THE STATE OF WEST BENGAL versus DEBABRATA TIWARI & ORS. ETC. ETC. on 3 March 2023

[2023] 2 S.C.R. 611

THE STATE OF WEST BENGAL

v.

DEBABRATA TIWARI & ORS. ETC. ETC.

(Civil Appeal Nos. 8842-8855 of 2022)

MARCH 03, 2023

[KRISHNA MURARI AND B. V. NAGARATHNA, JJ.]

Service Law – Compassionate Appointment – Held: Existenceof a policy issued by the State Government is a sine qua non formaking appointments on compassionate basis – However, in thepresent case, there was no policy existing to govern compassionateappointment to posts under local authorities in the State of WestBengal – Hence, in the absence of such a policy, compassionateappointment cannot be granted to the respondents-heirs of thedeceased employees who worked in the concerned municipalities –Further, the object for grant of compassionate employment is toenable the family of the deceased employee to tide over the suddencrisis due to the death of the bread-earner leaving the family inpenury and without any means of livelihood – Thus, operation of apolicy/scheme for compassionate appointment is founded onconsiderations of immediacy – However, in the instant case, therespondents approached the High Court only in the year 2015, aftera lapse of nearly ten years from the date of making the applicationfor compassionate appointment in 2005-2006 – Such delay woulddisentitle the respondents to the discretionary relief u/Art.226 –Entertaining a claim made in 2005-2006, in the year 2023, wouldbe of no avail because admittedly, the respondents have been ableto eke out a living even though they did not successfully getappointed to the services of the Municipality on compassionategrounds – Sense of immediacy in the matter of compassionateappointment has been lost in the present case – Claim of therespondents for appointments on compassionate grounds not fit tobe considered – West Bengal Regulation of Recruitment in StateGovernment Establishments and Establishments of PublicUndertakings, Statutory Bodies, Government Companies and LocalAuthorities Act, 1999 – West Bengal Municipal, Employees’(Recruitment) Rules, 2005 – Constitution of India – Article 226 –Delay/Laches.

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AService Law – Compassionate appointment: Principlesenumerated.

Object and rationale behind scheme for – Discussed.

Determination of claims – Factors – Discussed.BApplications for – Manner in which dealt by State authorities,reproached – Held: Delay on the part of the authorities of the Stateto decide claims for compassionate appointment frustrates the veryobject of a scheme of compassionate appointment – Governmentofficials are to act with a sense of utmost proactiveness andimmediacy while deciding claims of compassionate appointment toCensure that the wholesome object of such a scheme is fulfilled.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1.1 A provision for compassionate appointmentmakes a departure from the general provisions providing forDappointment to a post by following a particular procedure ofrecruitment. Since such a provision enables appointment beingmade without following the said procedure, it is in the nature ofan exception to the general provisions and must be resorted toonly in order to achieve the stated objectives, i.e., to enable thefamily of the deceased to get over the sudden financial crisis.EAppointment on compassionate grounds is not a source ofrecruitment. The reason for making such a benevolent schemeby the State or the public sector undertaking is to see that thedependants of the deceased are not deprived of the means oflivelihood. It only enables the family of the deceased to get overFthe sudden financial crisis. Compassionate appointment is not avested right which can be exercised at any time in future.Compassionate employment cannot be claimed or offered after alapse of time and after the crisis is over. That compassionateappointment should be provided immediately to redeem the familyin distress. It is improper to keep such a case pending for years.GIn determining as to whether the family is in financial crisis, allrelevant aspects must be borne in mind including the income ofthe family, its liabilities, the terminal benefits if any, received bythe family, the age, dependency and marital status of its members,together with the income from any other source. The objectH

underlying a provision for grant of compassionate employment isto enable the family of the deceased employee to tide over thesudden crisis due to the death of the bread-earner which has leftthe family in penury and without any means of livelihood. Out ofpure humanitarian consideration and having regard to the factthat unless some source of livelihood is provided, the family wouldnot be in a position to make both ends meet, a provision is madefor giving gainful appointment to one of the dependants of thedeceased who may be eligible for such appointment. Havingregard to such an object, it would be of no avail to grantcompassionate appointment to the dependants of the deceasedemployee, after the crisis which arose on account of death of abread-winner, has been overcome. Thus, there is also acompelling need to act with a sense of immediacy in mattersconcerning compassionate appointment because on failure to doso, the object of the scheme of compassionate would be frustrated.Where a long lapse of time has occurred since the date of deathof the deceased employee, the sense of immediacy for seekingcompassionate appointment would cease to exist and thus loseits significance and this would be a relevant circumstance whichmust weigh with the authorities in determining as to whether acase for the grant of compassionate appointment has been madeout for consideration. The sine qua non for entertaining a claimfor compassionate appointment is that the family of the deceasedemployee would be unable to make two ends meet without oneof the dependants of the deceased employee being employed oncompassionate grounds. The financial condition of the family ofthe deceased, at the time of the death of the deceased, is theprimary consideration that ought to guide the authorities’ decisionin 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, eitheron the part of the applicant in claiming compassionate appointmentor the authorities in deciding such claim, the sense of immediacyis diluted and lost. Further, the financial circumstances of thefamily of the deceased, may have changed, for the better, sincethe time of the death of the government employee. In suchcircumstances, Courts or other relevant authorities are to beguided by the fact that for such prolonged period of delay, the AB

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Afamily of the deceased was able to sustain themselves, mostprobably by availing gainful employment from some other source.Granting compassionate appointment in such a case would amountto treating a claim for compassionate appointment as though itwere a matter of inheritance based on a line of succession whichis contrary to the Constitution. Since compassionate appointmentBis not a vested right and the same is relative to the financialcondition and hardship faced by the dependents of the deceasedgovernment employee as a consequence of his death, a claim forcompassionate appointment may not be entertained after lapseof a considerable period of time since the death of the governmentCemployee. [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 awrit petition under Article 226 of the Constitution, ordinarily, aDwrit petition should be filed within a reasonable time. TheRespondents-Writ Petitioners, upon submitting their applicationsin the year 2005-2006 did nothing further to pursue the matter,till the year 2015 i.e., for a period of ten years. Notwithstandingthe tardy approach of the authorities of the Appellant-State inEdealing with their applications, the Respondent-Writ Petitionersdelayed approaching the High Court seeking a writ in the natureof a mandamus against the authorities of the State. In fact, such aprolonged delay in approaching the High Court, may even beregarded as a waiver of a remedy, as discernible by the conductFof the Respondents-Writ Petitioners. Such a delay would disentitlethe Respondents-Writ Petitioners to the discretionary relief underArticle 226 of the Constitution. Further, the order of the HighCourt whereby the writ petition filed by some of the Respondentsherein was disposed of with a direction to the Director of LocalBodies, Government of West Bengal to take a decision as to theGappointment of the Respondents-Writ Petitioners, cannot beconsidered to have the effect of revival of the cause of action.The operation of a policy/scheme for compassionate appointmentis founded on considerations of immediacy. A sense of immediacyis called for not only in the manner in which the applications areH

processed by the concerned authorities but also in the conductof the applicant in pursuing his case, before the authorities and ifneeded before the Courts. In the present case, the applicationsfor compassionate appointment were made by the Respondents-Writ Petitioners in the year 2005-2006. Admittedly, the firstconcrete step taken by the Chairman of the Burdwan Municipalitywas in the year 2013, when the said authority forwarded a list ofcandidates to be approved by the Director of Local Bodies,Burdwan Municipality. The Respondents-Writ Petitionersknocked on the doors of the High Court of Calcutta only in theyear 2015, i.e., after a lapse of nearly ten years from the date ofmaking the application for compassionate appointment. TheRespondents-Writ Petitioners were not prudent enough toapproach the Courts sooner, claiming that no concrete step hadbeen taken by the Appellant-State in furtherance of the applicationby seeking a Writ in the nature of Mandamus. The sense ofimmediacy in the matter of compassionate appointment has beenlost in the present case. This is attributable to the authorities ofthe Appellant-State as well as the Respondents-Writ Petitioners.Now, entertaining a claim which was made in 2005-2006, in theyear 2023, would be of no avail, because admittedly, theRespondents-Writ Petitioners have been able to eke out a livingeven though they did not successfully get appointed to theservices of the Municipality on compassionate grounds. Hence,this is therefore not fit cases to direct that the claim of theRespondents-Writ Petitioners for appointments on compassionategrounds, be considered or entertained. [Paras 8, 10-13][634-B-C, F-H; 635-A-B; 636-H; 637-A-F]

