N.Thangkhankhual vs The State Of Manipur Represented ...
2021 Latest Caselaw 253 Mani

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JOHN        Digitally signed
            by JOHN TELEN

TELEN       KOM                       IN THE HIGH COURT OF MANIPUR
            Date:                               AT IMPHAL
            2021.10.29
KOM         16:15:22 +05'30'                  WP(C) No.393 of 2021


                N.Thangkhankhual, aged about 34 years s/o (L) John Chinthang Naulak, Ex-
                Inspector Sericulture Dept. Government of Manipur, and a resident of
                Thangsho Street, New Lamka (G), PO & PS Churachandpur in Churachanpur
                District, Manipur..


                                                                                 ...Petitioner
                                                    - Versus -
                 1. The State of Manipur represented by the Commissioner, Sericulture to the
                     Govt. of Manipur-795001.
                 2. The Director, Sericulture Govt. of Manipur at Imphal-795005.


                                                                               ...Respondents

BEFORE

HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Petitioner : Mr N. Umakanta, Advocate,

For the Respondents : Mr. Sukumar, GA.

                        Date of hearing             :       29.09.2021

                        Date of Judgment & Order    :       28.10.2021.





                                       JUDGMENT & ORDER
                                            (CAV)


[1]              This writ petition has been filed by the petitioner seeking a writ of

mandamus directing the respondents to give compassionate appointment to the

petitioner to a class-III post in the Sericulture Department, preferably as a Lower

Division Clerk or Inspector, which is commensurate with his educational

qualification.

[2] The case of the petitioner is that his father John Chithang Naulak,

while working as an Inspector in the Sericulture Department, died on 4.10.2002

and the petitioner being the eldest son submitted an application for

compassionate appointment under the die-in-harness scheme. However, at the

relevant point of time, the Government had withdrawn the dis-in-harness scheme

for some time only to restore it after a few years. After the restoration of the

scheme, it was notified that the family members of the deceased employees who

had died during the period of withdrawal and restoration will be eligible for

compassionate appointment as per the death of the deceased employee, subject

to the family member applying for compassionate appointment.

[3] Further case of the petitioner is that the petitioner, who has earlier

applied at the time of the death of his father, again applied to the authorities for

giving him compassionate appointment to a suitable post, preferably Class-III

post like Lower Division Clerk as he was a graduate having passed his B.A

(Hons) in political Science. In the meantime, it came to the notice of the petitioner

that, some tampering had been made in the list of the claimants for

compassionate appointment, whereby a person lower to him was placed have

him. Not only that, the date of the petitioner's father expiry was tampered with by

pushing it back by a year later. Aggrieved by such tampering, the petitioner has

filed W.P.(C) No. 473 of 2014 to quash such tampering and sought for

compassionate appointment. By an order dated 11.2.2015, this Court allowed

the writ petition after recording the submission of the learned Government

Advocate that, it has already corrected the tampering giving the petitioner his

rightful position. However, the petitioner's claim was rejected on the ground that

there were two more claimants to the post of LDC, Grade-III above the petitioner

will the available post of LDC was only one and the petitioner was advised that

his claim will be considered when there are vacancies available in the

Department.

[4] It is the further case of the petitioner that having waited for more

than five years since his earlier claim was rejected, the petitioner again

approached the Department and submitted an application requesting him for

giving compassionate appointment on 19.11.2020. Along with the application,

the petitioner filed application under RTI Act seeking complete details of the

claimant list, number of Grade-III post available as well as available vacancies

and also appointment made to Grade-III post at the last instant. Thereafter, in

view of the Vagueness of the information furnished, the petitioner once again

filed another application under RTI Act seeking further clarification as well as

information and the same has not been responded till date by the authorities.

[5] According to the petitioner, in the meantime, it has came to be

knowledge of the petitioner that there are available vacancies of Lower Division

Clerks as well as Inspectors which are Grade-III post in the Department. Since

the authorities have failed to response to the latest claim of the petitioner till

today, he has filed the present petition seeking direction on the respondent

authorities to give compassionate appointment to him to a Grade-III post,

preferably LDC or Inspector.

[6] Heard the learned counsel appearing for the petitioner as well as

the learned Additional Government Advocate, appearing for the State.

[7] The learned counsel for the petitioner vehemently argued that

though the respondent authorities maintained the seniority list for compassionate

appointment under die-in-harness scheme, but contrary to the seniority, they

have appointed Grade-IV employees and not under Grade-III, which is illegal.

The learned counsel further submitted that several persons who are below the

name of the petitioner in the seniority list were appointed under Grade-III, but the

petitioner is left out. Since the petitioner's family is suffering lot, learned counsel

for the petitioner prayed that suitable direction may be issued to the respondent

authorities to give compassionate appointment to the petitioner.

[8] On the other hand, the learned Additional Government Advocate

submitted that Group-IV posts alone were available and hence, the persons who

were seeking appointment as Group-IV employees, were given appointment

under the scheme. In the case of the petitioner, learned Additional Government

Advocate submits that the petitioner seeks only Group-III post and since no

Group-III post is available, the petitioner was not given appointment. He would

submit that whenever vacancies arose in Group-III post, the petitioner will be

given appointment.

[9] This Court considered the submissions raised by the learned

counsel appearing on either side and also perused the materials available on

record.

[10] The grievance of the petitioner is that though his father died on

4.10.2002 and immediately after the death of his father, he made an application

on 12.11.2002 for compassionate appointment, till date the respondent

authorities have not given him appointment under die-in-harness scheme. On

the other hand, persons lower to him in the seniority were given appointment.

[11] It is the say of the respondents that the petitioner is seeking Group-

III post and since no Group-III post is available at present, the petitioner was not

given compassionate appointment.

