REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 8842-8855 OF 2022

THE STATE OF WEST BENGAL ….APPELLANT(S)

VERSUS

DEBABRATA TIWARI & ORS. ETC. ETC. …RESPONDENT(S)

J U D G M E N T

NAGARATHNA, J.

The present appeals have been filed assailing the judgment and

common order of the High Court of Calcutta, dated 30

th 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 05

th 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 Ben ch of the

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High Court also identified the scheme in light of which the said

applications would have to be considered and decided.

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.

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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) Rule s, 2005, the Board of

Councillors of Burdwan Municipality in its meeting held on 30

th 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

12

th June, 2013, forwarded a list approved by a resolution passed in the

meeting of the Board of Councillors on 30

th 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 7

th 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,

(appellant herein), and requested the Director of Local Bodies to look

into the matter sympathetically.

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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 17

th

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 16

th October, 2015 passed an Order wherein it was stated that the

Director of Local Bodies had no authority to consider the appointments

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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 16

th 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

Common Judgment and Order dated 5

th 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

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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 5

th 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 30

th

September, 2019, passed in MAT 859 of 2018 with CAN 6137 of 2018

in 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 30

th 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.

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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 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 16

th 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

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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 employees and

directed the municipalities to formulate their own schemes for

compassionate appointment, no such scheme had been

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formulated by the concerned municipalities. That it was evident

from Circular No. 142-Emp. 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 dated 12th

June, 2013 whereby the Chairman, Burdwan Municipa lity, 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

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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.

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

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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

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of the State Government, it was declared that it is not viable to give

compassionate appointment to heirs of employees of establishments of

public undertakings, statutory bodies, government companies and local

authorities. That by virtue of the clarification under Circular No. 142-

Emp., 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

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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.

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 6

th 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

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compassionate grounds to the ‘exempted category’. However, by way of

Notification bearing No. 142-Emp. dated 1

st 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

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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

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

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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

17

in harness 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.

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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. That

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.

iv. This Court in State of Haryana vs. Ankur Gupta, AIR 2003 SC

3797 held that in order for a claim for compassionate

appointment to be considered reasonable and permissible, it must

be shown that a sudden crisis occurred in the family of the

deceased as a result of death of an employee who had served the

State and died while in service. It was further observed that

appointment on compassionate grounds cannot be claimed as a

matter of right and cannot be made available to all types of posts

irrespective of the nature of service rendered by the deceased

employee.

v. There is a consistent line of authority of this Court on the principle

that appointment on compassionate grounds is given only for

meeting the immediate unexpected hardship which is faced by the

family by reason of the death of the bread earner vide Jagdish

Prasad vs. State of Bihar, (1996) 1 SCC 301 . When an

appointment is made on compassionate grounds, it should be

kept confined only to the purpose it seeks to achieve, the idea

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being not to provide for endless compassion, vide I.G. (Karmik)

vs. Prahalad Mani Tripathi, (2007) 6 SCC 162. In the same

vein is the decision of this Court in Mumtaz Yunus Mulani vs.

State of Maharashtra, (2008) 11 SCC 384, wherein it was

declared that appointment on compassionate grounds is not a

source of recruitment, but a means to enable the family of the

deceased to get over a sudden financial crisis.

vi. In State of Jammu and Kashmir vs. Sajad Ahmed Mir, AIR

2006 SC 2743, the facts before this Court were that the

government employee (father of the applicant therein) died in

March, 1987. The application was made by the applicant after four

and half years in September, 1991 which was rejected in March,

1996. The writ petition was filed in June, 1999 which was

dismissed by the learned Single Judge in July, 2000. When the

Division Bench decided the matter, more than fifteen years had

passed from the date of death of the father of the applicant. This

Court remarked that the said facts were relevant and material as

they would demonstrate that the family survived in spite of death

of the employee. Therefore, this Court held that granting

compassionate appointment after a lapse of a considerable

amount of time after the death of the government employee, would

not be in furtherance of the object of a scheme for compassionate

appointment.

