Para 7.1 (iii)
[2003] 3 Suppl. SCR 333 relied on Para 7.1 (iv)
H
618 SUPREME COURT REPORTS [2023] 2 S.C.R.
A [1995] 5 Suppl. SCR 177 relied on Para 7.1 (v)
[2007] 5 SCR 978 relied on Para 7.1 (v)
[2008] 5 SCR 241 relied on Para 7.1 (v)
[2006] 3 Suppl. SCR 576 relied on Para 7.1 (vi)
B [1987] 1 SCR 1 relied on Para 8
[2007] 3 SCR 711 relied on Para 8
[2013] 9 SCR 609 relied on Para 9
[2006] 1 Suppl. SCR 142 referred to Para 16.2
C
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8842-
8855 of 2022.
From the Judgment and Order dated 30.09.2019 of the High Court
at Calcutta in MAT Nos. 859, 860, 853, 861, 863, 864, 862, 854, 855, 856,
857, 858, 634 and 847 of 2018.
D
Rakesh Dwivedi, Sr. Adv., Ms. Madhumita Bhattacharjee, Ms.
Arushi Mishra, Advs. for the Appellant.
Indradeep Pal, Mrs. Sougata Pal Das, Rauf Rahim, Ms. Ekta
Choudhary, Chanchal Kumar Ganguli, Shashwat Panda, Ms. Vandana
E Tiwari, Ms. Simran Singh, Zoheb Hossain, Advs. for the Respondents.
The Judgment of the Court was delivered by
NAGARATHNA, J.
The present appeals have been filed assailing the judgment and
common order of the High Court of Calcutta, dated 30th September,
F
2019, in a batch of appeals being MAT 859 of 2018 with CAN 6137 of
2018 and connected matters. By the impugned judgment and common
order, the Division Bench of the High Court set aside the order of the
learned Single Judge of the High Court dated 05th July, 2018, passed in
W.P. No. 2739 (W) of 2016 and connected matters and directed the
G Director of Local Bodies, Burdwan Municipality and the concerned
authority in Ranaghat and Habra Municipalities to consider the application
made by the Respondents-Writ Petitioners seeking appointment on
compassionate grounds. The Division Bench of the High Court also
identified the scheme in light of which the said applications would have
to be considered and decided.
H
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 619
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
2. The present appeals concern claims of the Respondents-Writ A
Petitioners, who are heirs of employees of Burdwan, Ranaghat and Habra
Municipalities, who died in harness for compassionate appointment to
posts in the concerned municipalities. All these appeals concern common
questions as to the entitlement of such persons to be considered for
compassionate appointment and whether any scheme of the State
B
Government supports their claim for compassionate appointment. Further,
since the case of all the Respondents is the same, the facts concerning
the Burdwan Municipality alone may be succinctly stated as under:
2.1. The case of the Respondents-Writ Petitioners concerning
Burdwan Municipality is that based on the applications received from
the heirs of the deceased employees working under different categories, C
the Burdwan Municipality directed an enquiry by a three-member
committee comprising of the Chairman of Burdwan Municipality
(Respondent No. 6 herein); the Executive Officer of the Burdwan
Municipality (Respondent No. 7 herein) and the Deputy Director of Local
Bodies, Burdwan Division, to determine whether the respondents were D
entitled to the appointment on compassionate grounds.
2.2. That on the basis of the report submitted by the enquiry
committee and after following the criteria set in the West Bengal
Municipal, Employees’ (Recruitment) Rules, 2005, the Board of
Councillors of Burdwan Municipality in its meeting held on 30th May E
2013, approved a list of 62 eligible candidates for the purpose of
recruitment in Group ‘C’ and ‘D’ posts in the said Municipality. The
names of the respondents figured in the said list.
2.3. That the Chairman of the Burdwan Municipality vide Memo
dated 12th June, 2013, forwarded a list approved by a resolution passed F
in the meeting of the Board of Councillors on 30th May, 2013, along with
an inspection/enquiry report and other testimonials to the Director of
Local Bodies, Government of West Bengal (Respondent No. 4), for
approval of appointment on compassionate grounds. The names of the
Writ Petitioners appeared in the list of eligible candidates under Group
‘C’ under the exempted category, ‘dependents of persons who died in G
harness’.
2.4. That on 7th June 2014, the Chairman, Burdwan Municipality,
Respondent No. 5, forwarded the proposed list of eligible candidates for
appointment on compassionate grounds under a Memo bearing number
512/XII-6, to the Director of Local Bodies, Government of West Bengal, H
620 SUPREME COURT REPORTS [2023] 2 S.C.R.
A (appellant herein), and requested the Director of Local Bodies to look
into the matter sympathetically.
2.5. That since the Director of Local Bodies or the Government
of West Bengal did not take steps pursuant to the receipt of the list of
candidates, Debabrata Tiwari (Respondent No. 1) filed a Writ Petition
B bearing No. 3243 (W) of 2015 before the High Court of Calcutta seeking
appointment on compassionate grounds under the relevant exempted
category. The Secretary of the Burdwan Municipality submitted before
the High Court that Respondent No. 1 was eligible for being considered
for appointment on compassionate grounds, under the exempted category
of dependents of persons who died in harness and that the Burdwan
C Municipality had already sent the necessary papers in this regard to the
Office of the Directorate of Local Bodies, Government of West Bengal.
2.6. The said Writ Petition was disposed of by an order dated 17th
March, 2015, with a direction to the Director of Local Bodies,
Government of West Bengal to take a decision on the recommendation
D of the Chairman of the Municipality within a period of ten weeks from
the date of communication of the said Order and to communicate such
decision to the Chairman of the Municipality within a week thereafter.
