Union of India and Ors. v. Subrata Das

Calcutta HC18 Nov 2025WP.CT/353/2024

Case brief

AI extract

What is this about?

Compassionate appointment — delay and staleness — waiver by conduct — participation in subsequent selections waives benefit of earlier selection — immediacy of purpose — limitation under section 21 Administrative Tribunals Act, 1985 — RTI application does not extend limitation — Geological Survey of India — Central Administrative Tribunal Kolkata Bench order set aside — writ under Article 226/227 — Santosh Kumar Dubey (2009) 6 SCC 481 and State of W.B. v. Debabrata Tiwari followed; Malaya Nanda Sethy and East Coast Railway distinguished.

What did the court decide?

The impugned order of the Tribunal dated 29 July 2024 is set aside; the writ petition is allowed and WP.CT No.353 of 2024 is disposed of accordingly. ¶¶68

Union of India and Ors. Vs Subrata Das — Writ and Judicial Review | Calcutta HC (2025)

What the court decided

AI extract

Outcome

The impugned order of the Tribunal dated 29 July 2024 is set aside; the writ petition is allowed and WP.CT No.353 of 2024 is disposed of accordingly.

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Issue for consideration

Whether the Tribunal's direction to grant compassionate appointment in 2024 against the vacancy of 2002-2003, nearly two decades after the events, could stand judicial scrutiny given that the very purpose of compassionate appointment is immediacy of relief to a family in distress. +2 more

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Court's answer

If compassionate appointment is directed to be given after decades, the very object and purpose of compassionate appointment (immediacy of help to a family in distress) stands defeated; the department's contention on this aspect has substantial force.

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Ratio / Principle

The applicant, with eyes wide open, submitted his candidature for compassionate appointment on 4-5 occasions after 2003 and thereby, by his conduct, waived his right to enjoy the benefit of his selection of 2003; waiver may be implied from conduct inconsistent with continuance of the right.

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Key takeaways

Neither the GSI Portal complaint nor the RTI application extends limitation or explains the delay; the RTI information could have been sought immediately after 2003, and the applicant took a calculated risk, leaving a delay of about two decades unexplained.ratio¶¶50
Even if the objection of limitation is not specifically taken, it was obligatory on the Tribunal to examine whether it was dealing with a stale claim; the Tribunal failed to do so, and therefore its order cannot sustain judicial scrutiny.ratio¶¶63
Malaya Nanda Sethy is based on peculiar facts where the claimant approached with promptitude but the department sat tight over the matter; since in the present case the applicant himself waived his right by repeated candidatures, that judgment cannot be pressed into service here.

Detailed headnote1 paragraphs

Calcutta High Court (Sujoy Paul, ACJ., authoring; Partha Sarathi Sen, J., concurring) allowed WP.CT No.353 of 2024 filed by the Union of India and set aside the order of the Central Administrative Tribunal, Kolkata Bench dated 29 July 2024 in O.A. No.350/249/2023, which had directed compassionate appointment to Subrata Das against a 2002-2003 vacancy of the Geological Survey of India. The applicant's father was declared medically unfit with effect from 26 July 2000; the applicant was declared fit for compassionate appointment by the original committee on 29 April 2003 but was unsuccessful in review selection, and instead of challenging it he filed fresh candidatures for 2013-14, 2014-15 and 2015-16 which were rejected. Holding that waiver may be implied from conduct inconsistent with the continuance of a right, the court held that by repeatedly participating in subsequent selections the applicant waived his right to the benefit of the 2003 selection. Neither his GSI Portal complaint nor his RTI application of 18 July 2022 extended limitation or explained a delay of about two decades. Relying on the principle of immediacy in Santosh Kumar Dubey (2009) 6 SCC 481 and State of W.B. v. Debabrata Tiwari (2023 SCC Online SC 219), the court held that granting compassionate appointment after decades would defeat its very object, that a Tribunal must examine staleness even without a limitation objection, and that the Tribunal's order could not stand. Malaya Nanda Sethy (2022 SCC OnLine SC 684) was distinguished as a case of departmental delay rather than applicant delay, and East Coast Railway ((2010) 7 SCC 678) was held to be of no assistance, compassionate appointment being a concession and not a vested right.

