Tripura High Court
The State Of Tripura vs Smt. Kamalabati Gour on 16 March, 2022
Page - 1 of 19
HIGH COURT OF TRIPURA
AGARTALA
WA No. 228 of 2021
1. The State of Tripura,
Represented by the Secretary to the Govt. of Tripura in the General
Administration (Personnel and Training) Department, having his office at New
Capital Complex, Lichubagan, P.O. Kunjaban, Agartala, and District-West Tripura.
2. The Under Secretary to the Govt of Tripura,
In the General Administration (Personnel and Training) Department, having his
office at New Capital Complex, Lichubagan, P.O. Kunjaban, Agartala, and
District-West Tripura.
----- Appellant(s)
Versus
Smt. Kamalabati Gour,
Wife of Late Sukha Gour, resident of Durjoynagar, Mohanpur Block, Bamutia,
P.O. Airport, Agartala, District-West Tripura.
-----Respondent(s)
WP(C) No. 686 of 2020
Sri Swinton Jamatia,
Son of Late Shyamal Kumar Jamatia, Resident of village-Hadrai, P.S-Teliamura,
Khowai Tripura.
----- Petitioner(s)
Versus
1. The State of Tripura,
(To be represented by the Secretary, Directorate of Health Services, Government
of Tripura), New Secretariat Building, New Capital Complex, Kunjaban, P.S.-New
Capital Complex, Agartala, West Tripura, PIN:799010.
2. The Principal Secretary,
General Administration (Personnel & Training) Department, Govt. of
Tripura, New Secretariat Building, New Capital Complex, Kunjaban, P.S-New
Capital Complex, Agartala, West Tripura, PIN:799010.
3. The Director,
Directorate of Health Services, O/o the Directorate of Health Services, Govt.
of Tripura, PN Complex, Agartala, West Tripura, PIN-799006.
4. The Chief Medical Officer,
O/o the CMO, Govt. of Tripura, Khowai, Tripura
5. The Sub Divisional Medical Officer,
Teliamura Sub Divisional Hospital, Govt. of Tripura, Teliamura, Khowai Tripura.
6. The Sub Divisional Magistrate, Teliamura,
O/O the SDM, Teliamura, Khowai, Tripura
-----Respondent(s)
WA No.228 of 2021
WP(C)No.686 of 2020
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For Appellant(s) : Mr. D. Sharma, Addl. GA.
[in WA No.228 of 2021]
For Respondent(s) : Mr. T.D. Majumder, Sr. Adv.
Mr. S. Roy, Adv.
Mr. T. Halam, Adv.
For Petitioner(s) : Mr. P. Roy Barman, Sr. Adv.
[in WP(C) No.686 of 2020] Mr. S. Bhattacharjee, Adv.
Mr. K. Nath, Adv.
For Respondent(s) : Mr. D. Sharma, Addl. GA.
Date of Hearing : 14th February, 2022.
Date of Pronouncement : 16th March, 2022.
Whether fit for reporting : YES
B_E_F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER
[Per S.G. Chattopadhyay], J
The instant writ appeal arises from the judgment and order dated
08.03.2021 passed by the learned Single Judge in WP(C) No.502 of 2020 whereby
the learned Single Judge directed the appellants (respondents in the writ petition)
to consider the case of respondent Kamalabati Gour [petitioner in WP(C) No.502
of 2020] for compassionate appointment under die-in-harness scheme within a
period of three months from the date of the judgment.
[2] In WP(C) No.686 of 2020, another learned Single Judge of this
Court while dwelling on the same issue in similar factual context had taken a
different view and referred the matter to the Chief Justice to constitute
appropriate bench for resolving the conflicting views. In WP(C) No.686 of 2020,
the learned Single Judge has observed as under:
"[37] However, since I have taken a different view of the matter
than that of the view of my learned brother Judge of this Court in
the case of Kamalabati Gour(supra) on the same subject in
issue, I refer the matter to Hon‟ble the Chief Justice of the High
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WP(C)No.686 of 2020
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Court of Tripura requesting him for reconciliation of the conflicting
views by constituting an appropriate Bench."