2.7. In continuation of the direction of the High Court in W.P. No.
3243 (W) of 2015, the Director of Local Bodies, Government of West
E Bengal, on 16th October, 2015 passed an Order wherein it was stated
that the Director of Local Bodies had no authority to consider the
appointments under compassionate grounds in Urban Local Bodies, unless
the policy in the matter was laid down by the State Government. It was
therefore observed by the Director of Local Bodies that as soon as the
F State Government extends such policy for consideration of appointment
of the employees of the Urban Local Bodies, under compassionate
grounds, in the die-in-harness category, the prayer of Respondent No. 1
would be considered.
2.8. Being aggrieved by the order passed by the Director of Local
G Bodies, Government of West Bengal on 16th October, 2015, Respondent
No. 1 preferred a Writ Petition bearing No. 2733 (W) of 2016 before the
High Court of Calcutta.
A batch of Writ Petitions where the cause of action was the same
as that in W.P. No. 2733 (W) of 2016 was heard and disposed of together
by the learned Single Judge of the High Court of Calcutta by way of a
H
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 621
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
Common Judgment and Order dated 5th July, 2018. The said common A
order was passed in Writ Petition No. 2739 (W) of 2016.The learned
Single Judge dismissed the Writ Petitions by relying on the judgment
passed in Gobinda Hazra vs. State of West Bengal, W.P. No. 13147
(W) of 2017, wherein the issue, as to, whether, there subsists any scheme
for compassionate appointment in respect of municipal employees was
B
considered and the issue was answered in the negative. The High Court
thus held that no relief could be granted to the Writ Petitioners
(Respondents herein), in the absence of a sanctioned scheme for
compassionate appointment in respect of municipal employees.
2.9. Aggrieved by the Order passed by the Single Judge dated 5th
July, 2018, the Respondents- Writ Petitioners preferred a batch of appeals C
before the Division Bench of the High Court. The said appeals were
heard and allowed by a common impugned judgement dated 30 th
September, 2019, passed in MAT 859 of 2018 with CAN 6137 of 2018in
the case of Debabrata Tiwari vs. The State of West Bengal. By way
of the impugned judgment, the Director of Local Bodies, Burdwan D
Municipality and the concerned authority in Ranaghat and Habra
Municipalities were directed to consider the application made by the
Writ Petitioners seeking appointment on compassionate grounds. The
Division Bench of the High Court also identified the scheme in light of
which the said applications would have to be considered and decided.
Hence the present appeals by the State of West Bengal. E
2.10. The pertinent findings of the Division Bench of the High
Court of Calcutta, in the common impugned judgment dated 30 th
September, 2019, have been culled out hereinunder:
i. The Division Bench of the High Court rejected the argument F
canvassed on behalf of the Government that there was an
undue delay between the time of making the application
and the time when the Respondents-Writ Petitioners
approached the Court. That the Writ Petitioners had not
delayed filing applications seeking appointments on
compassionate grounds and the concerned authorities had G
undertaken an enquiry by constituting a committee but had
ultimately taken years to consider their applications and to
recommend their respective names. The Director of Local
Bodies kept the matter pending without according any
approval of the recommendations, as a result, a Writ Petition H
622 SUPREME COURT REPORTS [2023] 2 S.C.R.
A was filed which was disposed of with a specific direction
to the Director of Local Bodies to consider the applications
within a time frame. That in pursuance of the High Court
direction, the Director of Local Bodies disposed of the matter
in respect of Burdwan Municipality only on 16th October,
2015. Hence, a time of about ten years had been spent only
B
for processing the applications and such a delay could not
be attributed to the Respondents-Writ Petitioners.
ii. That an employee of a municipality cannot be treated as an
employee of the State Government and therefore the
scheme available to a State Government employee cannot
C be extended to a dependent of an employee of the
municipality who died in harness. Thus, the respondents
were not entitled to claim the benefit of compassionate
appointment in terms of the schemes formulated vide
Circular No. 97-Emp.; 142-Emp.; 30-Emp.; and 251-Emp.,
D which were specifically applicable to State Government
employees.
iii. As to the issue of whether there was any scheme for grant
of compassionate appointments in respect of employees of
Municipalities, the Division Bench differed from the findings
E of the Single Judge. On a conjoint reading of Circular Nos.
301-Emp., 302-Emp. and 303 Emp., it was observed that it
was clear that the aforesaid Circulars were specific schemes
for compassionate appointments in respect of municipalities.
That the said schemes were in respect of all establishments
covered under the West Bengal Regulation of Recruitment
F in State Government Establishments and Establishments of
Public Undertakings, Statutory Bodies, Government
Companies and Local Authorities Act, 1999 (West Bengal
Act XIV of 1999) (hereinafter referred to as the ‘Act of
1999’ for the sake of brevity). That the said circulars which
G were extended to the employees of all establishments
including local authorities like municipalities, were neither
withdrawn nor substituted by the subsequent notifications
and circulars.
iv. That although Circular No. 142-Emp. clarified that 97-Emp.
H was applicable only in respect of State Government
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 623
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
employees and directed the municipalities to formulate their A
own schemes for compassionate appointment, no such
scheme had been formulated by the concerned
municipalities. That it was evident from Circular No. 142-
Emp. that it does not withdraw the scheme for
compassionate appointment available under Circular Nos.
B
301-Emp., 302-Emp. and 303-Emp. and in the absence of
any subsequent scheme or specific withdrawal of the
existing scheme, the scheme remains in subsistence and
will be the scheme under which the applications for
compassionate appointments made by the respondents are
to be considered. C
v. In the absence of a substituted scheme, and given that
Circular No. 301-Emp., 302-Emp. and 303 Emp. were not
specifically withdrawn, they would continue to remain
applicable. Therefore, compassionate appointment in respect
of municipalities would be governed by the scheme under D
Circular Nos. 301-Emp., 302-Emp. and 303-Emp.