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IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE

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Present:

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The Hon’ble Acting Chief Justice Sujoy Paul

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And

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The Hon’ble Justice Partha Sarathi Sen

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WP.CT No.353 of 2024

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UNION OF INDIA AND OTHERS

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. . .APPELLANTS

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VERSUS

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SUBRATA DAS . . .RESPONDENT For the Appellant/(s) : Mr. Indrajeet Dasgupta, Adv. For the Respondent/(s) : Mr. Pratip Kumar Chatterjee, Sr. Adv. Ms. Swapna Ray, Adv. Mr. Ashish Deb, Adv. Ms. Maitrayee Chatterjee, Adv. Mr. Tridun Mishra, Adv. Heard on : 18^th November, 2025. Judgment on : 18^th November, 2025.

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. . .RESPONDENT

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Sujoy Paul, ACJ.:

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In this petition filed under Article 226/227 of the Constitution, the petitioner/department has challenged the order of Central Administrative Tribunal („Tribunal‟), Kolkata Bench, dated 29^th July, 2024, passed in

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O.A. No.350/249/2023 whereby claim of the applicant (respondent herein) is allowed and he was directed to be given compassionate appointment against the vacancy of 2002-2003 forthwith.

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Department’s Contention:

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Learned counsel for the department raised fourfold submissions. By taking this court to the admitted facts it is submitted that applicant‟s father was working with the Geological Survey of India and was declared medically unfit with effect from 26^th July, 2000. The applicant preferred an application for compassionate appointment. The department admittedly considered his claim for compassionate appointment and he was declared to be fit by original committee in its meeting held on 29^th April, 2003. Thereafter, a review committee meeting had taken place in which applicant was not selected. Thereafter, because of change of policy of compassionate appointment, the department informed the candidates to prefer fresh applications submitting their candidature for compassionate appointment. In terms of such communication, the applicant submitted his candidature for the year 2013-2014, 2014-2015 and 2015-2016.

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However, his case was not recommended for compassionate appointment. The applicant filed O.A. No.350/249/2023 in the year 2023 seeking compassionate appointment against his selection which had taken place in 2002-2003 and also prayed to set aside the regret letters dated 19^th February, 2013, 13^th January, 2017 and 13^th August, 2000, whereby the department informed him that his various applications for compassionate appointment were rejected.

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First and foremost contention of learned counsel for the department is that the very purpose of grant of compassionate appointment is to provide immediate helping hand to a family in distress. If compassionate appointment is not claimed with quite promptitude, the very purpose of granting compassionate appointment is frustrated. The applicant approached the tribunal when he was aged about 40 years. By placing reliance on Eastern Coalfields Limited vs. Anil Badyakar and Others reported in (2009) 13 SCC 112 , Local Administration Department and Another vs. M. Selvanayagam @ Kumar Avelu reported in (2011) 13 SCC 42 and Government of India and Another vs. P. Venkatesh reported in (2019) 15 SCC 613 , it is submitted that the claim of compassionate appointment deserves to be rejected solely on the ground of delay in approaching the Tribunal on the part of the applicant.

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The second submission is that even assuming that the applicant was selected in the year 2003, he did not file any petition immediately thereafter, within a period of limitation before appropriate forum for enjoying the fruits of such selection. Instead, he waited till 2012-2013 and then he submitted fresh applications on three occasions for grant of compassionate appointment. Thus, he has waived his right to enjoy the outcome of selection of 2003.

