Tripura High Court

Sri Mintu Reang vs The State Of Tripura on 12 July, 2021

                                Page 1 of 18


                     HIGH COURT OF TRIPURA
                           AGARTALA

                               W.A. No.123/2019

Sri Mintu Reang
Son of Late Gunadhar Reang, Resident of Village Lalcherra, Longtarai
Valley, P.O. - Lalcherra, PS - Chailengta, District - Dhalai, PIN- 799286.

                                                           .....Appellant(s)

                            Versus

1. The State of Tripura,
   Notice to be served upon the Chief Secretary to the Govt. of Tripura,
   Agartala, New Secretariat Building, PO- Kunjaban, PS- New Capital
   Complex, Agartala, District- West Tripura, PIN- 799010.

2. The Principal Secretary,
   Department of Finance, Government of Tripura,
   New Secretariat Building, PO- Kunjaban, PS- New Capital Complex,
   Agartala, District- West Tripura, PIN- 799010.

3. The Secretary,
   Department of P.W.D., Govt. of Tripura, New Secretariat Building,
   PO- Kunjaban, PS- New Capital Complex, Agartala,
   District- West Tripura, PIN- 799010.

4. The Deputy Secretary,
   Deptt. of PWD (R&B), Govt. of Tripura New Secretariat Building,
   PO- Kunjaban, PS- New Capital Complex, Agartala,
   District- West Tripura, PIN-799010.

5. Engineering Officer to the
   Chief Engineer, Kunjaban, Govt. of Tripura, PO- Kunjaban,
   PS- New Capital Complex, Dist- West Tripura, PIN - 799010.

                                                         .....Respondent(s)

For Appellant(s) : Mr. P.K. Ghosh, Advocate.

For Respondent(s) : Mr. Debalay Bhattacharjee, GA.

Mr. S. Saha, Advocate.

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

Date of hearing and judgment : 12.07.2021.

Whether fit for reporting         : No.


                   JUDGMENT & ORDER (ORAL)

(Akil Kureshi, CJ).

This Appeal is filed by the original petitioner to challenge the

judgment of the learned Single Judge dated 13.02.2019 in W.P. (C) No.717

of 2018.

2. Brief facts are as under:

The father of the petitioner was employed as a Pump Operator in the

PWD department of the Government of Tripura. While in service, he died

on 07.03.2009. At the time of the death of his father, the petitioner was

below 17 years of age. His date of birth being 10.12.1992, he crossed the

age of 18 years on 10.12.2010. On 21.08.2012, the petitioner applied to the

Government for appointment on compassionate grounds. On 01.04.2013,

the department conveyed to the petitioner that he cannot be offered

compassionate appointment. However, he may apply for financial

assistance under the Scheme framed by the Government. It seems that the

petitioner pursued with his application for compassionate appointment

which was eventually rejected by a formal communication dated

07.06.2017 issued by the Deputy Secretary, PWD. In this communication,

it was stated as under:

"As per policy of the Government for employment under Die-in-harness Scheme, your application was duly considered, but finally, it was not approved as you were under age on the date of death of your father as per Admit Card of Tripura Board of Secondary Education submitted by you with your application earlier. Even you remains under age with one year relaxation from the date of death of the Government employee."

3. The petitioner thereupon approached the High Court. The learned

Single Judge by the impugned judgment dismissed his petition observing

that after a lapse of almost 10 years, the petitioner has approached the

Court. It was observed that even considering from the date of

communication of rejection dated 07.06.2017, the petition was filed more

than a year later. The petition was dismissed primarily on the ground of

delay and laches.

4. Learned counsel for the petitioner submitted that the learned Single

Judge had committed a serious error. There was no delay on part of the

petitioner in approaching the High Court. The department had committed

an error in rejecting his application after long time. The Government

Scheme for compassionate appointment envisaged relaxation of the terms

of the Scheme. The petitioner was minor when his father died. He was not

aware about his rights under the Scheme. No Government authority

approached the family of the deceased employee making them aware about

the terms of the Scheme. In this context, our attention was drawn to a

Notification dated 26.12.2015 issued by the Government which provides

that whenever the department gets information about the death of any of

the employees while in service, immediately the family members of the

deceased should be communicated the terms of the Scheme for

compassionate appointment or financial assistance available to them.

