The State Of Tripura Represented ... vs Sri Rakesh Debbarma
2021 Latest Caselaw 560 Tri

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                       HIGH COURT OF TRIPURA
                             AGARTALA

                             WA No.193/2020
1. The State of Tripura represented by the Secretary-cum-Commissioner,
   Department of Secondary Education, Government of Tripura, New
   Capital Complex, Agartala, P.O. New Capital Complex, West Tripura.
2. The Director of Secondary Education, Government of Tripura, Old
   Secretariat Building, Office Lane, Agartala, P.O Agartala P.S. West
   Agartala, Pin -799001.
3. The Head Master, Totabari High School, P.O. Totabari, Kalyanpur, Dist.
   Khowai Tripura.
                                                 .............. Appellant(s).

                                      Vs.

Sri Rakesh Debbarma, son of Late Jatila Debbarma, resident of Dulaliabari,
P.O & PS - Kalyanpur, District : Khowai , Tripura.
                                                  .............. Respondent(s).

                            _B_E_ F_O_R_E_
    HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
     HON'BLE JUSTICE MR. S G CHATTOPADHYAY
     For Appellant(s)                 : Mr. D Bhattcharya, Govt. Advocate.
     For Respondent(s)                : Mr. P Roy Barman, Sr. Advocate,
                                        Mr. H K Bhowmik, Advocate.
     Date of hearing                  : 3rd May, 2021.
     Date of Judgment                 : 10th May, 2021.
     Whether fit for reporting        : Yes.
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                        J U D G M E N T ( O R A L)

( Akil Kureshi, CJ ).

This appeal is filed by the State Government to challenge the

judgment of the learned Single Judge, dated 3rd September 2019, passed in

WP(C) No.1085/2018. Respondent herein was the original petitioner. His

father was working in Group-D post under the Director, Secondary

Education, Government of Tripura. While in service, the petitioner's father

expired on 10th September 2012. The petitioner, first applied for the death

certificate and after obtaining the death certificate, applied to the

Government authorities for issuance of a survival certificate. Survival

certificate was issued on 26th November, 2013 which showed that the

deceased was survived by his 3 sons and 1 daughter, the petitioner being

the eldest, aged around 18 years, his other siblings were aged 14, 12 and 7

years. The mother of these children had expired on 6th January, 2011.

[2] On 5th March 2014, the petitioner applied to the Government for

appointment under Die-in-harness Scheme. In such application, the

petitioner stated that "In our family, our father was the only source of

income and he was the only employee and our mother died six years back.

As a result, he was the only source of income in our family. (b) At present

myself and my two minor brothers and one minor sister and their age is 13, Page - 3 of 16

8 and 6 respectively and we have no guardian to maintain or to take care

of our family. At present, we are passing our days with starvation. To

continue education and study has become difficult and as such, to save and

survive our family, I pray with folds hand for a govt. job under die-in-

harness scheme."

[3] In this application, the petitioner also stated that to collect survival

certificate and death certificate there was some delay and "due to my

ignorance and absence of any proper guidance I could not submit the

prayer within the stipulated period."

[4] By an order dated 6th February 2018, the application of the

petitioner for appointment on compassionate grounds was rejected on the

ground that he had made the application after a lapse of 1 year 5 months

and 25 days from the date of death of his father. As per the Die-in-harness

Scheme, such application should be made within 1 year from the date of

death of the Government servant.

[5] On 23rd March 2018, the petitioner made a detailed representation

to the Director of Secondary Education in which he pointed out that in

order to make the application for appointment on compassionate grounds

he had to submit the death certificate of the deceased, survival certificate Page - 4 of 16

and ration card of the family etc. He pointed out that though the death

certificate was issued on 6th June 2013, due to administrative process the

survival certificate was issued only on 26th November, 2013 by the Sub-

Divisional Magistrate(SDM), Khowai. Since this survival certificate itself

was issued after 1 year from the date of death of the Government servant,

the application for compassionate appointment could not be made earlier.

