# THE STATE OF WEST BENGAL v. DEBABRATA TIWARI & ORS. ETC. ETC

- **Citation:** [2023] 2 S.C.R. 611
- **Court:** Supreme Court of India
- **Decided:** 2023-03-03
- **Case number:** Civil Appeal Nos. 8842-8855 of 2022
- **Bench:** Krishna Murari, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-west-bengal-v-debabrata-tiwari-ors-etc-etc-36857
- **Pages:** 36

## Headnote

Service Law - Compassionate Appointment - Held: Existence
of a policy issued by the State Government is a sine qua non for
making appointments on compassionate basis - However, in the
present case, there was no policy existing to govern compassionate
appointment to posts under local authorities in the State of West
Bengal - Hence, in the absence of such a policy, compassionate
appointment cannot be granted to the respondents-heirs of the
deceased employees who worked in the concerned municipalities -
Further, the object for grant of compassionate employment is to
enable the family of the deceased employee to tide over the sudden
crisis due to the death of the bread-earner leaving the family in
penury and without any means of livelihood - Thus, operation of a
policy/scheme for compassionate appointment is founded on
considerations of immediacy - However, in the instant case, the
respondents approached the High Court only in the year 2015, after
a lapse of nearly ten years from the date of making the application
for compassionate appointment in 2005-2006 - Such delay would
disentitle the respondents to the discretionary relief u/Art.226 -
Entertaining a claim made in 2005-2006, in the year 2023, would
be of no avail because admittedly, the respondents have been able
to eke out a living even though they did not successfully get
appointed to the services of the Municipality on compassionate
grounds - Sense of immediacy in the matter of compassionate
appointment has been lost in the present case - Claim of the
respondents for appointments on compassionate grounds not fit to
be considered - West Bengal Regulation of Recruitment in State
Government Establishments and Establishments of Public
Undertakings, Statutory Bodies, Government Companies and Local
Authorities Act, 1999 - West Bengal Municipal, Employees'
(Recruitment) Rules, 2005 - Constitution of India - Article 226 -
Delay/Laches.
[2023] 2 S.C.R. 611
611
A
B
C
D
E
F
G
H
612
SUPREME COURT REPORTS
[2023] 2 S.C.R.
Service Law - Compassionate appointment: Principles
enumerated.
Object and rationale behind scheme for - Discussed.
Determination of claims - Factors - Discussed.
Applications for - Manner in which dealt by State authorities,
reproached - Held: Delay on the part of the authorities of the State
to decide claims for compassionate appointment frustrates the very
object of a scheme of compassionate appointment - Government
officials are to act with a sense of utmost proactiveness and
immediacy while deciding claims of compassionate appointment to
ensure that the wholesome object of such a scheme is fulfilled.
Allowing the appeals, the Court
HELD: 1.1 A provision for compassionate appointment
makes a departure from the general provisions providing for
appointment to a post by following a particular procedure of
recruitment. Since such a provision enables appointment being
made without following the said procedure, it is in the nature of
an exception to the general provisions and must be resorted to
only in order to achieve the stated objectives, i.e., to enable the
family of the deceased to get over the sudden financial crisis.
Appointment on compassionate grounds is not a source of
recruitment. The reason for making such a benevolent scheme
by the State or the public sector undertaking is to see that the
dependants of the deceased are not deprived of the means of
livelihood. It only enables the family of the deceased to get over
the sudden financial crisis. Compassionate appointment is not a
vested right which can be exercised at any time in future.
Compassionate employment cannot be claimed or offered after a
lapse of time and after the crisis is over. That compassionate
appointment should be provided immediately to redeem the family
in distress. It is improper to keep such a case pending for years.
In determining as to whether the family is in financial crisis, all
relevant aspects must be borne in mind including the income of
the family, its liabilities, the terminal b

## Text

_Characters 0–39,963 of 81,460. This is a partial read: ask again with offset=39963 for what follows._

A
B
C
D
E
F
G
H
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: Existence
of a policy issued by the State Government is a sine qua non for
making appointments on compassionate basis - However, in the
present case, there was no policy existing to govern compassionate
appointment to posts under local authorities in the State of West
Bengal - Hence, in the absence of such a policy, compassionate
appointment cannot be granted to the respondents-heirs of the
deceased employees who worked in the concerned municipalities -
Further, the object for grant of compassionate employment is to
enable the family of the deceased employee to tide over the sudden
crisis due to the death of the bread-earner leaving the family in
penury and without any means of livelihood - Thus, operation of a
policy/scheme for compassionate appointment is founded on
considerations of immediacy - However, in the instant case, the
respondents approached the High Court only in the year 2015, after
a lapse of nearly ten years from the date of making the application
for compassionate appointment in 2005-2006 - Such delay would
disentitle the respondents to the discretionary relief u/Art.226 -
Entertaining a claim made in 2005-2006, in the year 2023, would
be of no avail because admittedly, the respondents have been able
to eke out a living even though they did not successfully get
appointed to the services of the Municipality on compassionate
grounds - Sense of immediacy in the matter of compassionate
appointment has been lost in the present case - Claim of the
respondents for appointments on compassionate grounds not fit to
be considered - West Bengal Regulation of Recruitment in State
Government Establishments and Establishments of Public
Undertakings, Statutory Bodies, Government Companies and Local
Authorities Act, 1999 - West Bengal Municipal, Employees'
(Recruitment) Rules, 2005 - Constitution of India - Article 226 -
Delay/Laches.
