Tripura High Court
Sri Manoj Kumar Chakma vs The State Of Tripura on 28 May, 2019
Equivalent citations: AIRONLINE 2019 TRI 153
Author: Arindam Lodh
Bench: Arindam Lodh
Page 1 of 14
HIGH COURT OF TRIPURA
AGARTALA
WP(C) NO.1386 OF 2017
Sri Manoj Kumar Chakma
S/o Late Chandra Shekhar Chakma,
OF Villa-Machmara, P.O.- Pecharthal,
P.S.- Pecharthal, Kumarghat,
Dist.- Unakoti Tripura
..... Petitioner
Versus
1. The State of Tripura
Represented by Secretary cum Commissioner,
Revenue Department, Government of Tripura,
Capital Complex, P.O.- Lichubagan,
P.S.-West Agartala, Dist: West Tripura.
2. The Director, Land Record & Settlement,
Government of Tripura, Palace Compound,
P.O.-Agartala, Dist.- West Tripura.
3. The Sub-Divisional Magistrate,
Kanchanpur Sub-Division, P.O.- Kanchanpur,
Dist.- North Tripura, Tripura
.... Respondent
For Petitioner (s) : Mr. Ratan Datta, Adv
For Respondent(s) : Mr. D. Sharma, Addl. G.A.
Date of hearing : 21.01.2019.
Date of delivery of
Judgment and order : 28.05.2019.
Whether fit for reporting : YES
Page 2 of 14
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGEMENT AND ORDER
By means of filing this writ petition, the petitioner has prayed for a direction upon the respondents to provide him a job under the „Die-in-Harness‟ scheme due to the death of his father on 28.03.2004, while he was in service leaving behind his wife and two daughters as well as the present petitioner being his son.
2) Indisputably, there is a policy under the respondents to provide assistance to the family members of the State-Government employees in the event of their death while they are in service, which has been referred to as Annexure-R/2 of the counter affidavit filed by the respondents.
3) A modified memorandum for that purpose was published on 13th August 1996 wherein it is stated that:-
" In partial modification of the previous instructions on the subject mentioned above, the Governor is pleased to order that the following procedure should be observed in providing employment/assistance to an eligible member of the family of an employee who dies while in service:-
(1) (i) Employment may be provided to one member of the family provided there is no earning member in the family, in an existing vacant, post in the Department without any relaxation of recruitment rules and reservation roster.
(ii) The eligibility shall be determined as on the date of death of the concerned employee. (2).......................
(3)...................
(i) Financial assistance should be paid to the family in cases where no (persons) could be provided employment due to absence of eligible (persons). In such cases an amount of Rs.50,000/-
(Rupees fifty thousand) will be provided as financial assistance and will be kept in fixed deposit with a post Page 3 of 14 office and interest from which can be earned by the family.............."
4) The said memorandam was further modified vide memorandam dated 28th August, 1998 wherein general relaxation of one year in the prescribed minimum age for employment in Government service was allowed to an applicant seeking for such employment (Annexure-R-3 to the counter affidavit).
5) The relevant facts, sans unnecessary details, may be set out hereunder:-
Sri Chandra shekhar Chakma died on 28/03/2004 during the tenure of his service which caused his wife Smt. Buddha Lakshmi Chakma to submit a representation (Annxure- B to the writ petition) on 08.10.2004 with a prayer to provide her suitable employment as per her academic qualification under the „Die in Harness‟ scheme prevalent in the State of Tripura. In spite of repeated approach, the said representation was not considered till the year 2008. On attaining the age of majority, in the year 2008, the petitioner being the son of the deceased employee submitted another representation for providing him a suitable employment under the „Die in Harness‟ scheme after obtaining "no objection certificate" from his mother and his two sisters i.e. the other surviving members of Lt. Chandra shekhar Chakma. But no action was taken by the respondents in this regard despite repeated approach and persuasion. That prompted the mother of the petitioner, i.e., the wife of the deceased employee, to submit a representation Page 4 of 14 again on 28.08.2009 wherein she made a prayer to the respondent No.2 to provide her son, i.e., petitioner herein, a suitable job under the „Die in Harness‟ scheme as stated above. The petitioner has stated that he has passed Madhyamik examination and is eligible for having a Government Job.
