Sultan Hussain Talukdar Vs the State of Assam and 4 Ors.

Heard Mr. K. Uddin, learned counsel for the petitioner; Mr. R.R. Gogoi, learned Standing Counsel, Environment, Forest and Climate Change Department for the respondent nos. 1, 2, 3 & 4; and Ms. U. Sharma, learned Junior Government Advocate, Assam for the respondent nos. 5 & 6.

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The petitioner has instituted the writ petition under Article 226 of the Constitution of India seeking inter-alia a direction to the State respondent authorities for his appointment on compassionate ground. The petitioner has assailed a decision taken by the District Level Committee [DLC] of Compassionate Appointment, Sribhumi in its Meeting held on 29.11.2024, whereby, the application of the petitioner for his appointment on compassionate ground was rejected. The petitioner has also laid a challenge to an Office Memorandum dated 18.09.2024.

¶26

The case of the petitioner, in brief, is that the petitioner passed the High School Leaving Certificate [HSLC] Examination in the year 2006 and the Higher Secondary [HS] Examination in the year 2008. He has also a Diploma in Computer Application. The father of the petitioner, Late Abdul Khalique was an employee in the Environment, Forest and Climate Change Department, Government of Assam. Abdul Khalique while serving as Forester – II in Sribhumi Forest Division, died-in-harness on 08.04.2016, leaving behind his wife, four sons including the petitioner, and a daughter.

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Immediately after the death of his father, the petitioner submitted an application before the respondent authorities in the Environment, Forest and Climate Change Department on 19.10.2016 seeking his appointment on compassionate ground. At the time of submission of the application by the petitioner on 19.10.2016, the matter of appointment on compassionate ground was used to be governed by a Scheme, framed by the Personnel Department, Government of Assam and notified vide an Office Memorandum dated 01.06.2015. As per the Scheme of compassionate appointment notified by the Office Memorandum dated 01.06.2015, the benefit of appointment on compassionate ground could not inter-alia be made applicable in a case where the deceased Government servant had balance of less than three years of service left from the date of his retirement on superannuation.

¶29

Having regard to the said restrictive condition, the petitioner’s application dated 19.10.2016 came to be rejected by the respondent no. 4 recording the fact that Late Abdul Khalique’s date of retirement was 30.09.2017. Citing the said restrictive condition of appointment on compassionate ground in the Office Memorandum dated 01.06.2015, the respondent no. 4 vide an Office Letter dated 31.10.2016 intimated the decision of rejection to the mother of the petitioner. The matter of rejection of the petitioner's application for compassionate appointment rested in such position till 13.05.2024.

¶30

The above restrictive condition in the Office Memorandum dated 01.06.2015 that an application for compassionate appointment would not be entertained in case the deceased Government servant had balance of less than three years of service left from retirement on superannuation came to be challenged by some persons in 2021 in a nos. of writ petitions including W.P.[C.] no. 1646/2021. This Court by an Order dated 30.01.2023 passed in the said batch of writ petition struck down the said restrictive clause of the Office Memorandum dated 01.06.2015.

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Having learnt about the fact that the said restrictive condition of the Office Memorandum dated 01.06.2015 had been struck down by the Order dated 30.01.2023, the petitioner had once again submitted an application before the respondent no. 4 on

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13.05.2024 for re-consideration of his appointment on compassionate ground. The application dated 13.05.2024, submitted by the petitioner, came to be placed before the District Level Committee [DLC] of compassionate appointment for Sribhumi District in its Meeting held on 29.11.2024. In the said Meeting, the DLC took note of the fact that the petitioner’s earlier application was rejected on 31.10.2016. The DLC also took note of the fact that the petitioner was not amongst the petitioners in the batch of writ petitions including W.P.[C.] no. 1646/2021, wherein the Order dated 30.01.2023 was passed. The DLC further observed that the petitioner’s father died-in-harness on 08.04.2016 and by the time the petitioner’s subsequent application was placed before it, a period of more than eight years had elapsed in the meantime.

¶34

Mr. Uddin, learned counsel for the petitioner has submitted that this Court by passing an Order dated 03.04.2025 in a batch of writ petition including W.P.[C.] no. 342/2025 had directed the State respondents to consider and dispose of all the pending applications submitted for compassionate appointment wherein an Office Memorandum dated 18.09.2024 has been put to challenge. He has further submitted that in this writ petition also, the petitioner has laid a challenge to the Office Memorandum dated 18.09.2024, issued by the Personnel Department, Government of Assam.