5. Counsel for the petitioner relied on the decision of Division Bench

in case of Shri Subham Dey vs. The State of Tripura and others (W.A.

No.45 of 2014 decided on 22.11.2018) and of the Supreme Court in case of

Batuklal Girijashankar Tarwadi vs. Union of India & Anr., reported in

Civil Appeal No.4220 of 1994.

6. On the other hand, learned Government Advocate, Mr. Debalay

Bhattacharjee submitted that the petitioner was below 17 years on the date

of death of the Government servant. The Scheme framed by the

Government for compassionate appointment provides that as long as the

family member seeking appointment on compassionate grounds is not

below 17 years of age on the date of the death of the Government servant,

he may apply for appointment. Since the petitioner was less than 17 years

of age, he was not eligible for appointment in the said Scheme. In any

case, the petitioner applied for compassionate appointment long after

completion of one year of his crossing the age of 18 years. At no stage, the

petitioner has averred before the authorities or before this Court that the

department‟s officials did not make the family members of the deceased

aware about the terms of the Scheme and it was on account of the

ignorance of the terms of the Scheme that the petitioner could not apply

earlier.

7. Learned Government Advocate relied on a decision of Division

Bench of this Court in case of Nayan Paul vs. State of Tripura and others,

reported in (2020) 1 TLR 266 and submitted that all these issues have

come up for consideration before the Division Bench and which earlier

decision in case of Shri Subham Dey (supra) was considered and declared

per incuriam.

8. The facts are not in dispute. The father of the petitioner died on

07.03.2019. At that time, the petitioner was below 17 years of age. He

crossed the age of 18 years on 10.12.2010. He applied for compassionate

appointment only on 21.08.2012. The department as early as on

01.04.2013 conveyed to him that he cannot be appointed on compassionate

grounds, however, he may seek compensation under the Scheme. It may be

that by a subsequent communication dated 07.06.2017, his request was

once again turndown, this time by more elaborate reason.

9. We do not think that the authorities in the process had committed

any error. It is undisputed that the Die-in-Harness Scheme framed by the

Government, which was applied to the petitioner envisaged that a

dependent family member of the deceased could apply for compassionate

appointment within one year to the date of the death of the Government

servant, including a dependent, who is minor, as long as he is not below 17

years of age. In such a case, however, he shall be granted appointment only

after crossing the age of 18 years. The petitioner was not covered by this

clause since he was less than 17 years of age on the date of death of the

Government servant. In any case, even after crossing the age of 18 years,

the petitioner did not apply within one year thereafter. The application was

filed several months after completion of the period of one year from the

date of his achieving majority. On both counts therefore, his application

was not tenable. The oral submission laid by the counsel for the petitioner

that in absence of any guidance of the department, the petitioner could not

apply due to his ignorance of terms of the Scheme cannot be accepted for

want of any pleadings on record. Neither in any correspondence with the

department nor in the writ petition has the petitioner built any such case.

Being a purely factual aspect, oral submissions contrary to the record

cannot be accepted.

10. An issue similar to this petition had come up for consideration

before Division Bench in case of Nayan Paul (supra), in which following

observations were made:-

"9. Combined effect of the above noted provisions of the scheme would be that an applicant aspiring to be appointed on compassionate basis, must be minimum of 17 years of age at the time of the death of the Government servant. Only then he can comply with all the requirements of the age limit as provided in paragraph-6, limitation for making application as provided in paragraph-9 and maximum relaxation in age for making application as envisaged in clause (a) of paragraph-7 of the scheme. This scheme thus in explicit terms does not recognize the right of a dependent of the Government servant who may be minor at the time of the death of the Government servant to be able to make an application for compassionate appointment within one year or any other specified period of attaining majority. Only relaxation is that he could apply before attaining age of 18 years, as long as he is not below 17 years on the date of the death of the Government servant but that actual appointment could be made only after he crosses the age of 18 years. If there is no eligible member of the family who can seek compassionate appointment, the scheme envisages payment of lump sum one time compensation.

