Tripura High Court
Sri Swinton Jamatia vs The State Of Tripura on 16 September, 2021
Author: Arindam Lodh
Bench: Arindam Lodh
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HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
WP(C) No. 686 of 2020
1. Sri Swinton Jamatia, son of late Shyamal Kumar Jamatia,
resident of Village Hadrai, P.S. Teliamura, Khowai Tripura.
.....Petitioner(s)
-V E R S U S-
1. The State of Tripura, (to be represented by the Secretary,
Directorate of Health Services, Government of Tripura), New
Secretariat Building, New Capital Complex, Kunjaban, P.S.
New Capital Complex, Agartala, West Tripura, Pin-799010.
2. The Principal Secretary, General Administration (Personnel &
Training) Department, Govt. of Tripura, New Secretariat
Building, New Capital Complex, Kunjaban, P.S. New Capital
Complex, Agartala, West Tripura, Pin-799010.
3. The Director, Directorate of Health Services, O/o the
Directorate of Health Services, Govt. of Tripura, PN Complex,
Agartala, West Tripura, Pin-799006.
4. The Chief Medical Officer, O/o the CMO, Govt. of Tripura,
Khowai, Tripura.
5. The Sub-Divisional Medical Officer, Teliamura Sub-Divisional
Hospital, Govt. of Tripura, Teliamura, Khowai Tripura.
6. The Sub-Divisional Magistrate, Teliamura, O/o the SDM,
Teliamura, Khowai, Tripura.
..... Respondent(s)
B_E_F_O_R_E
HON'BLE MR. JUSTICE ARINDAM LODH
For Petitioner(s) : Mr. S. Bhattacharjee, Advocate
For Respondent(s) : Mr. D. Sarma, Addl. G.A.
Date of hearing : 16.07.2021
Date of delivery of
Judgment and order : 16.09.2021
Whether fit for reporting : YES
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JUDGMENT & ORDER
Heard Mr. S. Bhattacharjee, learned counsel appearing for
the petitioner. Also Mr. D. Sarma, learned Addl. G.A. appearing for the
State-respondents.
[2] The central issues which fall for determination before this
Court in this writ petition, firstly, pertain to the interpretation of the
compassionate appointment scheme introduced by the Government of
Tripura under Notification dated 2nd March, 2019 having its effect given
from 21.11.2018, secondly, whether an executive order can be given
retrospective effect and thirdly, whether an application for compassionate
appointment would be considered in terms of the scheme prevalent on the
date of its consideration.
[3] Before I delve into the interpretative process of the above
issues, relevant facts of the present case should be arrayed, for
convenience:
[3.1] The father of the petitioner, namely, Shyamal Kumar
Jamatia while discharging his duties under the State-respondents died in
harness on 17.01.2019 leaving behind three survivors, including the
petitioner herein. The deceased employee was the only breadwinner of
his family. The wife and daughter of the deceased being ineligible for
claiming compassionate appointment under the scheme, the petitioner
having Master degree in Sociology raised claim for a suitable job on
account of sudden demise of his father under the scheme for Die-in-
harness as notified on 26.12.2015 ["Scheme of 2015", for short]. The
petitioner submitted an application in the prescribed format of the
scheme. The matter was enquired into and while such process was going
on, the Government of Tripura introduced a new "Scheme for
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compassionate appointment" under Notification dated 02.03.2019 which
came into effect from 21.11.2018("Scheme of 2019", for short)
[Annexure-8 to the writ petition] issued by the General Administration
(Personnel & Training) Department, Government of Tripura in
supersession of all other previous schemes/instructions/notifications for
providing employment or financial assistance to the eligible members of
the Government employees who died in harness.
[3.2] On consideration of the application of the petitioner in
consonance with the relevant clause of the Scheme of 2019, the
respondent No.3 i.e. the Director of Health Services, Government of
Tripura informed the petitioner that he was not entitled to avail the
benefit of appointment under the compassionate appointment scheme but,
his claim was covered under Support Category-1 (Special Pension) under
the Scheme of 2019.
[4] Assailing the adverse decision of the respondents denying
his claim for compassionate appointment under the respondent No.3, the
petitioner has approached this Court for appropriate redress. The case of
the petitioner is that his claim for compassionate appointment was
covered under the Scheme of 2015, since his father died on 17.01.2019;
before the date of notification of the Scheme of 2019 (02.03.2019).
[5] Further contention of the learned counsel for the petitioner
was that the retroactive operation of the Scheme of 2019 from a date
anterior to the date of notification i.e. w.e.f. 21.11.2018, per-se was
illegal and arbitrary since the petitioner acquired vested right under the
Scheme of 2015. In other words, his accrued right was taken away by the
respondents.
Page 4 of 24
[6] Contending the aforesaid facts and law, Mr. Bhattacharjee,
learned counsel appearing on behalf of the petitioner heavily relied upon
a judgment and order of a coordinate Bench [S. Talapatra, J] of this Court
decided in WP(C) No. 502 of 2020 dated 08.03.2021, titled as Smti.