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Thirdly , it is submitted that the petitioner herein by communication dated 19^th February, 2013, specifically informed the applicant that in the CAC meeting dated 29^th April, 2003, his case was recommended but it was not recommended in the next CAC held on 16^th February, 2006. Thus, the

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applicant came to know about his non-selection on 19^th February, 2013. By two more rejection orders dated 13^th January, 2016 and 13^th August, 2020, the department again informed the applicant about the rejection of his candidature in subsequent considerations for compassionate appointment. The limitation to assail the orders is one year as per section 21 of Administrative Tribunal‟s Act, 1985. However, if statutory remedy is availed against the impugned decision, the limitation is extended upto one and half years. Thus, examining it from any angle, the O.A. was barred by limitation.

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The fourth submission is that the tribunal was not justified in directing the appointment of applicant in the vacancy of 2002-2003. The tribunal has failed to examine that very object of compassionate appointment stands frustrated if a candidate comes to the court nearly about two decades.

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Stand of Applicant :

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Learned counsel for applicant submits that the applicant was admittedly selected in the year 2003. The respondents are at fault in not implementing the said selection in his favour. It is further argued that when department itself invited candidature for compassionate appointment, the applicant on few occasions submitted such candidature which were rejected by aforesaid orders. The department sat tight over the matter for compassionate appointment after his selection in 2003 and, therefore, in the light of judgment of the Hon‟ble Supreme Court in Malaya Nanda Sethy vs. State of Orissa and Others reported in 2022 SCC OnLine SC 684 , no fault can be found in the order of the tribunal. The similar contention is advanced on

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the strength of judgment of the Apex Court in East Coast Railway and Another vs. Mahadeb Appa Rao and Others reported in (2010) 7 SCC 678 .

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The learned counsel for the applicant has taken pains to contend that when aforesaid rejection orders came to his notice, he availed the statutory remedy and preferred an application in GSI Portal. Thereafter, he preferred an application on 18^th July, 2022, under the RTI Act, 2005, seeking information and note-sheets of his selection. Soon thereafter, when he came to know about the said information, he filed the said O.A. in 2023. Thus, there is no delay on the part of the applicant and department has not raised any objection of limitation before the tribunal. In support of these submissions, the applicant has filed the written submission and said two judgments.

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The parties confined their arguments to the extent indicated above. We have bestowed our anxious consideration on rival contentions and perused the record.

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Analysis:

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The admitted facts in this case are that applicant‟s father was voluntarily retired on medical grounds with effect from 26^th July, 2000. The applicant was selected for compassionate appointment in 2003 but in the review selection he was not selected. Admittedly, the applicant did not approach the appropriate legal forum seeking the benefit of his selection of the year 2003 immediately. The applicant, on the other hand, had chosen to wait for about 8-9 years and when a new policy of compassionate appointment came into being, he preferred fresh applications for compassionate appointment.

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In our considered opinion, if applicant wanted to enjoy the fruits of his selection of 2003, he should have filed a petition with quite promptitude before submitting his candidature in the year 2011-2012 onwards. After having participated in the subsequent selections, in our considered judgment, the applicant has waived his right to get the benefit of his selection in the year 2003.

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In Halsbury’s Laws of England, Vol. 16(2), 4^th Edn., Para 907 the expression “waiver” was defined as under:

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“Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it.”

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After considering this dictionary meaning, the Apex Court in Kalpraj

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Dharamshi & Anr. Vs. Kotak Investment Advisors Ltd. & Anr. opined as under:

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“122. As such, for applying the principle of waiver, it will have to be established, that though a party was aware about the relevant facts and the right to take an objection, he has neglected to take such an objection.”

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It was further held:

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“127. Thus, for constituting acquiescence or waiver it must be established, that though a party knows the material facts and is conscious of his legal rights in a given matter, but fails to assert its rights at the earliest possible opportunity, it creates an effective bar of waiver against him.”

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(Emphasis Supplied)

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In view of this judgment, it is clear that applicant with eyes wide open submitted his candidature for compassionate appointment on 4-5

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occasions after 2003. Thus, he, by his conduct, waived his right to enjoy the benefit of selection of 2003.