[3] Therefore, both the matters are taken up together for disposal by
a common judgment.
[4] Factual background of the cases are as under:
Facts
in WA No.228 of 2021
Sukha Gour, who was an employee in Group-D in the GA(P & T)
Department in the Civil Secretariat, Government of Tripura died on 18.01.2019 at
the age of 52 while he was in service. He was survived by his wife Radhamani
Gour, two daughters namely Padmabati Gour and Kamalabati Gour (petitioner)
and son Subrata Gour. Among them, Padmabati Gour was married and son
Subrata Gour was a minor and wife Radhamani Gour was ineligible to apply for job
on compassionate ground. Therefore, Kamalabati Gour (petitioner) submitted an
application to the Under Secretary, GA(SA) Department in the Civil Secretariat on
21.09.2019 seeking appointment on compassionate ground under the die-in-
harness scheme of the State Government. Her application was received in the
department on the same day under the seal of the department. Along with her
application, she also provided the required particulars of her candidature in a
prescribed proforma (Annexure-1 to the writ petition). Under communication
No.F.1(13)-GA(SA)/Estt./2015(P)/9111 dated 01.07.2020, the Under Secretary to
the GA (SA) Department informed her that since her father expired after attaining
the age of 50, her case would be dealt with under the revised policy and she
would be entitled to a „special pension‟ under the revised die-in-harness policy and
no other benefit would be available to her.
[5] Aggrieved thereby, Kamalabati Gour filed WP(C) No.502 of 2020
seeking a direction to the State respondents (appellants herein) to consider her
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WP(C)No.686 of 2020
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case for compassionate appointment under the die-in-harness scheme on the
following grounds:
(i) As an eligible dependent family member of her deceased father
Sukha Gour, she was entitled to compassionate appointment under die-in-harness
scheme which was formulated under notification No.F.1(2)-GA(P&T)/15 dated
26.12.2015 (Annexure-6 to the writ petition).
(ii) The said notification was in force when her father died in-harness
on 18.01.2019.
(iii) As an eligible dependent family member of her father, she
acquired a vested right to apply for compassionate appointment under die-in-
harness scheme and accordingly she applied for such appointment within one year
of the death of her father.
(iv) Notification No.F1(1)-GA(P&T)/18 dated 02.03.2019, whereby the
State Government revised the die-in-harness scheme of 2015 with retrospective
effect would not apply to her case because the said notification was issued after
the death of her father and by giving retrospective effect to the said notification,
the State Government cannot deny her right to compassionate appointment which
has been acquired by her under the notification of 2015.
[6] In their counter affidavit filed in WP(C) No.502 of 2020, the State
respondents (appellants herein) asserted that the revised die-in-harness scheme
was notified by the State Government on 02.03.2019 with retrospective operation
from 21.11.2018 pursuant to a decision of Council of Ministers taken on
21.11.2018. The petitioner (respondent herein) filed her application on 21.09.2019
when the revised die-in-harness scheme was in force. It was asserted by the State
respondents (appellants herein) that case of the petitioner (respondent herein)
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would be governed under the revised die-in-harness scheme of 2019 and as such
her application for compassionate appointment was rejected and she was given
the benefit of pension under the revised scheme which was also communicated to
her by the communication dated 01.07.2020.
[7] By the impugned judgment dated 08.03.2021 in WP(C) No.502 of
2020, the learned Single Judge allowed the petition of Smt. Kamalabati Gour
viewing that death of her father took place on 18.01.2019 when the previous
notification dated 26.12.2015 with regard to die-in-harness scheme was supposed
to be in operation. Court held that scrapping of this notification dated 26.12.2015
with retrospective effect from 21.11.2018 by a notification dated 02.03.2019 was
inoperative because no executive order could be given retrospective operation.
Learned Single Judge held that in the scheme of 2015, it was categorically
observed that eligibility of the petitioner would be determined as on the date of
death of the Government servant and as such petitioner Kamalabati Gour was
eligible in all respect in terms of the notification of 2015. The State respondents
(appellants herein) did not indicate any other embargo in considering her case for
compassionate appointment. The learned Single Judge, therefore, directed the
respondents (appellants herein) to consider her case for compassionate
appointment under die-in-harness scheme in terms of the notification dated
26.12.2015.