Kamalabati Gour v. State of Tripura & Others, where the learned Court
had discussed many judgments of the Apex Court on the issues raised by
the petitioner and ultimately, in a similar situation as that of the present
case, directed the State-respondents to consider the case of Smti.
Kamalabati Gour for compassionate appointment under the Scheme of
2015 but, not under the Scheme of 2019.
[7] On the other hand, Mr. D. Sarma, learned Addl. G.A.
appearing for the State-respondents posed strong resistance to the claim
of the petitioner, as well as arguments advanced by the learned counsel
appearing on behalf of the petitioner. Mr. Sarma, learned Addl. G.A. put
strong reliance upon a decision rendered by a full Bench of the Apex
Court in N. C. Santhosh v. State of Karnataka and Others, reported in
(2020) 7 SCC 617 on the aspect of retrospective or retroactive operation
of any Government scheme/circular. Learned Addl. G.A. placed his
reliance upon a case decided by the Apex Court in High Court of Delhi
& Another v. A. K. Mahajan & Others, reported in (2019) 12 SCC 62.
Ultimately, the learned Addl. G.A. would contend that the complain of
the petitioner as canvassed in the present writ petition could not be
entertained for the reason that his claim for compassionate appointment
would be governed by the Scheme of 2019 and not by the Scheme of
2015 and he supported the Government‟s view that the petitioner was
entitled to avail the benefits under the Support Category-1 (Special
Pension) providing financial benefit to the dependents of the deceased
employee.
Page 5 of 24
[8] Mr. Sarma, learned Addl. G.A. appearing for the State-
respondents tried to dislodge the interpretation made by the coordinate
Bench of this Court in the case of Smti. Kamlabati Gour (supra).
[9] Keeping in mind the rival submissions advanced by the
learned counsels appearing for the parties, I proceed to decide the central
issues as formulated at the very outset for resolution of the issues
revolved around the present writ petition. To start with, it would be
useful to extract the relevant provisions of the "Scheme of 2015" as well
as the "Scheme of 2019".
Scheme of 2015 [Annexure-7 to the writ petition]
"Government of Tripura
General Administration (Personnel & Training) Department
No. F.1(2)-GA(P&T)/15 Dated, Agartala, 26th December, 2015
NOTIFICATION
Sub: Die-in-harness Scheme- Government of Tripura.
In supersession of all earlier instructions issued in connection with Die-in-
harness Scheme, it is decided to revise the Die-in-harness Scheme along
with general guidelines for the purpose of extending Die-in-harness
benefits either by a compassionate appointment in Government services of
Group-C or Group-D category of post or admissible Financial Assistance
as the case may be to the eligible survivors/dependents of the Government
employee who dies in harness while in service as narrated hereunder:
OBJECT: The object of the Scheme is to extend benefits either b y an
appointment in Government service on compassionate ground or
admissible Financial Assistance to an eligible dependant member of
family of a deceased Government servant in the event of death while in
service provided that there is no earning member in the family of the
deceased. The intention is to relieve the family of the Government servant
from financial destitution and to help it get over the financial hardship.
Employment would be provided to one of the eligible dependents of the
deceased Government servant.
One time Financial Assistance of a sum of Rs. 1,00,000/- (Rupees one
lakh) only subject to revision by the Government from time to time, may
be provided to the family of the deceased Government servant died in
harness where there is no eligible member for having the benefit of
compassionate appointment.
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General guidelines to be followed while providing benefits (either
Government employment or admissible financial assistance as the case
may be) under Die-in-harness Scheme:
1. Eligibility criterion under the scheme:
(I) Deceased State Government Servants;
Die-in-harness Scheme shall be applicable to the dependent family
member(s) of following categories of an employee who dies while in
service including un-natural death;
(i) A Government servant serving under the State Government;
(ii) Teaching and non-teaching employees of Privately Managed
Government Aided Schools.
********************
4. Financial Assistance under the Scheme:
One time financial assistance of a sum of Rs.1,00,000/- (Rupees one lakh) only subject to revision by the Government from time to time, may be provided to the family of the deceased Government servant died in harness where there is no eligible member for having the benefit of compassionate appointment.
********************
6. Age limit: Minimum age is 18(eighteen) years and upper age limit is 40(forty) years. Upper age limit is relaxable by 5(five) years in case of SC/ST/PH candidates.
**********************
9. Limitations for making claim and dispose of cases under Die-in-
harness Scheme:
Claims for employment/financial assistance under Die-in-harness Scheme should be submitted before the appropriate authority within 1(one) year from the date of death of the Government servant as per provisions contained under Para-(II) above. The eligibility in all respect shall be determined as on the date of death of the concerned employee.