He also referred to the Die-in-harness Scheme framed by the Government

under notification dated 26th December 2015, in which it is provided that

the members of the family of the deceased may not be aware of the

provision of Die-in-harness Scheme and the formalities to be completed for

making such an application and, therefore, as soon as the department

receives the information about the death of an employee while in service,

communication in writing should be made to the family members of the

deceased so that application for employment under the scheme can be

submitted within the stipulated period. The petitioner asserted that in his

case no such guidance was provided by the department which was also one

of the reasons why the application for appointment under the scheme could

not be made sooner.

[6] This representation of the petitioner was rejected by the Director

of Secondary Education by an order dated 24th April, 2018 in which in Page - 5 of 16

addition to reiterating that the application was made beyond the period of 1

year prescribed under the scheme, he also took the stand that the

Government servant having died on 10th September 2012, Die-in-harness

Scheme framed by the Government under notification dated 26th December

2015 would not be applicable.

[7] At that stage, the petitioner approached the High Court. In the

petition, the petitioner pointed out that he could not file the application

within 1 year prescribed since obtaining the death certificate and survival

certificate took considerable time. He also pointed out that he was barely

18 years of age at the time of death of his father and his mother had pre-

deceased the father. He pointed out that he belonged to a Scheduled Caste

community, had studied only up to Standard-IX and the family had no

other source of income.

[8] The respondents appeared and filed reply and raised the simple

ground of the application of the petitioner being time barred. The

petitioner's explanation that obtaining necessary documents in support of

the application took considerable time was opposed.

[9] The learned Single Judge by the impugned judgment allowed the

writ petition making following observations :

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"[12] Having appreciated the submission made by the counsel for the parties, this court is of the view that there is no dispute that the delay of 5 months and 25 days has occurred in filing the application. But the reason for such delay has attracted the notice of this court that the survival certificate was issued on 26.11.2013 whereas the prayer for survival certificate was made to the SDM, Khowai on 05.07.2013. It further appears that after death of the employee, no assistance or guidance from the government was available to the family of the deceased employee for filing the said application in time. The petitioner had expected a positive response from the government. The delay of 5 months and 25 days cannot be attributed to the petitioner or family. They were prevented by the administrative logjam. Even there was no assistance from the Department of the deceased employee (herein the Education Department, Govt. of India) for action in time according to the Memorandum dated 21.04.2001 issued by General Administration (P&T) Department under File No.1(1)- GA(P&T)/97(L) dated 21.04.2001.

[13] In view of the above, this court is of the considered view that the respondents shall take step to re-consider the matter of the compassionate appointment of the petitioner treating the application for compassionate appointment under the Die-in- Harness scheme filed in time [See Tapan Debnath versus The State of Tripura]. Hence, the respondent No.2 shall consider the petitioner to provide compassionate appointment within a period of 2(two) months from the date when the petitioner shall provide a copy of this order to the respondent No.2.

In terms of the above, this writ petition stands allowed to the extent as indicated above.

There shall be no order as to costs."

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[10] It is undisputed that the Government of Tripura under

notifications and orders issued from time to time has implemented the

schemes for appointment of a family member of the Government servant

who dies while in service. These schemes are popularly referred to as "Die-

in-harness Scheme". Under memorandum dated 27th March 2003, a

comprehensive scheme for such purpose was framed. From time to time

thereafter memoranda and clarifications have been issued by the

Government touching one aspect or the other of the Die-in-harness

Scheme. Under an office memorandum dated 26th December 2011, in

partial modification of earlier instructions the Government provided a

procedure to be observed while providing employment or assistance to an

eligible member of the family of an employee who dies while in service.

Paragraph (i) of this memorandum provides that the application for

employment or financial assistance should be made to the appropriate

authority within 1 year after the death of the Government servant.

Paragraphs (ii) and (iv) of this memorandum which are of considerable

importance read as under :

"ii. Sometimes the members of the family of the deceased may not be aware of the provisions of the Die-in-harness scheme and the formalities to be observed in submitting the application (i.e. time limit of submission of application, consequence of submission of false documents etc.).

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Therefore, the Department, when they get information about the death of any of their employees, while in service shall immediately communicate in written to the respective family so that application for employment/financial assistance under Die- in-harness scheme from the family of the deceased should be submitted before the appropriate authority in prescribed manner within the stipulated period.