[8] This decision of the learned Single Judge is in challenge before us
in the writ appeal.
[9] Facts in WP(C) No.686 of 2020
Shri Shyamal Kumar Jamatia, who was serving as General Duty
Attendant (GDA) at the Health Dispensary in ONGC compound at Baramura under
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the Health Department of the State Government died in-harness on 17.01.2019.
He was survived by his wife Biswa Rani Jamatia, 34 years‟ old married daughter
Mariam Jamatia and 27 years‟ old son Swinton Jamatia (petitioner). Therefore, as
an eligible dependent family member of the deceased Government servant,
Swinton Jamatia submitted an application to the Chief Medical Officer on
02.06.2020 seeking appointment on compassionate ground under die-in-harness
scheme due to the death of his father in-harness. The Chief Medical Officer by his
letter dated 02.06.2020 forwarded his application to the Director of Health
Services, Government of Tripura (Annexure-3 to the writ petition). Thereafter, the
Director of Health Services, Government of Tripura under his communication
No.F.2(1050)-MS/Estt-III/84 dated 03.09.2020 (Annexure-6 to the writ petition)
informed the Sub-Divisional Medical Officer, Teliamura under whom the deceased
Government servant was working at the time of his death that petitioner Swinton
Jamatia, son of the deceased was entitled to avail the benefit of special pension
under Support Category-I under the revised die-in-harness scheme dated
02.03.2019 and the Sub-Divisional Medical Officer was asked to inform the
petitioner accordingly. Copy of the said written communication was also given to
the petitioner.
[10] Aggrieved thereby, the petitioner filed WP(C) No.686 of 2020
seeking direction to the State respondents to consider his case for compassionate
appointment under die-in-harness scheme mainly on the following grounds:
(i) His father was a government employee who died in-harness
leaving behind the petitioner, a married daughter and wife. As a dependent family
member, petitioner was eligible in all respect for compassionate appointment. But
the State Government most arbitrarily and illegally denied the benefit to him.
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WP(C)No.686 of 2020
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(ii) The die-in-harness scheme dated 26.12.2015 was in force on
17.01.2019 when his father died in-harness. Said notification dated 26.12.2015
was superseded with retrospective effect from 21.11.2018 by a subsequent
notification dated 02.03.2019 which was completely illegal because the petitioner
already acquired a right to compassionate appointment under the previous
notification. Therefore, subsequent notification dated 02.03.2019 with
retrospective operation was mala fide.
(iii) Since he was eligible for compassionate appointment on the date
of death of his father, the respondents should have provided compassionate
appointment to him in terms of the scheme dated 26.12.2015.
[11] The State respondents filed counter affidavit contending that
deceased was 55 years‟ old at the time of his death and therefore the petitioner
was entitled to special pension in lieu of appointment under the revised die-in-
harness policy dated 02.03.2019 which was given retrospective operation w.e.f.
21.11.2018. On the date of death of the father of the petitioner, new (revised)
die-in-harness scheme was in operation and as such the petitioner cannot claim
benefit of compassionate appointment under the scheme dated 26.12.2015 which
was superseded by the State Government by the revised scheme dated
02.03.2019. It was further asserted by the State respondents that the decision of
the State Government was communicated to the petitioner by the Director of
Health Services, Government of Tripura under his communication dated
03.09.2020.
[12] In the course of hearing, counsel of the petitioner in WP(C)
No.686 of 2020 relied on the judgment rendered by the Single Judge of this Court
in Kamalabati Gour (Supra) and submitted before the Court that same facts
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WP(C)No.686 of 2020
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and issues were considered in the case of Kamalabati Gour (Supra) and
therefore the petitioner would be entitled to same benefit. The learned Single
Judge in WP(C) No.686 of 2020 discussed the judgments which were relied on by
the counsel of the parties in the case of Kamalabati Gour (Supra) and on
appreciation of arguments and the facts and circumstances of the case held that
there was no wrong in giving retrospective effect to the revised scheme dated
02.03.2019 and as such the learned Single Judge viewed that case of the
petitioner would be governed under the revised scheme dated 02.03.2019. Since
the learned Single Judge differed with the judgment of a coordinate bench
rendered in WP(C) No.502 of 2020, the matter was referred to the Chief Justice
for constituting appropriate bench for reconciliation of the conflicting views.