[2023] 2 S.C.R. 611
611
A
B
C
D
E
F
G
H
612
SUPREME COURT REPORTS
[2023] 2 S.C.R.
Service Law - Compassionate appointment: Principles
enumerated.
Object and rationale behind scheme for - Discussed.
Determination of claims - Factors - Discussed.
Applications for - Manner in which dealt by State authorities,
reproached - Held: Delay on the part of the authorities of the State
to decide claims for compassionate appointment frustrates the very
object of a scheme of compassionate appointment - Government
officials are to act with a sense of utmost proactiveness and
immediacy while deciding claims of compassionate appointment to
ensure that the wholesome object of such a scheme is fulfilled.
Allowing the appeals, the Court
HELD: 1.1 A provision for compassionate appointment
makes a departure from the general provisions providing for
appointment to a post by following a particular procedure of
recruitment. Since such a provision enables appointment being
made without following the said procedure, it is in the nature of
an exception to the general provisions and must be resorted to
only in order to achieve the stated objectives, i.e., to enable the
family of the deceased to get over the sudden financial crisis.
Appointment on compassionate grounds is not a source of
recruitment. The reason for making such a benevolent scheme
by the State or the public sector undertaking is to see that the
dependants of the deceased are not deprived of the means of
livelihood. It only enables the family of the deceased to get over
the sudden financial crisis. Compassionate appointment is not a
vested right which can be exercised at any time in future.
Compassionate employment cannot be claimed or offered after a
lapse of time and after the crisis is over. That compassionate
appointment should be provided immediately to redeem the family
in distress. It is improper to keep such a case pending for years.
In determining as to whether the family is in financial crisis, all
relevant aspects must be borne in mind including the income of
the family, its liabilities, the terminal benefits if any, received by
the family, the age, dependency and marital status of its members,
together with the income from any other source. The object
A
B
C
D
E
F
G
H
613
underlying a provision for grant of compassionate employment is
to enable the family of the deceased employee to tide over the
sudden crisis due to the death of the bread-earner which has left
the family in penury and without any means of livelihood. Out of
pure humanitarian consideration and having regard to the fact
that unless some source of livelihood is provided, the family would
not be in a position to make both ends meet, a provision is made
for giving gainful appointment to one of the dependants of the
deceased who may be eligible for such appointment. Having
regard to such an object, it would be of no avail to grant
compassionate appointment to the dependants of the deceased
employee, after the crisis which arose on account of death of a
bread-winner, has been overcome. Thus, there is also a
compelling need to act with a sense of immediacy in matters
concerning compassionate appointment because on failure to do
so, the object of the scheme of compassionate would be frustrated.
Where a long lapse of time has occurred since the date of death
of the deceased employee, the sense of immediacy for seeking
compassionate appointment would cease to exist and thus lose
its significance and this would be a relevant circumstance which
must weigh with the authorities in determining as to whether a
case for the grant of compassionate appointment has been made
out for consideration. The sine qua non for entertaining a claim
for compassionate appointment is that the family of the deceased
employee would be unable to make two ends meet without one
of the dependants of the deceased employee being employed on
compassionate grounds. The financial condition of the family of
the deceased, at the time of the death of the deceased, is the
primary consideration that ought to guide the authorities' decision
in the matter. [Paras 7.2-7.4][630-F-H; 631-A-H; 632-A-C]
1.2 In a case where, for reasons of prolonged delay, either
on the part of the applicant in claiming compassionate appointment
or the authorities in deciding such claim, the sense of immediacy
is diluted and lost. Further, the financial circumstances of the
family of the deceased, may have changed, for the better, since
the time of the death of the government employee. In such
circumstances, Courts or other relevant authorities are to be
guided by the fact that for such prolonged period of delay, the
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI &
ORS. ETC. ETC.
A
B
C
D
E
F
G
H
614
SUPREME COURT REPORTS
[2023] 2 S.C.R.
family of the deceased was able to sustain themselves, most
probably by availing gainful employment from some other source.