In light of the aforesaid observations, the Division Bench
of the High Court set aside the Order passed by the Single
Judge and directed the Director of Local Bodies, Burdwan
Division, Government of West Bengal to reconsider the E
Memo dated12th June, 2013 whereby the Chairman,
Burdwan Municipality, had sought for the approval of
recommended names for being appointed under
compassionate grounds. Further, the Director of Local
Bodies was directed to examine whether proper inspection F
of the documents had been carried out while recommending
such names and whether the parameters mentioned under
the scheme contained in Circular Nos. 301-Emp., 302-Emp.
and 303-Emp. had been properly adhered to by the officials
of Burdwan Municipality while making the recommendation.
G
Aggrieved by the said directions of the High Court and
the findings as to the eligibility of the Respondents-Writ
Petitioners to seek appointment on compassionate grounds,
the present appeals have been filed by the State of West
Bengal.
H
624 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 3. We have heard Sri Rakesh Dwivedi, learned Senior Counsel
and learned counsel, Ms. Madhumita Bhattacharjee appearing on behalf
of the Appellant-State of West Bengal and learned counsel Sri Indradeep
Pal for the Respondent-Writ Petitioners, and perused the material on
record.
B Submissions:
4. Learned Senior Counsel for the Appellant-State of West Bengal
at the outset submitted that the findings of the Division Bench of the
High Court of Calcutta were based on an incorrect appreciation of law
and facts and therefore the same are liable to be set aside.
C 4.1. It was further submitted that directing at such a belated stage,
that the Respondents-Writ Petitioners ought to be appointed on
compassionate grounds would have no redeeming purpose. That the
rationale behind a policy of compassionate appointment is to provide
immediate succor to the dependent(s) of a government employee dying
D in harness. This object would require that immediate steps be taken to
enable the dependent(s) to recover from the sudden financial crisis as a
result of death or disablement of a breadwinner of a family. If the said
purpose is not going to be accomplished, the Court may not direct the
same granting compassionate appointment. That in the instant cases,
the applications made by the Respondents-Writ Petitioners for
E compassionate appointment relates to the year 2005-2006. That a direction
to act on the same now, i.e., 17-18 years after the applications seeking
compassionate appointment were made, would not further the object of
a scheme of compassionate appointment.
4.2. Reliance was placed on the decision of this Court in State of
F Himachal Pradesh vs. Shashi Kumar, (2019) 3 SCC 653 (“Shashi
Kumar”) to contend that where there is a significant gap between making
the application for compassionate appointment and filing a Writ Petition
to challenge inaction on the part of the Government, a direction to consider
the application for compassionate appointment may not be issued.
G 4.3. It was next contended that Circular No. 142-Emp. clarified
that 97-Emp. was applicable only in respect of State Government
employees and directed the municipalities to formulate their own schemes
for compassionate appointment. This would mean that as a matter of
policy of the State Government, it was declared that it is not viable to
give compassionate appointment to heirs of employees of establishments
H
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 625
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
of public undertakings, statutory bodies, government companies and local A
authorities. That by virtue of the clarification under Circular No. 142-
Emp., the position would be that no scheme exists for compassionate
appointment in Municipalities. It is for such establishments to formulate
policies of their own in consultation with the respective administrative
department. That, in the absence of a sanctioned scheme for
B
compassionate appointment in respect of municipal employees, no relief
could have been granted by the High Court.
4.4. It was urged that compassionate appointment could not be
claimed as a matter of right and a claim for the same must be entertained
having regard to the compelling financial circumstances (if any) of the
deceased’s dependent(s). Therefore, entertaining a claim which was C
made in 2005-2006, in the year 2023, would be of no avail.
With the aforesaid submissions, it was prayed on behalf of the
appellant-State of West Bengal that the present appeals be allowed and
the impugned judgment of the Division Bench of the High Court be set
aside. D
5. Per contra, learned counsel for the Respondents-Writ
Petitioners, submitted that the impugned judgment was passed based on
an unimpeachable appreciation of the facts of the case and the law in
this regard, and therefore the same does not call for interference by this
Court. E
5.1. It was further submitted that any scheme for compassionate
appointment has to be applied across the establishments including the
municipalities. Thus, the petitioner State could not contend that the
employees of the municipality would not be eligible for compassionate
appointment in the absence of any separate compassionate appointment F
scheme for municipal employees.
5.2. That Notification No. 301-Emp. declared the following
category of persons as ‘exempted category’ extending, inter-alia, the
benefit of compassionate appointment to the said ‘exempted category:
a) Dependents of employees dying in harness. G
b) Dependents of employees retiring incapacitated.
c) Persons belonging to families belonging to land losers.
d) Ex-census employees.
e) Persons holding discharge certificates.
H
626 SUPREME COURT REPORTS [2023] 2 S.C.R.
A Further, by Notification No. 302-Emp., the State Government
reserved 30% of vacancies to be filled by the ‘exempted category’.
Subsequently, a Circular bearing No. 97-Emp. dated 6th June, 2005 was
issued by the Petitioner State in the exercise of the powers conferred
under Section 3(c) of the 1999 Act, inter-alia, laying down the procedure
to be followed in dealing with the issue of appointment on compassionate
B
grounds to the ‘exempted category’. However, by way of Notification
bearing No. 142-Emp. dated 1st November, 2007 it was clarified that
Notification No. 97-Emp. was only restricted to State Government
employees, and in so far as other establishments are concerned, they
would have to formulate their own policies having regard to the principles
C applicable to the State Government Employees.
That in the absence of a policy formulated specially for municipal
employees, compassionate appointment could have been granted on the
strength of Circular Nos. 301-Emp., 302-Emp. and 303-Emp.
5.3. It was averred that since delay in acting upon the application
D of the Respondent-Writ Petitioners was attributable only to the appellant’s
authorities, therefore, the Respondents ought not to be prejudiced on
account of such delay. That the Respondents-Writ Petitioners diligently
pursued the matter with the authorities, as also before the High Court of
Calcutta.