[13] We have heard Mr. D. Sharma, learned Addl. GA appearing for the
appellants in WA No.228 of 2021. Also heard Mr. T.D. Majumder, learned Senior
Advocate appearing along with Mr. K. Debbarma, advocate for the respondents in
the writ appeal.
[14] We have also heard Mr. P Roy Barman, learned senior advocate
appearing for the petitioner along with Mr. S. Bhattacharjee, learned advocate in
WP(C) No.686 of 2020. Mr. D. Sharma, learned Addl. GA represents the State
respondents in case No. WP(C) No.686 of 2020.
[15] Similar points have been raised by the counsel appearing for the
respondent in WA No.228 of 2021 and petitioner in WP(C) No.686 of 2020.
Counsel contend that in both the cases the petitioners were eligible dependent
family members of the deceased Government employee who died in-harness when
the previous die-in-harness scheme of 26.12.2015 was supposed to be in
operation. It is contended that in both the cases the petitioners submitted their
WA No.228 of 2021
WP(C)No.686 of 2020
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applications seeking compassionate appointment within the time prescribed under
that scheme. Counsel contend that under the scheme of 2015, they were entitled
to compassionate appointment. Therefore, their right to compassionate
appointment accrued under the old scheme. To defeat their claim, the State
Government with a mala fide intention repealed the scheme of 2015 by
introducing the revised scheme of 2019 with retrospective effect from 02.03.2019
which was illegal, arbitrary and violative of the right to equality guaranteed under
the Constitution. Counsel contend that the ratio decided by the learned Single
Judge in Kamalabati Gour (Supra) derives support from a catena of decisions
of the Apex Court and therefore it does not call for any interference in appeal.
Counsel further contend that facts and law involved in WP(C) No.686 of 2020
being identical, the case is squarely covered under the decision of Kamalabati
Gour (Supra). Counsel, therefore, contend that the writ appeal preferred by the
State should be dismissed and the reference made by the learned Single Judge
should be resolved in terms of the decision rendered by this Court in Kamalabati
Gour (Supra). Counsel have relied on the same judgments which were referred
before the learned Single Judge.
[16] Appearing for the State, Mr. D. Sharma, learned Addl. GA
contends that law has been correctly interpreted in WP(C)No.686 of 2020. The
State is not precluded from giving retrospective operation to administrative orders
or executive instructions if the circumstances so demand. Learned Addl. GA
contends that in both the cases, the Government servants died during operation of
the revised scheme. They also filed their applications for compassionate
appointment after the revised scheme was introduced. Therefore, the petitioners
would be entitled only to the benefits provided under the revised scheme of 2019.
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WP(C)No.686 of 2020
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Counsel, therefore, urges the Court to allow the writ appeal and uphold the
judgment rendered by learned Single Judge in WP(C) No.686 of 2020.