Granting compassionate appointment in such a case would amount
to treating a claim for compassionate appointment as though it
were a matter of inheritance based on a line of succession which
is contrary to the Constitution. Since compassionate appointment
is not a vested right and the same is relative to the financial
condition and hardship faced by the dependents of the deceased
government employee as a consequence of his death, a claim for
compassionate appointment may not be entertained after lapse
of a considerable period of time since the death of the government
employee. [Para 7.5][632-C-G]
Haryana State Electricity Board vs. Hakim Singh, (1997)
8 SCC 85 : [1997] 4 Suppl. SCR 377 - relied on.
1.3 There is no period of limitation provided for filing a
writ petition under Article 226 of the Constitution, ordinarily, a
writ petition should be filed within a reasonable time. The
Respondents-Writ Petitioners, upon submitting their applications
in the year 2005-2006 did nothing further to pursue the matter,
till the year 2015 i.e., for a period of ten years. Notwithstanding
the tardy approach of the authorities of the Appellant-State in
dealing with their applications, the Respondent-Writ Petitioners
delayed approaching the High Court seeking a writ in the nature
of a mandamus against the authorities of the State. In fact, such a
prolonged delay in approaching the High Court, may even be
regarded as a waiver of a remedy, as discernible by the conduct
of the Respondents-Writ Petitioners. Such a delay would disentitle
the Respondents-Writ Petitioners to the discretionary relief under
Article 226 of the Constitution. Further, the order of the High
Court whereby the writ petition filed by some of the Respondents
herein was disposed of with a direction to the Director of Local
Bodies, Government of West Bengal to take a decision as to the
appointment of the Respondents-Writ Petitioners, cannot be
considered to have the effect of revival of the cause of action.
The operation of a policy/scheme for compassionate appointment
is founded on considerations of immediacy. A sense of immediacy
is called for not only in the manner in which the applications are
A
B
C
D
E
F
G
H
615
processed by the concerned authorities but also in the conduct
of the applicant in pursuing his case, before the authorities and if
needed before the Courts. In the present case, the applications
for compassionate appointment were made by the RespondentsWrit Petitioners in the year 2005-2006. Admittedly, the first
concrete step taken by the Chairman of the Burdwan Municipality
was in the year 2013, when the said authority forwarded a list of
candidates to be approved by the Director of Local Bodies,
Burdwan Municipality. The Respondents-Writ Petitioners
knocked on the doors of the High Court of Calcutta only in the
year 2015, i.e., after a lapse of nearly ten years from the date of
making the application for compassionate appointment. The
Respondents-Writ Petitioners were not prudent enough to
approach the Courts sooner, claiming that no concrete step had
been taken by the Appellant-State in furtherance of the application
by seeking a Writ in the nature of Mandamus. The sense of
immediacy in the matter of compassionate appointment has been
lost in the present case. This is attributable to the authorities of
the Appellant-State as well as the Respondents-Writ Petitioners.
Now, entertaining a claim which was made in 2005-2006, in the
year 2023, would be of no avail, because admittedly, the
Respondents-Writ Petitioners have been able to eke out a living
even though they did not successfully get appointed to the
services of the Municipality on compassionate grounds. Hence,
this is therefore not fit cases to direct that the claim of the
Respondents-Writ Petitioners for appointments on compassionate
grounds, be considered or entertained. [Paras 8, 10-13][634-BC, F-H; 635-A-B; 636-H; 637-A-F]
Moon Mills Ltd. vs. M. R. Meher, President, Industrial
Court, Bombay, AIR 1967 SC 1450 - followed.
State of M.P. vs. Nandlal Jaiswal, (1986) 4 SCC 566 :
[1987] 1 SCR 1; Jagdish Lal vs. State of Haryana,
(1997) 6 SCC 538; NDMC vs. Pan Singh, (2007) 9 SCC
278 : [2007] 3 SCR 711; State of Uttaranchal vs. Shiv
Charan Singh Bhandari, (2013) 12 SCC 179 : [2013]
9 SCR 609 - relied on.
1.4 Delay on the part of the authorities of the State to decide
claims for compassionate appointment would no doubt frustrate
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI &
ORS. ETC. ETC.
A
B
C
D
E
F
G
H
616
SUPREME COURT REPORTS
[2023] 2 S.C.R.
the very object of a scheme of compassionate appointment.
Government officials are to act with a sense of utmost proactiveness
and immediacy while deciding claims of compassionate appointment
so as to ensure that the wholesome object of such a scheme is
fulfilled. [Para 14][637-D-H; 638-A]
1.5 Applications for compassionate appointment are to be
considered in light of the policy holding the field on the date on
which the application is filed. In the present case, the applications
were filed in the year 2006. Therefore, they would have to be
decided in light of Circular No. 97-Emp. read with Circular No.