10. The terms of the scheme thus are abundantly clear. There is no provision for extending the period for making application on the ground that the dependent member of the deceased was minor at the time of his death and, therefore, he could not have applied within the prescribed period of limitation of one year from the date of the death. If that be the position, in our opinion as per settled law through series of decisions of Supreme Court, the Court cannot direct consideration of an application which is beyond the scope of the scheme by issuing a writ in exercise of powers under Article 226 of the Constitution of India.

It is held in series of decisions that appointment on compassionate grounds is by way of a departure from the normal rule of equality

clause in public employment enshrined in Articles 14 and 16 of the Constitution of India. However, to the limited extent of recognizing such exception in terms of the scheme framed by the employer, in order to provide financial assistance to the family members of the deceased Government servant who on account of his sudden death have been left in destitution, such appointments are saved from the vice of breach of equality clause.

11. In case of Life Insurance Corporation of India vrs. Asha Ramchhandra Ambekar (Mrs) & another reported in (1994) 2 SCC 718 the Supreme Court held that the Courts cannot confer benediction impelled by sympathetic consideration. The decision of Supreme Court in case of Brij Mohan Parihar vrs. M.P.S.R.T. Corporation reported in (1987) 1 SCC 13 was noted as approval in which it was held and observed that no mandamus will be issued directing to do a forbidden thing in law. It was further observed as under:

"17. Thus, apart from the direction as to appointment on compassionate grounds being against statutory provisions, such direction does not take note of this fact. Whatever it may be, the Court should not have directed the appointment on compassionate grounds. The jurisdiction under mandamus cannot be exercised in that fashion. It should have merely directed consideration of the claim of the second respondent. To straightway direct the appointment would only put the appellant Corporation in piquant situation. The disobedience of this direction will entail contempt notwithstanding the fact that the appointment may not be warranted. This is yet another ground which renders the impugned judgment dated October 19, 1993 unsupportable. For these reasons, the civil appeal will stand allowed. There shall be no order as to costs."

12. In case of Umesh Kumar Nagpal vrs. State of Haryana & others reported in (1994) 4 SCC 138 the Supreme Court had made following observations:

"2. The question relates to the considerations which should guide while

giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and met-it. No other mode of appointment nor any other consideration is Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be

offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the Change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."

13. In case of State of J & K & others vrs. Sajad Ahmed Mir reported in (2006) 5 SCC 766 it was observed that the compassionate appointment is an exception to the general rule of equality.

14. In case of Commissioner of Public Instructions and others vrs. K.R. Vishwanath reported in (2005) 7 SCC 206 it was observed that in case of application for compassionate appointment there is no scope of introducing the concept of condonation of delay.

15. In case of I.G. (Karmik) and others vrs. Prahalad Mani Tripathi reported in (2007) 6 SCC 162 it was held that the compassionate appointment must be made in terms of the scheme.

16. In case of Director, Defence Metal Research Laboratory and another vrs. G. Murali reported in (2003) 9 SCC 247 the facts were that the dependent of the deceased Government servant was two years old at the time of the death of his father. Upon attaining majority he applied for compassionate

appointment. His petition was dismissed by the Central Administrative Tribunal. The High Court reversed such decision upon which the matter was carried to the Supreme Court. The appeal was allowed. Following observations were made:

"4. We do not find any flimsy ground or technicalities in the Tribunal‟s order. In fact, we find the High Court‟s order to be unsustainable. There has been a failure to appreciate what the Tribunal had rightly taken into account, namely, that the writ petitioner and his family had coped without the compassionate appointment for about eighteen years. There was no warrant in such circumstances for directing the writ petitioner‟s appointment on compassionate grounds and that too with the direction to the respondents to the writ petition to create a post to accommodate him."