*************"
"Scheme of 2019 [Annexure-8 to the writ petition] Government of Tripura General Administration (Personnel & Training) Department No.F.1(1)-GA(P&T)/18 Dated, Agartala, the 2nd March, 2019 NOTIFICATION Subject: Scheme for Compassionate Appointment / Benefit for Government Employees of Tripura.
In supersession of all earlier instructions issued in connection with Die-in- harness Scheme, it is decided to revise the Die-in-harness Scheme along with general guidelines for the purpose of extending Die-in-harness benefits either by a Compassionate appointment in Government services in Group-C or Group-D category of post only or admissible financial assistance as the case may be to the eligible survivors or dependents of the Government employee who dies in harness or missing or permanent invalidation while in Government duty.Page 7 of 24
The revised Die-in-harness Scheme shall be termed as "Scheme for Compassionate Appointment/Benefit for Government Employees of Tripura." The date of effect of the Scheme is 21st November 2018 as the decision was taken in the meeting of the Council of Ministers on 21.11.2018.
The Scheme along with related guidelines is narrated hereunder:
1. Object:
The objective of the Scheme is to extend benefits either by an appointment in the Government service on compassionate ground or admissible financial assistance to an eligible dependant member of the family of a Government servant dying in harness or in case of permanent physical invalidity while on Government duty or missing, thereby leaving his family in penury and without any means of livelihood. The scheme is meant to relieve the family of the Government servant concerned from financial destitution and to help it get over the emergency.
****************** 2.3 "Date of Occurrence" means:
(i) The date of death of the Government servant in case of die-in-
harness, or
(ii) ***********
(iii) *********** 2.13. "Eligibility" shall be on the date of occurrence of the deceased missing/permanently invalidity of the Government employee.
a. The family is indigent and deserves immediate assistance for relief from financial destitution; and b. Applicant for compassionate appointment should be eligible and suitable for the post in all respects under the provisions of the relevant Recruitment Rules.
3. Nature of Support:
3.1. Government appointment or financial assistance of Rs.1,00,000/-
(Rupees one lakh) or Rs. 10,00,000/- (Rupees ten lakh) only, as the case may be depending upon the category to which the affected Government servant belongs to.
3.2. Support Category-1 If the age of the affected Government Servant is equal to or more than 50 years on the date of occurrence, then the family will be paid Special Pension amount to difference between last drawn salary and Page 8 of 24 pension in addition to the normal pension till the affected employee would have attained 60 years of age, provided that there is no earning member in the family. After attaining 60 years of age, only normal pension will be paid.
3.3. Support Category-2 ************ 3.4. Support Category-3 *********** 3.5. Support Category-4 ********* 3.6. Explanation:
(i) ***********
(ii) Eligibility to be determined as on date of occurrence of the affected Government Servant.
(iii) ***************** 3.7. Benefits admissible in different categories are tabulated as hereunder:
Category Benefit admissible Remarks
Support-1, Special Pension amounting i. There is no earning
Occurrence date on or after to difference between last member in the family.
attaining the age of 50 drawn salary and pension ii. In case of there is minor
years in addition to the normal survivors then one suitable
pension till the affected local guardian may be
Government servant would declared by the
have attaining 60 years. Administrative Department
concerned in consultation
with the deceased
Government servant's
family.
7. Age limit:
Minimum age limit is 18 (eighteen) years and upper age limit is 40 (forty) years as on the date of occurrence. Upper age limit is relaxable by 5(five) years in case of SC/ST/PH candidates.
*******************
9. Time limit for considering applications for compassionate appointment:
For Government appointment and admissible financial assistance, requests to be submitted within one year from the date of occurrence of the deceased government servant or missing or permanent invalidation while on government duty.
Provided that for admissible financial assistance, time period for application can be extended by 1(one) year on valid grounds.
10. ************
11. ************ ***************
19. Repeal:
Page 9 of 24The existing orders/instructions issued from time to time in connection with the Die-in-harness Scheme or benefit to the family of missing Government employee or permanent invalidation, while in Government job hereby stand repealed w.e.f. 21st November, 2018.
All Departments/Head of Departments are, therefore advised to follow the above instructions rigidly."
[10] On close reading of the above two schemes, the main distinctive features, related to the issues involved in the present writ petition, are that in the former scheme there was no classification of extending the benefits of providing compassionate appointment to an eligible survivor of a Government employees who died in harness on the basis of age, but, in the later scheme the legislative body of the State, i.e. the highest Executive Authority of the State in its own wisdom has made classification for providing benefits of compassionate appointment under different circumstances, and in the present case we are concerned with the stipulations contained under Clause-3.2 of the Scheme of 2019. Here, it is legislated that if at the time of death, the affected Government servant attains the age equal to 50 years or more on the date of occurrence, then, the family of the deceased Government employee shall only be eligible to be paid „Special Pension‟ as extracted here-in-above.