142-Emp. Circular No. 97- Emp. read with Circular No. 142-Emp.
concern the procedure governing compassionate appointment,
only qua State Government employees. Given that the said
Circular does not govern compassionate appointment to posts
under local authorities, compassionate appointment cannot be
granted to posts under local authorities. The existence of a policy
issued by the State Government is a sine qua non for making
appointments on compassionate basis. The appointments must
follow the stipulations made in the policy. In the absence of a
policy governing compassionate appointment to posts under a
local authority, no appointment could be made to such an authority
on compassionate grounds. Having held that Circular Nos. 301Emp, 302-Emp and 303-Emp. cannot be held to be applicable to
local authorities, the findings of the Division Bench of the High
Court to the effect that given that Circular No. 301-Emp., 302Emp. and 303 Emp. were not specifically withdrawn, they would
continue to remain applicable and therefore, compassionate
appointment in respect of municipalities would be governed by
the scheme under Circular Nos. 301-Emp., 302- Emp. and 303Emp cannot be affirmed. [Paras 16.2 and 16.4][644-F-G; 645-FH; 646-A-B]
Mumtaz Yunus Mulani vs. State of Maharashtra, (2008)
11 SCC 384 : [2008] 5 SCR 241; State Bank of India
vs. Surya Narain Tripathi, 2014 (15) SCC 739 - relied
on.
1.6 There was no policy existing to govern compassionate
appointment to posts under local authorities in the State of West
A
B
C
D
E
F
G
H
617
Bengal and hence, in the absence of such a policy, compassionate
appointment cannot be granted. Assuming that there was such a
policy, it would be of no redeeming purpose to direct that the
applications for appointment on compassionate grounds be
considered and decided several years after they were filed. The
impugned judgment and common order of the High Court is set
aside. The order of the Single Judge of the High Court is restored.
[Paras 16.5, 17][646-C-F]
Sushma Gosain vs. Union of India, (1989) 4 SCC 468;
Umesh Kumar Nagpal vs. State of Haryana, (1994) 4
SCC 138 : [1994] 3 SCR 893; State of Haryana vs.
Ankur Gupta, AIR 2003 SC 3797 : [2003] 3 Suppl.
SCR 333; Jagdish Prasad vs. State of Bihar, (1996) 1
SCC 301 : [1995] 5 Suppl. SCR 177; I.G. (Karmik) vs.
Prahalad Mani Tripathi, (2007) 6 SCC 162 : [2007] 5
SCR 978; State of Jammu and Kashmir vs. Sajad Ahmed
Mir, AIR 2006 SC 2743 : [2006] 3 Suppl. SCR 576;
State of Himachal Pradesh vs. Shashi Kumar, (2019) 3
SCC 653 : [2019] 2 SCR 432 - relied on.
Malaya Nanda Sethy vs. State of Orissa, AIR 2022 SC
2836; Ashok Lenka vs. Rishi Dikshit, AIR 2006 SC 2382
: [2006] 1 Suppl. SCR 142 - referred to.
Gobinda Hazra vs. State of West Bengal, W.P. No. 13147
(W) of 2017; Debabrata Tiwari vs. The State of West
Bengal judgement dated 30th September, 2019,
passed in MAT 859 of 2018 with CAN 6137 of 2018 -
referred to.
Lindsay Petroleum Co. vs. Prosper Armstrong, (1874) 3
PC 221 - referred to.
Case Law Reference
[2019] 2 SCR 432
relied on
Para 4.2
[1994] 3 SCR 893
relied on
Para 7.1 (ii)
[1997] 4 Suppl. SCR 377
relied on
Para 7.1 (iii)
[2003] 3 Suppl. SCR 333
relied on
Para 7.1 (iv)
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI &
ORS. ETC. ETC.
A
B
C
D
E
F
G
H
618
SUPREME COURT REPORTS
[2023] 2 S.C.R.
[1995] 5 Suppl. SCR 177
relied on
Para 7.1 (v)
[2007] 5 SCR 978
relied on
Para 7.1 (v)
[2008] 5 SCR 241
relied on
Para 7.1 (v)
[2006] 3 Suppl. SCR 576
relied on
Para 7.1 (vi)
[1987] 1 SCR 1
relied on
Para 8
[2007] 3 SCR 711
relied on
Para 8
[2013] 9 SCR 609
relied on
Para 9
[2006] 1 Suppl. SCR 142
referred to
Para 16.2
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 88428855 of 2022.
From the Judgment and Order dated 30.09.2019 of the High Court
at Calcutta in MAT Nos. 859, 860, 853, 861, 863, 864, 862, 854, 855, 856,
857, 858, 634 and 847 of 2018.
Rakesh Dwivedi, Sr. Adv., Ms. Madhumita Bhattacharjee, Ms.
Arushi Mishra, Advs. for the Appellant.
Indradeep Pal, Mrs. Sougata Pal Das, Rauf Rahim, Ms. Ekta
Choudhary, Chanchal Kumar Ganguli, Shashwat Panda, Ms. Vandana
Tiwari, Ms. Simran Singh, Zoheb Hossain, Advs. for the Respondents.
The Judgment of the Court was delivered by
NAGARATHNA, J.
The present appeals have been filed assailing the judgment and
common order of the High Court of Calcutta, dated 30th September,
2019, in a batch of appeals being MAT 859 of 2018 with CAN 6137 of
2018 and connected matters. By the impugned judgment and common
order, the Division Bench of the High Court set aside the order of the
learned Single Judge of the High Court dated 05th July, 2018, passed in
W.P. No. 2739 (W) of 2016 and connected matters and directed the
Director of Local Bodies, Burdwan Municipality and the concerned
authority in Ranaghat and Habra Municipalities to consider the application
made by the Respondents-Writ Petitioners seeking appointment on
compassionate grounds. The Division Bench of the High Court also
identified the scheme in light of which the said applications would have
to be considered and decided.