* * *

iv. The respective Department shall have to dispose the cases of die-in-harness where the application is complete in all respects within 6(six) months from the date of receipt of the claim/application submitted by the applicant."

[11] Under memorandum dated 26th May 2012, the Government of

Tripura published a revised employment policy. Though this memorandum

pertained to employment under from sources, paragraph (4) thereof

pertained to employment to dependents of persons who dies-in-harness and

essentially provided that in order to ensure that family of Government

servant who dies while in service does not suffer from extreme financial

difficulties, employment would be permitted to one of the dependents of

the deceased Government servant, provided there is no other member of the

family already in employment of the State Government, Central

Government or Corporations and undertakings of the State or the Central

Government.

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[12] It can thus be seen that though the basis for claim of

compassionate appointment of the dependant of a Government servant who

dies after 26th May 2012 would arise from the said memorandum, the

procedure for making applications and for processing such applications,

earlier instructions of the Government of Tripura continued. This revised

employment policy did not contain detailed provisions for making and

considering such applications.

[13] Under a notification dated 26th December 2015, the Government

framed a comprehensive scheme for die-in-harness cases. Paragraph 16 of

the said scheme provides that all existing orders and instructions

concerning Die-in-harness Scheme stand repealed. There have been

subsequent modifications issued by Government of Tripura in this respect,

however, for our purpose it is not necessary to take note of these

subsequent schemes.

[14] We may recall, the petitioner had raised 2 grounds to explain why

he could not make the application for appointment within 1 year from the

date of the death of his father. His first ground was that the authorities took

considerable time in issuing death certificate and survival certificate and

without which he could not have filed the application for appointment. His

second ground was that his mother had pre-deceased his father and at the Page - 10 of 16

time of the death of the father he was the eldest of the children at the age of

18 years. He had two brothers and a sister younger than him. His father was

the only earning member of the family. The family was left in penury on

account of death of the sole earning member of the family. The department

had provided no assistance or guidance to enable him to file application for

compassionate appointment as provided in the notification dated 26 th

December, 2015.

[15] The department had contended that there is no scope for condoning

the delay in filing the application for compassionate appointment, no matter

what the reasons and in any case, the reasons were not valid. It was also

contended that the father of the petitioner having died in the year 2012,

Die-in-harness Scheme of 26th December, 2015 was not applicable.

[16] In our opinion, both the objections of the department are not valid

and the learned Single Judge has correctly rejected them while allowing the

writ petition. Salient features of this case are as under :

(i) The mother of the petitioner had expired on 6th January, 2011.

(ii) The father who was a Government servant died on 10 th September, 2012 thus leaving a family of 4 children orphaned.

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(iii) At the time of the death of the father, petitioner was the eldest of the siblings at the age of 18 years. His other two brothers and sister were aged about 14, 12 and 7 years respectively. The petitioner had studied only up to Standard-IX and the family belongs to SC community.

(iv) The respondents have not averred at any place either in the two orders that the Director of Secondary Education passed rejecting the request of the petitioner for appointment or in the affidavit-in-reply filed in the petition that any guidance or assistance was provided to the family to enable the petitioner to make application for compassionate appointment.

(v) After the death of the father, the petitioner first applied for issuance of death certificate which was issued on 6th June, 2013 and thereafter the survival certificate was issued by the SDM on 26th November, 2013. Thus, considerable time was consumed by the authorities for issuance of these certificates. In order to make an application for compassionate appointment these documents were necessary. If any application was made without these supporting documents, the same would have been rejected as invalid.

[17] The entire issue must be seen in background of such facts. Firstly,

the Government cannot reject the application for compassionate

appointment when considerable delay in making such application can be

attributed to the essential documents required to be filed in support of the Page - 12 of 16

application being supplied by the State-authorities late. The respondents

have put up a vague defence that though the petitioner has disclosed the

date of issuance of survival certificate, he has not stated as to when he

made such an application. The Government which has the entire State-

machinery at its command, cannot take such a technical ground. If the

stand of the respondents was that the petitioner himself was responsible for

approaching the SDM for issuance of the survival certificate late, nothing

prevented the respondents from gathering such data from the concerned

office and presenting it before the Court.

[18] This ground was sufficient to allow the case of the petitioner.

