For vs State Of Tripura & Ors.) Has Been ...
2021 Latest Caselaw 510 Tri

                      HIGH COURT OF TRIPURA
                            AGARTALA

                      WA No. 133 of 2021

For Appellant (s)         : Mr. A Acharjee, Adv.

For Respondent(s)         : Mr. D Bhattacharjee, Sr. GA.

Mr. P Saha, Adv.

HON'BLE MR. JUSTICE S. TALAPATRA HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

Order

16/04/2021

Heard Mr. A Acharjee, learned counsel appearing for the

appellant as well as Mr. D Bhattacharjee, learned GA assisted by

Mr. P Saha, learned counsel appearing for the respondents.

By means of this intra court appeal, the judgment and order

dated 19.10.2020 delivered in WP(C) No.408 of 2020 (Pranjit

Saha vs. State of Tripura & Ors.) has been called in question.

While dismissing the writ petition, learned single Judge has

observed thus:

"The government had refused the appointment on the same grounds. The court had directed the government to consider his application on merits in special facts of the case since the petitioner therein was falling short of the required age by barely few weeks, however, the facts in the present case being different. The petitioner is falling short of the required minimum age on the crucial date by more than five months. Analogy of the said case, therefore, cannot be applied in the present case."

The case that has been referred in this above extract was

decided by this court in Subhajit Shil vs. State of Tripura &

Anr. [the judgment and order dated 10.02.2019 delivered in

WP(C) No.572 of 2019] whereby the state was directed to waive

shortfall of few days for consideration of the case of the petitioner

under the purview of the die-in-harness scheme.

Mr. A Acharjee, learned counsel has submitted that at the

time of death of his mother, namely, Manju Rani Saha who died on

07.01.2018 in harness, the petitioner was 16 years 7 months and

few days. He had applied for the job turning 18 years of age but

that was turned down by the said respondents as he did not

complete at least 17 years of age on the day of death as 1 year

shortfall is permitted to waived under the Die-in-harness Scheme

for consideration of the compassionate appointment on completion

of 18 years of service.

Thus, the minimum age for consideration has been declared

to be 17 years of age for purpose of compassionate appointment

under the Die-in-harness Scheme. But the appointment shall only

be made on completion of 18 years. Even the petitioner did not

complete that age when his mother died. Thus, his prayer for

compassionate appointment was rejected. By the memorandum

dated 05.08.2019 (Annexure-17 F to the writ petition) the

petitioner was granted a sum of Rs.1 lakh as financial assistance

under the Die-in-harness scheme as the alternative relief as there

was none in the family to be employed under the Die-in-harness

scheme.

Mr. A Acharjee, learned counsel has submitted that since the

Die-in-harness scheme is beneficial legislation, this strict

interpretation of its provisions may be avoided. The interpretation

that would suit the purpose of the victim should be extended by

the court. In support of his contention, he has relied on two

decisions of this court. In Uttam Rabi Das vs. State of Tripura

(the judgment dated 07.10.2013 delivered in WP(C) No.140 of

2003) this court had observed that the die-in-harness scheme

being a beneficial scheme should be interpreted "generously" with

a view to afford the benefits to the deserving persons and not to

deprive them. In that case, it was admitted that father of the

petitioner Die-in-harness living behind the petitioner and the other

members of the family, the department should generously consider

the prayer of the petitioner for his employment or in the alternative

would give the benefits as prescribed in Para 3 of the notification

dated 13.08.1996 when his prayer for employment was rejected.

Even the benefit as prescribed in Para 3 (1) of the notification was

not given to the petitioner. Under the facts and circumstances it

was held justified to give direction to the respondents to give a

suitable job to the petitioner under the scheme which was in force.

Mr. Acharjee, learned counsel has also pressed the decision

of this court delivered in Rajib Sarkar vs. State of Tripura &

Ors. (the judgment dated 11.07.2016 delivered in WP(C) No.268

of 2015) where this court had occasion to observe as follows:

"10. A bare reading of the Memorandum dated 28.08.1998 and the memorandum dated 2nd March, 2015 makes it clear that the petitioner was entitled to get one year relaxation for the purpose of employment from the date of death of his father. So, while the mother of the petitioner made the application on 08.072005 for employment, the petitioner was a minor but when the petitioner made application for employment on 15.052009 he had attained majority. Though the petitioner had attained majority in the year 2006 he did not make any application for his appointment but admittedly his mother approached the authority. After relaxation of one year there was shortage of a few months for attaining majority of the petitioner.

11. A scheme like the Die-in-Harness Scheme which is a beneficial one should be interpreted generously with a view to afford the benefits to the deserving persons. It is also the admitted position that in the family of the petitioner there is no government employee who can look after them."

Having observed thus in Rajib Sarkar vs. State of Tripura

& Ors. the state respondents were directed to re-examine the case

of the petitioner and take note of the memorandum dated

28.08.1998 along with the decision delivered by this court in WP(C)

No.140 of 2003 (Uttam Rabidas vs. State of Tripura & Ors.).

But in Rajib Sarkar (supra) there was no positive direction for

consideration of appointment.

We have keenly appreciated the contention of Mr. Acharjee,

learned counsel for the petitioner in respect of interpretation of the

provisions of the Die-in-harness Scheme. In this regard, the

reference may be made to the Union of India & Anr. Vs.

Shashank Goswami & Anr., reported in 2012 AIR SCW 3257

where the apex court had observed inter alia that there can be no

quarrel to the settled legal proposition that the claim for

appointment on compassionate ground is based on the premises

that the applicant was dependent on the deceased employee.

Strictly, such a claim cannot be upheld on the touchstone of Article

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. 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

recruitment but merely an exception to the aforesaid requirement

taking into consideration the fact of death of the 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 and not to confer a status on the family. Thus, applicant

cannot claim appointment in a particular class/group of post.

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.

This being the object of framing of the Die-in-Harness

Scheme, this court is of the view, that in the name of giving the

liberal interpretation, the court cannot expand the provision of the

Die-in-harness Scheme. It has to strictly adhere to its provision. No

court can expand its scope by way of „generous‟ or liberal

interpretation of any of its provisions.

Thus, we are in complete disagreement with what has been

held in Uttam Rabidas vs. State of Tripura. Such inference is

aberration in the name of providing the benefit under a beneficial

scheme. With all humility, we observe the said proposition of law

is an incorrect exposition contrary to Article 14 and 16 of the

Constitution. Therefore, the said proposition would not bind us.

In view of what has been observed by us, we do not find any

infirmity in the finding of the learned single judge while passing the

order dated 19.10.2020, which has been challenged by the writ

petitioner in this appeal.

Thus, this appeal stands dismissed.

No order as to costs.

                JUDGE                                          JUDGE




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