A
B
C
D
E
F
G
H
619
2. The present appeals concern claims of the Respondents-Writ
Petitioners, who are heirs of employees of Burdwan, Ranaghat and Habra
Municipalities, who died in harness for compassionate appointment to
posts in the concerned municipalities. All these appeals concern common
questions as to the entitlement of such persons to be considered for
compassionate appointment and whether any scheme of the State
Government supports their claim for compassionate appointment. Further,
since the case of all the Respondents is the same, the facts concerning
the Burdwan Municipality alone may be succinctly stated as under:
2.1. The case of the Respondents-Writ Petitioners concerning
Burdwan Municipality is that based on the applications received from
the heirs of the deceased employees working under different categories,
the Burdwan Municipality directed an enquiry by a three-member
committee comprising of the Chairman of Burdwan Municipality
(Respondent No. 6 herein); the Executive Officer of the Burdwan
Municipality (Respondent No. 7 herein) and the Deputy Director of Local
Bodies, Burdwan Division, to determine whether the respondents were
entitled to the appointment on compassionate grounds.
2.2. That on the basis of the report submitted by the enquiry
committee and after following the criteria set in the West Bengal
Municipal, Employees' (Recruitment) Rules, 2005, the Board of
Councillors of Burdwan Municipality in its meeting held on 30th May
2013, approved a list of 62 eligible candidates for the purpose of
recruitment in Group 'C' and 'D' posts in the said Municipality. The
names of the respondents figured in the said list.
2.3. That the Chairman of the Burdwan Municipality vide Memo
dated 12th June, 2013, forwarded a list approved by a resolution passed
in the meeting of the Board of Councillors on 30th May, 2013, along with
an inspection/enquiry report and other testimonials to the Director of
Local Bodies, Government of West Bengal (Respondent No. 4), for
approval of appointment on compassionate grounds. The names of the
Writ Petitioners appeared in the list of eligible candidates under Group
'C' under the exempted category, 'dependents of persons who died in
harness'.
2.4. That on 7th June 2014, the Chairman, Burdwan Municipality,
Respondent No. 5, forwarded the proposed list of eligible candidates for
appointment on compassionate grounds under a Memo bearing number
512/XII-6, to the Director of Local Bodies, Government of West Bengal,
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI &
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
620
SUPREME COURT REPORTS
[2023] 2 S.C.R.
(appellant herein), and requested the Director of Local Bodies to look
into the matter sympathetically.
2.5. That since the Director of Local Bodies or the Government
of West Bengal did not take steps pursuant to the receipt of the list of
candidates, Debabrata Tiwari (Respondent No. 1) filed a Writ Petition
bearing No. 3243 (W) of 2015 before the High Court of Calcutta seeking
appointment on compassionate grounds under the relevant exempted
category. The Secretary of the Burdwan Municipality submitted before
the High Court that Respondent No. 1 was eligible for being considered
for appointment on compassionate grounds, under the exempted category
of dependents of persons who died in harness and that the Burdwan
Municipality had already sent the necessary papers in this regard to the
Office of the Directorate of Local Bodies, Government of West Bengal.
2.6. The said Writ Petition was disposed of by an order dated 17th
March, 2015, with a direction to the Director of Local Bodies,
Government of West Bengal to take a decision on the recommendation
of the Chairman of the Municipality within a period of ten weeks from
the date of communication of the said Order and to communicate such
decision to the Chairman of the Municipality within a week thereafter.
2.7. In continuation of the direction of the High Court in W.P. No.
3243 (W) of 2015, the Director of Local Bodies, Government of West
Bengal, on 16th October, 2015 passed an Order wherein it was stated
that the Director of Local Bodies had no authority to consider the
appointments under compassionate grounds in Urban Local Bodies, unless
the policy in the matter was laid down by the State Government. It was
therefore observed by the Director of Local Bodies that as soon as the
State Government extends such policy for consideration of appointment
of the employees of the Urban Local Bodies, under compassionate
grounds, in the die-in-harness category, the prayer of Respondent No. 1
would be considered.
2.8. Being aggrieved by the order passed by the Director of Local
Bodies, Government of West Bengal on 16th October, 2015, Respondent
No. 1 preferred a Writ Petition bearing No. 2733 (W) of 2016 before the
High Court of Calcutta.
