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2000 DIGILAW 96 (GAU)

Kabit Deb v. State of Tripura

2000-03-03

K.K.SINGH

body2000
A short though interesting point to be decided in this writ petition is, whether the married son living separately from the family would be treated as a member of the family of the deceased Govt employee for the purpose of giving kith and kin appointment in the State of Tripura. 2. Nanda Dulal Deb was serving under the Agriculture Department in the post of Agriculture Inspector. He died on 9.3.1997 while in service leaving behind him his wife, two sons and one unmarried daughter. The petitioner is the unmarried daughter. One of the two sons got married and has been living separately in another place under different Gaon Panchayat. The petitioner approached the authority concerned by filing an application dated 11.4.1997 seeking a compassionate appointment. As no appointment has been given the petitioner has approached this Court by filing this application under Article 226 of the Constitution for giving a direction to the respondent Nos 1 and 2. 3. Under Memo dated 8.6.1988 a revised employment policy of the Govt was framed and instruction thereof was given. At paragraph No. VI it is provided that appointment should be given to one of the dependent son/daughter or a relative who looks after the family of the deceased employee under the Die-in-harness Scheme. Thereafter, by another Memo dated 8.1.1992 a clarification was made with regard to the definition of the term 'family' which reads as follows: “2. It is hereby clarified that the definition of 'family' as mentioned in the memoranda under reference shall be as under: 'Family' means a Government servant. Wife and husband, as the case may be, and legitimate children. . Note: (a) The term 'children' includes sons and un-married daughters, (b) Married sons even if they live separately should be treated as a member of the family. ... 4. On 31.5.1995 another Memo was issued and it was revised employment policy and paragraph 4 of which relates to employment under Die-in-harness Scheme, is also reproduced below: “(4) Employment to dependents of persons who die-in-harness. In order to ensure that the 'family' of a Govt servant who dies while in service does not suffer from extreme financial difficulties, employment would be provided to one of the dependents of the deceased Govt servant. In order to ensure that the 'family' of a Govt servant who dies while in service does not suffer from extreme financial difficulties, employment would be provided to one of the dependents of the deceased Govt servant. Such employment would be provided only if there is no other member of the family already in the employment of the State Govt or the Central Govt or Corporations, undertakings or such other bodies of the State Govt or the Central Govt. The intention is to ensure that the family gets the benefit of having atleast one salaried person. Subject to the availability of services of the appropriate category and having regard to the roster point, the educational qualification, age etc prescribed in the relevant Recruitment Rules, qualified candidates may be appointed by the concerned appointing authority provided that where the dependent does not have the requisite qualification prescribed in the relevant Rule, appointment may be made only after the required relaxation of the provisions of the R/Rs. duly approved by the appropriate authority.” 5. The aforesaid Memo was modified by another Memo issued on 13.8.1996 which contained detailed guidelines/instructions regarding assistance to the family members of the employees, who died-in-harness. This is also reproduced below: “Memorandum Subject: Assistance in the event of death of the State Govt employees while in service (die-in-harness cases). In partial modification of previous instructions on the subject mentioned above, the Governor is pleased to order that the following procedure should Be observed in providing employment/assistance to an eligible member of the family of an employee, who dies while in service: (1) (i) Employment may be provided to one member of the family provided there is no earning member in the. family, in an existing vacant post in the department without any relaxation of recruitment rules and reservation roster. (ii) The eligibility shall be determined as on the date of death of the concerned employee. (2) (i) Supernumerary posts should be created with Finance concurrent in the departments where eligible member of a family cannot be provided employment for want of posts, which fact is to be certified by the Head of the Department personally. These posts would be personal to the incumbents and shall lapse with the vacation of the posts by the persons concerned. (ii) While filling up the supernumerary posts created reservation/roster/norms need not be followed. These posts would be personal to the incumbents and shall lapse with the vacation of the posts by the persons concerned. (ii) While filling up the supernumerary posts created reservation/roster/norms need not be followed. (iii) However, the persons appointed against the supernumerary posts should be absorbed against regular posts/vacancies, as