[17] By the impugned judgment in WP(C)No.502 of 2020 against which
the writ appeal has been preferred, the learned Single Judge held that the Apex
Court in State Bank of India & Ors. v. Jaspal Kaur, reported in (2007) 9 SCC
571 observed that no executive order can be given retrospective operation and
the ratio was followed by the Apex Court in the subsequent decision in State
Bank of India & Anr. v. Raj Kumar, reported in (2010) 11 SCC 661. The
learned Single Judge, therefore, held that notification dated 02.03.2019 cannot be
given retrospective operation from 21.11.2018 because whatever right has arisen
in favour of the petitioner under the old scheme that arose on 18.01.2019 on
which his father died in-harness. Learned Single Judge was of the view that since
in the notification of 2015 it was categorically stated that eligibility in all respects
would be determined as on the date of the death of the concerned employee,
right of the petitioner to compassionate appointment emerged under the old
scheme of 2015 which cannot be taken away by the revised scheme by
retrospective repeal of 2015 scheme w.e.f. 21.11.2018. Observing thus, the
learned Single Judge issued direction to the State to consider the case of the
petitioner for compassionate appointment. It would be appropriate to reproduce
the relevant paragraph from the said judgment of the learned Single Judge which
is as under:
"17. The solitary question which is of paramount importance to
the controversy is that whether the provision repealing the former
scheme of 2015 w.e.f. 21.11.2018 can be sustained or not? By the
subsequent decision of the apex court in Raj Kumar (supra) it
has been quite categorically stated apparently, following the law
as enunciated in Jaspal Kaur (supra) that no executive order can
be given retrospective operation. As such, in the considered view
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WP(C)No.686 of 2020
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of this Court even though the said notification dated 02.03.2019
has not been challenged by the petitioner, the said notification
cannot be given retrospective operation, from 21.11.2018
inasmuch as, whatever right has arisen in favour of the petitioner
that arose on 18.01.2019 from the death of Sukha Gaur, her
father. In the Scheme of 2015 it has been categorically observed
that eligibility in all respects shall be determined as on the date of
the death of the concerned employee. The respondents have not
indicated to any other embargo in considering the petitioner for
compassionate appointment for death of her father. Those rights
in favour of the petitioner emerged prior to 02.03.2019, the day of
notification of the new scheme as referred above. Those rights
cannot be taken away by retrospective repeal w.e.f. 21.11.2018, in
view of the law as espoused by the apex court. Hence, this Court
is inclined to direct the respondents to consider the case of the
petitioner for compassionate appointment under the die-in-harness
scheme as notified on 26.12.2015 (Annexure-6 to the writ petition)
within a period of three months from the day, when a copy of this
order will be made available by the petitioner......................"
[18] Taking a different view in WP(C) No.686 of 2020, the learned
Single Judge held that since compassionate appointment under die-in-harness
scheme does not create any vested right on the successor of the deceased
Government employee, it should be considered only within the framework of the
scheme or the policy decision taken by the State Government and therefore, the
Government may at its discretion amend such scheme with retrospective
operation and moreover the application shall be considered under the scheme
which is in force at the time of consideration of such application and not under the
scheme which existed on the date of death of the Government employee. The
learned Single Judge came to this conclusion after considering the judgments
rendered by the Apex Court in the case of N. C. Santhosh v. State of
Karnataka and Ors., reported in (2020) 7 SCC 617, Canara Bank & Anr. v.
M. Mahesh Kumar, reported in (2015) 7 SCC 412, MGB Gramin Bank v.
Chakrawarti Singh, reported in (2014) 13 SCC 583 and Raj Kumar (Supra).
WA No.228 of 2021
WP(C)No.686 of 2020
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The relevant extract of the judgment of the learned Single Judge is reproduced
hereunder:
"[31] After considering the decision of the larger Bench of the
Apex Court in N.C. Santhosh, I can safely hold that the view
taken by Division Bench of the Apex Court in Mahesh Kumar
(supra) has been reconciled with the contrary view of the
coordinate Bench in the cases of Raj Kumar (supra) and
Chakrawarti (supra). Thus, the case of Mahesh Kumar
(supra) has been diluted by the larger Bench of the Apex Court.
[32] What has been culled out from the above discussions, in my
opinion, the scheme for compassionate appointment does not give
or create any vested rights upon any successors or dependents of
a Government employee, and it is a right to be considered within
the framework of the scheme or policy decision of the
Government. Since there is no vested right for claiming
compassionate appointment, the Government may at its discretion
make a scheme on the subject giving its effect from an anterior
date i.e. retrospectively. Furthermore, the application of the
dependents/applicants shall be considered on the basis of the
scheme or policy decision prevalent on the date of consideration of
such application, and not the scheme existed on the date of death
of the government employee.