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vii. In Shashi Kumar, this Court speaking through Dr. D.Y.

Chandrachud, J. (as His Lordship then was) 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. That the basis of the policy is that

it recognizes that a family of a deceased employee may be placed

in a position of financial hardship upon the untimely death of the

employee while in service. That it is the immediacy of the need

which furnishes the basis for the State to allow the benefit of

compassionate appointment. The pertinent observations of this

Court have been extracted as under:

“41. Insofar as the individual facts pertaining to the

Respondent are concerned, it has emerged from the

record that the Writ Petition before the High Court was

instituted on 11 May 2015. The application for

compassionate appointment was submitted on 8 May

2007. On 15 January 2008 the Additional Secretary

had required that the amount realized by way of

pension be included in the income statement of the

family. The Respondent waited thereafter for a period

in excess of seven years to move a petition Under Article

226 of the Constitution. In Umesh Kumar Nagpal

(supra), this Court has 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. This sense of immedia cy is

evidently lost by the delay on the part of the dependant

in seeking compassionate appointment.”

7.2. On consideration of the aforesaid decisions of this Court, the

following principles emerge:

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i. 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.

ii. 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.

iii. 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.

iv. That compassionate appointment should be provided immediately

to redeem the family in distress. It is improper to keep such a case

pending for years.

v. In determining as to whether the family is in financial crisis, all

relevant aspects must be borne in mind including the income of

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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.

7.3. The object 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

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to whether a case for the grant of compassionate appointment has been

made out for consideration.

7.4. As noted above, 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.

7.5. 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

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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 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.

8. Laches or undue delay, the blame-worthy conduct of a person in

approaching a Court of Equity in England for obtaining discretionary

relief which disentitled him for grant of such relief was explained

succinctly by Sir Barnes Peacock, in Lindsay Petroleum Co. v s.

Prosper Armstrong, (1874) 3 PC 221 as under:

“Now the doctrine of laches in Courts of Equity is not

an arbitrary or a technical doctrine. Where it would be

practically unjust to give a remedy, either because the

party has, by his conduct, done that which might

fairly be regarded as equivalent to a waiver of it, or

where by his conduct and neglect he has, though

perhaps not waiving that remedy, yet put the other

party in a situation, in which it would not be

reasonable to place him if the remedy were afterwards

to be asserted, in either of these cases, lapse of time

and delay are most material. But in every case, if an

argument against relief, which otherwise would be

just, is founded upon mere delay, that delay of course

not amounting to a bar by any statute or limitations,

the validity of that defence must be tried upon

principles substantially equitable. Two

circumstances, always important in such cases, are,

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the length of the delay and the nature of the acts done

during the interval, which might affect either party

and cause a balance of Justice or injustice in taking

the one course or the other, so far as it relates to the

remedy.”

Whether the above doctrine of laches which disentitled grant of

relief to a party by Equity Court of England, could disentitle the grant

of relief to a person by the High Court in the exercise of its power under

Article 226 of our Constitution, came up for consideration before a

Constitution Bench of this Court in Moon Mills Ltd. vs. M. R. Meher,

President, Industrial Court, Bombay, AIR 1967 SC 1450. In the said

case, it was regarded as a principle that disentitled a party for grant of

relief from a High Court in the exercise of its discretionary power under

Article 226 of the Constitution.

In State of M.P. vs. Nandlal Jaiswal, (1986) 4 SCC 566 this

Court restated the principle articulated in earlier pronouncements in

the following words:

“9. ... the High Court in exercise of its discretion does

not ordinarily assist the tardy and the indolent or the

acquiescent and the lethargic. If there is inordinate

delay on the part of the Petitioner and such delay is

not satisfactorily explained, the High Court may

decline to intervene and grant relief in exercise of its

writ jurisdiction. It was stated that this Rule is

premised on a number of factors. The High Court does

not ordinarily permit a belated resort to the

extraordinary remedy because it is likely to cause

confusion and public inconvenience and bring, in its

train new injustices, and if writ jurisdiction is

exercised after unreasonable delay, it may have the

effect of inflicting not only hardship and

inconvenience but also injustice on third parties. It

26

was pointed out that when writ jurisdiction is invoked,

unexplained delay coupled with the creation of third-

party rights in the meantime is an important factor

which also weighs with the High Court in deciding

whether or not to exercise such jurisdiction.”