and when the first vacancy arises in the department against appropriate category i.e. SC/ST/UR following reservation/ roster norms. The supernumerary posts shall stand abolished on such regularisation against regular posts. A register of supernumerary posts created should be maintained in each department and the abolition of the post should be certified in the register by the Head of the Department personally. (3) (i) Financial assistance should be paid to the family in cases where no (persons) could be provided employment due to absence of eligible (persons). In such cases an amount of Rs. 50,000/- (Rupees fifty thousand) will be provided as financial assistance and will be kept in fixed deposit with a post office and interest from which can be earned by the family. (ii) The financial assistance as mentioned above will be paid by the Department to which the employee who died-in-harness belonged. In the case of the Govt employee of the Secretariat, S A Department will make the payment. II. This shall be effective from 1st June. 1996 but will be extended to all pending cases where employment has not been provided so far. Sd/-U. Venkateswarlu, Secretary to the Govt of Tripura.” 6. Mr. AK Bhowmik submits that the concerned authorities have denied benefit of. the scheme of giving assistance to the petitioner only on the .ground that one of the sons of the deceased employee was in gainful employment working as Junior Engineer (Electricity) in the Govt of Tripura. According to the learned counsel, as the brother was married and living separately from the family of the deceased Govt servant he cannot be treated as a family member for the purpose of Die-in-harness Scheme. The learned counsel submits that the definition of the term 'family' as given in the Memo dated 8.1.1992 (Annexure 5 to the writ petition) had been superseded by the Memo dated 31.5.1995 (Annexure 3 to the writ petition). 7. Mr. BR Bhattacharjee, learned Advocate General. The learned counsel submits that the definition of the term 'family' as given in the Memo dated 8.1.1992 (Annexure 5 to the writ petition) had been superseded by the Memo dated 31.5.1995 (Annexure 3 to the writ petition). 7. Mr. BR Bhattacharjee, learned Advocate General. Tripura on the other hand, has submitted that the definition of 'family' has contained in Memo dated 8.1.1992 will apply in the present case and in this regard learned Advocate General attempted to make a difference between the policy of the Govt and the practice to be followed in the Govt. According to learned Advocate General Memo which was issued subsequently was with regard to the procedure only. 8. Mr. UB Saha in this regard also submitted that factually the other son of the deceased viz Sankar Lal Deb was not living separately at the time of the death of his father on 9.3.97. The learned Govt Advocate has also invited my attention to Memo dated 19.11.1997 (Annexure R/l) to indicate that the definition of 'family' as given in memo dated 8.1.1992 (Annexure 4) is still in force. This memo is reproduced below : “Memorandum Subject: Providing of employment/financial assistance in the event of death of the State Govt employees while in service (Die-in-harness cases) Extending of benefits to the members of bachelor Govt employees and in case of death in extremist violence. The undersigned is directed to refer to the Appointment & Services Department Memo No.F. 19(2)-GA/77(L) dated 08.01.92 wherein the term 'family' for the purpose of 'Die-in-harness cases' has been defined as follows: 'Family' means a Govt servant - wife and husband as the case may be, and legitimate children'. Note : (a) The term 'children' includes sons and unmarried daughter; (b) Married sons, even if they live separately should be treated as members of the family. 2. It has now been decided that the term 'family' under the 'die-in-harness' scheme shall also include dependent parents and dependent unmarried brothers/sisters in the case of bachelor Govt employees. Similar definition of 'family' shall also be applicable to benefits being extended in the cases of deaths due to extremist violence. 3. It has also been decided that the benefits under the 'Die-in-harness' Scheme shall be extended to the teaching and non-teaching employees of the privately managed Govt Aided Schools in Tripura. 4. Similar definition of 'family' shall also be applicable to benefits being extended in the cases of deaths due to extremist violence. 3. It has also been decided that the benefits under the 'Die-in-harness' Scheme shall be extended to the teaching and non-teaching employees of the privately managed Govt Aided Schools in Tripura. 4. All Departments/Heads of Departments are requested to follow the above guidelines rigidly to regulate the cases under Die-in-harness Scheme. Sd/-D.M. Mukherjee Joint Secretary to the Govt of Tripura.” 9. Again the definition of the term 'family' as giving in paragraph 2 of the Memo dated 19.11.97 was given retrospective effect from 10.4.1993 by Memo dated 19th September, 1998 (Annexure R/2). 