(emphasis supplied)
[33] Another interesting feature, I have noticed in the Scheme of
2019 that, though the notification was issued on 02.03.2019, but
its enforcement was given w.e.f. 21.11.2018 for the reason that
the decision in regard to the Scheme of 2019 was taken in the
meeting of the Council of Ministers on 21.11.2018 as it is
emanated in the body of the scheme itself. Taking note of this, I
find reasonable nexus and rationale in fixing the cut-off date of the
applicability of the Scheme of 2019. Furthermore, the Scheme of
2019 was notified in the name of the Governor, which is not under
challenge.
[34] In the case in hand, the Government employee i.e. the father
of the petitioner died on 17.01.2019 and the application of the
petitioner for providing him a suitable job under Compassionate
Appointment Scheme was considered on 21.08.2020 i.e. after the
introduction of the Scheme of 2019 w.e.f. 21.11.2018. As such, on
the date of consideration of the application of the petitioner, the
Scheme of 2019 was already in force, and the case of the
petitioner, in my opinion, was covered within the parameters of
the said Scheme of 2019, since the petitioner did not acquire any
vested or accrued right to get appointed under the terms of the
Scheme of 2015. On the date of consideration of the eligibility of
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the petitioner for compassionate appointment the effective date of
the Scheme of 2019 already came into force w.e.f. 21.11.2018, as
the Scheme of 2015 was expressly repealed from the said date by
operation of the subsequent Scheme of 2019.
[35] Situation would have been otherwise, if the case of the
petitioner was considered on a date when the Scheme of 2015
was existed, or the petitioner was already appointed under
Scheme of 2015. In the considered view of this Court, in that
eventuality, the petitioner would have acquired a vested right and
the right thus accrued under the Scheme of 2015 could not be
taken away by retrospective operation of the subsequent scheme.
[36] In my ultimate analysis and for the above reasons, I do not
find any infirmity or irrationality in the Scheme of 2019 giving its
effect from an anterior dated i.e. 21.11.2018 prior to the date of
its notification on 02.03.2020 i.e. the date of policy decision
regarding the Scheme of 2019.
[37] However, since I have taken a different view of the matter
than that of the view of my learned brother Judge of this Court in
the case of Kamalabati Gour(supra) on the same subject in
issue, I refer the matter to Hon‟ble the Chief Justice of the High
Court of Tripura requesting him for reconciliation of the conflicting
views by constituting an appropriate Bench."
[19] In view of the above, three pertinent questions which arise for our
consideration are as follows:
(i) Whether right to compassionate appointment under die-in-harness
policy is a vested right.
(ii) Whether the revised notification dated 02.03.2019 superseding
the die-in-harness scheme of 2015 with retrospective operation from 21.11.2018
is valid.
(iii) Whether the norms prevailing on the date of death of the
deceased employee or the norms prevailing on the date of consideration of the
application would apply for considering a claim under die-in-harness policy.
[20] Undisputedly, the die-in-harness scheme of 2015 stands
superseded by the revised scheme which has been notified on 02.03.2019 with
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retrospective operation from 21.11.2018 to provide special pension in lieu of
compassionate appointment to the successor of the deceased Government
employee who dies in-harness after obtaining 50 years of age and above. It is a
settled proposition of law that compassionate appointment cannot be treated as a
vested right. Dwelling on the question of vested right, the Apex Court in the case
of MGB Gramin Bank v. Chakrawarti Singh (Supra) held that vested right is
a right independent of any contingency and it cannot be taken away without the
consent of the person concerned. Vested right can arise from contract, statute or
by operation of law.
(Italics supplied)
[21] In this context, we may also usefully refer to paragraph 15 of the
said judgment which is as under:
"15. The Court considered various aspects of service jurisprudence
and came to the conclusion that as the appointment on
compassionate ground may not be claimed as a matter of right nor
an applicant becomes entitled automatically for appointment,
rather it depends on various other circumstances i.e. eligibility and
financial conditions of the family, etc. the application has to be
considered in accordance with the scheme..........................."