A batch of Writ Petitions where the cause of action was the same
as that in W.P. No. 2733 (W) of 2016 was heard and disposed of together
by the learned Single Judge of the High Court of Calcutta by way of a
A
B
C
D
E
F
G
H
621
Common Judgment and Order dated 5th July, 2018. The said common
order was passed in Writ Petition No. 2739 (W) of 2016.The learned
Single Judge dismissed the Writ Petitions by relying on the judgment
passed in Gobinda Hazra vs. State of West Bengal, W.P. No. 13147
(W) of 2017, wherein the issue, as to, whether, there subsists any scheme
for compassionate appointment in respect of municipal employees was
considered and the issue was answered in the negative. The High Court
thus held that no relief could be granted to the Writ Petitioners
(Respondents herein), in the absence of a sanctioned scheme for
compassionate appointment in respect of municipal employees.
2.9. Aggrieved by the Order passed by the Single Judge dated 5th
July, 2018, the Respondents- Writ Petitioners preferred a batch of appeals
before the Division Bench of the High Court. The said appeals were
heard and allowed by a common impugned judgement dated 30th
September, 2019, passed in MAT 859 of 2018 with CAN 6137 of 2018in
the case of Debabrata Tiwari vs. The State of West Bengal. By way
of the impugned judgment, the Director of Local Bodies, Burdwan
Municipality and the concerned authority in Ranaghat and Habra
Municipalities were directed to consider the application made by the
Writ Petitioners seeking appointment on compassionate grounds. The
Division Bench of the High Court also identified the scheme in light of
which the said applications would have to be considered and decided.
Hence the present appeals by the State of West Bengal.
2.10. The pertinent findings of the Division Bench of the High
Court of Calcutta, in the common impugned judgment dated 30th
September, 2019, have been culled out hereinunder:
i.
The Division Bench of the High Court rejected the argument
canvassed on behalf of the Government that there was an
undue delay between the time of making the application
and the time when the Respondents-Writ Petitioners
approached the Court. That the Writ Petitioners had not
delayed filing applications seeking appointments on
compassionate grounds and the concerned authorities had
undertaken an enquiry by constituting a committee but had
ultimately taken years to consider their applications and to
recommend their respective names. The Director of Local
Bodies kept the matter pending without according any
approval of the recommendations, as a result, a Writ Petition
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI &
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
622
SUPREME COURT REPORTS
[2023] 2 S.C.R.
was filed which was disposed of with a specific direction
to the Director of Local Bodies to consider the applications
within a time frame. That in pursuance of the High Court
direction, the Director of Local Bodies disposed of the matter
in respect of Burdwan Municipality only on 16th October,
2015. Hence, a time of about ten years had been spent only
for processing the applications and such a delay could not
be attributed to the Respondents-Writ Petitioners.
ii.
That an employee of a municipality cannot be treated as an
employee of the State Government and therefore the
scheme available to a State Government employee cannot
be extended to a dependent of an employee of the
municipality who died in harness. Thus, the respondents
were not entitled to claim the benefit of compassionate
appointment in terms of the schemes formulated vide
Circular No. 97-Emp.; 142-Emp.; 30-Emp.; and 251-Emp.,
which were specifically applicable to State Government
employees.
iii.
As to the issue of whether there was any scheme for grant
of compassionate appointments in respect of employees of
Municipalities, the Division Bench differed from the findings
of the Single Judge. On a conjoint reading of Circular Nos.
301-Emp., 302-Emp. and 303 Emp., it was observed that it
was clear that the aforesaid Circulars were specific schemes
for compassionate appointments in respect of municipalities.
That the said schemes were in respect of all establishments
covered under the West Bengal Regulation of Recruitment
in State Government Establishments and Establishments of
Public Undertakings, Statutory Bodies, Government
Companies and Local Authorities Act, 1999 (West Bengal
Act XIV of 1999) (hereinafter referred to as the 'Act of
1999' for the sake of brevity). That the said circulars which
were extended to the employees of all establishments
including local authorities like municipalities, were neither
withdrawn nor substituted by the subsequent notifications
and circulars.
iv.
That although Circular No. 142-Emp. clarified that 97-Emp.
was applicable only in respect of State Government
A
B
C
D
E
F
G
H
623
employees and directed the municipalities to formulate their
own schemes for compassionate appointment, no such
scheme had been formulated by the concerned
municipalities. That it was evident from Circular No. 142Emp. that it does not withdraw the scheme for
compassionate appointment available under Circular Nos.
301-Emp., 302-Emp. and 303-Emp. and in the absence of
any subsequent scheme or specific withdrawal of the
existing scheme, the scheme remains in subsistence and
will be the scheme under which the applications for
compassionate appointments made by the respondents are
to be considered.
v.
In the absence of a substituted scheme, and given that
Circular No. 301-Emp., 302-Emp. and 303 Emp. were not
specifically withdrawn, they would continue to remain
applicable. Therefore, compassionate appointment in respect
of municipalities would be governed by the scheme under
Circular Nos. 301-Emp., 302-Emp. and 303-Emp.