10. Regarding factual controversy as to whether the son who is now serving as Junior Engineer (Electrical) had separated from the family before the death of the father or not will become relevant in the present case if we come to the a conclusion that a separated son will not be taken to be a member of the family in view of the various memos issued by the Govt from time to time. Thus, the point regarding definition of 'family' would be taken up first. 11. At the outset Mr. UB Saha, the learned Senior Govt Advocate has referred to a Single Bench decision of this Court in the case of Nanda Dulal Acharjee vs. State of Tripura & others, reported in 1998 (1) GLT 418; (1998 (1) GLJ 535) in which this Court has held that although technically the Memo dated 8.1.1992 is not in force as superseded by later memo dated 31.5.1995, the spirit of the said memo dated 8.1.1992 defining the term 'family' will have to be taken into consideration while making appointment on compassionate ground. 12. As against this, Mr. AK Bhowmik, has submitted that when the Memo dated 8.1.1992 is not in force then nothing remains, thus according to the learned \ senior counsel general meaning of the term 'family' has to be applied and the learned counsel has invited my attention to various definitions of 'family' given in various Judicial Dictionaries including - Judicial Dictionary by KJ Aiyer to bolster up his arguments that a man living separately cannot be taken as a member of the family. 13. 13. The whole idea of giving benefit under the Die-in-harness Scheme is only to help the bereaved family when facing the crisis upon the death of the sole earning member of the family and in order to avoid complications and confusion in determining as to whether the person is a member of the family of the Govt employee who die-in-harness the Govt came out with the aforesaid memo dated 8.1.1992 defining the term 'family' for the purpose of die-in-harness cases. May be the married son who had separated from the original family also get the benefit on the Die-in-harness Scheme and the benefit is further extended to the department parents and dependent un-married brothers and sisters in the case of bachelor Govt servant. 14. The idea of giving benefit to the family members of a Government employee who die-in-harness has been introduced in the State of Tripura by making policy decision by the Govt and from time to time memoranda are issued. No statutory enactment has been made in this regard. These Memos issued for giving benefit in respect of die-in-harness has been changed from time to time as noted above. The definition of the term 'family' was clarified by Memo dated 8.1.1992 (Annexure 5 to the writ petition) as quoted above, Thereafter, subsequent Memos were issued on 13.5.95 and 13.8.96 and again those memos were modified by subsequent memos dated 19.11.97 and dated 19.9.98 (Annexure R/l and R/2 respectively). 15. Here my considered opinion is that memo dated 31.5.95 will be deemed to have eclipsed and cancelled only those provisions which are inconsistent with the superseding Memos. It may be seen that the definition of the word 'family' was given in the memo dated 8.1.92 (Annexure 5 to the writ petition). But no new definition is given in the subsequent memo dated 31.5.95. Thus, the only logical and harmonious interpretation should be that the definition of the term 'family' which was given in Memo dated 8.1.92 will still hold good even after passing of the memo dated 31.5.95. This view of mine also finds support from the Memo dated 18.11.97 (Annexure R/l which provides that the term 'family' which had been defined in Memo dated 8.1.92 shall include parents, dependent unmarried brothers and sisters in case of bachelor Govt employees. This view of mine also finds support from the Memo dated 18.11.97 (Annexure R/l which provides that the term 'family' which had been defined in Memo dated 8.1.92 shall include parents, dependent unmarried brothers and sisters in case of bachelor Govt employees. Again if the definition of family as given in the earlier memos is deemed to have been cancelled then it will again cause confusion with regard to the meaning of this word 'family'. The term used in the Memoranda has got to be interpreted strictly keeping in view the object sought to be achieved by the policy decision of the Govt. There are millions of destitute in the country besides the family of the deceased (if the family is also a destitute family). In our present case, one of the sons is in gainful employment under the Govt. Even the mother may claim maintenance from such a son under the personal law of the party, if provided for. Thus, even if the scheme is a welfare scheme, benefit should not be extended to those who are not expressly or by necessary implications, covered by the Scheme. 16. From the above conclusion, I am of the opinion that the decision of the learned Single Judge in the case of Nanda Dulal Acharjee (supra) that the aforesaid definition of 'family' given in memo dated 8.1.92 will still to be applicable is in the light of the aforesaid conclusion arrived at by me and as such in our present case as one son of the deceased employee was in gainful employment under the Govt, the benefit of Die-in-harness Scheme shall not be available to the petitioner. 17. In the result, the writ petition has no merit and accordingly it is dismissed. No costs.