E With the aforesaid submissions it was prayed on behalf of the
Respondents-Writ Petitioners that the present appeals be dismissed as
being devoid of merit and the impugned judgment be affirmed.
Points for Consideration:
F 6. The following points would arise for consideration:
i. Whether the Division Bench of the High Court of Calcutta erred
in allowing the appeals filed by the Respondents-Writ Petitioners and
directing that their claims for compassionate appointment be considered
by the Appellant?
G ii.What order?
6.1. These appeals primarily concern the question whether there
exists any scheme in the State of West Bengal, governing compassionate
appointment governing municipal employees dying in harness. In the
event that the aforesaid question is answered in the affirmative, it would
H be necessary to determine whether a direction issued several years after
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 627
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
applications for compassionate appointment are filled, to consider and A
decide such applications, is in consonance with the object of a policy/
scheme for compassionate appointment.
Policy of Compassionate Appointment: The Rationale:
7. The majesty of death is that it is a great leveller for, it makes no
distinction between the young and the old or the rich and the poor. Death B
being as a consequence of birth at some point of time is inevitable for
every being. Thus, while death is certain, its timing is uncertain. Further,
a deceased employee does not always leave behind valuable assets; he
may at times leave behind poverty to be faced by the immediate members
of his family. Therefore, what should be done to ensure that death of an C
individual does not mean economic death for his family? The State’s
obligation in this regard, confined to its employees who die in harness,
has given rise to schemes and rules providing for compassionate
appointment of an eligible member of his family as an instance of providing
immediate succour to such a family. Support for such a provision has
been derived from the provisions of Part IV of the Constitution of India, D
i.e., Article 39 of the Directive Principles of State Policy.
7.1. It may be apposite to refer to the following decisions of this
Court, on the rationale behind a policy or scheme for compassionate
appointment and the considerations that ought to guide determination of
claims for compassionate appointment. E
i. In Sushma Gosain vs. Union of India, (1989) 4 SCC
468, this Court observed that in all claims for appointment
on compassionate grounds, there should not be any delay in
appointment. That the purpose of providing appointment on
compassionate grounds is to mitigate the hardship caused F
due to the death of the bread earner in the family. Such
appointment should, therefore, be provided immediately to
redeem the family in distress.
ii. In Umesh Kumar Nagpal vs. State of Haryana, (1994)
4 SCC 138, this Court observed that the object of granting G
compassionate employment is to enable the family of a
deceased government employee to tide over the sudden
crisis by providing gainful employment to one of the
dependants of the deceased who is eligible for such
employment. That mere death of an employee in harness
H
628 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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
B
family, provided a scheme or rules provide for the same.
This Court further clarified in the said case that
compassionate appointment is not a vested right which can
be exercised at any time after the death of a government
servant. That the object being to enable the family to get
C over the financial crisis which it faces at the time of the
death of the sole breadwinner, compassionate employment
cannot be claimed and offered after lapse of considerable
amount of time and after the crisis is overcome.
iii. In Haryana State Electricity Board vs. Hakim Singh,
D (1997) 8 SCC 85, (“Hakim Singh”)this Court placed
much emphasis on the need for immediacy in the manner in
which claims for compassionate appointment are made by
the dependants and decided by the concerned authority.
This Court cautioned that it should not be forgotten that the
object of compassionate appointment is to give succour to
E
the family to tide over the sudden financial crisis that has
befallen the dependants on account of the untimely demise
of its sole earning member. Therefore, this Court held that
it would not be justified in directing appointment for the
claimants therein on compassionate grounds, fourteen years
F after the death of the government employee. That such a
direction would amount to treating a claim for
compassionate appointment as though it were a matter of
inheritance based on a line of succession.
iv. This Court in State of Haryana vs. Ankur Gupta, AIR
G 2003 SC 3797 held that in order for a claim for
compassionate appointment to be considered reasonable and
permissible, it must be shown that a sudden crisis occurred
in the family of the deceased as a result of death of an
employee who had served the State and died while in
service. It was further observed that appointment on
H
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 629
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
compassionate grounds cannot be claimed as a matter of A
right and cannot be made available to all types of posts
irrespective of the nature of service rendered by the
deceased employee.
v. There is a consistent line of authority of this Court on the
principle that appointment on compassionate grounds is given B
only for meeting the immediate unexpected hardship which
is faced by the family by reason of the death of the bread
earner vide Jagdish Prasad vs. State of Bihar, (1996) 1
SCC 301. When an appointment is made on compassionate
grounds, it should be kept confined only to the purpose it
seeks to achieve, the idea being not to provide for endless C
compassion, vide I.G. (Karmik) vs. Prahalad Mani
Tripathi, (2007) 6 SCC 162. In the same vein is the
decision of this Court in Mumtaz Yunus Mulani vs. State
of Maharashtra, (2008) 11 SCC 384, wherein it was
declared that appointment on compassionate grounds is not D
a source of recruitment, but a means to enable the family
of the deceased to get over a sudden financial crisis.
vi. In State of Jammu and Kashmir vs. Sajad Ahmed Mir,
AIR 2006 SC 2743, the facts before this Court were that
the government employee (father of the applicant therein) E
died in March, 1987. The application was made by the
applicant after four and half years in September, 1991 which
was rejected in March, 1996. The writ petition was filed in
June, 1999 which was dismissed by the learned Single Judge
in July, 2000. When the Division Bench decided the matter,
more than fifteen years had passed from the date of death F
of the father of the applicant. This Court remarked that the
said facts were relevant and material as they would
demonstrate that the family survived in spite of death of
the employee. Therefore, this Court held that granting
compassionate appointment after a lapse of a considerable G
amount of time after the death of the government employee,
would not be in furtherance of the object of a scheme for
compassionate appointment.
vii. In Shashi Kumar, this Court speaking through Dr. D.Y.