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The matter may be viewed from another angle. The department, in no certain terms, informed the petitioner by communication dated 19^th February, 2013, 13^th January, 2016 and 13^th August, 2020, that he has not been selected in the selections for the year 2002-03, 2005-06, 2013-14, 2014-15 and 2015-16, i.e. five times. Interestingly, these rejection orders could have been challenged with a period of one year. If any statutory remedy is availed against this order, this could have been challenged within 18 months as per section 21 of the 1980 Act which prescribes a statutory limitation.

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The petitioner is explaining delay on the basis of two reasons, namely(i) he preferred a complaint in the year 2014 in GSI Portal; and

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(ii) he preferred an application under RTI Act on 18^th July, 2022.

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In our view, both the reasons neither extend the limitation nor explain the reason for delay. The GSI Portal remedy was availed on 8^th December, 2013, and from that date he could have availed the remedy of filing Original Application under section 19 of 1980 Act within 18 months. The RTI information, by no stretch of imagination extends the limitation. The applicant came out of his deep slumber in 2022 for the first time to obtain information under the RTI Act. Nothing prevented him to obtain such information immediately after 2003 when he was selected and thereafter, review committee took a different decision. Thus, the applicant has taken a calculated risk and delay of about two decades is not properly explained.

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We find substantial force in the argument of the department that if compassionate appointment is directed to be given after decades, the very object and purpose of compassionate appointment will stand defeated. The judgments cited by the learned counsel for the department are on this point and deals with the aspect of immediacy.

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In the case of Santosh Kumar Dubey vs. State of U.P. (2009) 6 SCC 481 ,

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the Apex Court poignantly held as under:

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“12. The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service.”

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(Emphasis Supplied)

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The ratio decidendi of this judgment is consistently followed by Hon‟ble Supreme Court. In its recent judgment in State of W.B. v. Debabrata

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Tiwari, 2023 SCC Online SC 219 the Apex Court opined as under:-

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“35. Considering the second question referred to above, in the first instance, regarding whether applications for compassionate appointment could be considered after a delay of several years, we are of the view that, in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Further, the financial circumstances of the family of the deceased, may have changed, for the better, since the time of the death of the government employee. In such circumstances, Courts or other relevant authorities are to be guided by the fact that for such prolonged period of delay, the family of the deceased was able to sustain themselves, most probably by availing gainful employment from some other source. Granting compassionate appointment in such a case, 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 and the same is relative to the financial condition and hardship faced by the

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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.”

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(Emphasis Supplied)

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Once facts are admitted, in our opinion, even if the objection of limitation is not specifically taken, it was obligatory on the part of the tribunal to examine whether it is dealing with any stale claim or not. The tribunal, in our humble opinion, has miserably failed to do the same and directed appointment of the applicant in the year 2024 against the vacancy of 2002-2003. The order of tribunal, thus, cannot sustain judicial scrutiny.

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So far judgment of the Hon‟ble Supreme Court in Malaya Nanda Sethy (Supra) is concerned, a careful reading of this judgment shows that it is based on the peculiar facts and circumstance of the said case. In the said case, the application was preferred by the claimant therein with quite promptitude but department sat tight over the matter for several years. In this backdrop, the Hon‟ble Apex Court opined that negligence of department cannot be a ground to deprive the claimant. In the instant case, the applicant has waived his right to get appointment against a vacancy of 20032004 when he submitted candidatures without any demur against the vacancies of year ending 2003, 2006, 2014, 2015 and 2016. Thus, this judgment cannot be pressed into service in the factual matrix of the present case.

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The judgment in East Coast Railway (Supra) also shows that compassionate appointment cannot be claim as a matter of right. It is a

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concession given to the candidate in the factual backdrop of each case. This judgment is of no assistance to the applicant.

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In view of foregoing discussion, we are unable to give our stamp of approval to the impugned order of tribunal dated 29^th July, 2024. Resultantly, the said order is set aside .

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