17. In case of National Hydroelectric Power Corporation and another vrs. Nanak Chand and another reported in (2004) 12 SCC 487 the Supreme Court deprecated the practice of accepting application for compassionate appointment after long delay.

18. In case of Punjab State Power Corporation Limited and others vrs. Nirval Singh reported in (2019) 6 SCC 774 it was observed as under:

"5. The fundamental principle which has to be kept in mind is that there is no inherent right to obtain a compassionate appointment and such compassionate appointment has to be in accordance with the existing policy as the objective is to ameliorate the condition of the family at the relevant stage of time and it is the deviation from the rule of merit."

19. Thus the law being well settled, there is no warrant for directing the respondents to consider the application of the petitioner dehors the scheme for compassionate appointment. The scheme in question, as already recorded, does not recognize the right of a person who is minor at the time of the death of the Government servant to be able to make an application beyond one

year from the date of the death of the Government servant concerned. At any rate, the scheme does not make any provision extending the right of a minor to make such application within prescribed period after attaining majority. In our opinion, Section 6 of the Limitation Act has no applicability. It is doubtful if the Limitation Act per se would apply to a scheme framed under executive instructions. Sub-section (2) of Section 29 of the Limitation Act reads as under:

"29(2). Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law."

Thus, applicability of Sections 4 to 24 of the Limitation Act is to "any special or local law". The scheme for compassionate appointment framed under executive instructions, we wonder if can be stated to be special or local law. In any case Sections 4 to 24 would apply to the extent to which they are not expressly excluded. The scheme is a self contained code and applicability of any general provisions of the Limitation Act is thus expressly excluded.

20. In this background, we may discern the trend of judicial decisions of this Court. Learned Single Judge of this Court in case of Sri Mintu Reang vrs. The State of Tripura & others in WP(C) No.717 of 2018 in a judgment dated 13.02.2019 had in somewhat similar circumstances rejected the petition where the minor was aged about 16 years at the time of the death of the Government servant and, therefore, could not file application for compassionate appointment within the prescribed period of one year. Following observations were made:

"13. In my view, when a provision of a scheme which has the force of law, prescribing a certain thing to be

done in a certain manner, and if the language is clear and plain, without any ambiguity and appears to be rational and meets the requirements of the doctrine of equality enshrined in Article 14 of the Constitution of India, then, it will not be wise for the Courts to interpret the same otherwise. In the present case, the language of the employment policy under the die-in- harness scheme applicable in the State is very clear, rational and does not suffer from the vice of arbitrariness. As such, the persons who want to take benefit of the scheme must strictly adhere to it."

21. In case of Shri Subham Dey vrs. The State of Tripura & others, a writ petition was considered by the learned Single Judge who noted the contention of the petitioner that by virtue of Section 6 of the Limitation Act, 1963 the application made by Subham Dey should be considered to have been made within the period of limitation. While dismissing the petition following observations were made:

"08. Before this Court considers the ramifications of the decision of Batuklal Girijashankar Tarwadi (supra) in this case, it would be appropriate to examine whether the provisions of Section 6 of the Limitation Act can have any manner of application for appointment under the die- in-harness scheme inasmuch as the procedure of the die-in-harness scheme is self contained and it does not guarantee the appointment alone. Rather, it provides by a clause that if no person is available in the family of the Government employee for appointment, who died in the harness, a lump sum amount of Rs.50,000/- shall be paid to the family for overcoming the financial hardship that visited them for sudden death of the Government employee.