Chandrachud, J. (as His Lordship then was) observed that H
630 SUPREME COURT REPORTS [2023] 2 S.C.R.
A compassionate appointment is an exception to the general
rule that appointment to any public post in the service of
the State has to be made on the basis of principles which
accord with Articles 14 and 16 of the Constitution. That the
basis of the policy is that it recognizes that a family of a
deceased employee may be placed in a position of financial
B
hardship upon the untimely death of the employee while in
service. That it is the immediacy of the need which furnishes
the basis for the State to allow the benefit of compassionate
appointment. The pertinent observations of this Court have
been extracted as under:
C “41. Insofar as the individual facts pertaining to the
Respondent are concerned, it has emerged from the
record that the Writ Petition before the High Court was
instituted on 11 May 2015. The application for
compassionate appointment was submitted on 8 May
D 2007. On 15 January 2008 the Additional Secretary had
required that the amount realized by way of pension be
included in the income statement of the family. The
Respondent waited thereafter for a period in excess of
seven years to move a petition Under Article 226 of the
Constitution. In Umesh Kumar Nagpal (supra), this
E Court has emphasized that the basis of a scheme of
compassionate appointment lies in the need of providing
immediate assistance to the family of the deceased
employee. This sense of immediacy is evidently lost by
the delay on the part of the dependant in seeking
compassionate appointment.”
F
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
G 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
H sudden financial crisis.
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 631
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
ii. Appointment on compassionate grounds is not a source of A
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.
B
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 C
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 D
any, received by the family, the age, dependency and marital
status of its members, together with the income from any
other source.
7.3. The object underlying a provision for grant of compassionate
employment is to enable the family of the deceased employee to tide E
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 F
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 G
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
H
632 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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.
7.4. As noted above, the sine qua non for entertaining a claim
for compassionate appointment is that the family of the deceased
B 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.
C 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
D
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
E 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
F
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.
G
8. 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 for grant of such relief was explained
succinctly by Sir Barnes Peacock, in Lindsay Petroleum Co. vs. Prosper
Armstrong, (1874) 3 PC 221 as under:
H
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 633
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
“Now the doctrine of laches in Courts of Equity is not an arbitrary A
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
B
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 C
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.”
D
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. vs. M. R. Meher,
President, Industrial Court, Bombay, AIR 1967 SC 1450. In the said E
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. vs. Nandlal Jaiswal, (1986) 4 SCC 566 this
Court restated the principle articulated in earlier pronouncements in the F
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 G
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 H
634 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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 meantime is an
important factor which also weighs with the High Court in deciding
B
whether or not to exercise such jurisdiction.”
While we are mindful of the fact that 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, vide
Jagdish Lal vs. State of Haryana, (1997) 6 SCC 538; NDMC vs.
C Pan Singh, (2007) 9 SCC 278.
9. Further, simply because the Respondents-Writ Petitioners
submitted their applications to the relevant authority in the year 2005-
2006, it cannot be said that they diligently perused the matter and had
not slept over their rights. In this regard, it may be apposite to refer to
D the decision of this Court in State of Uttaranchal vs. Shiv Charan
Singh Bhandari, (2013) 12 SCC 179, wherein the following
observations were made:
“19. From the aforesaid authorities it is clear as crystal that even
if the court or tribunal directs for consideration of
E representations relating to a stale claim or dead grievance
it does not give rise to a fresh cause of action. The dead
cause of action cannot rise like a phoenix. Similarly, a mere
submission of representation to the competent authority
does not arrest time.”
F (emphasis by us)
10. Applying the said ratio to the facts of the present case, we
hold that the Respondents-Writ Petitioners, upon submitting their
applications in the year 2006-2005 did nothing further to pursue the matter,
till the year 2015 i.e., for a period of ten years. Notwithstanding the
G 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
H
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 635
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
delay would disentitle the Respondents-Writ Petitioners to the A
discretionary relief under Article 226 of the Constitution. Further, the
order of the High Court dated 17th March, 2015, 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
B
be considered to have the effect of revival of the cause of action.
11. It may be apposite at this juncture to refer to the following
observations of this Court in Malaya Nanda Sethy vs. State of Orissa,
AIR 2022 SC 2836, as to the manner in which the authorities must
consider and decide applications for appointment on compassionate
grounds: C
“9. Before parting with the present order, we are constrained to
observe that considering the object and purpose of appointment
on compassionate grounds, i.e., a family of a deceased employee
may be placed in a position of financial hardship upon the untimely
death of the employee while in service and the basis or policy D
is immediacy in rendering of financial assistance to the
family of the deceased consequent upon his untimely death,
the authorities must consider and decide such applications
for appointment on compassionate grounds as per the policy
prevalent, at the earliest, but not beyond a period of six
E
months from the date of submission of such completed
applications.
We are constrained to direct as above as we have found that
in several cases, applications for appointment on compassionate
grounds are not attended in time and are kept pending for years
together. As a result, the applicants in several cases have to F
approach the concerned High Courts seeking a writ of Mandamus
for the consideration of their applications. Even after such a
direction is issued, frivolous or vexatious reasons are given for
rejecting the applications. Once again, the applicants have to
challenge the order of rejection before the High Court which leads G
to pendency of litigation and passage of time, leaving the family
of the employee who died in harness in the lurch and in financial
difficulty. Further, for reasons best known to the authorities and
on irrelevant considerations, applications made for compassionate
appointment are rejected. After several years or are not considered
at all as in the instant case. H
636 SUPREME COURT REPORTS [2023] 2 S.C.R.
A If the object and purpose of appointment on
compassionate grounds as envisaged under the relevant
policies or the rules have to be achieved then it is just and
necessary that such applications are considered well in time
and not in a tardy way. We have come across cases where for
nearly two decades the controversy regarding the application made
B
for compassionate appointment is not resolved. This consequently
leads to the frustration of the very policy of granting compassionate
appointment on the death of the employee while in service. We
have, therefore, directed that such applications must be considered
at an earliest point of time. The consideration must be fair,
C reasonable and based on relevant consideration. The application
cannot be rejected on the basis of frivolous and for reasons
extraneous to the facts of the case. Then and then only the object
and purpose of appointment on compassionate grounds can be
achieved.”