However, additionally we also find that the State-machinery completely

failed in providing necessary guidance to the petitioner making him aware

about the contents of such a scheme for compassionate appointment and

providing necessary assistance to enable him to file such an application.

The respondents are right in pointing out that the Die-in-harness Scheme

framed by the Government under notification dated 26th December, 2015

would not be applicable in the present case. The petitioner, therefore,

cannot rely on the said scheme to contend that the concerned department

was obliged to provide necessary assistance and guidance after the death of

his father. This objection though valid, presents only part of the picture Page - 13 of 16

since the earlier scheme which was prevalent when the father of the

petitioner died also had similar provisions. It is for this purpose that we

have reproduced the relevant portion of the memorandum dated 26th

December, 2011 in which also it is provided that the members of the family

of the deceased may not be aware of the provision of the Die-in-harness

Scheme and the formalities to be observed in submitting the application

such as, the time limit for making the application and the consequences of

submitting false documents etc. Therefore, whenever the department gets

information about the death of any of the employees while in service it

shall immediately communicate in writing to the family of the deceased so

that applications for employment or financial assistance under the scheme

can be submitted before the authority in prescribed manner within the

stipulated time. This memorandum also requires that any such application

for appointment on compassionate grounds should be decided within 6

months. We have noticed that in the subsequent memorandum dated 26th

May 2012, while publishing revised employment policy, a provision for

appointment on compassionate ground has been made, however this does

not supersede all previous instructions and the procedure laid down under

such Government instructions. Thus, the requirement of providing

assistance to the family member of the deceased Government servant, as

contained in office memorandum dated 26th December 2011, was Page - 14 of 16

prevailing at the time when the father of the petitioner died. Considerable

stress has been laid on this requirement so that the eligible member of the

family can make application either for appointment or financial assistance

within the time prescribed. This provision envisages that in many cases the

family members of the deceased may not be aware about such a scheme

and the requirements of this scheme including the time period for making

the application and consequences of not applying within time. Case of the

petitioner is a classical example of a valuable right being destroyed on

account of lack of understanding and means to make application for

appointment. It is therefore that the scheme requires the authority

concerned to educate the family of the deceased Government servant of his

rights under the scheme. Instead of perusing this litigation as adversarial,

the department had applied its mind to the real issue; this entire litigation

could have been avoided. The stand taken by the department is totally

insensitive.

[19] The respondents never provided any such assistance to the family

of the deceased Government servant in the present case. This would have a

chilling effect on the right of the petitioner to seek employment under the

scheme. The sole earning member of the family suddenly died. His wife

had died shortly before that. The deceased couple had left behind four Page - 15 of 16

rather young children. The petitioner who was the eldest was about 18

years of age at the time of the death of his father and he had studied only up

to Standard-IX. It was too much to expect the family members of the

deceased Government servant in such a case to be fully aware about the

Die-in-harness Scheme and detailed requirements for making application

under the said scheme. This is also the reason why the Government cannot

oppose the application of the petitioner for appointment on the ground that

the same was filed after some delay.

[20] We may recall, under the office memorandum dated 26th

December 2011, it has been provided that the application for

compassionate appointment would be decided within 6 months from the

date of receipt. In the present case, the petitioner had made the application

on 5th March, 2014. Such application was decided by the Director of

Secondary Education on 6th February, 2018. It is unfortunate that the State

authority which has not only the necessary wherewithal but also the entire

machinery at its command and which has taken nearly 4 years for deciding

the application of the petitioner against the time frame of 6 months

envisaged under the scheme, has opposed the petitioner's application for

appointment on the ground of delay of a few months, completely ignoring

the ground realities and relevant facts. Rather, unfortunately, even the Page - 16 of 16

decision rendered by the learned Single Judge could not satisfy the State

authorities. This appeal is, therefore, dismissed with a cost of Rs.10,000/-

which shall be paid over to the petitioner by the appellants within four

weeks from today. The time limit granted by the learned Single Judge to

carry out the directions contained in the impugned judgment is extended up

to 30th June, 2021.

Pending application(s), if any, also stands disposed of.

     ( S G CHATTOPADHYAY, J )                     ( AKIL KURESHI, CJ )




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