Moon Mills Ltd. vs. M. R. Meher, President, IndustrialCourt, 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 SCC278 : [2007] 3 SCR 711; State of Uttaranchal vs. ShivCharan 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 decideclaims for compassionate appointment would no doubt frustrate A

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Athe very object of a scheme of compassionate appointment.Government officials are to act with a sense of utmost proactivenessand immediacy while deciding claims of compassionate appointmentso as to ensure that the wholesome object of such a scheme isfulfilled. [Para 14][637-D-H; 638-A]B1.5 Applications for compassionate appointment are to beconsidered in light of the policy holding the field on the date onwhich the application is filed. In the present case, the applicationswere filed in the year 2006. Therefore, they would have to bedecided in light of Circular No. 97-Emp. read with Circular No.142-Emp. Circular No. 97- Emp. read with Circular No. 142-Emp.Cconcern the procedure governing compassionate appointment,only qua State Government employees. Given that the saidCircular does not govern compassionate appointment to postsunder local authorities, compassionate appointment cannot begranted to posts under local authorities. The existence of a policyDissued by the State Government is a sine qua non for makingappointments on compassionate basis. The appointments mustfollow the stipulations made in the policy. In the absence of apolicy governing compassionate appointment to posts under alocal authority, no appointment could be made to such an authorityon compassionate grounds. Having held that Circular Nos. 301-EEmp, 302-Emp and 303-Emp. cannot be held to be applicable tolocal authorities, the findings of the Division Bench of the HighCourt to the effect that given that Circular No. 301-Emp., 302-Emp. and 303 Emp. were not specifically withdrawn, they wouldcontinue to remain applicable and therefore, compassionate Fappointment in respect of municipalities would be governed bythe 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)G11 SCC 384 : [2008] 5 SCR 241; State Bank of Indiavs. Surya Narain Tripathi, 2014 (15) SCC 739 – reliedon.

1.6 There was no policy existing to govern compassionateappointment to posts under local authorities in the State of WestH

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Bengal and hence, in the absence of such a policy, compassionateappointment cannot be granted. Assuming that there was such apolicy, it would be of no redeeming purpose to direct that theapplications for appointment on compassionate grounds beconsidered and decided several years after they were filed. Theimpugned judgment and common order of the High Court is setaside. The order of the Single Judge of the High Court is restored.[Paras 16.5, 17][646-C-F]

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Sushma Gosain vs. Union of India, (1989) 4 SCC 468;Umesh Kumar Nagpal vs. State of Haryana, (1994) 4SCC 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) 1SCC 301 : [1995] 5 Suppl. SCR 177; I.G. (Karmik) vs.Prahalad Mani Tripathi, (2007) 6 SCC 162 : [2007] 5SCR 978; State of Jammu and Kashmir vs. Sajad AhmedMir, AIR 2006 SC 2743 : [2006] 3 Suppl. SCR 576;State of Himachal Pradesh vs. Shashi Kumar, (2019) 3SCC 653 : [2019] 2 SCR 432 – relied on.

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Malaya Nanda Sethy vs. State of Orissa, AIR 2022 SC2836; Ashok Lenka vs. Rishi Dikshit, AIR 2006 SC 2382: [2006] 1 Suppl. SCR 142 – referred to.

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Gobinda Hazra vs. State of West Bengal, W.P. No. 13147(W) of 2017; Debabrata Tiwari vs. The State of WestBengal judgement dated 30th September, 2019,passed in MAT 859 of 2018 with CAN 6137 of 2018 –referred to.

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Lindsay Petroleum Co. vs. Prosper Armstrong, (1874) 3PC 221 – referred to.

Case Law Reference

[2019] 2 SCR 432relied onPara 4.2G[1994] 3 SCR 893relied onPara 7.1 (ii)[1997] 4 Suppl. SCR 377relied onPara 7.1 (iii)[2003] 3 Suppl. SCR 333relied onPara 7.1 (iv)

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CCIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8842-8855 of 2022.

From the Judgment and Order dated 30.09.2019 of the High Courtat Calcutta in MAT Nos. 859, 860, 853, 861, 863, 864, 862, 854, 855, 856,857, 858, 634 and 847 of 2018.DRakesh Dwivedi, Sr. Adv., Ms. Madhumita Bhattacharjee, Ms.Arushi Mishra, Advs. for the Appellant.

Indradeep Pal, Mrs. Sougata Pal Das, Rauf Rahim, Ms. EktaChoudhary, Chanchal Kumar Ganguli, Shashwat Panda, Ms. VandanaETiwari, 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 andcommon order of the High Court of Calcutta, dated 30[th] September,F2019, in a batch of appeals being MAT 859 of 2018 with CAN 6137 of2018 and connected matters. By the impugned judgment and commonorder, the Division Bench of the High Court set aside the order of thelearned Single Judge of the High Court dated 05[th] July, 2018, passed inW.P. No. 2739 (W) of 2016 and connected matters and directed theGDirector of Local Bodies, Burdwan Municipality and the concernedauthority in Ranaghat and Habra Municipalities to consider the applicationmade by the Respondents-Writ Petitioners seeking appointment oncompassionate grounds. The Division Bench of the High Court alsoidentified the scheme in light of which the said applications would haveto be considered and decided.H

2. The present appeals concern claims of the Respondents-WritPetitioners, who are heirs of employees of Burdwan, Ranaghat and HabraMunicipalities, who died in harness for compassionate appointment toposts in the concerned municipalities. All these appeals concern commonquestions as to the entitlement of such persons to be considered forcompassionate appointment and whether any scheme of the StateGovernment supports their claim for compassionate appointment. Further,since the case of all the Respondents is the same, the facts concerningthe Burdwan Municipality alone may be succinctly stated as under:

2.1. The case of the Respondents-Writ Petitioners concerningBurdwan Municipality is that based on the applications received fromthe heirs of the deceased employees working under different categories,the Burdwan Municipality directed an enquiry by a three-membercommittee comprising of the Chairman of Burdwan Municipality(Respondent No. 6 herein); the Executive Officer of the BurdwanMunicipality (Respondent No. 7 herein) and the Deputy Director of LocalBodies, Burdwan Division, to determine whether the respondents wereentitled to the appointment on compassionate grounds.

2.2. That on the basis of the report submitted by the enquirycommittee and after following the criteria set in the West BengalMunicipal, Employees’ (Recruitment) Rules, 2005, the Board ofCouncillors of Burdwan Municipality in its meeting held on 30[th] May2013, approved a list of 62 eligible candidates for the purpose ofrecruitment in Group ‘C’ and ‘D’ posts in the said Municipality. Thenames of the respondents figured in the said list.

2.3. That the Chairman of the Burdwan Municipality vide Memodated 12[th] June, 2013, forwarded a list approved by a resolution passedin the meeting of the Board of Councillors on 30[th] May, 2013, along withan inspection/enquiry report and other testimonials to the Director ofLocal Bodies, Government of West Bengal (Respondent No. 4), forapproval of appointment on compassionate grounds. The names of theWrit Petitioners appeared in the list of eligible candidates under Group‘C’ under the exempted category, ‘dependents of persons who died inharness’.