[11] From the communication dated 03.09.2020 issued by the Director of Health Services, Government of Tripura addressed to the Sub-divisional Medical Officer with a copy to the petitioner, it transpires that the State-respondents invoked Clause-3.2 of the Scheme of 2019 since the father of the petitioner had undisputedly attained the age of 55 years on the date of occurrence i.e. the date of his death as provided under Clause-2.3 of the said Scheme.
[12] Indubitably, Lt. Shyamal Kumar Jamatia, the father of the petitioner expired on 17.01.2019 when he attained the age of 55 years [Annexure-1 to the writ petition]. The petitioner had claimed the Page 10 of 24 benefit of the Scheme of 2015, since his father died on 17.01.2019 in- harness. Such of his claim was considered by the Additional Chief Secretary (Health), Govt. of Tripura as well as Director of Health Services, Government of Tripura on 21.08.2020 as transpired from the prescribed form captioned as " Part-C" (to be filled in by officer in which the employee concerned AWS in service on the date of concurrence). The said Form [Annexure-5 to the writ petition] may be reproduced hereunder, for convenience, in extenso:
"Part-C (TO BE FILLED IN BY OFFICER IN WHICH THE EMPLOYEE CONCERNED AWS IN SERVICE ON THE DATE OF CONCURRENCE) I
(a) Name of the candidate for Appointment :- Sri Swinton Jamatia
(b) His relationship with the affected :- Father Government servant
(c) Age (Date of Birth), Education :- 08/06/1992 qualification and experience, if any (27 years 5 months 09 days) M.A. Passed (Indira Gandhi National Open University.
(d) Post (Group-C or D) in which :- ......
employment is proposed
(e) Whether there is vacancy in that post :- ........
within the ceiling of 15% of total available vacancies prescribed under the scheme of compassionate appointment
(f) Whether the relevant Recruitment Rules :- ........
provide for direct recruitment
(g) Whether the candidate fulfils the :- No. As the applicant comes requirement of the Recruitment Rules under the purview of Support for the post Category-1.
(h) Mention any relaxation are being given :- .......
to the applicant II.
Whether the facts mentioned in Part-A and :- The SDM, Tellamura, Khowai Part-B have been verified by the Officer and it Tripura, District verifies the so indicate the records family status.
III Personal Recommendation of the Head of :- ........
Page 11 of 24Department/Office IV Applicant finally recommendation for :- For Category-I Category-I/Category-II/Category-III/ Category-IV admissible under the Scheme (as per categories cited under Nature of Support of the Scheme).
The information given above for providing admissible benefits under Compassionate Appointment/Benefits Scheme under the Government of Tripura has been verified with the service Book, LTC Claim, Ration Card, report of the concern Sub-Divisional Magistrate and other document and found that the applicant staying with his family & there is no Govt. employee in the family.
Shri. Swinton Jamatia, S/o Late Shyamal Kumar Jamatia, Ex. GDA (Group-D) may be considered for admissible benefits of Compassionate Appointment/Benefit Scheme for Eligibility criteria as described under the Scheme.
Signature .............21.08.20 Counter Signature
Name Dr. Subhasis Debbarma
Director Health Services Addl. Chief Secretary(Health)
Govt. of Tripura to the Govt. of Tripura
Agartala"
[13] From the said Form filled up by the concerned authority, it
comes to fore that they on 21.08.2020 considered the nature of support to be provided to the petitioner under the Scheme of 2019, and categorized the petitioner for such support under „Category-I‟. In other words, while considering the claim of the petitioner on 21.08.2020 the State- respondents found the petitioner eligible for „Special Pension‟ since his father had attained the age of more than 50 years on the date of his death as contemplated in Clause-3.2 of the Scheme of 2019.
[14] Now, this Court is called upon to decide whether such categorization of the petitioner under the Scheme of 2019 is legally acceptable, since his father died on 17.01.2019 before the notified date on 2nd March, 2019 being its effect given antedated, anterior to the date of notification (02.03.2019) of the Scheme of 2019.
[15] Almost on similar facts and circumstances, the learned Single Judge in Smti. Kamlabati Gour (supra) referring the case of State Bank of India v. Jaspal Kaur, reported in (2007) 9 SCC 571 where it Page 12 of 24 was observed that an administrative or executive order cannot have retrospective effect so as to take away the right accrued in favour of any person. In sequel of this principle, learned Judge in Kamalabati(supra) had observed that since under the Scheme of 2015, eligibility for compassionate appointment in all respects shall be determined as on the date of death of the concerned employee, and in that case, the death of the Government servant being occurred on 18.01.2019 i.e. prior to the date of notification of the Scheme of 2019, the applicant, Smt. Kamlabati Gour had acquired vested right under the Scheme of 2015 and those rights could not be taken away by retroactive operation of the Scheme of 2019.