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Ms. Sharma, learned Junior Government Advocate, Assam has submitted that the Office Memorandum dated 18.09.2024 is on a subject – ‘Review of the Scheme for appointment of a family member of a Government servant on compassionate grounds’. Ms. Sharma has highlighted that by a Notification dated 14.09.2017 on the subject – ‘Compassionate Family Pension Scheme in lieu of Compassionate Appointment’, the previous Scheme of appointment on compassionate ground notified vide Office Memorandum dated 01.06.2015 had been done away with. The State Government taking note of the observations made by the Hon’ble Supreme Court of India in the case of State of West Bengal vs. Debabrata Tiwari and others, [2025] 5 SCC 712 , has decided by the Office Memorandum dated 18.09.2024 that no cases for appointment on compassionate ground to the family members of the State Government employee who died-in-harness prior to 31.03.2017 shall be entertained by any administrative department / authority for any reason

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whatsoever and the same were not be placed before the State Level Committee [SLC] / DLCs for recommendation for appointment on compassionate ground. It was in context of the Office Memorandum dated 18.09.2024, the Order dated 03.04.2025 was passed in the batch of writ petitions including W.P.[C.] no. 342/2025. Ms. Sharma has further submitted that the Order dated 30.01.2023, passed in the batch of writ petitions including W.P.[C.] no. 1646/2021, has been put to challenge by the State in a writ appeal, Writ Appeal no. 287/2023 and an interim order of stay is operating in I.A.[C.] no. 3787/2023 as on date.

¶38

Mr. Gogoi, learned Standing Counsel, Environment, Forest and Climate Change Department has submitted that once the application of the petitioner was rejected on 31.10.2016 and no challenge was made to such rejection, there could not have been a subsequent application without laying any challenge to such rejection. He has submitted that the DLC in his Meeting held on 29.11.2024 took note of the said rejection and the fact that the petitioner was not one of the petitioners in the batch of writ petitions including W.P.[C.] no. 1646/2021. He has further submitted that since 08.04.2016 more than eight years have elapsed till reconsideration of the case of the petitioner by the DLC on 29.11.2024.

¶39

Both the counsel representing the official respondents have contended that the petitioner is clearly a fence-sitter and the family has survived for more than nine years in the meantime.

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I have duly considered the submissions of the learned counsel for the parties and I have also gone through the materials brought on record including the schemes/policies framed by the State Government on compassionate appointment including the Office Memorandum dated 01.06.2015 and the Office Memorandum dated 18.09.2024, from time to time.

¶41

As mentioned above, the petitioner's father, Abdul Khalique died-in-harness on 08.04.2016. Immediately after the death of Abdul Khalique, the petitioner, whose date of birth is 08.06.1989, submitted an application before the respondent no. 4 on 19.10.2016. At that point of time, the Office Memorandum dated 01.06.2015 was holding the field for

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matters in relation to appointments on compassionate ground. The respondent no. 4 taking note of the fact that Abdul Khalique’s retirement date was 30.09.2017, rejected the application of the petitioner on 31.10.2016 on the ground that as per the Office Memorandum dated 01.06.2015, the benefit of the Scheme of compassionate appointment cannot be extended to a case where the deceased Government servant had balance of less than three years of service left from the date of his retirement on superannuation. After rejection of the petitioner's application on 31.10.2016, the petitioner did not take any step to challenge the rejection of his application.

¶44

The restrictive condition on which the petitioner's application came to be rejected on 31.10.2016, was put to challenge in a batch of writ petitions including W.P.[C.] no. 1646/2021. This Court by an Order dated 30.01.2023 had struck down the said restrictive condition.

¶45

It was thereafter on 13.05.2024, the petitioner submitted his second application for reconsideration of his appointment on compassionate ground. All these facts were considered by the DLC in its Meeting held on 29.11.2024 when the subsequent application of petitioner was placed before it. As the petitioner was also not one of the petitioners in the batch of writ petitions including W.P.[C.] no. 342/2025 which were disposed of by an Order dated 03.04.2025, a detailed discussion on the same appears not necessary, save and except mentioning that by the Order dated 03.04.2025, the writ petitions, which challenged the Office Memorandum dated 18.09.2024, were disposed of by directing that all pending applications for compassionate appointment submitted by those petitioners were to be considered and disposed of by the concerned DLC/SLC on merit, by taking into consideration the various guidelines prior to 01.04.2017 laid down by the State Government on compassionate appointment and the judgments of the Hon’ble Supreme Court and the High Court. The challenge to the Office Memorandum dated 18.09.2024 was not decided. The direction was made limited to the cases of rejection of all compassionate appointments by the DLC/SLC, which had been put to challenge and were pending in this Court on 03.04.2025.