2.4. That on 7[th] June 2014, the Chairman, Burdwan Municipality,Respondent No. 5, forwarded the proposed list of eligible candidates forappointment on compassionate grounds under a Memo bearing number512/XII-6, to the Director of Local Bodies, Government of West Bengal, AB

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A(appellant herein), and requested the Director of Local Bodies to lookinto the matter sympathetically.

2.5. That since the Director of Local Bodies or the Governmentof West Bengal did not take steps pursuant to the receipt of the list ofcandidates, Debabrata Tiwari (Respondent No. 1) filed a Writ PetitionBbearing No. 3243 (W) of 2015 before the High Court of Calcutta seekingappointment on compassionate grounds under the relevant exemptedcategory. The Secretary of the Burdwan Municipality submitted beforethe High Court that Respondent No. 1 was eligible for being consideredfor appointment on compassionate grounds, under the exempted categoryof dependents of persons who died in harness and that the BurdwanCMunicipality had already sent the necessary papers in this regard to theOffice of the Directorate of Local Bodies, Government of West Bengal.

2.6. The said Writ Petition was disposed of by an order dated 17[th]March, 2015, with a direction to the Director of Local Bodies,Government of West Bengal to take a decision on the recommendationDof the Chairman of the Municipality within a period of ten weeks fromthe date of communication of the said Order and to communicate suchdecision 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 WestEBengal, on 16[th] October, 2015 passed an Order wherein it was statedthat the Director of Local Bodies had no authority to consider theappointments under compassionate grounds in Urban Local Bodies, unlessthe policy in the matter was laid down by the State Government. It wastherefore observed by the Director of Local Bodies that as soon as theFState Government extends such policy for consideration of appointmentof the employees of the Urban Local Bodies, under compassionategrounds, in the die-in-harness category, the prayer of Respondent No. 1would be considered.

2.8. Being aggrieved by the order passed by the Director of LocalGBodies, Government of West Bengal on 16[th] October, 2015, RespondentNo. 1 preferred a Writ Petition bearing No. 2733 (W) of 2016 before theHigh Court of Calcutta.

A batch of Writ Petitions where the cause of action was the sameas that in W.P. No. 2733 (W) of 2016 was heard and disposed of togetherby the learned Single Judge of the High Court of Calcutta by way of aH

Common Judgment and Order dated 5[th] July, 2018. The said commonorder was passed in Writ Petition No. 2739 (W) of 2016.The learnedSingle Judge dismissed the Writ Petitions by relying on the judgmentpassed in Gobinda Hazra vs. State of West Bengal, W.P. No. 13147(W) of 2017, wherein the issue, as to, whether, there subsists any schemefor compassionate appointment in respect of municipal employees wasconsidered and the issue was answered in the negative. The High Courtthus held that no relief could be granted to the Writ Petitioners(Respondents herein), in the absence of a sanctioned scheme forcompassionate appointment in respect of municipal employees.

2.9. Aggrieved by the Order passed by the Single Judge dated 5[th]July, 2018, the Respondents- Writ Petitioners preferred a batch of appealsbefore the Division Bench of the High Court. The said appeals wereheard and allowed by a common impugned judgement dated 30[th]September, 2019, passed in MAT 859 of 2018 with CAN 6137 of 2018inthe case of Debabrata Tiwari vs. The State of West Bengal. By wayof the impugned judgment, the Director of Local Bodies, BurdwanMunicipality and the concerned authority in Ranaghat and HabraMunicipalities were directed to consider the application made by theWrit Petitioners seeking appointment on compassionate grounds. TheDivision Bench of the High Court also identified the scheme in light ofwhich the said applications would have to be considered and decided.Hence the present appeals by the State of West Bengal.

2.10. The pertinent findings of the Division Bench of the HighCourt 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 argumentcanvassed on behalf of the Government that there was anundue delay between the time of making the applicationand the time when the Respondents-Writ Petitionersapproached the Court. That the Writ Petitioners had notdelayed filing applications seeking appointments oncompassionate grounds and the concerned authorities hadundertaken an enquiry by constituting a committee but hadultimately taken years to consider their applications and torecommend their respective names. The Director of LocalBodies kept the matter pending without according anyapproval of the recommendations, as a result, a Writ Petition AB

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Awas filed which was disposed of with a specific directionto the Director of Local Bodies to consider the applicationswithin a time frame. That in pursuance of the High Courtdirection, the Director of Local Bodies disposed of the matterin respect of Burdwan Municipality only on 16[th] October,2015. Hence, a time of about ten years had been spent onlyBfor processing the applications and such a delay could notbe attributed to the Respondents-Writ Petitioners.

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ii.That an employee of a municipality cannot be treated as anemployee of the State Government and therefore thescheme available to a State Government employee cannotbe extended to a dependent of an employee of themunicipality who died in harness. Thus, the respondentswere not entitled to claim the benefit of compassionateappointment in terms of the schemes formulated videCircular No. 97-Emp.; 142-Emp.; 30-Emp.; and 251-Emp.,which were specifically applicable to State Governmentemployees.

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iii.As to the issue of whether there was any scheme for grantof compassionate appointments in respect of employees ofMunicipalities, the Division Bench differed from the findingsof the Single Judge. On a conjoint reading of Circular Nos.301-Emp., 302-Emp. and 303 Emp., it was observed that itwas clear that the aforesaid Circulars were specific schemesfor compassionate appointments in respect of municipalities.That the said schemes were in respect of all establishmentscovered under the West Bengal Regulation of Recruitmentin State Government Establishments and Establishments ofPublic Undertakings, Statutory Bodies, GovernmentCompanies and Local Authorities Act, 1999 (West BengalAct XIV of 1999) (hereinafter referred to as the ‘Act of1999’ for the sake of brevity). That the said circulars whichwere extended to the employees of all establishmentsincluding local authorities like municipalities, were neitherwithdrawn nor substituted by the subsequent notificationsand circulars.

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iv.That although Circular No. 142-Emp. clarified that 97-Emp.was applicable only in respect of State Government H

employees and directed the municipalities to formulate theirown schemes for compassionate appointment, no suchscheme had been formulated by the concernedmunicipalities. That it was evident from Circular No. 142-Emp. that it does not withdraw the scheme forcompassionate appointment available under Circular Nos.301-Emp., 302-Emp. and 303-Emp. and in the absence ofany subsequent scheme or specific withdrawal of theexisting scheme, the scheme remains in subsistence andwill be the scheme under which the applications forcompassionate appointments made by the respondents areto be considered.

v.In the absence of a substituted scheme, and given thatCircular No. 301-Emp., 302-Emp. and 303 Emp. were notspecifically withdrawn, they would continue to remainapplicable. Therefore, compassionate appointment in respectof municipalities would be governed by the scheme underCircular Nos. 301-Emp., 302-Emp. and 303-Emp.

In light of the aforesaid observations, the Division Benchof the High Court set aside the Order passed by the SingleJudge and directed the Director of Local Bodies, BurdwanDivision, Government of West Bengal to reconsider theMemo dated12th June, 2013 whereby the Chairman,Burdwan Municipality, had sought for the approval ofrecommended names for being appointed undercompassionate grounds. Further, the Director of LocalBodies was directed to examine whether proper inspectionof the documents had been carried out while recommendingsuch names and whether the parameters mentioned underthe scheme contained in Circular Nos. 301-Emp., 302-Emp.and 303-Emp. had been properly adhered to by the officialsof Burdwan Municipality while making the recommendation.

Aggrieved by the said directions of the High Court andthe findings as to the eligibility of the Respondents-WritPetitioners to seek appointment on compassionate grounds,the present appeals have been filed by the State of WestBengal.

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A3. We have heard Sri Rakesh Dwivedi, learned Senior Counseland learned counsel, Ms. Madhumita Bhattacharjee appearing on behalfof the Appellant-State of West Bengal and learned counsel Sri IndradeepPal for the Respondent-Writ Petitioners, and perused the material onrecord.BSubmissions:

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4. Learned Senior Counsel for the Appellant-State of West Bengalat the outset submitted that the findings of the Division Bench of theHigh Court of Calcutta were based on an incorrect appreciation of lawand facts and therefore the same are liable to be set aside.