[22] Similarly, in Indian Bank & Ors. vs. Promila & Anr. reported in
(2020) 2 SCC 729, the Apex Court viewed that compassionate appointment is
not an alternative method of public appointment. Such benefit can be claimed only
in terms of the relevant scheme. It is, therefore, clear that one cannot claim
compassionate appointment as a vested right. The dependent family member of a
deceased employee can only demand consideration of his/her application for the
benefit accruing from a scheme framed in this regard.
[23] With regard to the validity of the revised scheme of 2019 with
retrospective operation, the learned Single Judge in the impugned judgment in
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WP(C) No.502 of 2020 in paragraph 17 has held that in view of the law
enunciated in Jaspal Kaur (Supra) followed by Raj Kumar (Supra), no
executive order can be given retrospective operation. Learned Single Judge,
therefore, held that the revised notification dated 02.03.2019 cannot be given
retrospective operation from 21.11.2018 inasmuch as the right of the petitioner
for compassionate appointment arose on the date of death of her father on
18.01.2019.
[24] We have gone through the judgments rendered by the Apex Court
in the case of Jaspal Kaur (Supra) as well as in the case of Raj Kumar
(Supra). In State Bank of India & Ors. vs. Jaspal Kaur (Supra), the Apex
Court dwelt on a completely different issue in a different context. It appears from
the context of the case that Shri Sukhbir Inder Singh, a record assistant in the
cash and accounts section of the bank died on 01.08.1999. His widow applied for
compassionate appointment on 05.02.2000. The appellant bank declined
compassionate appointment to her after taking into consideration the financial
condition of the family in terms of the prevailing scheme. High Court interfered
with the order and by substituting its view with the findings of the appellant bank
held that the family income of the applicant widow was not sufficient for the bare
maintenance of the family. The Apex Court allowed the appeal filed by the bank
and set aside the order of the High Court viewing that a major criterion for
compassionate appointment should be the financial condition of the family left by
the deceased and unless the financial condition is found to be penurious, such
appointment cannot be made. The Apex Court viewed that the applicant widow
was already paid sufficient terminal benefits from the appellant bank owing to the
death of her husband and the competent fact finding authority on the basis of the
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financial details had arrived at the conclusion that the financial condition of the
family was not penurious and therefore she was declined compassionate
appointment. In this context of the case, the Apex Court did not feel it necessary
to interfere with the order of the appellant bank.
[25] Similarly, in the case of State Bank of India & Anr. vs. Raj
Kumar (Supra), the context of the case as well as the law enunciated by the
Apex Court is also completely distinguishable. The employee who died was a
messenger in the appellant bank. He died on 01.10.2004. Wife of the deceased
made an application on 06.06.2005 followed by another application dated
14.06.2005 seeking compassionate appointment for her son Raj Kumar. During
processing of the applications, the scheme for compassionate appointment was
substituted by the "SBI Scheme for payment of ex gratia lump sum amount" with
prospective effect from 04.08.2005. Since the old scheme was abolished and new
scheme came into force, the appellant bank advised the family of the deceased to
make fresh application under the new scheme for ex gratia payment. Aggrieved
respondent filed a petition before the High Court. The High Court in single bench
directed the State Bank to reconsider the applications of Raj Kumar since he
applied under the old scheme and the new scheme was given prospective
operation. Order was affirmed by the High Court in Division Bench. Challenging
the order of the High Court, the appellant bank brought the matter before the
Apex Court. The Apex Court held that as the applicant under the scheme had no
vested right, the scheme that was in force when the application was actually
considered and not the scheme which was in force earlier when the application
was made would be applicable. Moreover, the new scheme specifically provided
that all pending applications would be considered in terms of the new scheme.
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WP(C)No.686 of 2020
Page - 17 of 19
Therefore, the new scheme would apply in the case. The Apex Court further held
that as compassionate appointment is a concession and not a right, the employer
may wind up the scheme or modify the scheme at any time depending upon its
policies, financial capacity and availability of posts. Finally, the Apex Court allowed
the appeal of the bank in part setting aside the order of the learned Single Judge
as well as of the Division Bench of the High Court directing the respondent to file
fresh application under the new scheme and the appellant bank was also directed
to process such application under the new scheme if and when made and pay the
benefits in terms of the new scheme to the respondent.