The respondent No.2 issued an order dated 02.03.2010 (Annuxue-E to the writ petition) wherein a financial assistance of Rs.50,000/- was offered in favour of the mother of the petitioner instead of giving of employment to her or any of the dependant of the deceased employee, since according to the respondents there were no eligible members in the family who could be provided employment in the event of death of his father being a Government Employee, who died while in service. But the said offer was refused by the mother of the petitioner. The present writ petitioner was aged about 27 years at the time of filing the writ petition.
6) Being unsuccessful to the repeated persuasion, the petitioner served a legal notice dated 06.09.2017 to the respondents to provide him a suitable job.
7) On the other hand, by filing a counter affidavit, the respondents have stated that the claim is absolutely barred by the principle of delay and laches. In terms of the scheme prevalent in the state, they offered financial assistance to the tune of Rs.50,000/-(Rupees fifty thousand only) in favour of the mother of the petitioner since the writ petitioner was not found eligible to get government job as on the date of death of Page 5 of 14 the father of the petitioner. But it was refused by the petitioner and particularly by her mother.
8) Based on the aforesaid facts, Mr. R. Datta, learned counsel appearing for the petitioner has submitted that the State-respondents has committed wrong since they offered financial assistance instead of providing a suitable job to the petitioner. The wife of the deceased-employee submitted application within a year of the death of her husband i.e. in the year 2004 itself, but, till 2008 she did not get any response from the respondents. Since the petitioner attained the age of majority, he applied for providing a suitable job to him commensurating to his qualification.
9) The learned counsel has further submitted that the state-respondents cannot take the ground of delay and laches for rejecting the legitimate claim of the petitioner since, the petitioner and his mother were pursuing their representation for providing either of them a suitable job since the death of the father of the petitioner in year 2004. According to the learned counsel, since the petitioner did not receive any response from the respondent No.2 in regard to his representations for providing him a Job, he filed this writ petition.
10) Mr. R. Datta, learned counsel in support of his submission has pressed into service, the case of Subhadra Vs. Ministry of Coal & anr., reported in (2018) 11 SCC 201 and case of Hiralal Debnath and ors. Vs. State of Tripura & anr. reported in (2017) 1 TLR 458.Page 6 of 14
11) Per contra Mr. D. Sharma, learned Addl G.A. appearing for the State-respondents has submitted that the writ petition is liable to be dismissed on the ground of delay and laches alone. Mr. Sharma empathetically contended that the petitioner cannot claim employment under the „Die in Harness‟ as a matter of right.
12) To substantiate his submission, the learned Addl.
G.A., has placed reliance in the case of National Hydro Electric power Corporation & anr. vs Nanak chand & anr.
reported in (2004) 12 SCC 487
13) I have considered the rival submissions advanced by the learned counsel of the petitioner as well as the respondents. In the case in hand, the father of the petitioner expired on 28/03/2004. The mother of the petitioner being the wife of the deceased employee has submitted representation on 08.10.2004 with a prayer to provide her a suitable employment as per her academic qualification under "Die in Harness" scheme. From the said representation (Annxure-B, to the writ petition) it is found that she has stated her qualification as "Class-10 pass". But the academic year has not been mentioned. She was waiting for response till 2008.
Though it is stated in the representation that on attaining the age of majority in the year 2008, the petitioner submitted a representation (Annxure-C to the writ petition) but in the said representation, I did not find the date of such representation.