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4.1. It was further submitted that directing at such a belated stage,that the Respondents-Writ Petitioners ought to be appointed oncompassionate grounds would have no redeeming purpose. That therationale behind a policy of compassionate appointment is to provideimmediate succor to the dependent(s) of a government employee dyingDin harness. This object would require that immediate steps be taken toenable the dependent(s) to recover from the sudden financial crisis as aresult of death or disablement of a breadwinner of a family. If the saidpurpose is not going to be accomplished, the Court may not direct thesame granting compassionate appointment. That in the instant cases,the applications made by the Respondents-Writ Petitioners forEcompassionate appointment relates to the year 2005-2006. That a directionto act on the same now, i.e., 17-18 years after the applications seekingcompassionate appointment were made, would not further the object ofa scheme of compassionate appointment.

4.2. Reliance was placed on the decision of this Court in State ofFHimachal Pradesh vs. Shashi Kumar, (2019) 3 SCC 653 (“ShashiKumar”) to contend that where there is a significant gap between makingthe application for compassionate appointment and filing a Writ Petitionto challenge inaction on the part of the Government, a direction to considerthe application for compassionate appointment may not be issued.G4.3. It was next contended that Circular No. 142-Emp. clarified G4.3. It was next contended that Circular No. 142-Emp. clarifiedthat 97-Emp. was applicable only in respect of State Governmentemployees and directed the municipalities to formulate their own schemesfor compassionate appointment. This would mean that as a matter ofpolicy of the State Government, it was declared that it is not viable togive compassionate appointment to heirs of employees of establishmentsH

of public undertakings, statutory bodies, government companies and localauthorities. That by virtue of the clarification under Circular No. 142-Emp., the position would be that no scheme exists for compassionateappointment in Municipalities. It is for such establishments to formulatepolicies of their own in consultation with the respective administrativedepartment. That, in the absence of a sanctioned scheme forcompassionate appointment in respect of municipal employees, no reliefcould have been granted by the High Court.

4.4. It was urged that compassionate appointment could not beclaimed as a matter of right and a claim for the same must be entertainedhaving regard to the compelling financial circumstances (if any) of thedeceased’s dependent(s). Therefore, entertaining a claim which wasmade in 2005-2006, in the year 2023, would be of no avail.

With the aforesaid submissions, it was prayed on behalf of theappellant-State of West Bengal that the present appeals be allowed andthe impugned judgment of the Division Bench of the High Court be setaside.

5. Per contra, learned counsel for the Respondents-WritPetitioners, submitted that the impugned judgment was passed based onan unimpeachable appreciation of the facts of the case and the law inthis regard, and therefore the same does not call for interference by thisCourt.

5.1. It was further submitted that any scheme for compassionateappointment has to be applied across the establishments including themunicipalities. Thus, the petitioner State could not contend that theemployees of the municipality would not be eligible for compassionateappointment in the absence of any separate compassionate appointmentscheme for municipal employees.

5.2. That Notification No. 301-Emp. declared the followingcategory of persons as ‘exempted category’ extending, inter-alia, thebenefit of compassionate appointment to the said ‘exempted category:

a) Dependents of employees dying in harness.

b) Dependents of employees retiring incapacitated.

c) Persons belonging to families belonging to land losers.

d) Ex-census employees.

e) Persons holding discharge certificates.

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AFurther, by Notification No. 302-Emp., the State Governmentreserved 30% of vacancies to be filled by the ‘exempted category’.Subsequently, a Circular bearing No. 97-Emp. dated 6[th] June, 2005 wasissued by the Petitioner State in the exercise of the powers conferredunder Section 3(c) of the 1999 Act, inter-alia, laying down the procedureto be followed in dealing with the issue of appointment on compassionateBgrounds to the ‘exempted category’. However, by way of Notificationbearing No. 142-Emp. dated 1[st] November, 2007 it was clarified thatNotification No. 97-Emp. was only restricted to State Governmentemployees, and in so far as other establishments are concerned, theywould have to formulate their own policies having regard to the principlesCapplicable to the State Government Employees.

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That in the absence of a policy formulated specially for municipalemployees, compassionate appointment could have been granted on thestrength of Circular Nos. 301-Emp., 302-Emp. and 303-Emp.

5.3. It was averred that since delay in acting upon the applicationDof the Respondent-Writ Petitioners was attributable only to the appellant’sauthorities, therefore, the Respondents ought not to be prejudiced onaccount of such delay. That the Respondents-Writ Petitioners diligentlypursued the matter with the authorities, as also before the High Court ofCalcutta.

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With the aforesaid submissions it was prayed on behalf of theRespondents-Writ Petitioners that the present appeals be dismissed asbeing devoid of merit and the impugned judgment be affirmed.

Points for Consideration:

F6. The following points would arise for consideration:

i. Whether the Division Bench of the High Court of Calcutta erredin allowing the appeals filed by the Respondents-Writ Petitioners anddirecting that their claims for compassionate appointment be consideredby the Appellant?

Gii.What order?

6.1. These appeals primarily concern the question whether thereexists any scheme in the State of West Bengal, governing compassionateappointment governing municipal employees dying in harness. In theevent that the aforesaid question is answered in the affirmative, it wouldHbe necessary to determine whether a direction issued several years after applications for compassionate appointment are filled, to consider anddecide 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 nodistinction between the young and the old or the rich and the poor. Deathbeing as a consequence of birth at some point of time is inevitable forevery being. Thus, while death is certain, its timing is uncertain. Further,a deceased employee does not always leave behind valuable assets; hemay at times leave behind poverty to be faced by the immediate membersof his family. Therefore, what should be done to ensure that death of anindividual does not mean economic death for his family? The State’sobligation in this regard, confined to its employees who die in harness,has given rise to schemes and rules providing for compassionateappointment of an eligible member of his family as an instance of providingimmediate succour to such a family. Support for such a provision hasbeen derived from the provisions of Part IV of the Constitution of India,i.e., Article 39 of the Directive Principles of State Policy.

7.1. It may be apposite to refer to the following decisions of thisCourt, on the rationale behind a policy or scheme for compassionateappointment and the considerations that ought to guide determination ofclaims for compassionate appointment.

i.In Sushma Gosain vs. Union of India, (1989) 4 SCC468, this Court observed that in all claims for appointmenton compassionate grounds, there should not be any delay inappointment. That the purpose of providing appointment oncompassionate grounds is to mitigate the hardship causeddue to the death of the bread earner in the family. Suchappointment should, therefore, be provided immediately toredeem the family in distress.

ii.In Umesh Kumar Nagpal vs. State of Haryana, (1994)4 SCC 138, this Court observed that the object of grantingcompassionate employment is to enable the family of adeceased government employee to tide over the suddencrisis by providing gainful employment to one of thedependants of the deceased who is eligible for suchemployment. That mere death of an employee in harness A

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does not entitle his family to such source of livelihood; theGovernment or the public authority concerned has toexamine the financial condition of the family of the deceasedand it is only if it is satisfied that, but for the provision ofemployment, the family will not be able to meet the crisis,that a job is to be offered to the eligible member of thefamily, provided a scheme or rules provide for the same.This Court further clarified in the said case thatcompassionate appointment is not a vested right which canbe exercised at any time after the death of a governmentservant. That the object being to enable the family to getover the financial crisis which it faces at the time of thedeath of the sole breadwinner, compassionate employmentcannot be claimed and offered after lapse of considerableamount of time and after the crisis is overcome.

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iii.In Haryana State Electricity Board vs. Hakim Singh,D(1997) 8 SCC 85, (“Hakim Singh”)this Court placedmuch emphasis on the need for immediacy in the manner inwhich claims for compassionate appointment are made bythe dependants and decided by the concerned authority.This Court cautioned that it should not be forgotten that theobject of compassionate appointment is to give succour toEthe family to tide over the sudden financial crisis that hasbefallen the dependants on account of the untimely demiseof its sole earning member. Therefore, this Court held thatit would not be justified in directing appointment for theclaimants therein on compassionate grounds, fourteen yearsFafter the death of the government employee. That such adirection would amount to treating a claim forcompassionate appointment as though it were a matter ofinheritance based on a line of succession.