[16] What is garnered, the learned Single Judge, while appreciating the law of retrospectivity or retroactive operation relating to certain Government schemes/instructions providing benefits of compassionate appointment to the employees under the State Government, has held that such scheme/instruction, etc. gives a vested right to the beneficiaries/applicants of such beneficial scheme existed on the date of death of the employee, for which any subsequent schemes/instructions prescribing the cut-off date prior to the date of notification, cannot take away such vested or accrued right given to the beneficiaries under the former scheme, etc. by way of mere inserting a repealing clause or by way of giving its effect prior to the date of notification. The learned Single Judge also had taken note of the following judgments rendered by the Apex Court delivered in (i) SLP(C) 30335 of 2017 [State Bank of India v. Sheo Shankar Tewari]; (ii) State Bank of India & Arn. V. Raj Kumar, reported in (2010) 11 SCC 661;
(iii) MGB Gramin Bank v. Chakrawarti Singh, reported in (2014) 13 SCC 583; (iv) High Court of Delhi and Anr. v. A. K. Mahajan & Ors., reported in (2009) 12 SCC 62; (v) Canara Bank & Anr. v. M. Mahesh Page 13 of 24 Kumar, reported in (2015) 7 SCC 412 and Indian Bank and Anr. v. Promila & Anr., reported in (2020) 2 SCC 729.
[17] The meaning and concept of retrospective effect or retroactive operation of any instructions/orders or amendment of rule was focused by the Apex Court in the case of High Court of Delhi and Anr. v. A. K. Mahajan & Ors., reported in (2009) 12 SCC 62; [AIR 2009 SC 2497], wherein, the Court had observed thus:
"10. The only question that has remained to be decided is as to whether because of the retrospective nature of the amendment, the amendment itself could be invalidated to the extent of retrospectivity. In our opinion, the answer is negative. The High Court has mainly relied on the reported decision in 1997(6) SCC 623 Chairman, Railway Board & Ors. Vs. C.R. Rangadhamaiah & Ors. and more particularly, para 24 thereof. Shri Mishra, Learned Counsel for the respondents also very heavily relied on this decision. The said para 24 is as follows:-
"24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions, which had been given retrospective operation, so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule, which was sought to be altered with effect from an anterior date and thereby, taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon Vs. Union of India (UOI), B.S. Vadera Vs. Union of India (UOI) and Others, and State of Gujrat and Another Vs. Raman Lal Keshav Lal Soni and Others."
The Learned Counsel pointed out as held by the High Court that any provision with retrospective operation, having an adverse effect in the matter of promotion, seniority, substantive appointment etc. of the employees would be bad in law and would be in breach of Article 14 and 16 of the Constitution of India. The High Court also proceeded to hold that since one of the Writ Petitioners, who were invited for interview in the year 1994 was not invited in the year 1995, the vested Page 14 of 24 right of the Writ Petitioner had been adversely affected by the retrospective operation of the Rules. We must observe that the para is being interpreted in an erroneous way. Its clear language suggests that where the amendment, having retrospective operation, which has the effect of taking away a benefit already available to the employee, then such a provision is arbitrary, discriminatory and violative of the rights guaranteed under Article 14 and 16 of the Constitution of India.
11. Now, we find no discussion in the whole judgment as to what was the benefit which was available to the said employee. The High Court has observed that the benefit of consideration, which was available to the Writ Petitioner No. 8 prior to the retrospective amendment of the Rules, was not available to him after the amendment of the Rules. In our opinion, this is an incorrect notion. There can be no benefit of consideration. To be considered is a right of employee but merely being considered, in itself, is not a benefit as it may or may not result in the selection or promotion of an employee and hence it is in the nature of a chance. A mere chance of promotion being affected by amendment is in our opinion inconsequential. This Court has time and again held that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of employer.
**** **** ***** ****
13. This is apart from the fact that the concept of consideration is an uncertain concept. One can understand a pension amount which is already decided or the promotion which is already granted or the seniority which is already conferred upon or the substantive appointment which is already made. If the amendment has the effect of denying this crystallized promotion, seniority or substantive appointment, then certainly the amendment could be held as arbitrary. But that has not happened here. Here, no promotion was already granted or seniority already fixed, or any substantive appointment already made were affected by the retrospective amendment. The observations in above quoted para 24 have to be understood in that sense".
[18] In A. K. Mahajan & Others (supra), the Apex Court had taken note of its decision in Virender Singh Hooda and Others Vs. State of Haryana and Another, wherein, the Court recognized the power and competence of the legislature to make a valid law and make it retrospectively, so as to bind even past transactions. In para-67 and 68, the Court explained the aspect of retrospectivity and came to the conclusion that there was nothing wrong if the Legislature had removed Page 15 of 24 the basis of the decision of this Court by repealing the circulars. It further observed that: .......the candidates have the right to the posts that are advertised and not the ones which arise later for which a separate advertisement is issued. A valid law, retrospective or prospective, enacted by the legislature cannot be declared ultra vires on the ground that it would nullify the benefit which otherwise would have been available as a result of applicability and interpretation placed by a superior Court.