[26] In view of the above, we are unable to agree with the findings of
the learned Single Judge in WP(C) No.502 of 2020 (Smt. Kamalabati Gour
vs. The State of Tripura & Anr.) that the Apex Court in Raj Kumar (Supra)
quiet categorically stated apparently following the law enunciated in Jaspal Kaur
(Supra) that no executive order can be given retrospective operation.(Italics
supplied). We are of the view that the State Government is entitled to modify or
change its die-in-harness scheme even with retrospective effect at any time
depending upon its financial capacity, availability of posts and changes in policy. It
cannot be held as general rule that an administrative order/circular cannot be
given retrospective effect. Their retrospectivity can be challenged if in any case a
tangible benefit already granted or availed of is recalled by retrospective operation
of such order or circular. As discussed, the die-in-harness scheme does not create
any right of appointment. Even under the old scheme, eligible defendant family
member of the deceased employee was only entitled to apply for consideration of
his/her appointment depending on various factors like financial condition of the
family and fulfilment of the various other eligibility criteria as per the scheme. Said
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WP(C)No.686 of 2020
Page - 18 of 19
scheme stood replaced by a new policy dated 02.03.2019 which provided pension
in lieu of compassionate appointment for the dependent family members of those
who died in-harness after attaining 50 years of age and above. The said scheme
has been given retrospective operation by an express provision. Moreover, it does
not affect any benefit already given to the petitioners or availed of by them. There
is, therefore, no ground to challenge its retrospectivity.
[27] The next question which arose for our consideration was whether
the application would be considered under the norms prevailing on the date of
death or under the norms prevailing at the time of consideration of the
application. Such issue was dealt with by a larger bench of the Apex Court in N.C.
Santhosh vs. State of Karnataka & Ors. (Supra) wherein the Apex Court held
that norms prevailing on the date of consideration of the application should be the
basis for consideration of claim for compassionate appointment. Observation of
the Apex Court is as under:
"19. Applying the law governing compassionate appointment
culled out from the above cited judgments, our opinion on the
point at issue is that the norms, prevailing on the date of
consideration of the application, should be the basis for
consideration of claim for compassionate appointment. A
dependant of a government employee, in the absence of any
vested right accruing on the death of the government employee,
can only demand consideration of his/her application. He is,
however, disentitled to seek consideration in accordance with the
norms as applicable, on the day of death of the government
employee."
[28] In the given context, as noted, the petitioner‟s father in WP(C)
No.502 of 2020 died on 18.01.2019. Petitioner Kamalabati Gour filed her
application seeking compassionate appointment on 21.09.2019. The revised policy
was notified on prior date on 02.03.2019 with retrospective effect from
21.11.2018. Similarly, in WP(C) No.686 of 2020, petitioner‟s father died on
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Page - 19 of 19
17.01.2019 and application for compassionate appointment was filed by the
petitioner on 02.06.2020. The revised scheme, as stated above, was notified on a
prior date on 02.03.2019 with retrospective effect from 21.11.2018. It is thus
obvious that in both the cases, the petitions were filed and considered after the
revised scheme came into operation. Situated thus, the respondent in WA No.228
of 2021 as well as the petitioner in WP(C) No.686 of 2020 are not entitled to be
considered for compassionate appointment under the old scheme. Both of them
are entitled to be considered for the benefits available to them under the revised
scheme dated 02.03.2019.
[29] For the forgoing reasons, the judgment of the learned Single
Judge in WP(C) No.502 of 2020 is set aside and resultantly WA No.228 of 2021
stands allowed and the reference made by the learned Single Judge in WP(C)
No.686 of 2020 is answered accordingly in view of our decision rendered in WA
No.228 of 2021.
[30] In terms of the above, the matters stand disposed of. Pending
application(s), if any, shall also stand disposed of.
(S.G. CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ
Rudradeep
WA No.228 of 2021
WP(C)No.686 of 2020