While we are mindful of the fact that 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, vide Jagdish Lal vs. State of Haryana, (1997) 6 SCC

538; NDMC vs. Pan Singh, (2007) 9 SCC 278.

9. Further, simply because the Respondents -Writ Petitioners

submitted their applications to the relevant authority in the year 2005-

2006, it cannot be said that they diligently perused the matter and had

not slept over their rights. In this regard, it may be apposite to refer to

the decision of this Court in State of Uttaranchal vs. Shiv Charan

Singh Bhandari, (2013) 12 SCC 179 , wherein the following

observations were made:

“19. From the aforesaid authorities it is clear as

crystal that even if the court or tribunal directs for

consideration of representations relating to a stale

claim or dead grievance it does not give rise to a

fresh cause of action. The dead cause of action

cannot rise like a phoenix. Similarly, a mere

submission of representation to the competent

authority does not arrest time.”

(emphasis by us)

10. Applying the said ratio to the facts of the present case, we hold

that the Respondents -Writ Petitioners, upon submitting their

27

applications in the year 2006-2005 did nothing further to pursue the

matter, till the year 2015 i.e., for a period of ten years. Notwithstanding

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 dated 17

th March,

2015, 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.

11. It may be apposite at this juncture to refer to the following

observations of this Court in Malaya Nanda Sethy vs. State of Orissa,

AIR 2022 SC 2836 , as to the manner in which the authorities must

consider and decide applications for appointment on compassionate

grounds:

“9. Before parting with the present order, we are

constrained to observe that considering the object and

28

purpose of appointment on compassionate grounds,

i.e., a family of a deceased employee may be placed in

a position of financial hardship upon the untimely

death of the employee while in service and the basis

or policy is immediacy in rendering of financial

assistance to the family of the deceased

consequent upon his untimely death, the

authorities must consider and decide such

applications for appointment on compassionate

grounds as per the policy prevalent, at the earliest,

but not beyond a period of six months from the

date of submission of such completed

applications.

We are constrained to direct as above as we

have found that in several cases, applications for

appointment on compassionate grounds are not

attended in time and are kept pending for years

together. As a result, the applicants in several cases

have to approach the concerned High Courts seeking

a writ of Mandamus for the con sideration of their

applications. Even after such a direction is issued,

frivolous or vexatious reasons are given for rejecting

the applications. Once again, the applicants have to

challenge the order of rejection before the High Court

which leads to pendency of litigation and passage of

time, leaving the family of the employee who died in

harness in the lurch and in financial difficulty.

Further, for reasons best known to the authorities and

on irrelevant considerations, applications made for

compassionate appointment are rejected. After several

years or are not considered at all as in the instant

case.

If the object and purpose of appointment on

compassionate grounds as envisaged under the

relevant policies or the rules have to be achieved

then it is just and necessary that such applications

are considered well in time and not in a tardy way.

We have come across cases where for nearly two

decades the controversy regarding the application

made for compassionate appointment is not resolved.

This consequently leads to the frustration of the very

policy of granting compassionate appointment on the

death of the employee while in service. We have,

therefore, directed that such applications must be

considered at an earliest point of time. The

consideration must be fair, reasonable and based on

29

relevant consideration. The application cannot be

rejected on the basis of frivolous and for reasons

extraneous to the facts of the case. Then and then only

the object and purpose of appointment on

compassionate grounds can be achieved.”

(emphasis by us)

In the said case, the claim of the appellant-applicant therein for

compassionate appointment was directed by this Court to be considered

by the competent authority. This Court noted that in the said case, there

was no lapse on the part of the appellant-applicant therein in diligently

pursuing the matter. The delay in considering the application of the

appellant therein was held to be solely attributable to the authorities of

the State, and no part of it was occasioned by the appellant-applicant.