[19] In A. K. Mahajan (supra), the Apex Court had further observed that the decision in the case of Chairman, Railway Board (supra) was specifically considered in para-70 of the judgment. The Court reiterated the observation made in that case that a Rule, which seeks to reverse from an anterior date a benefit which has been granted or availed of e.g. promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.
[20] I have noticed the legal position regarding retrospective legislation as delineated by the Apex Court in Virender Singh Hooda (supra), at para-34 the Court had observed thus:
"34. Every sovereign legislature possesses the right to make retrospective legislation. The power to make laws includes power to give it retrospective effect. Craies on Statute Law (7th Edn.) at page 387 defines retrospective statutes in the following words. "A statute is deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past".
Judicial Dictionary: (13th Edition) K.J. Aiyar, Butterworth, pg.857, states that the word 'retrospective' when used with reference to an enactment may mean (i) affecting an existing contract; or (ii) re- opening up of past, closed and completed transaction; or (iii) affecting accrued rights and remedies; or (iv) affecting procedure. Words and Page 16 of 24 Phrases: Permanent Edition: Vol.37A page 224/225. defines a 'retrospective' or retroactive law" as one which takes away or impairs vested or accrued rights acquired under existing laws. A retroactive law takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past."
[21] On consideration of the principles enumerated in the case of A. K. Mahajan (supra), it comes to fore that a rule or executive instruction or any notification unless and until takes away the vested or accrued right of a person, cannot be said to be bad in law, even such rule or instructions or guidelines is made operative retrospectively. The question thus, falls for consideration whether the claim for compassionate appointment creates a vested right accrued to a successor/dependent of an employee who died in harness. Recently, in a case of State of Madhya Pradesh & Others v. Amit Shrivas [Civil Appeal No. 8564 of 2015, decided on 29.09.2020], the Apex Court held that a compassionate appointment is not an inherent right, but, a prerogative of the State, which can only be granted as per concerned policy formulated and in force at the relevant time. The Apex Court in this case at para-14 had observed thus:
"14. It is right to say that there cannot be any inherent right to compassionate appointment but rather, it is a right based on certain criteria, especially to provide succor to a needy family. This has to be in terms of the applicable policy as existing on the date of demise, unless a subsequent policy is made applicable retrospectively."
[22] Based on numerous judicial pronouncements, it is no more res integra, that compassionate appointment is not an alternative to the normal course of appointment, and that there is no inherent right to seek compassionate appointment. Thus, in my opinion, a person has no inherent right to claim compassionate appointment, it is a prerogative right conferred upon the State. As a corollary, the person claiming compassionate appointment does not acquire any vested right. A right of Page 17 of 24 claim for compassionate appointment is a right to be considered only by the State within the parameters of the Government schemes prevalent at the time of consideration of such claim for compassionate appointment.
[23] Again, since no vested right is created, subsequent scheme for compassionate appointment, according to me, can be made operative retrospectively. In the case of State Bank of India v. Jaspal Kaur, (2007) 9 SCC 571, decided on 1st February, 2007, the Apex Court had observed that "appointment under the scheme of compassionate appointment was at the discretion of the authority which was to be exercised keeping in view of the scheme and the object/rationale behind it. It was submitted that compassionate appointment cannot be claimed as a matter of right. Moreover, the public office is not heritable".
[24] I have taken note of the decision of the Apex Court in State Bank of India and Another v. Raj Kumar, reported in (2010) 11 SCC 661, wherein similar question arose that whether the petitioner was entitled to claim compassionate appointment on the basis of the scheme which was in force on the date of death of his father and on the date of making his application for such appointment. The respondent-petitioner died on 01.10.2004 and the application for compassionate appointment was made in June, 2005. But, before the application could be processed, the compassionate appointment scheme was abolished by the Bank- appellant and was replaced by new scheme on 04.08.2005.
[25] While dealing with such facts and circumstances, a Two- Judge Bench of the Supreme Court held that none of the applicants under the compassionate appointment scheme had a vested right and the application would be considered within the parameters of the scheme which was in force on the date of its actual consideration, and not the Page 18 of 24 scheme that was in force earlier, when the application was made. At para- 13 of the case of Raj Kumar (supra), the Apex Court had observed thus:
"13. Further where the earlier scheme is abolished and the new scheme which replaces it specifically provides that all pending applications will be considered only in terms of the new scheme, then the new scheme alone will apply. As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts".