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iv.This Court in State of Haryana vs. Ankur Gupta, AIR2003 SC 3797 held that in order for a claim forcompassionate appointment to be considered reasonable andpermissible, it must be shown that a sudden crisis occurredin the family of the deceased as a result of death of anemployee who had served the State and died while inservice. It was further observed that appointment on G

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compassionate grounds cannot be claimed as a matter ofright and cannot be made available to all types of postsirrespective of the nature of service rendered by thedeceased employee.

v.There is a consistent line of authority of this Court on theprinciple that appointment on compassionate grounds is givenonly for meeting the immediate unexpected hardship whichis faced by the family by reason of the death of the breadearner vide Jagdish Prasad vs. State of Bihar, (1996) 1SCC 301. When an appointment is made on compassionategrounds, it should be kept confined only to the purpose itseeks to achieve, the idea being not to provide for endlesscompassion, vide I.G. (Karmik) vs. Prahalad ManiTripathi, (2007) 6 SCC 162. In the same vein is thedecision of this Court in Mumtaz Yunus Mulani vs. Stateof Maharashtra, (2008) 11 SCC 384, wherein it wasdeclared that appointment on compassionate grounds is nota source of recruitment, but a means to enable the familyof 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 thatthe government employee (father of the applicant therein)died in March, 1987. The application was made by theapplicant after four and half years in September, 1991 whichwas rejected in March, 1996. The writ petition was filed inJune, 1999 which was dismissed by the learned Single Judgein July, 2000. When the Division Bench decided the matter,more than fifteen years had passed from the date of deathof the father of the applicant. This Court remarked that thesaid facts were relevant and material as they woulddemonstrate that the family survived in spite of death ofthe employee. Therefore, this Court held that grantingcompassionate appointment after a lapse of a considerableamount of time after the death of the government employee,would not be in furtherance of the object of a scheme forcompassionate appointment.

vii.In Shashi Kumar, this Court speaking through Dr. D.Y.Chandrachud, J. (as His Lordship then was) observed that A

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Acompassionate appointment is an exception to the generalrule that appointment to any public post in the service ofthe State has to be made on the basis of principles whichaccord with Articles 14 and 16 of the Constitution. That thebasis of the policy is that it recognizes that a family of adeceased employee may be placed in a position of financialBhardship upon the untimely death of the employee while inservice. That it is the immediacy of the need which furnishesthe basis for the State to allow the benefit of compassionateappointment. The pertinent observations of this Court havebeen extracted as under:

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“41. Insofar as the individual facts pertaining to theRespondent are concerned, it has emerged from therecord that the Writ Petition before the High Court wasinstituted on 11 May 2015. The application forcompassionate appointment was submitted on 8 MayD2007. On 15 January 2008 the Additional Secretary hadrequired that the amount realized by way of pension beincluded in the income statement of the family. TheRespondent waited thereafter for a period in excess ofseven years to move a petition Under Article 226 of theConstitution. In Umesh Kumar Nagpal (supra), thisECourt has emphasized that the basis of a scheme ofcompassionate appointment lies in the need of providingimmediate assistance to the family of the deceasedemployee. This sense of immediacy is evidently lost bythe delay on the part of the dependant in seekingcompassionate appointment.”F7.2. On consideration of the aforesaid decisions of this Court, thefollowing principles emerge:

i.That a provision for compassionate appointment makes adeparture from the general provisions providing forGappointment to a post by following a particular procedureof recruitment. Since such a provision enables appointmentbeing made without following the said procedure, it is in thenature of an exception to the general provisions and mustbe resorted to only in order to achieve the stated objectives,i.e., to enable the family of the deceased to get over theHsudden financial crisis.

ii.Appointment on compassionate grounds is not a source ofrecruitment. The reason for making such a benevolentscheme by the State or the public sector undertaking is tosee that the dependants of the deceased are not deprivedof the means of livelihood. It only enables the family of thedeceased to get over the sudden financial crisis.

iii.Compassionate appointment is not a vested right which canbe exercised at any time in future. Compassionateemployment cannot be claimed or offered after a lapse oftime and after the crisis is over.

iv.That compassionate appointment should be providedimmediately to redeem the family in distress. It is improperto 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 theincome of the family,its liabilities, the terminal benefits ifany, received by the family, the age, dependency and maritalstatus of its members, together with the income from anyother source.

7.3. The object underlying a provision for grant of compassionateemployment is to enable the family of the deceased employee to tideover the sudden crisis due to the death of the bread-earner which hasleft the family in penury and without any means of livelihood. Out ofpure humanitarian consideration and having regard to the fact that unlesssome source of livelihood is provided, the family would not be in a positionto make both ends meet, a provision is made for giving gainful appointmentto one of the dependants of the deceased who may be eligible for suchappointment. Having regard to such an object, it would be of no avail togrant compassionate appointment to the dependants of the deceasedemployee, after the crisis which arose on account of death of a bread-winner, has been overcome. Thus, there is also a compelling need to actwith a sense of immediacy in matters concerning compassionateappointment because on failure to do so, the object of the scheme ofcompassionate would be frustrated. Where a long lapse of time hasoccurred since the date of death of the deceased employee, the sense ofimmediacy for seeking compassionate appointment would cease to existand thus lose its significance and this would be a relevant circumstance AB

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Awhich must weigh with the authorities in determining as to whether acase for the grant of compassionate appointment has been made out forconsideration.

7.4. As noted above, the sine qua non for entertaining a claimfor compassionate appointment is that the family of the deceasedBemployee would be unable to make two ends meet without one of thedependants of the deceased employee being employed on compassionategrounds. The financial condition of the family of the deceased, at thetime of the death of the deceased, is the primary consideration that oughtto guide the authorities’ decision in the matter.

C7.5. Considering the second question referred to above, in thefirst instance, regarding whether applications for compassionateappointment could be considered after a delay of several years, weare of the view that, in a case where, for reasons of prolonged delay,either on the part of the applicant in claiming compassionate appointmentor the authorities in deciding such claim, the sense of immediacy isDdiluted and lost. Further, the financial circumstances of the family ofthe deceased, may have changed, for the better, since the time of thedeath of the government employee. In such circumstances, Courts orother relevant authorities are to be guided by the fact that for suchprolonged period of delay, the family of the deceased was able to sustainEthemselves, most probably by availing gainful employment from someother source. Granting compassionate appointment in such a case, asnoted by this Court in Hakim Singh would amount to treating a claimfor compassionate appointment as though it were a matter ofinheritance based on a line of succession which is contrary to theConstitution. Since compassionate appointment is not a vested rightFand the same is relative to the financial condition and hardship facedby the dependents of the deceased government employee as aconsequence of his death, a claim for compassionate appointment maynot be entertained after lapse of a considerable period of time sincethe death of the government employee.G

8. Laches or undue delay, the blame-worthy conduct of a personin approaching a Court of Equity in England for obtaining discretionaryrelief which disentitled him for grant of such relief was explainedsuccinctly by Sir Barnes Peacock, in Lindsay Petroleum Co. vs. ProsperArmstrong, (1874) 3 PC 221 as under:H

“Now the doctrine of laches in Courts of Equity is not an arbitraryor a technical doctrine. Where it would be practically unjust togive a remedy, either because the party has, by his conduct, donethat which might fairly be regarded as equivalent to a waiver of it,or where by his conduct and neglect he has, though perhaps notwaiving that remedy, yet put the other party in a situation, in whichit would not be reasonable to place him if the remedy wereafterwards to be asserted, in either of these cases, lapse of timeand delay are most material. But in every case, if an argumentagainst relief, which otherwise would be just, is founded uponmere delay, that delay of course not amounting to a bar by anystatute or limitations, the validity of that defence must be triedupon principles substantially equitable. Two circumstances, alwaysimportant in such cases, are, the length of the delay and the natureof the acts done during the interval, which might affect eitherparty and cause a balance of Justice or injustice in taking the onecourse or the other, so far as it relates to the remedy.”