D (emphasis by us)
In the said case, the claim of the appellant-applicant therein for
compassionate appointment was directed by this Court to be considered
by the competent authority. This Court noted that in the said case, there
was no lapse on the part of the appellant-applicant therein in diligently
E pursuing the matter. The delay in considering the application of the
appellant therein was held to be solely attributable to the authorities of
the State, and no part of it was occasioned by the appellant-applicant.
Further, in the said case, the appellant-applicant was prejudiced not only
because of the prolonged delay in considering his application but also by
the fact that in the interim, the policy of the State governing compassionate
F appointment had changed to his detriment. Therefore, the facts of the
said case were distinct from the facts involved herein. In the present
case, the conduct of the Respondents-Writ Petitioners cannot be said to
be blameless in that they did not pursue their matter with sufficient
diligence. However, the observations made in the said case as to the
G manner in which applications for compassionate appointment are to be
considered and disposed of are relevant to the present case.
As noted in the said case, 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
H applications are processed by the concerned authorities but also in the
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 637
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
conduct of the applicant in pursuing his case, before the authorities and A
if needed before the Courts.
12. In the present case, the applications for compassionate
appointment were made by the Respondents-Writ 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 B
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, C
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.
13. The sense of immediacy in the matter of compassionate
appointment has been lost in the present case. This is attributable to the D
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 E
compassionate grounds. Hence, we think that 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.
14. However, we must sound a strong word of reproach directed
at the authorities of the Appellant-State, about the manner in which the F
applications for compassionate appointment of hundreds of dependents
have been dealt with. Much uncertainty looms around the scope, extent
and beneficiaries of the various schemes formulated by the State for
governing compassionate appointment and therefore, the concerned
authorities are unable/unwilling to positively decide claims for
compassionate appointment. This may have ultimately resulted in prejudice G
to the families of many government employees dying in harness. 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 H
638 SUPREME COURT REPORTS [2023] 2 S.C.R.
A claims of compassionate appointment so as to ensure that the wholesome
object of such a scheme is fulfilled.
15. The question as to whether a direction issued several years
after an application for compassionate appointment, to consider and decide
such application, is in consonance with the object of a policy/scheme for
B compassionate appointment, has been answered in the negative.
However, we shall also examine whether these appeals must succeed
on a second count, i.e., whether there exists any scheme in the State of
West Bengal, governing compassionate appointment vis-à-vis municipal
employees dying in harness.
C 16. In order to determine the question as to whether there exists
any scheme in the State of West Bengal, governing compassionate
appointment vis-à-vis municipal employees dying in harness, it would be
useful to refer to the content of the relevant State Government
Notifications issued in this regard. The relevant Circulars are: 301-Emp.,
302-Emp. and 303-Emp. all dated 21stAugust, 2002; 97-Emp. dated
D 6thJune, 2005 and 142-Emp. dated 1stNovember, 2007.
The relevant portions of each of such Circulars are extracted
hereinunder for easy reference:
No. 301-EMP/lM-10/2000-21st August, 2002:
E “In exercise of the powers conferred by sub-section (a) of section
3 of the 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 Act XIV of 1999), the
F Governor is pleased to declare the following categories of persons
as exempted categories for the purpose of the aforesaid Act:-
1. Dependents of employees dying in harness: A solely
dependent wife/son/daughter/near relation of an employee
who dies in harness leaving his family in immediate need of
assistance.
G
A near relation of the deceased employee may be
considered for employment on compassionate ground only
when the son/daughter/wife of the deceased employee
cannot be considered for employment owing to minor age
or other disabilities. In such a case the employment of a
H
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 639
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
near relation of the deceased employee may be considered A
only for providing assistance immediately needed by the
family, left behind by the deceased.
xxx
This supersedes all earlier circulars and executive orders issued
from time-to-time by the Government of West Bengal in the Labour B
Department relating to employment of persons belong to the
Exempted Categories.”
No. 302-EMP/1M-10/2000- 21st August, 2002:
“In exercise of the powers conferred by sub-section (b) of section C
3 of the 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 Act XIV of 1999), the
Governor is pleased to order that of the local vacancies arising in
a year under any appointing authority, other than the vacancies D
which are required to be filled up either on the recommendations
of-
(a) the Public Service Commission, West Bengal, or
(b) the West Bengal College Service Commission, or E
(c) the West Bengal School Service Commission, or
(d) the Municipal Service Commission, or
(e) the Co-operative Service Commission Or by promotion, or by
absorption of persons declared surplus by the State Government
F
or by absorption of such categories of casual workers and other
workers as the State Government may by notification specify from
time to time, 30% shall be treated as reserved to be filled up by
persons falling within the exempted categories notified under sub-
section (a) of section 3 of the aforesaid Act.”
G
No. 303-EMP/1M-10/2000 - 21st August, 2002:
“In exercise of the powers conferred by sub-section (c) of section
3 of the West Bengal Regulation of Recruitment in State
Government Establishments and Establishments of Public
Undertakings, Statutory Bodies, Government Companies and Local
H
640 SUPREME COURT REPORTS [2023] 2 S.C.R.
A Authorities Act, 1999 (West Bengal Act XIV of 1999), the
Governor is pleased to prescribe the following procedure for filling
up the vacancies reserved for the Exempted Categories as
specified under sub-section (a) of section 3 of the aforesaid Act:—
A. GENERAL PROCEDURE TO BE FOLLOWED IN
B RESPECT OF DIFFERENT EXEMPTED CATEGORIES:
1. Dependents of persons who died in harness: None except wife/
son/daughter/near relation of the deceased employee and solely
dependent on the earnings of the deceased employee, shall be
eligible for consideration for such employment. The benefit will
C be admissible if the family, left behind by the deceased employee,
is in immediate need of assistance and such employment on
compassionate ground is absolutely essential to support the family
of the deceased. A person belonging to a completely separate
family shall not be treated as solely dependent on the deceased
employee for the purpose of such employment on compassionate
D ground.