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It is settled that, as a rule, that appointments in the public services should be made

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strictly in adherence to the principles laid down in Article 14 and Article 16 of the Constitution of India. No other mode of appointment or any other consideration is permissible. The government or the public authorities are not at liberty to follow any other procedure or relax the procedure laid down by the rules for recruitment. This general rule is ordinarily to be followed in every case. However, some exceptions have been carved out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness if the employee as the sole breadearner of the family expires, leaving his family in penury and without any means of livelihood then in such cases, out of pure humanitarian consideration and taking into consideration the fact the family would not be able to make both ends meet, a source of livelihood is taken up for consideration in the form of appointment on compassionate ground. It is taking into such humanitarian angle a policy is ordinarily adopted to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The object of granting compassionate appointment is, therefore, to enable the family to tide over the sudden crisis befallen on it. It is also settled that mere death of an employee in harness does not entitle his family to such source of livelihood. The financial condition of the family of the deceased is required to be examined thoroughly. Only if it is found that the family will not be able to meet the crisis that has befallen on it due to the sudden demise of the only breadearner in the family, the provision for employment on compassionate ground can be resorted to. The posts open for appointment on compassionate ground are only posts which fall in the categories of Class-III or Class-IV which can be offered on compassionate ground.

¶49

The Hon’ble Supreme Court of India in Debabrata Tiwari [supra] had surveyed a number of precedents rendered in the matters of compassionate appointments. It has been emphasized that the basis of a scheme of compassionate appointment lies in the need of providing immediate assistance to the family of the deceased employee. However, the sense of immediacy can be said to be evidently lost by the delay on the part of the dependent in seeking compassionate appointment. In Debabrata Tiwari [supra], the Hon’ble Court has laid down the following principles :-

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On consideration of the aforesaid decisions of this Court, the following

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principles emerge:

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32.1. That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions and must be resorted to only in order to achieve the stated objectives i.e. to enable the family of the deceased to get over the sudden financial crisis.

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32.2. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis.

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32.3. Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate employment cannot be claimed or offered after a lapse of time and after the crisis is over.

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32.4. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.

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32.5. In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source.

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The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over

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the sudden crisis due to the death of the breadearner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be in a position to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Having regard to such an object, it would be of no avail to grant compassionate appointment to the dependants of the deceased employee, after the crisis which arose on account of death of a breadwinner, has been overcome . Thus, there is also a compelling need to act with a sense of immediacy in matters concerning compassionate appointment because on failure to do so, the object of the scheme of compassionate appointment would be frustrated. Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and thus lose its significance and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out for consideration.

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The Hon’ble Supreme Court has also considered the question whether applications for compassionate appointments could be considered after a delay of several years. The Hon’ble Court has held the view that if in a case there is 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 or lost. In such circumstances the 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 sources. Granting compassionate appointment in such a case would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession which is contrary to the Constitution. Since compassionate

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appointment is not a vested right and the same is related to the financial condition and hardships faced by the dependants 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.

¶64

It has clearly emerged from the materials on record that after rejection of his first application on 31.10.2016, the petitioner without laying any challenge to the rejection, waited till 13.5.2024 to make his subsequent application for reconsideration of his appointment on compassionate ground, evidently after having learnt about the order dated 30.01.2023 passed in a batch of writ petitions including W.P.[C.] no. 1646/2021.

¶65

It is a settled proposition that those persons who did not challenge any alleged wrongful action in their cases and acquiesced into the same and wake up after long delay only because of the reason that their counterparts who had approached the court earlier in time, succeeded in their efforts then such persons cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. This category of persons is to be treated as fence-sitters and laches and delays and/or acquiescence is a valid ground to dismiss their claim. The petitioner herein clearly fails in such category of persons.

¶66

Having regard to the principles laid down in Debabrata Tiwari [supra], it is found that after the death of the petitioner's father 08.04.2016, the family of the petitioner has survived for more than nine years till date, meaning thereby, the sense of immediacy has been lost in the meantime. In the facts and circumstances obtaining in the case, it is evidently clear that the petitioner is a fence-sitter and the benefit of the Order dated 30.01.2023 passed in the batch of writ petitions including W.P.[C.] no. 1646/2021 cannot be extended to him. In such view of the matter, this Court has not found any reason to interfere with the decision taken by the DLC in the application of the petitioner for reconsideration of his appointment on compassionate ground in its Meeting held on 29.11.2024.

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In view of the discussion made above, the case of the petitioner is found not merited.

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Consequently, the present writ petition is not to be entertained and is liable to be dismissed. It is accordingly ordered. There shall, however, be no order as to cost.

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JUDGE

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Comparing Assistant

Sultan Hussain Talukdar v. the State of Assam and 4 Ors.

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Sultan Hussain Talukdar v. the State of Assam and 4 Ors.

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