[12] It appears that since there was tampering in the seniority list qua

date of death of his father maintained by the respondents, earlier, the petitioner

filed W.P.(C) NO.473 of 2014 seeking to quash the seniority list of claimants and

for issuing appropriate direction on the respondents to appointment the petitioner

as LD. During the course of arguments in the said writ petition, the learned

Government Advocate has produced a revised seniority list in respect of the

compassionate appointment under die-in-harness scheme and recording the

submission of the learned Government Advocate, this Court observed that there

is no need of passing an order quashing he seniority list of claimants and thus,

disposed of the writ petition. The operative portion of the order reads thus:

"In view of the aforesaid facts and circumstances, this writ petition can

be disposed of with the direction that respondent Nos. 1 - 3 shall consider the

case of the petitioner. According, I direct that respondent Nos.1 - 3 shall consider

the case of the petitioner as per the existing norms of Die-in-harness scheme

and issue appropriate order thereafter within a period of 3 (three) months from

the date of receipt of a copy of this order."

[13] The aforesaid order came to be passed by this Court on

11.02.2015. Pursuant to the order dated 11.2.2015, the respondent issued a

Memorandum dated 2.9.2015 stating that there are two applicants who are

senior to the petitioner and are to be appointed as LDC under die-in-harness

scheme and hence, there is no post of LDC available for appointment of the

petitioner at present.

[14] It appears that after passing the order dated 11.2.2015, the

petitioner submitted RTI applications and sought information qua the

appointment given under dis-in-harness scheme to a Class-III post either LDC

or Inspector. The petitioner annexed along with the writ petition the RTI

applications and the information furnished to him by the authorities.

[15] The updated seniority list of all the applicants who have applied for

appointment under die-in-harness scheme in respect of Sericulture Department

under die-in-harness scheme in respect of Sericulture Department was also

furnished by the respondent authorities to the petitioner and the same was also

annexed with the writ petition. On a perusal of the same, it is seen that the last

appointment as LDC under die-in-harness scheme was given to one Kh. Anand

Singh. In the said updated seniority list, it has been noted that the father of the

petitioner died on 02.10.2002 and the petitioner has submitted an application on

2.8.2007. Admittedly, the petitioner's initial application for appointment was

dated 12.11.2002. Nothing on record to show that the application for appointment

under die-in-harness in respect of S. Anand Singh was prior to the application of

the petitioner.

[16] It is apposite to note that from the updated seniority list prepared

on 04.07.2017, which was furnished to the petitioner as part of the reply dated

2.12.2020, it is evident that the petitioner who appears at Serial No.9 of the

combined seniority list under the die-in-harness scheme of the Sericulture

Department is the only person who has got a B.A. degree while the rest above

him do not possess any academic qualification except Serial No.8 whose

qualification is H.S.L.C. From the seniority list, it can be seen that the petitioner

is the only person who can be considered for appointment to any Class-III post

either LDC or Inspector as the only academically qualified one as to do so.

Moreover, It is also surprise to note that the last compassionate appointment to

a Class-III post in the Sericulture Department was made as far back on

02.7.2012 and for the last nearly nine and half years no compassionate

appointment to any Class-III post has been made in the Sericulture Department

though by the seniority list fixed on 4.7.2017, the petitioner is the only qualified

person for appointment to a Class-III post in the Sericulture Department. It has

been almost 20 years since the petitioner's father died after which the petitioner

had claimed for compassionate appointment with no positive result till date.

[17] Generally, in case of a Government servant dies in harness and the

spouse of the deceased Government servant was not in employment under the

Central Government or a State Government or a Corporation owned or

controlled by the Central Government or a State Government, one member of

his family, who is not already employed under the Central Government or a State

Government or a Corporation owned or controlled by the Central Government or

a State Government, shall, on making an application for the purposes, be given

which is within the purview of the public Service Commission, in relaxation of the

normal recruitment rules, if such person (i) fulfils the educational qualifications

prescribed for the post: (ii) is otherwise qualified for Government service, and (iii)

makes an application for employment within five years from the date of the death

of the Government servant.

[18] In the case on hand, it is not the case of the respondent authorities

that the petitioner is not eligible and has not qualified for seeking compassionate

appointment. It is also not the case of the respondent authorities that the

petitioner has not fulfilled the eligibility criteria. On the other hand, during the

course of arguments, the learned Additional Government Advocate submitted

that since no post of LDC is available, the petitioner was not given appointment.

The said argument of the learned Additional Government Advocate cannot be

countenanced. The die-in-harness scheme was framed by the State

Government to bring solace and benefit to the family of the deceased

Government employee who suddenly became without a source of income on the

death of the Government employee. The spirit and intention of the scheme

provides doe immediate employment and settlement. However, in the present

case, as stated supra, the petitioner has been making for almost 20 years waited

and in fact, the petitioner and his family members, including his widowed mother

continued to live in a penuries condition without any employment.

[19] Considering the facts and circumstances of the case, particularly

the penury condition of the family of the petitioner, this Court is of the view that

there is merit in the grievance of the petitioner and accordingly, the writ petition

filed by the petitioner is liable to be allowed.

[20]          In the result,

               (a) The writ petition is allowed.

(b) The respondent authorities are directed to follow the seniority

list maintained by them under the die-in-harness scheme and

appoint the petitioner immediately in Class-III post in the

Sericulture Department, preferably as a lower Division Clerk or

Inspector which is commensurate with the educational

qualification of the petitioner.

(c) The said exercise is directed to be done by the respondent

authorities within a period of three months from the date of receipt

of a copy of this order.

(d) No costs.

JUDGE

FR/NFR

John Kom