Further, in the said case, the appellant-applicant was prejudiced not

only because of the prolonged delay in considering his application but

also by the fact that in the interim, the policy of the State governing

compassionate appointment had changed to his detriment. Therefore,

the facts of the said case were distinct from the facts involved herein. In

the present case, the conduct of the Respondents -Writ Petitioners

cannot be said to be blameless in that they did not pursue their matter

with sufficient diligence. However, the observations made in the said

case as to the manner in which applications for compassionate

appointment are to be considered and disposed of are relevant to the

present case.

30

As noted in the said case, 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 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.

12. In the present case, the applications for compassionate

appointment were made by the Respondents-Writ 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.

13. The sense of immediacy in the matter of compassion ate

appointment has been lost in the present case. This is attributable to

the authorities of the Appellant-State as well as the Respondents-Writ

31

Petitioners. Now, entertaining a claim which was made in 2005-2006,

in the year 2023, would be of no avail, be cause 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, we think that 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.

14. However, we must sound a strong word of reproach directed at the

authorities of the Appellant-State, about the manner in which the

applications for compassionate appointment of hundreds of dependents

have been dealt with. Much uncertainty looms around the scope, extent

and beneficiaries of the various schemes formulated by the State for

governing compassionate appointment and therefore, the concerned

authorities are unable/unwilling to positively decide claims for

compassionate appointment. This may have ultimately resulted in

prejudice to the families of many government employees dying in

harness. Delay on the part of the authorities of the State to decide

claims for compassionate appointment would no doubt frustrate 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.

32

15. The question as to whether a direction issued several years after

an application for compassionate appointment, to consider and decide

such application, is in consonance with the object of a policy/scheme

for compassionate appointment, has been answered in the negative.

However, we shall also examine whether these appeals must succeed

on a second count, i.e., whether there exists any scheme in the State of

West Bengal, governing compassionate appointment vis-à-vis municipal

employees dying in harness.

16. In order to determine the question as to whether there exists any

scheme in the State of West Bengal, governing c ompassionate

appointment vis-à-vis municipal employees dying in harness, it would

be useful to refer to the content of the relevant State Government

Notifications issued in this regard. The relevant Circulars are: 301-

Emp., 302-Emp. and 303-Emp. all dated 21

st August, 2002; 97-Emp.

dated 6

th June, 2005 and 142-Emp. dated 1

st November, 2007.

The relevant portions of each of such Circulars are extracted

hereinunder for easy reference:

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

“In exercise of the powers conferred by sub-section (a)

of section 3 of 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), the Governor

is pleased to declare the following categories of

33

persons as exempted categories for the purpose of the

aforesaid Act:-

1. Dependents of employees dying in harness: A solely

dependent wife/son/daughter/near relation of an

employee who dies in harness leaving his family in

immediate need of assistance.

A near relation of the deceased employee may be

considered for employment on compassionate

ground only when the son/daughter/wife of the

deceased employee cann ot be considered for

employment owing to minor age or other

disabilities. In such a case the employment of a

near relation of the deceased employee may be

considered only for providing assistance

immediately needed by the family, left behind by

the deceased.

xxx

This supersedes all earlier circulars and executive

orders issued from time-to-time by the Government of

West Bengal in the Labour Department relating to

employment of persons belong to the Exempted

Categories.”

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

“In exercise of the powers conferred by sub-section (b)

of section 3 of 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), the Governor

is pleased to order that of the local vacancies arising

in a year under any appointing authority, other than

the vacancies which are required to be filled up either

on the recommendations of-

(a) the Public Service Commission, West Bengal, or

(b) the West Bengal College Service Commission, or

(c) the West Bengal School Service Commission, or

(d) the Municipal Service Commission, or

(e) the Co-operative Service Commission Or by

promotion, or by absorption of persons declared

surplus by the State Government or by absorption of

such categories of casual workers and other workers

34

as the State Government may by notification specify

from time to time, 30% shall be treated as reserved to

be filled up by persons falling within the exempted

categories notified under sub-section (a) of section 3

of the aforesaid Act.”