[26] Referring to the case of Union of India v. R. Padmanabhan, reported in (2003) 7 SCC 270, the Court at para-14 had observed thus:
"14. In this context we may usefully refer to the decision of this Court in Union of India vs. R. Padmanabhan - 2003 (7) SCC 270, wherein this Court observed :
"8....That apart, being ex gratia, no right accrues to any sum as such till it is determined and awarded and, in such cases, normally it should not only be in terms of the Guidelines and Policy, in force, as on the date of consideration and actual grant but has to be necessarily with reference to any indications contained in this regard in the Scheme itself. The line of decisions relation to vested rights accrued being protected from any subsequent amendments may not be relevant for such a situation and it would be apposite to advert to the decision of this Court reported in State of Tamil Nadu vs. Hind Stone and Ors. - 1981 (2) SCC 205. That was a case wherein this Court had to consider the claims of lessees for renewal of their leases or for grant of fresh leases under the Tamil Nadu Minor Mineral Concession Rules, 1959. The High Court was of the view that it was not open to the State Government to keep the applications filed for lease or renewal for a long time and then dispose them of on the basis of a rule which had come into force later. This Court, while reversing such view taken by the High Court, held that in the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application, despite the delay, if any, involved although it is desirable to dispose of the applications, expeditiously."
[27] In the case of Raj Kumar (supra), the said Bench had also considered its decision in Jaspal Kaur(supra) as relied upon by the respondent-Jaspal Kaur contending that he was entitled to be considered Page 19 of 24 under the old scheme which was in force at the time of application filed by his mother and finally, at para-18 had observed thus:
"18. The said observations are read out of context by the respondent. In that case the Bank employee died on 1.8.1999. Application was filed by the widow on 5.2.2000. The case of the widow was considered twice and the request for appointment on compassionate grounds was declined by taking into consideration the financial position/capacity of the family. The High Court allowed the writ petition filed by the widow in 2004 on the ground that the terminal benefits of Rs.4,57,607/- received by the family were not sufficient for the sustenance of the family. In an appeal by the Bank, it was contended before this Court that in addition to Rs.4,57,607/- paid as terminal benefits, the widow was getting Rs.2055/- per month as family pension and that was not considered by the High Court. During the hearing before this court, the widow relied upon the new scheme dated 4.8.2005 and sought additional payment in terms of the scheme.
19. The above observations were made in the context of rejecting the widow's request for additional payment under the 2005 scheme. In fact, this court allowed the Bank's appeal and dismissed the writ petition filed by the widow for additional benefits. The said observations, cannot therefore be of any assistance to consider the applicability of the old scheme for compassionate appointment vis-a- vis the new scheme for ex- gratia payment".
[28] Another Division Bench of the Apex Court while dealing with similar situation, both factually and legally, in the case of MGB Gramin Bank vs. Chakrawarti Singh, (2014) 13 SCC 583, had approved the ratio settled in Raj Kumar (supra) and held that the scheme for compassionate appointment does not create any legal right and a candidate cannot claim that his case is to be considered as per the scheme existing on the date the cause of action had arisen i.e. the death of the incumbent in the post. Proceeding further, the Court held that in such a situation, the case of an applicant has to be considered under the new scheme. Similar question arose about the retrospective operation of the scheme on compassionate appointment before the Apex Court in the case of State Bank of India v. Sheo Shankar Tewari, reported in (2019) 5 SCC 600.
Page 20 of 24[29] Referring to all the aforesaid decisions [Raj Kumar, Jaspal Kaur and Mahesh Kumar (supra)], etc., it was noticed that there were two lines of decisions rendered by the Benches comprising two Hon‟ble Judges of the Apex Court and on being noticed inconsistencies in the views taken by the Hon‟ble Judges of the Apex Court, the Bench led by Hon‟ble Justice U. U. Lalit, referred the matter to a larger Bench for re- conciliation of the conflicting views as stated above with a request to the Hon‟ble Chief Justice of India for constituting a Bench of at least three Hon‟ble Judges of the Apex Court to settle the issue finally. The larger Bench, accordingly, has reconciled the afore-discussed two lines of decisions as cited supra in the manner as under in N. C. Santhosh v. State of Karnataka and Others, reported in (2020) 7 SCC 617, [SCC pp- 624 and 625]:
"14. This Court in SBI vs. Raj Kumar3 while reiterating that no aspirant has a vested right to claim compassionate appointment, declared that the norms that are in force, when the application is actually considered, will be applicable. The employer's right to modify the scheme depending on its policies was recognized in this judgment. Similarly in MCB Gramin Bank vs. Chakrawarti Singh this Court reiterated that compassionate appointment has to be considered in accordance with the prevalent scheme and no aspirant can claim that his case should be considered as per the scheme existing on the date of death of the Government employee.
15. However in Canara Bank & Anr. vs. M. Mahesh Kumar in the context of major shift in policy, whereunder, instead of compassionate appointment (envisaged by the scheme dated 8.5.1993), ex gratia payment was proposed (under the circular dated 14.02.2005), the Court adopted a different approach. Noticing the extinguishment of, the right to claim appointment, this Court held the "dying in harness scheme" which was prevalent on the death of the employee, be the basis for consideration.
16. A two judges bench headed by Justice Uday U. Lalit noticed the Supreme Court's view in SBI vs. Raj Kumar (supra) and MCB Gramin Bank vs. Chakrawarti Singh (supra) on one side and the contrary view in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) and felt the necessity of resolution of the conflicting question on whether the norms applicable on the date of death or on the date of consideration Page 21 of 24 of application should apply. Accordingly, in State Bank of India & Ors. vs. Sheo Shankar Tewari6 the Court referred the matter for consideration by a larger Bench so that the conflicting views could be reconciled.