The wife/son/daughter/near relation of an employee who died-in-
harness, may apply to the appointing authority through the Head
of the Office of the employee in a prescribed form as per Part I
& II of Annexure “A” along with a copy of death certificate
E praying for employment to support the family of the deceased
employee. On receipt of such application the appointing authority
shall form an enquiring committee of senior officials not less than
three in number. The committee so formed shall make an enquiry
about the genuineness of the prayer as well as the financial condition
F of the family of the deceased employee and submit a report as
per Annexure “A” to the appointing authority. The appointing
authority will forward the case together with his views, recorded
in Annexure “A”, to the Administrative Department concerned
for consideration. If it is decided by the administrative department
to be a fit case for offering employment on compassionate ground
G a suitable vacancy may be identified under the appointing authority
concerned for providing employment subject to the condition that
the candidate satisfies the qualification and other requirements
prescribed for recruitment to the post. If a suitable vacancy is not
available under the appointing authority concerned the
H administrative department may identify suitable vacancy under
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 641
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
some other appointing authority under its administrative control A
for providing employment. The administrative department will
forward the case with suitable direction, to the appointing authority,
in whose establishment the vacancy has been identified. In the
event of non-availability of the berth for accommodating such a
case the administrative department concerned will have to move
B
other departments for suitable berth. When a suitable vacancy is
available in some other department to accommodate the case, the
Administrative Department will forward the case along with the
relevant papers to that department for further action. The
Department having vacancy in the Exempted Category of
posts will provide employment to the wife/son/daughter/ C
near relation of the employee who died in harness subject
to observance of relevant conditions and formalities.”
97-Emp. - 6th June, 2005:
“In exercise of the powers conferred by clause (c) of section 3 of
the West Bengal Regulation of Recruitment in State Government D
Establishments and Establishments of Public Undertakings,
Statutory Bodies, Government Companies and Local Authorities
Act, 1999, the Governor has been pleased to lay down the following
principles and procedures to be followed in dealing with the issue
of appointment on compassionate ground to the dependants of E
employees who die in harness, or who retire prematurely on being
declared permanently incapacitated.
xxx
2. One of the dependants of an employee who dies in harness or
who retires prematurely on being declared permanently F
incapacitated may be offered appointment on compassionate
ground subject to the fulfilment of the following conditions:
(i) The employee has died, or retired on being permanently
incapacitated before completing 20 years of services of before
attaining the age of 50 years, whichever is earlier. G
(ii) The family of the deceased of the retired employee, as the
case may be, is in need of immediate assistance and appointment
of dependant of the employee is absolutely essential for survival
of the family.
H
642 SUPREME COURT REPORTS [2023] 2 S.C.R.
A For the purpose of appointment of compassionate ground in terms
of this notification, a dependant shall mean spouse, a son or an
unmarried daughter who was (sic) solely dependent on the
earnings of the deceased or the retired employee.
xxx
B 8. The Labour Department will forward the name of persons found
eligible for appointment on compassionate ground to one or more
of the following Departments, for appointing them against available
vacancies.-
1) Health & Family Welfare Department
C
2) School Education Department.
3) Higher Education Department.
4) Mass Education & Extension Department.
5) Home (Police) Department.
D
6) Jails Department.”
EMP-142 - 1st November, 2007:
“Consequent upon issue of this Department’s Notification No.
97-Emp, dated 06.06.2005, a question arose as to if the
E provisions of the said notification would be applicable to
the State Government employees only or to the employees
attached to such other establishments, as are mentioned
in the West Bengal Regulation of Recruitment in State
Government Establishments and Establishments of Public
F Undertakings, Government Companies and Local
Authorities Act, 1999, as well. To obviate the question, issue
of a clarification in this regard has been under consideration of
the Government for some time past and in terms of this Department
Notification No. 69-Emp. dated 26-06-2007, it has been clarified
that the term ‘employee’ will mean the State Government
G employee only for the purpose of this Department’s
Notification No. 97-Emp, dated 06-06-2005.
xxx
2. The Governor has, now, been pleased to order that the
appropriate authorities of the establishments of Public
H
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 643
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
Undertakings, Statutory Bodies, Government Companies and Local A
Authorities, within the purview of the Act ibid, will, having regard
to the principles applicable to the State Government employees
as enunciated in this Department Notification No. 97-Emp, dated
06-06-2005, read with Corrigendum No. 151-Emp, dated 08-09-
2005, Notification No. 133-Emp, dated 01-10-2007 and any other
B
order/Notification to be issued subsequently by the Government
in this regard, the financial position and the nature of activities of
the respective organizations, formulate policies of their own in
consultation with the respective administrative departments so as
to follow the same in course of dealing with the prayers for
appointment or financial assistance on compassionate ground, C
received by them, from the dependents of the employees who
die-in-harness or retire prematurely on being declared permanently
incapacitated.
3. Before notifying the policy, the administrative Department shall
obtain the concurrence of the Labour Department and the D
Financial Department.”
(emphasis by us)
16.1. A scheme for compassionate appointment was introduced
by Circular Nos. 301-Emp. to 303-Emp. dated 21stAugust 2002. Circular
No. 301-Emp identifies the exempted categories for the purpose of the E
Act of 1999. Dependents of employees dying in harness is one of the
categories so identified. Circular No. 302-Emp provides that 30% of the
vacancies arising in a year under any appointing authority shall be
reserved to be filled by persons belonging to the exempted categories.