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

“In exercise of the powers conferred by sub-section (c)

of section 3 of 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), the Governor

is pleased to prescribe the following procedure for

filling up the vacancies reserved for the Exempted

Categories as specified under sub -section (a) of

section 3 of the aforesaid Act:--

A. GENERAL PROCEDURE TO BE FOLLOWED IN

RESPECT OF DIFFERENT EXEMPTED C ATEGORIES:

1. Dependents of persons who died in harness: None

except wife/son/daughter/near relation of the

deceased employee and solely dependent on the

earnings of the deceased employee, shall be eligible for

consideration for such employment. The benefit will

be admissible if the family, left behind by the deceased

employee, is in immediate need of assistance and

such employment on compassionate ground is

absolutely essential to support the family of the

deceased. A person belonging to a completely separate

family shall not be treated as solely dependent on the

deceased employee for the purpose of such

employment on compassionate ground.

The wife/son/daughter/near relation of an employee

who died-in-harness, may apply to the appointing

authority through the Head of the Office of the

employee in a prescribed form as per Part I & II of

Annexure "A" along with a copy of death certificate

praying for employment to support the family of the

deceased employee. On receipt of such application the

appointing authority shall form an enquiring

committee of senior officials not less than three in

number. The committee so formed shall make an

35

enquiry about the genuineness of the prayer as well

as the financial condition of the family of the deceased

employee and submit a report as per Annexure "A" to

the appointing authority. The appointing authority

will forward the case together with his views, recorded

in Annexure "A", to the Administrative Department

concerned for consideration. If it is decided by the

administrative department to be a fit case for offering

employment on compassionate ground a suitable

vacancy may be identified under the appointing

authority concerned for providing employment subject

to the condition that the candidate satisfies the

qualification and other requirements prescribed for

recruitment to the post. If a suitable vacancy is not

available under the appointing authority concerned

the administrative department may identify suitable

vacancy under some other appointing authority under

its administrative control for providing employment.

The administrative department will forward the case

with suitable direction, to the appointing authority, in

whose establishment the vacancy has been identified.

In the event of non-availability of the berth for

accommodating such a case the administrative

department concerned will have to move other

departments for suitable berth. When a suitable

vacancy is available in some other department to

accommodate the case, the Administrative

Department will forward the case along with the

relevant papers to that department for further action.

The Department having vacancy in the Exempted

Category of posts will provide employment to the

wife/son/daughter/near relation of the employee

who died in harness subject to observanc e of

relevant conditions and formalities.”

97-Emp. - 6th June, 2005:

“In exercise of the powers conferred by clause (c) of

section 3 of the West Bengal Regulation of

Recruitment in State Government Establishments

and Establishments of Public Undertakings, Statutory

Bodies, Government Companies and Local Authorities

Act, 1999, the Governor has been pleased to lay down

the following principles and procedures to be followed

in dealing with the issue of appointment on

compassionate ground to the dependants of

36

employees who die in harness, or who retire

prematurely on being declared permanently

incapacitated.

xxx

2. One of the dependants of an employee who dies in

harness or who retires prematurely on being declared

permanently incapacitated may be offered

appointment on compassionate ground subject to the

fulfilment of the following conditions:

(i) The employee has died, or retired on being

permanently incapacitated before completing 20 years

of services of before attaining the age of 50 years,

whichever is earlier.

(ii) The family of the deceased of the retired employee,

as the case may be, is in need of immediate assistance

and appointment of dependant of the employee is

absolutely essential for survival of the family.

For the purpose of appointment of compassionate

ground in terms of this notification, a dependant shall

mean spouse, a son or an unmar ried daughter who

was (sic) solely dependent on the earnings of the

deceased or the retired employee.

xxx

8. The Labour Department will forward the name of

persons found eligible for appointment on

compassionate ground to one or more of the following

Departments, for appointing them against available

vacancies.-

1) Health & Family Welfare Department

2) School Education Department.