Whether the above doctrine of laches which disentitled grant ofrelief to a party by Equity Court of England, could disentitle the grant ofrelief to a person by the High Court in the exercise of its power underArticle 226 of our Constitution, came up for consideration before aConstitution Bench of this Court in Moon Mills Ltd. vs. M. R. Meher,President, Industrial Court, Bombay, AIR 1967 SC 1450. In the saidcase, it was regarded as a principle that disentitled a party for grant ofrelief from a High Court in the exercise of its discretionary power underArticle 226 of the Constitution.

In State of M.P. vs. Nandlal Jaiswal, (1986) 4 SCC 566 thisCourt restated the principle articulated in earlier pronouncements in thefollowing words:

“9. ... the High Court in exercise of its discretion does not ordinarilyassist the tardy and the indolent or the acquiescent and thelethargic. If there is inordinate delay on the part of the Petitionerand such delay is not satisfactorily explained, the High Court maydecline to intervene and grant relief in exercise of its writjurisdiction. It was stated that this Rule is premised on a numberof factors. The High Court does not ordinarily permit a belatedresort to the extraordinary remedy because it is likely to causeconfusion and public inconvenience and bring, in its train new A

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Ainjustices, and if writ jurisdiction is exercised after unreasonabledelay, it may have the effect of inflicting not only hardship andinconvenience but also injustice on third parties. It was pointedout that when writ jurisdiction is invoked, unexplained delay coupledwith the creation of third-party rights in the meantime is animportant factor which also weighs with the High Court in decidingBwhether or not to exercise such jurisdiction.”

While we are mindful of the fact that there is no period of limitationprovided for filing a writ petition under Article 226 of the Constitution,ordinarily, a writ petition should be filed within a reasonable time, videJagdish Lal vs. State of Haryana, (1997) 6 SCC 538; NDMC vs.CPan Singh, (2007) 9 SCC 278.

9. Further, simply because the Respondents-Writ Petitionerssubmitted their applications to the relevant authority in the year 2005-2006, it cannot be said that they diligently perused the matter and hadnot slept over their rights. In this regard, it may be apposite to refer toDthe decision of this Court in State of Uttaranchal vs. Shiv CharanSingh Bhandari, (2013) 12 SCC 179, wherein the followingobservations were made:

“19. From the aforesaid authorities it is clear as crystal that evenif the court or tribunal directs for consideration ofErepresentations relating to a stale claim or dead grievanceit does not give rise to a fresh cause of action. The deadcause of action cannot rise like a phoenix. Similarly, a meresubmission of representation to the competent authoritydoes not arrest time.”

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10. Applying the said ratio to the facts of the present case, wehold that the Respondents-Writ Petitioners, upon submitting theirapplications 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 theGtardy approach of the authorities of the Appellant-State in dealing withtheir applications, the Respondent-Writ Petitioners delayed approachingthe High Court seeking a writ in the nature of a mandamus against theauthorities of the State. In fact, such a prolonged delay in approachingthe High Court, may even be regarded as a waiver of a remedy, asdiscernible by the conduct of the Respondents-Writ Petitioners. Such aH

delay would disentitle the Respondents-Writ Petitioners to thediscretionary relief under Article 226 of the Constitution. Further, theorder of the High Court dated 17[th] March, 2015, whereby the writ petitionfiled by some of the Respondents herein was disposed of with a directionto the Director of Local Bodies, Government of West Bengal to take adecision as to the appointment of the Respondents-Writ Petitioners, cannotbe considered to have the effect of revival of the cause of action.

11. It may be apposite at this juncture to refer to the followingobservations of this Court in Malaya Nanda Sethy vs. State of Orissa,AIR 2022 SC 2836, as to the manner in which the authorities mustconsider and decide applications for appointment on compassionategrounds:

“9. Before parting with the present order, we are constrained toobserve that considering the object and purpose of appointmenton compassionate grounds, i.e., a family of a deceased employeemay be placed in a position of financial hardship upon the untimelydeath of the employee while in service and the basis or policyis immediacy in rendering of financial assistance to thefamily of the deceased consequent upon his untimely death,the authorities must consider and decide such applicationsfor appointment on compassionate grounds as per the policyprevalent, at the earliest, but not beyond a period of sixmonths from the date of submission of such completedapplications.

We are constrained to direct as above as we have found thatin several cases, applications for appointment on compassionategrounds are not attended in time and are kept pending for yearstogether. As a result, the applicants in several cases have toapproach the concerned High Courts seeking a writ of Mandamusfor the consideration of their applications. Even after such adirection is issued, frivolous or vexatious reasons are given forrejecting the applications. Once again, the applicants have tochallenge the order of rejection before the High Court which leadsto pendency of litigation and passage of time, leaving the familyof the employee who died in harness in the lurch and in financialdifficulty. Further, for reasons best known to the authorities andon irrelevant considerations, applications made for compassionateappointment are rejected. After several years or are not consideredat all as in the instant case.

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In the said case, the claim of the appellant-applicant therein forcompassionate appointment was directed by this Court to be consideredby the competent authority. This Court noted that in the said case, therewas no lapse on the part of the appellant-applicant therein in diligentlyEpursuing the matter. The delay in considering the application of theappellant therein was held to be solely attributable to the authorities ofthe State, and no part of it was occasioned by the appellant-applicant.Further, in the said case, the appellant-applicant was prejudiced not onlybecause of the prolonged delay in considering his application but also bythe fact that in the interim, the policy of the State governing compassionateFappointment had changed to his detriment. Therefore, the facts of thesaid case were distinct from the facts involved herein. In the presentcase, the conduct of the Respondents-Writ Petitioners cannot be said tobe blameless in that they did not pursue their matter with sufficientdiligence. However, the observations made in the said case as to theGmanner in which applications for compassionate appointment are to beconsidered and disposed of are relevant to the present case.

As noted in the said case, the operation of a policy/scheme forcompassionate appointment is founded on considerations of immediacy.A sense of immediacy is called for not only in the manner in which theHapplications are processed by the concerned authorities but also in the conduct of the applicant in pursuing his case, before the authorities andif needed before the Courts.

12. In the present case, the applications for compassionateappointment were made by the Respondents-Writ Petitioners in the year2005-2006. Admittedly, the first concrete step taken by the Chairman ofthe Burdwan Municipality was in the year 2013, when the said authorityforwarded a list of candidates to be approved by the Director of LocalBodies, Burdwan Municipality. The Respondents-Writ Petitionersknocked on the doors of the High Court of Calcutta only in the year2015, i.e., after a lapse of nearly ten years from the date of making theapplication for compassionate appointment. The Respondents-WritPetitioners were not prudent enough to approach the Courts sooner,claiming that no concrete step had been taken by the Appellant-State infurtherance of the application by seeking a Writ in the nature ofMandamus.

13. The sense of immediacy in the matter of compassionateappointment has been lost in the present case. This is attributable to theauthorities of the Appellant-State as well as the Respondents-WritPetitioners. Now, entertaining a claim which was made in 2005-2006, inthe year 2023, would be of no avail, because admittedly, the Respondents-Writ Petitioners have been able to eke out a living even though they didnot successfully get appointed to the services of the Municipality oncompassionate grounds. Hence, we think that this is therefore not fitcases to direct that the claim of the Respondents-Writ Petitioners forappointments on compassionate grounds, be considered or entertained.