In light of the aforesaid observations, the Division Bench
of the High Court set aside the Order passed by the Single
Judge and directed the Director of Local Bodies, Burdwan
Division, Government of West Bengal to reconsider the
Memo dated12th June, 2013 whereby the Chairman,
Burdwan Municipality, had sought for the approval of
recommended names for being appointed under
compassionate grounds. Further, the Director of Local
Bodies was directed to examine whether proper inspection
of the documents had been carried out while recommending
such names and whether the parameters mentioned under
the scheme contained in Circular Nos. 301-Emp., 302-Emp.
and 303-Emp. had been properly adhered to by the officials
of Burdwan Municipality while making the recommendation.
Aggrieved by the said directions of the High Court and
the findings as to the eligibility of the Respondents-Writ
Petitioners to seek appointment on compassionate grounds,
the present appeals have been filed by the State of West
Bengal.
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI &
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
624
SUPREME COURT REPORTS
[2023] 2 S.C.R.
3. We have heard Sri Rakesh Dwivedi, learned Senior Counsel
and learned counsel, Ms. Madhumita Bhattacharjee appearing on behalf
of the Appellant-State of West Bengal and learned counsel Sri Indradeep
Pal for the Respondent-Writ Petitioners, and perused the material on
record.
Submissions:
4. Learned Senior Counsel for the Appellant-State of West Bengal
at the outset submitted that the findings of the Division Bench of the
High Court of Calcutta were based on an incorrect appreciation of law
and facts and therefore the same are liable to be set aside.
4.1. It was further submitted that directing at such a belated stage,
that the Respondents-Writ Petitioners ought to be appointed on
compassionate grounds would have no redeeming purpose. That the
rationale behind a policy of compassionate appointment is to provide
immediate succor to the dependent(s) of a government employee dying
in harness. This object would require that immediate steps be taken to
enable the dependent(s) to recover from the sudden financial crisis as a
result of death or disablement of a breadwinner of a family. If the said
purpose is not going to be accomplished, the Court may not direct the
same granting compassionate appointment. That in the instant cases,
the applications made by the Respondents-Writ Petitioners for
compassionate appointment relates to the year 2005-2006. That a direction
to act on the same now, i.e., 17-18 years after the applications seeking
compassionate appointment were made, would not further the object of
a scheme of compassionate appointment.
4.2. Reliance was placed on the decision of this Court in State of
Himachal Pradesh vs. Shashi Kumar, (2019) 3 SCC 653 ("Shashi
Kumar") to contend that where there is a significant gap between making
the application for compassionate appointment and filing a Writ Petition
to challenge inaction on the part of the Government, a direction to consider
the application for compassionate appointment may not be issued.
4.3. It was next contended that Circular No. 142-Emp. clarified
that 97-Emp. was applicable only in respect of State Government
employees and directed the municipalities to formulate their own schemes
for compassionate appointment. This would mean that as a matter of
policy of the State Government, it was declared that it is not viable to
give compassionate appointment to heirs of employees of establishments
A
B
C
D
E
F
G
H
625
of public undertakings, statutory bodies, government companies and local
authorities. That by virtue of the clarification under Circular No. 142Emp., the position would be that no scheme exists for compassionate
appointment in Municipalities. It is for such establishments to formulate
policies of their own in consultation with the respective administrative
department. That, in the absence of a sanctioned scheme for
compassionate appointment in respect of municipal employees, no relief
could have been granted by the High Court.
4.4. It was urged that compassionate appointment could not be
claimed as a matter of right and a claim for the same must be entertained
having regard to the compelling financial circumstances (if any) of the
deceased's dependent(s). Therefore, entertaining a claim which was
made in 2005-2006, in the year 2023, would be of no avail.
With the aforesaid submissions, it was prayed on behalf of the
appellant-State of West Bengal that the present appeals be allowed and
the impugned judgment of the Division Bench of the High Court be set
aside.
5. Per contra, learned counsel for the Respondents-Writ
Petitioners, submitted that the impugned judgment was passed based on
an unimpeachable appreciation of the facts of the case and the law in
this regard, and therefore the same does not call for interference by this
Court.
5.1. It was further submitted that any scheme for compassionate
appointment has to be applied across the establishments including the
municipalities. Thus, the petitioner State could not contend that the
employees of the municipality would not be eligible for compassionate
appointment in the absence of any separate compassionate appointment
scheme for municipal employees.
5.2. That Notification No. 301-Emp. declared the following
category of persons as 'exempted category' extending, inter-alia, the
benefit of compassionate appointment to the said 'exempted category:
a) Dependents of employees dying in harness.
b) Dependents of employees retiring incapacitated.
c) Persons belonging to families belonging to land losers.
d) Ex-census employees.
e) Persons holding discharge certificates.
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI &
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
626
SUPREME COURT REPORTS
[2023] 2 S.C.R.
Further, by Notification No. 302-Emp., the State Government
reserved 30% of vacancies to be filled by the 'exempted category'.