Circular No. 303-Emp prescribes a procedure for filling up of vacancies F
reserved for the exempted categories, i.e., the procedure to be followed
by the appointing authority on receipt of an application to be appointed
on compassionate grounds. The said Circular provides that the
administrative department shall, on finding a candidate eligible for
compassionate appointment, either appoint him/her under the appointing
authority which forwarded the application, or, identify a suitable G
department where there is a vacancy to be filled by a person belonging
to an exempted category. The Circular further provides that any
Department which has vacancy in the Exempted Category of posts will
provide employment to the wife/son/daughter/near relation of the
employee who died in harness. H
644 SUPREME COURT REPORTS [2023] 2 S.C.R.
A The next notification is 97-Emp. dated 6thJune, 2005 which specifies
the criteria for a person seeking an appointment on compassionate grounds
in the ‘dependents of persons who died in harness’ category. Further,
Circular No. 142-Emp. dated 1stNovember, 2007, seeks to answer the
question, whether the provisions of 97-Emp. would be applicable to State
Government employees only or it would apply to the employees attached
B
to other establishments as mentioned in the Act of 1999 as well. It answers
the question in the negative so far as employees of other establishments
are concerned. It further provides that local authorities may formulate
their own policies having regard to the principles applicable to the State
Government Employees to govern compassionate appointment.
C 16.2. There is no controversy regarding the applicability of Circular
No. 97-Emp. dated 6thJune, 2005 to employees of local authorities such
as municipalities because Circular No. 142-Emp. dated 1stNovember,
2007 provides in no unclear terms that 97-Emp. would not be applicable
to employees of local authorities.
D It is trite that the effect of the clarification of any document is
always retrospective and would relate back to the date of the notification
in respect of which the clarification is issued, vide Ashok Lenka vs.
Rishi Dikshit, AIR 2006 SC 2382. The clarificatory Circular, i.e.,
Circular No. 142-Emp. dated 1stNovember, 2007 has got no independent
E existence. It merely defines the scope of operation of Circular No. 97-
Emp. dated 6thJune, 2005. Therefore Circular No. 97-Emp. read with
Circular No. 142-Emp. concern the procedure governing compassionate
appointment, only qua State Government employees.
Further, applications for compassionate appointment are to be
F 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. Given that the said Circular
does not govern compassionate appointment to posts under local
authorities, compassionate appointment cannot be granted to posts under
G local authorities.
16.3. It is the case of the Respondents-Writ Petitioners herein
that though Circular No. 97-Emp. read with Circular No. 142-Emp is
not applicable to local authorities, their applications for compassionate
appointment ought to have been considered in light of 301-Emp., 302-
H
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & 645
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
Emp. and 303-Emp. which, according to the Respondents-Writ Petitioners A
is applicable to all departments and authorities covered under the Act of
1999. However, in our view, the said Circulars were not understood or
read to be a scheme governing all employees of other establishments
governed by the Act of 1999. We say so for the following reasons:
i) Circular No. 303-Emp. provides that any Department which B
has vacancy in the Exempted Category of posts will provide
employment to the wife/son/daughter/near relation of the
employee who died in harness. Use of the word
‘Department’ would indicate that the said Circular would
govern compassionate appointment to Departments of the
State Government and not to local authorities. C
ii) The meaning of the word ‘Department’ would have to be
gathered, having regard to the fact that the immediate
notification subsequent to 301-Emp., 302-Emp. and 303-
Emp., being 97-Emp. dated 6 thJune, 2005 notifies the
departments in whose vacancies the appointments would D
be granted. The Departments are of the State.
iii) If Circular Nos. 301-Emp, 302-Emp and 303-Emp. are to
be read so as to cover all establishments of the Act of 1999,
then 97-Emp. dated 6 thJune, 2005, should provide for
appointment in the establishment covered by the Act of 1999 E
concerned. It does not do so. Therefore, Circular Nos. 301-
Emp, 302-Emp and 303-Emp. cannot be held to be
applicable to local authorities.
16.4. The existence of a policy issued by the State Government is
a sine qua non for making appointments on compassionate basis, vide F
Mumtaz Yunus Mulani (Smt.) vs. State of Maharashtra (supra);
State Bank of India vs. Surya Narain Tripathi, 2014 (15) SCC 739.
The appointments must follow the stipulations made in the policy. It is
therefore a no-brainer that in the absence of a policy governing
compassionate appointment to posts under a local authority, no G
appointment could be made to such an authority on compassionate
grounds.
Having held that Circular Nos. 301-Emp, 302-Emp and 303-Emp.
cannot be held to be applicable to local authorities, we are unable to
affirm the findings of the Division Bench of the High Court to the effect
H
646 SUPREME COURT REPORTS [2023] 2 S.C.R.
A that given that Circular No. 301-Emp., 302-Emp. 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 303-Emp.
B We are further of the view that the liberty granted to the local
authorities in Circular No. 142-Emp. to formulate their own scheme for
compassionate appointment, is an acknowledgement of the fact that there
was no policy existing to govern compassionate appointment to posts
under local authorities.
C 16.5. In fine, the present appeals succeed on two counts: first,
there was no policy existing to govern compassionate appointment to
posts under local authorities in the State of West Bengal and hence, in
the absence of such a policy, compassionate appointment cannot be
granted; second, assuming that there was such a policy, it would be of
no redeeming purpose to direct that the applications for appointment on
D compassionate grounds be considered and decided several years after
they were filed.
17. In light of the aforesaid discussion, the instant appeals
succeed in the following terms:
E i. The impugned judgment and common order of the High
Court of Calcutta dated 30th September, 2019 is hereby set
aside. The order of the learned Single Judge of the High
Court of Calcutta dated 05th July, 2018, passed in W.P. No.
2739 (W) of 2016 and connected matters is restored.
F ii. I.A. No. 1977 of 2022 for impleadment of the applicant,
stands allowed.
Parties to bear their respective costs.
Divya Pandey Appeals allowed.
G (Assisted by : Roopanshi Virang, LCRA)
H
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