As such, no insulated provision for appointment on compassionate ground has been engrafted in the scheme. Such appointments are subject to satisfying several requirements as provided in the said

scheme. Section 6 of the Limitation Act provides that where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule. For having the benefit of the legal disability the minor must have a subsisting legal right. The minor may also be represented by his next friend. If the representation is found not tenable in law or he was not at all represented, the minor‟s rights cannot eclipse and that right would subsist till he becomes the major and takes recourse to law within the period of limitation from the day of his attaining the majority. On attaining his majority, he may take the recourse of law within the same period as prescribed by the Limitation Act after the disability has ceased. In this case, the minor does not have any subsisting right to get appointment under the die-in- harness scheme and as such on end of the legal disability he or she cannot claim appointment under die-in-harness scheme taking recourse to provisions of Section 6 of the Limitation Act. Further, the proposition as advanced by Mr. Deb, learned senior counsel does not hold any substance. The pertinent question that is required to be considered by this Court is that whether on attaining the majority, any right to get considered for appointment on compassionate ground revives or did any right subsist till the disability for minority is over. The die-in-harness scheme, no doubt is a welfare scheme of the Government for its own employees, particularly for the family of an employee who died in harness. In the scheme, it has been provided that no person will be

allowed to apply for the appointment on the compassionate ground after one year from the death of the Government employee who died in harness. That prescription has to be read and understood with the other provisions where it has been provided that if there is no eligible person in the family for giving the appointment on compassionate ground, the „family‟ will be provided with a lump sum amount instead of the appointment on the compassionate ground. It has been further asserted that a minor who acquires majority within a year from the death of the Government employee he would also be eligible for appointment under die-in-harness scheme. Therefore, a minor who was 17 years of age at the time of death of the employee who died in harness, on his attaining 18 years he would be eligible for consideration for appointment under the said scheme.

Even the said minor on his attaining the majority would be allowed to make the application within another year from attaining such majority. When the provisions laying down the conditions for having the benefit of the die-in-harness scheme is well delineated, the person who seeks for the benefit under that scheme shall be governed by the provisions of that scheme only. In Batuklal Girijashankar Tarwadi (supra) the apex court did not lay down any universal rule. What the apex court has held has been so held "having referred to the fact and circumstances of the case". Those fact and circumstances had prompted the apex court to pass the said order for doing the complete justice. Thus, the petitioners in both the writ petitions cannot get any benefit on placing reliance on Batuklal Girijashankar Tarwadi (supra)."

22. When such was the trend of judicial pronouncements, the Division Bench in the case of Subham Dey

(supra) while reversing the decision of the learned Single Judge had made following observations:

"4. In our considered view, the learned Single Judge moved on the premise that the claim of the writ petitioner stood considered, adjudicated and rejected on merits which, in fact, is not the case in hand. The rejection was simplicitor on the ground of limitation. It is here we find the error to have been crept in, warranting interference by the Court.

5. As on the date of the death of the deceased employee, the writ petitioner was minor, in fact just little more than 7 years of age. Upon attaining the age of majority, within the stipulated period of one year, he did apply for the benefits under the scheme. As to whether he had a vested right for grant of monetary compensation or employment is a different issue which was required to be considered by the authorities, but it could not be said that the case of the writ petitioner was stale for neither he, nor could his guardian ever claim any benefits under the scheme for employment. It is true that the scheme postulates benefits both of employment and monetary compensation. But then the guardian so appointed in the case of the writ petitioner had limited mandate and that being withdrawal and disbursement of pensionary benefits of the deceased employee. And the writ petitioner, in any event, being a minor could not have applied for the same.

6. It is under these circumstances, we find the stand taken by the State not to be in consonance with the settled principles of law for which purpose Sri Deb, learned Sr. counsel rightly invites our attention to the provisions of the General Clauses Act, applicability whereof is not in dispute."

23. The Division Bench thus did not have the benefit of various decisions of Supreme Court noted above. The precise terms of the scheme of die-in-harness were also not referred to. The inherent limitation of one year for making application for appointment on compassionate grounds from the date of the death of the Government servant was also not brought to the notice of the Division Bench. The ratio of decisions noted above that no directions can be issued contrary to the terms of the scheme for compassionate appointment was thus not placed for consideration before the Division Bench. In our opinion, therefore, the decision of the Division Bench was per incuriam the binding decisions of Supreme Court which had applicability on all fours. In the result, we do not find it necessary to refer the issue for consideration of the Larger Bench.