14. However, we must sound a strong word of reproach directedat the authorities of the Appellant-State, about the manner in which theapplications for compassionate appointment of hundreds of dependentshave been dealt with. Much uncertainty looms around the scope, extentand beneficiaries of the various schemes formulated by the State forgoverning compassionate appointment and therefore, the concernedauthorities are unable/unwilling to positively decide claims forcompassionate appointment. This may have ultimately resulted in prejudiceto the families of many government employees dying in harness. Delayon the part of the authorities of the State to decide claims forcompassionate appointment would no doubt frustrate the very object ofa scheme of compassionate appointment. Government officials are toact with a sense of utmost proactiveness and immediacy while deciding AB

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Aclaims of compassionate appointment so as to ensure that the wholesomeobject of such a scheme is fulfilled.

15. The question as to whether a direction issued several yearsafter an application for compassionate appointment, to consider and decidesuch application, is in consonance with the object of a policy/scheme forBcompassionate appointment, has been answered in the negative.However, we shall also examine whether these appeals must succeedon a second count, i.e., whether there exists any scheme in the State ofWest Bengal, governing compassionate appointment vis-à-vis municipalemployees dying in harness.

C16. In order to determine the question as to whether there existsany scheme in the State of West Bengal, governing compassionateappointment vis-à-vis municipal employees dying in harness, it would beuseful to refer to the content of the relevant State GovernmentNotifications issued in this regard. The relevant Circulars are: 301-Emp.,302-Emp. and 303-Emp. all dated 21[st]August, 2002; 97-Emp. datedD6[th]June, 2005 and 142-Emp. dated 1[st]November, 2007.

The relevant portions of each of such Circulars are extractedhereinunder for easy reference:

No. 301-EMP/lM-10/2000-21st August, 2002:

E“In exercise of the powers conferred by sub-section (a) of section3 of the West Bengal Regulation of Recruitment in StateGovernment Establishments and Establishments of PublicUndertakings, Statutory Bodies. Government Companies andLocal Authorities Act, 1999 (West Bengal Act XIV of 1999), theFGovernor is pleased to declare the following categories of personsas exempted categories for the purpose of the aforesaid Act:-

1. Dependents of employees dying in harness: A solelydependent wife/son/daughter/near relation of an employeewho dies in harness leaving his family in immediate need ofassistance.

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A near relation of the deceased employee may beconsidered for employment on compassionate ground onlywhen the son/daughter/wife of the deceased employeecannot be considered for employment owing to minor ageor other disabilities. In such a case the employment of a H

near relation of the deceased employee may be consideredonly for providing assistance immediately needed by thefamily, left behind by the deceased.

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This supersedes all earlier circulars and executive orders issuedfrom time-to-time by the Government of West Bengal in the LabourDepartment relating to employment of persons belong to theExempted Categories.”

No. 302-EMP/1M-10/2000- 21st August, 2002:

“In exercise of the powers conferred by sub-section (b) of section3 of the West Bengal Regulation of Recruitment in StateGovernment Establishments and Establishments of PublicUndertakings, Statutory Bodies, Government Companies and LocalAuthorities Act, 1999 (West Bengal Act XIV of 1999), theGovernor is pleased to order that of the local vacancies arising ina year under any appointing authority, other than the vacancieswhich are required to be filled up either on the recommendationsof- (a) the Public Service Commission, West Bengal, or (b) the West Bengal College Service Commission, or

(c) the West Bengal School Service Commission, or (d) the Municipal Service Commission, or (e) the Co-operative Service Commission Or by promotion, or byabsorption of persons declared surplus by the State Governmentor by absorption of such categories of casual workers and otherworkers as the State Government may by notification specify fromtime to time, 30% shall be treated as reserved to be filled up bypersons falling within the exempted categories notified under sub-section (a) of section 3 of the aforesaid Act.”

No. 303-EMP/1M-10/2000 - 21st August, 2002:

“In exercise of the powers conferred by sub-section (c) of section3 of the West Bengal Regulation of Recruitment in StateGovernment Establishments and Establishments of PublicUndertakings, Statutory Bodies, Government Companies and Local A

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Authorities Act, 1999 (West Bengal Act XIV of 1999), theGovernor is pleased to prescribe the following procedure for fillingup the vacancies reserved for the Exempted Categories asspecified under sub-section (a) of section 3 of the aforesaid Act:—

A. GENERAL PROCEDURE TO BE FOLLOWED INRESPECT OF DIFFERENT EXEMPTED CATEGORIES:

1. Dependents of persons who died in harness: None except wife/son/daughter/near relation of the deceased employee and solelydependent on the earnings of the deceased employee, shall beeligible for consideration for such employment. The benefit willbe admissible if the family, left behind by the deceased employee,is in immediate need of assistance and such employment oncompassionate ground is absolutely essential to support the familyof the deceased. A person belonging to a completely separatefamily shall not be treated as solely dependent on the deceasedemployee for the purpose of such employment on compassionateground.

The wife/son/daughter/near relation of an employee who died-in-harness, may apply to the appointing authority through the Headof the Office of the employee in a prescribed form as per Part I& II of Annexure “A” along with a copy of death certificatepraying for employment to support the family of the deceasedemployee. On receipt of such application the appointing authorityshall form an enquiring committee of senior officials not less thanthree in number. The committee so formed shall make an enquiryabout the genuineness of the prayer as well as the financial conditionof the family of the deceased employee and submit a report asper Annexure “A” to the appointing authority. The appointingauthority will forward the case together with his views, recordedin Annexure “A”, to the Administrative Department concernedfor consideration. If it is decided by the administrative departmentto be a fit case for offering employment on compassionate grounda suitable vacancy may be identified under the appointing authorityconcerned for providing employment subject to the condition thatthe candidate satisfies the qualification and other requirementsprescribed for recruitment to the post. If a suitable vacancy is notavailable under the appointing authority concerned theadministrative department may identify suitable vacancy under some other appointing authority under its administrative controlfor providing employment. The administrative department willforward the case with suitable direction, to the appointing authority,in whose establishment the vacancy has been identified. In theevent of non-availability of the berth for accommodating such acase the administrative department concerned will have to moveother departments for suitable berth. When a suitable vacancy isavailable in some other department to accommodate the case, theAdministrative Department will forward the case along with therelevant papers to that department for further action. TheDepartment having vacancy in the Exempted Category ofposts will provide employment to the wife/son/daughter/near relation of the employee who died in harness subjectto observance of relevant conditions and formalities.”

97-Emp. - 6th June, 2005:

“In exercise of the powers conferred by clause (c) of section 3 ofthe West Bengal Regulation of Recruitment in State GovernmentEstablishments and Establishments of Public Undertakings,Statutory Bodies, Government Companies and Local AuthoritiesAct, 1999, the Governor has been pleased to lay down the followingprinciples and procedures to be followed in dealing with the issueof appointment on compassionate ground to the dependants ofemployees who die in harness, or who retire prematurely on beingdeclared permanently incapacitated.

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2. One of the dependants of an employee who dies in harness orwho retires prematurely on being declared permanentlyincapacitated may be offered appointment on compassionateground subject to the fulfilment of the following conditions:

(i) The employee has died, or retired on being permanentlyincapacitated before completing 20 years of services of beforeattaining the age of 50 years, whichever is earlier.

(ii) The family of the deceased of the retired employee, as thecase may be, is in need of immediate assistance and appointmentof dependant of the employee is absolutely essential for survivalof the family.

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SUPREME COURT REPORTS

For the purpose of appointment of compassionate ground in termsof this notification, a dependant shall mean spouse, a son or anunmarried daughter who was (sic) solely dependent on theearnings of the deceased or the retired employee.

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8. The Labour Department will forward the name of persons foundeligible for appointment on compassionate ground to one or moreof the following Departments, for appointing them against availablevacancies.-

1) Health & Family Welfare Department

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2) School Education Department.

3) Higher Education Department.

4) Mass Education & Extension Department.

5) Home (Police) Department.