Subsequently, a Circular bearing No. 97-Emp. dated 6th June, 2005 was
issued by the Petitioner State in the exercise of the powers conferred
under Section 3(c) of the 1999 Act, inter-alia, laying down the procedure
to be followed in dealing with the issue of appointment on compassionate
grounds to the 'exempted category'. However, by way of Notification
bearing No. 142-Emp. dated 1st November, 2007 it was clarified that
Notification No. 97-Emp. was only restricted to State Government
employees, and in so far as other establishments are concerned, they
would have to formulate their own policies having regard to the principles
applicable to the State Government Employees.
That in the absence of a policy formulated specially for municipal
employees, compassionate appointment could have been granted on the
strength of Circular Nos. 301-Emp., 302-Emp. and 303-Emp.
5.3. It was averred that since delay in acting upon the application
of the Respondent-Writ Petitioners was attributable only to the appellant's
authorities, therefore, the Respondents ought not to be prejudiced on
account of such delay. That the Respondents-Writ Petitioners diligently
pursued the matter with the authorities, as also before the High Court of
Calcutta.
With the aforesaid submissions it was prayed on behalf of the
Respondents-Writ Petitioners that the present appeals be dismissed as
being devoid of merit and the impugned judgment be affirmed.
Points for Consideration:
6. The following points would arise for consideration:
i. Whether the Division Bench of the High Court of Calcutta erred
in allowing the appeals filed by the Respondents-Writ Petitioners and
directing that their claims for compassionate appointment be considered
by the Appellant?
ii.What order?
6.1. These appeals primarily concern the question whether there
exists any scheme in the State of West Bengal, governing compassionate
appointment governing municipal employees dying in harness. In the
event that the aforesaid question is answered in the affirmative, it would
be necessary to determine whether a direction issued several years after
A
B
C
D
E
F
G
H
627
applications for compassionate appointment are filled, to consider and
decide such applications, is in consonance with the object of a policy/
scheme for compassionate appointment.
Policy of Compassionate Appointment: The Rationale:
7. The majesty of death is that it is a great leveller for, it makes no
distinction between the young and the old or the rich and the poor. Death
being as a consequence of birth at some point of time is inevitable for
every being. Thus, while death is certain, its timing is uncertain. Further,
a deceased employee does not always leave behind valuable assets; he
may at times leave behind poverty to be faced by the immediate members
of his family. Therefore, what should be done to ensure that death of an
individual does not mean economic death for his family? The State's
obligation in this regard, confined to its employees who die in harness,
has given rise to schemes and rules providing for compassionate
appointment of an eligible member of his family as an instance of providing
immediate succour to such a family. Support for such a provision has
been derived from the provisions of Part IV of the Constitution of India,
i.e., Article 39 of the Directive Principles of State Policy.
7.1. It may be apposite to refer to the following decisions of this
Court, on the rationale behind a policy or scheme for compassionate
appointment and the considerations that ought to guide determination of
claims for compassionate appointment.
i.
In Sushma Gosain vs. Union of India, (1989) 4 SCC
468, this Court observed that in all claims for appointment
on compassionate grounds, there should not be any delay in
appointment. That the purpose of providing appointment on
compassionate grounds is to mitigate the hardship caused
due to the death of the bread earner in the family. Such
appointment should, therefore, be provided immediately to
redeem the family in distress.
ii.
In Umesh Kumar Nagpal vs. State of Haryana, (1994)
4 SCC 138, this Court observed that the object of granting
compassionate employment is to enable the family of a
deceased government employee to tide over the sudden
crisis by providing gainful employment to one of the
dependants of the deceased who is eligible for such
employment. That mere death of an employee in harness
THE STATE OF WEST BENGAL v. DEBABRATA TIWARI &
ORS. ETC. ETC. [B. V. NAGARATHNA, J.]
A
B
C
D
E
F
G
H
628
SUPREME COURT REPORTS
[2023] 2 S.C.R.
does not entitle his family to such source of livelihood; the
Government or the public authority concerned has to
examine the financial condition of the family of the deceased
and it is only if it is satisfied that, but for the provision of
employment, the family will not be able to meet the crisis,
that a job is to be offered to the eligible member of the
family, provided a scheme or rules provide for the same.
This Court further clarified in the said case that
compassionate appointment is not a vested right which can
be exercised at any time after the death of a government
servant. That the object being to enable the family to get
over the financial crisis which it faces at the time of the
death of the sole breadwinner, compassionate employment
cannot be claimed and offered after lapse of considerable
amount of time and after the crisis is overcome.
iii.
In Haryana State Electricity Board vs. Hakim Singh,
(1997) 8 SCC 85, ("Hakim Singh")this Court placed
much emphasis on the need for immediacy in the manner in
which claims for compassionate appointment are made by
the dependants and decided by the concerned authority.
This Court cautioned that it should not be forgotten that the
object of compassionate appointment is to give succour to
the family to tide over the sudden financial crisis that has
befallen the dependants on account of the untimely demise
of its sole earning member. Therefore, this Court held that
it would not be justified in directing appointment for the
claimants therein on compassionate grounds, fourteen years
after the death of the government employee.