3) Higher Education Department.

4) Mass Education & Extension Department.

5) Home (Police) Department.

6) Jails Department.”

37

EMP-142 - 1st November, 2007:

“Consequent upon issue of this Department's

Notification No. 97-Emp, dated 06.06.2005, a

question arose as to if the provisions of the said

notification would be applicable to the State

Government employees only or to the employees

attached to such other establishments, as are

mentioned in the West Bengal Regulation of

Recruitment in State Government Establishments

and Establishments of Public Undertakings,

Government Companies and Local Authorities Act,

1999, as well. To obviate the question, issue of a

clarification in this regard has been under

consideration of the Government for some time past

and in terms of this Department Notification No. 69-

Emp. dated 26-06-2007, it has been clarified that

the term 'employee' wil l mean the State

Government employee only for the purpose of this

Department's Notification No. 97-Emp, dated 06-

06-2005.

xxx

2. The Governor has, now, been pleased to order that

the appropriate authorities of the establishments of

Public Undertakings, Statutory Bodies, Government

Companies and Local Authorities, within the purview

of the Act ibid, will, having regard to the principles

applicable to the State Government employees as

enunciated in this Department Notification No. 97-

Emp, dated 06-06-2005, read with Corrigendum No.

151-Emp, dated 08-09-2005, Notification No. 133-

Emp, dated 01 -10-2007 and any other

order/Notification to be issued subsequently by the

Government in this regard, the financial position and

the nature of activities of the respective organizations,

formulate policies of their own in consultation with

the respective administrative departments so as to

follow the same in course of dealing with the prayers

for appointment or financial assistance on

compassionate ground, received by them, from the

dependents of the employees who die-in-harness or

retire prematurely on being declared permanently

incapacitated.

38

3. Before notifying the policy, the administrative

Department shall obtain the concurrence of the

Labour Department and the Financial Department.”

(emphasis by us)

16.1. A scheme for compassionate appointment was introduced by

Circular Nos. 301-Emp. to 303-Emp. dated 21

st August 2002. Circular

No. 301-Emp identifies the exempted categories for the purpose of the

Act of 1999. Dependents of employees dying in harness is one of the

categories so identified. Circular No. 302-Emp provides that 30% of the

vacancies arising in a year under any appointing authority shall be

reserved to be filled by persons belonging to the exempted categories.

Circular No. 303-Emp prescribes a procedure for filling up of vacancies

reserved for the exempted categories, i.e., the procedure to be followed

by the appointing authority on receipt of an application to be appointed

on compassionate grounds. The said Circular provides that the

administrative department shall, on finding a candidate eligible for

compassionate appointment, either appoint him/her under the

appointing authority which forwarded the application, or, identify a

suitable department where there is a vacancy to be filled by a person

belonging to an exempted category. The Circular further provides that

any Department which has vacancy in the Exempted Category of posts

will provide employment to the wife/son/daughter/near relation of the

employee who died in harness.

39

The next notification is 97-Emp. dated 6

th June, 2005 which

specifies the criteria for a person seeking an appointment on

compassionate grounds in the ‘dependents of persons who died in

harness’ category. Further, Circular No. 142-Emp. dated 1

st November,

2007, seeks to answer the question, whether the provisions of 97-Emp.

would be applicable to State Government employees only or it would

apply to the employees attached to other establishments as mentioned

in the Act of 1999 as well. It answers the question in the negative so far

as employees of other establishments are concerned. It further provides

that local authorities may formulate their own policies having regard to

the principles applicable to the State Government Employees to govern

compassionate appointment.

16.2. There is no controversy regarding the applicability of Circular No.

97-Emp. dated 6

th June, 2005 to employees of local authorities such as

municipalities because Circular No. 142-Emp. dated 1

st November,

2007 provides in no unclear terms that 97-Emp. would not be

applicable to employees of local authorities.

It is trite that the effect of the clarification of any document is

always retrospective and would relate back to the date of the notification

in respect of which the clarification is issued, vide Ashok Lenka vs.