However, the mother of the petitioner, Smt. Budha Laskhmi Chakma, submitted representation on 28th August 2009 Page 7 of 14 wherein, particularly she prayed for providing her son a suitable job under the "Die in Harness" Scheme (Annexure-D to the writ petition). The respondent No.2 issued an order dated 2nd/3rd March 2010 wherein the financial assistance of Rs.50,000/- was sanctioned in favour of the mother of the petitioner assigning the reason that there was no eligible member in the family, who could be provided employment on the death of the father of the petitioner (Annuxre-E to the writ petition)
14) Mr. Datta, learned counsel appearing for the petitioner inviting my attention to a communication dated 05.06.2017 made by SPIO, Directorate of Land Records and Settlement, Govt. of Tripura has tried to persuade that the respondents did not make any enquiry as to whether there was any Government employee in the family of the deceased Government employee i.e., the father of the petitioner (Communication dated 05/06/2017, Annexure-F to the writ petition)
15) The learned counsel has further drawn my attention that the Sub Divisional Magistrate was even given a reminder dated 9th August 2005 (Annuxure-H to the writ petition) to enquire about the matter whether there was any Government employee in the said family. But they did not receive any reply from the Office of the Sub Divisional Magistrate in that regard.
16) I have given my thoughtful consideration to the decision of the Apex Court in Subhadra (Supra) wherein there is a Page 8 of 14 scheme framed under a bipartite agreement between the employer and the employee and the Apex Court found the petitioner was eligible to get a compassionate appointment under the terms of the said agreement.
In Subhadra (Supra) their Lordships have observed that: [ SCC. P.204 Paras 6, 7 & 8] "6. The learned counsel for Respondent No. 2 - Organisation has invited our attention to the decision of this Court in Canara Bank & Anr. vs. M. Mahesh Kumar, reported in MANU/SC/0634/2015: (2015) 7 SCC 412 and submitted that compassionate appointment is not a matter of right and there is a discretion available to the employer. We have no quarrel with the settled position, but the instant case is not a case of discretionary compassionate appointment governed by any statutory guidelines. It is governed by a Scheme, as agreed to by the parties and which has become part of the Bipartite Agreement. The terms of the Agreement are very specific and give no room for any discretion."
7. In paragraph 9.5.0(ii) of the Agreement, it is very clearly and specifically mentioned that a female dependant, if below 45 years of age, has an option either to accept the monetary compensation or employment. It is not an option reserved to the employer, but an option given to the employee. It was in terms of the Agreement only that the appellant had been insisting that she should be given employment, if she is otherwise eligible in terms of the Bipartite Agreement. But the second respondent kept on insisting that the son, being above the age of 12 years, would be kept on live roster until he attains the age of 18 years and till such time, the appellant would be given compensation @ Rs. 3,000/- per month in terms of Paragraph 9.5.0(iii) of the Agreement.
8. Paragraph 9.5.0(iii) would come into play only in case paragraph 9.5.0(ii) does not operate. Employment is assured to the dependant in terms of the Bipartite Agreement. If the female dependant opts for employment, there is no further discretion left to the employer, unless she is otherwise ineligible. There is no such contention raised by anybody."
Page 9 of 1417) So, according to me, the fact of said case is not applicable in the case at hand for the reason that here, the writ petitioner would be governed by a „scheme‟ which is framed by the Government specifying some parameters.
Furthermore, in Subhadra's case (Supra) the Apex Court categorically found some violation of the conditions stipulated in the bipartite agreement.
18) The decision of the High Court of Tripura in Hiralal(Supra) as relied upon by Mr. Datta, learned counsel appearing for the petitioner only to dislodge the contention of the learned Addl. G.A., appearing for the respondents that delay and laches in the facts of the present case should not come into play.
19) After perusal of the case of Hiralal (Supra), it is found that this Court while deciding the claim of pay scales has held that the principle of delay and laches will be of no consequence in deciding the issues relating to payment or fixation of salary or any allowance, as the denial of benefit occurs every month when the salary is paid and thereby giving rise to fresh cause of action and giving rise to continuing wrong.