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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 theEprovisions of the said notification would be applicable tothe State Government employees only or to the employeesattached to such other establishments, as are mentionedin the West Bengal Regulation of Recruitment in StateGovernment Establishments and Establishments of PublicFUndertakings, Government Companies and LocalAuthorities Act, 1999, as well. To obviate the question, issueof a clarification in this regard has been under consideration ofthe Government for some time past and in terms of this DepartmentNotification No. 69-Emp. dated 26-06-2007, it has been clarifiedthat the term ‘employee’ will mean the State GovernmentGemployee only for the purpose of this Department’sNotification No. 97-Emp, dated 06-06-2005.

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2. The Governor has, now, been pleased to order that theappropriate authorities of the establishments of Public H

Undertakings, Statutory Bodies, Government Companies and LocalAuthorities, within the purview of the Act ibid, will, having regardto the principles applicable to the State Government employeesas enunciated in this Department Notification No. 97-Emp, dated06-06-2005, read with Corrigendum No. 151-Emp, dated 08-09-2005, Notification No. 133-Emp, dated 01-10-2007 and any otherorder/Notification to be issued subsequently by the Governmentin this regard, the financial position and the nature of activities ofthe respective organizations, formulate policies of their own inconsultation with the respective administrative departments so asto follow the same in course of dealing with the prayers forappointment or financial assistance on compassionate ground,received by them, from the dependents of the employees whodie-in-harness or retire prematurely on being declared permanentlyincapacitated.

3. Before notifying the policy, the administrative Department shallobtain the concurrence of the Labour Department and theFinancial Department.”

16.1. A scheme for compassionate appointment was introducedby Circular Nos. 301-Emp. to 303-Emp. dated 21[st]August 2002. CircularNo. 301-Emp identifies the exempted categories for the purpose of theAct of 1999. Dependents of employees dying in harness is one of thecategories so identified. Circular No. 302-Emp provides that 30% of thevacancies arising in a year under any appointing authority shall bereserved to be filled by persons belonging to the exempted categories.Circular No. 303-Emp prescribes a procedure for filling up of vacanciesreserved for the exempted categories, i.e., the procedure to be followedby the appointing authority on receipt of an application to be appointedon compassionate grounds. The said Circular provides that theadministrative department shall, on finding a candidate eligible forcompassionate appointment, either appoint him/her under the appointingauthority which forwarded the application, or, identify a suitabledepartment where there is a vacancy to be filled by a person belongingto an exempted category. The Circular further provides that anyDepartment which has vacancy in the Exempted Category of posts willprovide employment to the wife/son/daughter/near relation of theemployee who died in harness.

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AThe next notification is 97-Emp. dated 6[th]June, 2005 which specifiesthe criteria for a person seeking an appointment on compassionate groundsin the ‘dependents of persons who died in harness’ category. Further,Circular No. 142-Emp. dated 1[st]November, 2007, seeks to answer thequestion, whether the provisions of 97-Emp. would be applicable to StateGovernment employees only or it would apply to the employees attachedBto other establishments as mentioned in the Act of 1999 as well. It answersthe question in the negative so far as employees of other establishmentsare concerned. It further provides that local authorities may formulatetheir own policies having regard to the principles applicable to the StateGovernment Employees to govern compassionate appointment.C

A

16.2. There is no controversy regarding the applicability of CircularNo. 97-Emp. dated 6[th]June, 2005 to employees of local authorities suchas municipalities because Circular No. 142-Emp. dated 1[st]November,2007 provides in no unclear terms that 97-Emp. would not be applicableto employees of local authorities.D

It is trite that the effect of the clarification of any document isalways retrospective and would relate back to the date of the notificationin 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 1[st]November, 2007 has got no independentEexistence. It merely defines the scope of operation of Circular No. 97-Emp. dated 6[th]June, 2005. Therefore Circular No. 97-Emp. read withCircular No. 142-Emp. concern the procedure governing compassionateappointment, only qua State Government employees.

Further, applications for compassionate appointment are to beFconsidered in light of the policy holding the field on the date on which theapplication is filed. In the present case, the applications were filed in theyear 2006. Therefore, they would have to be decided in light of CircularNo. 97-Emp. read with Circular No. 142-Emp. Given that the said Circulardoes not govern compassionate appointment to posts under localauthorities, compassionate appointment cannot be granted to posts underGlocal authorities.

16.3. It is the case of the Respondents-Writ Petitioners hereinthat though Circular No. 97-Emp. read with Circular No. 142-Emp isnot applicable to local authorities, their applications for compassionateappointment ought to have been considered in light of 301-Emp., 302-H

THE STATE OF WEST BENGAL v. DEBABRATA TIWARI &ORS. ETC. ETC. [B. V. NAGARATHNA, J.]

Emp. and 303-Emp. which, according to the Respondents-Writ Petitionersis applicable to all departments and authorities covered under the Act of1999. However, in our view, the said Circulars were not understood orread to be a scheme governing all employees of other establishmentsgoverned by the Act of 1999. We say so for the following reasons:

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i)Circular No. 303-Emp. provides that any Department whichBhas vacancy in the Exempted Category of posts will provideemployment to the wife/son/daughter/near relation of theemployee who died in harness. Use of the word‘Department’ would indicate that the said Circular wouldgovern compassionate appointment to Departments of theCState Government and not to local authorities.

ii)The meaning of the word ‘Department’ would have to begathered, having regard to the fact that the immediatenotification subsequent to 301-Emp., 302-Emp. and 303-Emp., being 97-Emp. dated 6[th]June, 2005 notifies theDdepartments in whose vacancies the appointments wouldbe granted. The Departments are of the State.iii)If Circular Nos. 301-Emp, 302-Emp and 303-Emp. are tobe read so as to cover all establishments of the Act of 1999,then 97-Emp. dated 6[[th]]June, 2005, should provide forE

iii)If Circular Nos. 301-Emp, 302-Emp and 303-Emp. are tobe read so as to cover all establishments of the Act of 1999,then 97-Emp. dated 6[[th]]June, 2005, should provide forappointment in the establishment covered by the Act of 1999concerned. It does not do so. Therefore, Circular Nos. 301-Emp, 302-Emp and 303-Emp. cannot be held to beapplicable to local authorities.

16.4. The existence of a policy issued by the State Government isa sine qua non for making appointments on compassionate basis, videMumtaz 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 istherefore a no-brainer that in the absence of a policy governingcompassionate appointment to posts under a local authority, noappointment could be made to such an authority on compassionategrounds.

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G

Having held that Circular Nos. 301-Emp, 302-Emp and 303-Emp.cannot be held to be applicable to local authorities, we are unable toaffirm the findings of the Division Bench of the High Court to the effect H

Athat given that Circular No. 301-Emp., 302-Emp. and 303 Emp. werenot specifically withdrawn, they would continue to remain applicableand therefore, compassionate appointment in respect of municipalitieswould be governed by the scheme under Circular Nos. 301-Emp., 302-Emp. and 303-Emp.

BWe are further of the view that the liberty granted to the localauthorities in Circular No. 142-Emp. to formulate their own scheme forcompassionate appointment, is an acknowledgement of the fact that therewas no policy existing to govern compassionate appointment to postsunder local authorities.

C16.5. In fine, the present appeals succeed on two counts: first,there was no policy existing to govern compassionate appointment toposts under local authorities in the State of West Bengal and hence, inthe absence of such a policy, compassionate appointment cannot begranted; second, assuming that there was such a policy, it would be ofno redeeming purpose to direct that the applications for appointment onDcompassionate grounds be considered and decided several years afterthey were filed.

17. In light of the aforesaid discussion, the instant appeals succeed in the following terms:

i.The impugned judgment and common order of the HighCourt of Calcutta dated 30[th] September, 2019 is hereby setaside. The order of the learned Single Judge of the HighCourt of Calcutta dated 05[th] July, 2018, passed in W.P. No.2739 (W) of 2016 and connected matters is restored.

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Fii.I.A. No. 1977 of 2022 for impleadment of the applicant,stands allowed.

Parties to bear their respective costs.

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Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeals allowed.

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