Rishi Dikshit, AIR 2006 SC 2382 . The clarificatory Circular, i.e.,

Circular No. 142-Emp. dated 1

st November, 2007 has got no

independent existence. It merely defines the scope of operation of

40

Circular No. 97-Emp. dated 6

th June, 2005. Therefore Circular No. 97-

Emp. read with Circular No. 142-Emp. concern the procedure governing

compassionate appointment, only qua State Government employees.

Further, 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. Given that the

said Circular does not govern compassionate appointment t o posts

under local authorities, compassionate appointment cannot be granted

to posts under local authorities.

16.3. It is the case of the Respondents-Writ Petitioners herein that

though Circular No. 97-Emp. read with Circular No. 142-Emp is not

applicable to local authorities, their applications for compassionate

appointment ought to have been considered in light of 301-Emp., 302-

Emp. and 303-Emp. which, according to the Respondents -Writ

Petitioners is applicable to all departments and authorities covered

under the Act of 1999. However, in our view, the said Circulars were

not understood or read to be a scheme governing all employees of other

establishments governed by the Act of 1999. We say so for the following

reasons:

i) Circular No. 303-Emp. provides that any Department which has

vacancy in the Exempted Category of posts will provide employment

41

to the wife/son/daughter/near relation of the employee who died

in harness. Use of the word ‘Department’ would indicate that the

said Circular would govern compassionate appointment to

Departments of the State Government and not to local authorities.

ii) The meaning of the word ‘Department’ would have to be gathered,

having regard to the fact that the immediate notification

subsequent to 301-Emp., 302-Emp. and 303-Emp., being 97-Emp.

dated 6

th June, 2005 notifies the departments in whose vacancies

the appointments would be granted. The Departments are of the

State.

iii) If Circular Nos. 301-Emp, 302-Emp and 303-Emp. are to be read

so as to cover all establishments of the Act of 1999, then 97-Emp.

dated 6

th June, 2005, should provide for appointment in the

establishment covered by the Act of 1999 concerned. It does not do

so. Therefore, Circular Nos. 301-Emp, 302-Emp and 303-Emp.

cannot be held to be applicable to local authorities.

16.4. The existence of a policy issued by the State Government is a sine

qua non for making appointments on compassionate basis, vide

Mumtaz Yunus Mulani (Smt.) vs. State of Maharashtra (supra);

State Bank of India vs. Surya Narain Tripathi, 2014 (15) SCC 739 .

The appointments must follow the stipulations made in the policy. It is

therefore a no-brainer that in the absence of a policy governing

compassionate appointment to posts under a local authority, no

42

appointment could be made to such an authority on compassionate

grounds.

Having held that Circular Nos. 301-Emp, 302-Emp and 303-Emp.

cannot be held to be applicable to local authorities, we are unable to

affirm the findings of the Division Bench of the High Court to the effect

that given that Circular No. 301-Emp., 302-Emp. 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 303-Emp.

We are further of the view that the liberty granted to the local

authorities in Circular No. 142-Emp. to formulate their own scheme for

compassionate appointment, is an acknowledgement of the fact that

there was no policy existing to govern compassionate appointment to

posts under local authorities.

16.5. In fine, the present appeals succeed on two counts: first, there was

no policy existing to govern compassionate appointment to posts under

local authorities in the State of West Bengal and hence, in the absence

of such a policy, compassionate appointment cannot be granted;

second, 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.

43

17. In light of the aforesaid discussion, the instant appeals succeed

in the following terms:

i. The impugned judgment and common order of the High Court of

Calcutta dated 30

th September, 2019 is hereby set aside. The

order of the learned Single Judge of the High Court of Calcutta

dated 05

th July, 2018, passed in W.P. No. 2739 (W) of 2016 and

connected matters is restored.

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

allowed.

Parties to bear their respective costs.

.................................J.

[KRISHNA MURARI ]

.................................J.

[B.V. NAGARATHNA]

NEW DELHI;

3

rd March, 2023.