20) In the instant case, the claim of the petitioner does not relate to fixation of pay-scale, etc., as such , the case of Hiralal(Supra) as cited by Mr. Datta, learned counsel appearing for the petitioner will be of no help to him.
Page 10 of 1421) On the other hand, in National Hydro Electric power Corporation (Supra), the Apex Court has observed thus:-
" It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises.
6) As was observed in State of Haryana and Ors. v. Rani Devi & Anr., reported in AIR 1996 SC 2445 it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in- harness scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi's case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In Life Insurance Corporation of India v. Mrs Asha Ramchandra Ambekar and Anr., reported in AIR 1994 SC 2148 it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors., reported in (1994) 4 SCC 138 that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of Page 11 of 14 recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.
7) In Smt. Sushma Gosain and Ors. v.
Union of India (UOI) and Ors., reported in (1989) 4 SCC 468 it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was re-iterated in Smt.Phoolwati v. Union of India and Ors., reported in AIR 1991 SC 469 and Union of India(UOI) and Ors. v.
Bhagwan Singh reported in (1995) 6 SCC 476 . In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors; reported in AIR 1998 SC 2230 it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased employee. As it is in the nature of exception to the general provisions it/cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision.
Page 12 of 148) In State of U.P. and Ors. v. Paras Nath reported in (1998) 2 SCC 412 it was held that the purpose of providing employment to the dependant of a government servant dying-in harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments. None of these considerations can operate when the application is made after a long period of time. In that case also the delay was 17 years.
9) These aspects were highlighted in State of Manipur v. Md. Rajaodin reported in AIR 2003 SC 3769, State of Haryana and Another Vs. Ankur Gupta, reported in AIR 2003 SC 3797, Haryana State Electricity Board Vs. Naresh Talwar and Another reported in (1996) 8 SCC 23, and Haryana State Electricity Board and another vs. Hakim Singh reported in AIR 1997 SC 3887 and Punjab National Bank and Ors. V. Ashwini Kumar Taneja (Civil Appeal No.5256 of 2004 decided on 16.08.2004)"
22) The sum and substance of the aforesaid discussion is that the object of the scheme of compassionate appointment is to immediately redeem the family in distress and to overcome the sudden financial crisis. Such appointment is being an exception to the established norms of public employment cannot be claimed on the touchstone of Articles 14 and 16 of the Constitution of India.
23) In the present case in hand, the father of the petitioner died on 28.03.2004 and, according to me, the facts emanating from the pleadings that the wife of the petitioner Smt. Buddhu Lakshmi Chakma being eligible at that point of time should have approached this Court Page 13 of 14 immediately when her representation was not being considered within a reasonable point of time. The petitioner, who is the son of the deceased employee after attaining the age of majority submitted representation to provide him an employment commensurate to his academic qualification, but to of no avail and he filed the instant in the year 2017 when he was aged about 27 years. Repeated representation and persuasion, in the context of the case would not give rise to new cause of action, particularly, for the reason that the „scheme‟ was aimed to meet and get rid of sudden crisis, the family might face on the death of the deceased employee.
24) In my considered view, with the passage of time, the family in distress and the sudden crisis that might have accrued in the year 2004 on the death of his father would no longer last. By the lapse of time, they coped up with the situation and somehow managed to get over the sudden financial crisis disentitling him to raise claim for compassionate appointment in the grab of die-in-
harness scheme at such a belated stage keeping in mind the well-settled doctrine of delay and laches. According to me, this is not a fit case to exercise the discretionary jurisdiction of this Court under Article 226 of Constitution of India.
25) In the result, the instant writ petition is dismissed. However, there shall be no order as to costs.
Page 14 of 1426) At the end, I must request the State Government to apply its mind in regard to the enhancement of the compensation amount from
Rs.50,000/- which was fixed decades back in view of the substantial price escalation and sky-high prices of essential commodities. I hope and trust that the State Government shall re-visit the matter with utmost humane touch and sincerity keeping in mind prevalent markets.
JUDGE Suhanjit