17. The above discussion suggest that the view taken in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) is to be reconciled with the contrary view of the coordinate bench, in the two earlier judgments. Therefore, notwithstanding the strong reliance placed by the appellants counsel on Canara Bank & Anr. vs. M. Mahesh Kumar (supra) as also the opinion of the learned Single Judge of the Karnataka High Court in Uday Krishna Naik vs. State of Karnataka & Ors.7, it can not be said that the appellants claim should be considered under the unamended provisions of the Rules prevailing on the date of death of the Government employee.
18. In the most recent judgment in State of Himachal Pradesh & Anr. vs. Shashi Kumar8 the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the State's policy."
[30] Ultimately, at para-19 the larger Bench of the Apex Court had settled the issue holding that the norms prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. The Bench further held that a dependent on the Government employee has no vested right accruing on the death of the Government employee. The dependent can only demand consideration of his/her application. The Bench had considered both the views i.e. the un-amended Rule-5 and amended Rule-5 of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 as well as 1999. It is noticed in the case of N. C. Santhosh (supra), that the larger Bench of the Apex Court has approved the applicability of the Karnataka Civil Services (Appointment on Compassionate Grounds) 3 rd Page 22 of 24 Amendment Rules, 2002 having its retroactive operation w.e.f. 01.04.1999.
[31] After considering the decision of the larger Bench of the Apex Court in N.C. Santhosh, I can safely hold that the view taken by Division Bench of the Apex Court in Mahesh Kumar (supra) has been reconciled with the contrary view of the coordinate Bench in the cases of Raj Kumar (supra) and Chakrawarti (supra). Thus, the case of Mahesh Kumar (supra) has been diluted by the larger Bench of the Apex Court.
[32] What has been culled out from the above discussions, in my opinion, the scheme for compassionate appointment does not give or create any vested rights upon any successors or dependents of a Government employee, and it is a right to be considered within the framework of the scheme or policy decision of the Government. Since there is no vested right for claiming compassionate appointment, the Government may at its discretion make a scheme on the subject giving its effect from an anterior date i.e. retrospectively. Furthermore, the application of the dependents/applicants shall be considered on the basis of the scheme or policy decision prevalent on the date of consideration of such application, and not the scheme existed on the date of death of the government employee.
(emphasis supplied) [33] Another interesting feature, I have noticed in the Scheme of 2019 that, though the notification was issued on 02.03.2019, but its enforcement was given w.e.f. 21.11.2018 for the reason that the decision in regard to the Scheme of 2019 was taken in the meeting of the Council of Ministers on 21.11.2018 as it is emanated in the body of the scheme itself. Taking note of this, I find reasonable nexus and rationale in fixing Page 23 of 24 the cut-off date of the applicability of the Scheme of 2019. Furthermore, the Scheme of 2019 was notified in the name of the Governor, which is not under challenge.
[34] In the case in hand, the Government employee i.e. the father of the petitioner died on 17.01.2019 and the application of the petitioner for providing him a suitable job under Compassionate Appointment Scheme was considered on 21.08.2020 i.e. after the introduction of the Scheme of 2019 w.e.f. 21.11.2018. As such, on the date of consideration of the application of the petitioner, the Scheme of 2019 was already in force, and the case of the petitioner, in my opinion, was covered within the parameters of the said Scheme of 2019, since the petitioner did not acquire any vested or accrued right to get appointed under the terms of the Scheme of 2015. On the date of consideration of the eligibility of the petitioner for compassionate appointment the effective date of the Scheme of 2019 already came into force w.e.f. 21.11.2018, as the Scheme of 2015 was expressly repealed from the said date by operation of the subsequent Scheme of 2019.
[35] Situation would have been otherwise, if the case of the petitioner was considered on a date when the Scheme of 2015 was existed, or the petitioner was already appointed under Scheme of 2015. In the considered view of this Court, in that eventuality, the petitioner would have acquired a vested right and the right thus accrued under the Scheme of 2015 could not be taken away by retrospective operation of the subsequent scheme.
[36] In my ultimate analysis and for the above reasons, I do not find any infirmity or irrationality in the Scheme of 2019 giving its effect from an anterior dated i.e. 21.11.2018 prior to the date of its notification Page 24 of 24 on 02.03.2020 i.e. the date of policy decision regarding the Scheme of 2019.
[37] However, since I have taken a different view of the matter than that of the view of my learned brother Judge of this Court in the case of Kamalabati Gour(supra) on the same subject in issue, I refer the matter to Hon‟ble the Chief Justice of the High Court of Tripura requesting him for reconciliation of the conflicting views by constituting an appropriate Bench.
JUDGE A.Ghosh