Facts
The Respondents herein are heirs of employees of Burdwan, Ranaghat and Habra Municipalities, who died in harness. The present appeals concern claims for compassionate appointment to posts in the concerned municipalities.
The heirs of the deceased employees working under different categories sent an application to the municipality for appointment on humanitarian grounds after which an enquiry by a three-member committee was constituted by the Burdwan Municipality to determine whether the respondents were entitled to the appointment on compassionate grounds.
After following the criteria set in the West Bengal Municipal, Employees’ (Recruitment) Rules, 2005, the committee approved a list of 62 eligible candidates for recruitment in Group ‘C’ and ‘D’ posts in the said municipality. The names of the heirs appeared in the list of eligible candidates under Group ‘C’.
The Director of Local Bodies did not take steps pursuant to the receipt of the list of candidates. Debabrata Tiwari filed a Writ Petition of 2015 before the High Court of Calcutta seeking appointment on compassionate grounds under the relevant exempted category.
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.
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 5 under compassionate grounds in Urban Local Bodies unless the policy in the matter was laid down by the State Government.
The Director of Local Bodies observed that appointment would be done as soon as the State Government extends such policy for consideration of appointment of the employees of the Urban Local Bodies, under compassionate grounds.
Being aggrieved by the order passed Respondent No. 1 preferred a Writ Petition before the High Court of Calcutta. 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.
Aggrieved by the Order passed by the Single Judge in 2018 the Respondents-Writ Petitioners preferred a batch of appeals before the Division Bench of the High Court. The Division Bench by way of the impugned judgment, 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.
The present appeals have been filed assailing the judgment and common order of the High Court of Calcutta, dated 30th September 2019, 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.
Issues
- Whether they are entitled to be considered for compassionate appointment?
- Whether any scheme of the State Government supports their claim for compassionate appointment.?
Findings of the Division Bench
The court noted that the Writ Petitioners had not delayed filing applications seeking appointments on compassionate grounds but the concerned authorities had ultimately taken years to consider their applications and to recommend their respective names and such a delay could not be attributed to the Respondents-Writ Petitioners.
The said West Bengal Regulation of Recruitment in State Government were in respect of all establishments and 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.
Although Circular No. 142-Emp clarified that such rules would be applicable only in respect of State Government employees and directed the municipalities to formulate their own schemes for compassionate appointment, no such scheme had been formulated by the concerned municipalities. 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.
The Division Bench of the High Court directed to reconsider whereby the Chairman, Burdwan Municipality, had sought the approval of recommended names for being appointed under compassionate grounds. Aggrieved by the said directions of the High Court, the present appeals have been filed by the State of West Bengal.
Submissions by Appellant
The state of West Bengal submitted that the rationale behind a policy of compassionate appointment is to recover from the sudden financial crisis as a result of death or 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.
The Appellant also referred to State of Himachal Pradesh vs. Shashi Kumar, (2019) 3 SCC 653 (“Shashi Kumar”) where there is a significant gap between making the application 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.
It also submitted that Circular No. 142-Emp. clarified that Circular No. 97-Emp. was applicable only in respect of State Government employees and directed the municipalities to formulate their own schemes for compassionate appointment in consultation with the respective administrative department and 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.
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.
The Respondents-Writ Petitioners made the applications for compassionate appointment in the years 2005-2006 and giving direction to act after 17-18 years seeking compassionate appointment would not further the object of a scheme of compassionate appointment.
Submissions by Respondent
It was averred that since the 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.
The petitioner (State of WB) 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. Since any state scheme for compassionate appointment has to be applied across all the establishments including the municipalities.
The State’s obligation in this regard, confined to its employees who die in harness, has given rise to schemes and rules and 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.
Case laws relied upon in deciding this case
Sushma Gosain vs. Union of India, (1989) 4 SCC 468
In all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose is to mitigate the hardship caused due to the death of the bread earner in the family. therefore, be provided immediately to redeem the family in distress
Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138
The object of granting compassionate employment is to tide over the sudden crisis by providing gainful employment to one of the dependants of the deceased who is eligible for such employment but only after examining the financial condition of the family that, family will not be able to meet the crisis. It cannot be claimed and offered after lapse of considerable amount of time and after the crisis is overcome.
Haryana State Electricity Board vs. Hakim Singh, (1997) 8 SCC 85
In this case based on the particular facts the 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. Such a direction would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession.
In Shashi Kumar, this Court observed that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution.
Principle Emerged
- The provision of compassionate appointment serves as an exception to the general recruitment procedures, designed to address the immediate financial crisis faced by the family of a deceased employee. The objective is to provide livelihood support to the dependents and alleviate their sudden financial burden, rather than being viewed as a source of regular recruitment.
- Compassionate employment does not confer an inherent right that can be exercised at any time in the future. It cannot be claimed or offered after a significant lapse of time or once the crisis has abated.
- Timeliness is crucial in granting compassionate appointments, as it should be provided expeditiously to alleviate the distress of the bereaved family. Prolonged delays in processing such cases are unwarranted.
- In determining the financial crisis faced by the family, relevant factors such as family income, liabilities, terminal benefits, dependency status, and marital status of family members, as well as income from other sources, should be taken into account.
- The underlying objective of compassionate appointment is to provide immediate support to the family of the deceased employee, who may be left in dire circumstances due to the loss of the breadwinner. It is driven by humanitarian considerations.
- Urgency is paramount in matters of compassionate appointment, as delayed action can defeat the purpose of the compassionate scheme. If a considerable amount of time has elapsed since the death of the employee, the sense of immediacy for seeking compassionate appointment may diminish, and this should be considered as a relevant factor in determining eligibility.
Decision of the Hon’ble Court
- The court has observed that applications for compassionate appointment should not be considered after a prolonged delay, where the family of the deceased has been able to sustain themselves through gainful employment from other sources during that time. Granting compassionate appointment in such cases would amount to treating it as an inheritance based on a line of succession, which goes against the Constitution.
- The conduct of the applicant in delaying the application for a significant period of time may be considered as a waiver of the remedy, especially if they approach the High Court after many years (10 years in the present case).
- The sense of immediacy in compassionate appointment cases should not be lost, and entertaining a claim made in 2005-2006 in the year 2023 would be of no avail, as the respondents have been able to support themselves despite not being appointed to the municipality on compassionate grounds.
Conclusion
The Court, while acknowledging the delay by the state government in implementing the policy for compassionate appointments, has taken a reasonable approach to ensure that the primary objective of such appointments is upheld. The policy of granting compassionate appointments is meant to address immediate financial crises, which the respondent party has already resolved through other means. Although the respondent has indeed suffered due to the delay, it was necessary to deny the appointment after such a prolonged period in order to safeguard the larger public interest. Had the Court been directed to consider the application despite the delay, it would not have been in line with the original purpose of the policy for compassionate appointment.
Read the Complete Judgement here.
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