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2014 DIGILAW 137 (TRI)

Arati Debnath v. State of Tripura

2014-03-26

S.C.DAS

body2014
JUDGMENT : S.C. Das, J. In this writ petition, the only question fell for consideration of this Court is whether on the death of a contract employee, his legal heir/dependant is entitled to a Government job under die-in-harness scheme. Heard learned counsel, Mr. S.K. Datta for the petitioner and learned Additional GA, Ms. A.S. Lodh for the State-respondents. 2. Factual matrix, in short is that Sudhir Chandra Debnath, the husband of the petitioner, while was working as a night guard posted at Santir Bazar High School and was on duty was killed by the miscreants on the night of 02.03.2004 and after his death, the petitioner being the wife approached the respondents for providing her a job making an application on 05.04.2004 and her such prayer was turned down by the respondent No. 2 by Memo dated 25.06.2004 (Annexure-6 to the writ petition) on the ground that late Sudhir Chandra Debnath was appointed as a night guard on contract basis on consolidated fixed pay and that the benefits of die-in-harness scheme has not been extended to the contract basis consolidated fixed pay employees. The petitioner contended that her husband was appointed as a night guard on 06.11.1987 and he served in the post without any break/interruption till 02.03.2004, the date on which he was killed by the miscreants while on duty. Because of the death of her husband, who was the sole bread earner of the family, the petitioner alleged that the entire family was in distressed condition. It is contended by the petitioner that her prayer has been illegally turned down by the respondents and she prayed for quashing Memo dated 25.06.2004 (Annexure-6 to the writ petition) and further prayed for directing the respondents to provide her a suitable job on compassionate ground. 3. Respondents contested the case by filing counter affidavit inter alia stating that the deceased Sudhir Chandra Debnath was appointed on contract basis on a consolidated fixed pay and that the die-in-harness scheme has not been extended to the contract employees and therefore, the petitioner's case could not be considered for her appointment on compassionate ground. 4. It is an undisputed fact that Sudhir Chandra Debnath, the husband of the petitioner was working as a night guard posted at Santir Bazar High School and he was killed by the miscreants on the night of 02.03.2004 while on duty. 4. It is an undisputed fact that Sudhir Chandra Debnath, the husband of the petitioner was working as a night guard posted at Santir Bazar High School and he was killed by the miscreants on the night of 02.03.2004 while on duty. The petitioner has placed on record Memo dated 19.07.1993 (Annexure-2) and Memo dated 25.07.1998 (Annexure-3) in support of her contention that her husband was working as a night guard at the relevant point of time. Exbt. 2 i.e. the Memo dated 19.07.1993 shows that Sudhir Chandra Debnath, the husband of the petitioner, joined as a night guard on 06.11.1987. The contents of the both Memo dated 19.07.1993 and 25.07.1998 shows that those were issued in respect of continuation of night guard and other category of employees on year to year basis. Memo dated 25.07.1998 (Annexure-3) clearly reflects that the petitioner and others were appointed on contract basis with consolidated emoluments as per the terms and condition laid down in the offer of appointment. The petitioner failed to produce any copy of offer of appointment of deceased Sudhir Chandra Debnath. Be that as it may, it is clear from Annexure-2 and Annexure-3 that Sudhir Chandra Debnath and many others were engaged on contract basis with consolidated pay and their such appointment was extended on year to year basis. 5. It is submitted by learned counsel, Mr. Datta that husband of the petitioner had been serving as a night guard continuously from 06.11.1987 without any interruption. May be he was a contract employee, but he served without any break for 17 years and on his death, the petitioner with her children became totally helpless. While a person was in continuous service for 17 years, on his death, his family definitely deserves a suitable employment under the State for survival and livelihood of the family of deceased employee. The respondents turned down the prayer of the petitioner in a stroke of pen contending that the deceased was a contract employee, without considering the long period of continuous service rendered by the deceased employee, who was killed by the miscreants while on duty. Learned counsel prayed for exercising extra ordinary jurisdiction of this Court and to direct the respondents to give a suitable employment to the petitioner on compassionate ground. 6. Learned Additional GA, per contra contended that employment cannot be claimed as a matter of right. Learned counsel prayed for exercising extra ordinary jurisdiction of this Court and to direct the respondents to give a suitable employment to the petitioner on compassionate ground. 6. Learned Additional GA, per contra contended that employment cannot be claimed as a matter of right. The welfare Government made die-in-harness scheme for affording opportunity of employment to a Government employee. The deceased Sudhir Chandra Debnath being a contract employee does not come under the purview of a Government employee and so, the claim of the petitioner for employment under the scheme could not be entertained. Uninterrupted continuous service of a contract employee cannot confer a right to be absorbed as a Government employee and so, on his death, his legal representative/dependant also cannot legally claim any benefit for the death of such a contract employee. 7. It is an undisputed fact that Sudhir Chandra Debnath, husband of the petitioner was working as a night guard of Santir Bazar High School on the date of his death i.e. on 02.03.2004 and he was killed by the miscreants while on duty. Annexure-2 and Annexure-3 shows that he was appointed as night guard on 06.11.1987 on contract basis with a consolidated pay/emolument. There is nothing to show that the Sudhir Chandra Debnath, the husband of the petitioner was appointed in a regular post under the Government pursuant to any Service Rule. A person appointed on contract basis or otherwise dehorse the constitutional scheme or the rules relating to employment, cannot be termed as an employee in Government service. A contract employee on year to year basis can in no way be said to be an employee in Government service as per Rules. Appointment to a post in the Government service means an appointment according to the Rules of employment of the Government and continuation in such service till the age of superannuation. 8. An employment cannot be claimed as of right even on compassionate ground unless the Government formulates any scheme or policy for such employment on compassionate ground. Mr. Datta, learned counsel for the petitioner failed to show any Government scheme of employment of a legal representative/dependant of a deceased contract employee. Learned Additional GA, Ms. 8. An employment cannot be claimed as of right even on compassionate ground unless the Government formulates any scheme or policy for such employment on compassionate ground. Mr. Datta, learned counsel for the petitioner failed to show any Government scheme of employment of a legal representative/dependant of a deceased contract employee. Learned Additional GA, Ms. Lodh referred to the Memorandums issued by the State Government time to time in respect of the employment under the die-in-harness scheme and has submitted that there is nothing in the scheme to show that legal heir/dependant of a contract employee is entitled to employment under such scheme. The Supreme Court in the case of Union of India (UOI) and Another Vs. Shashank Goswami and Another, (2012) 11 SCC 307 , has held that compassionate appointment cannot be claimed as of right since it cannot be considered as a source of recruitment. Claim for such appointment has to be considered in accordance with Rules, regulations or administrative instructions taking into consideration financial condition of family of the deceased. We may gainfully quote here the observation of the Apex Court in Para. 9 of the judgment, which reads as follows: 9. There can be no quarrel to the settled legal proposition that the claim for appointment on compassionate ground is based on the premises that the applicant was dependent on the deceased employee. Strictly, such a claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. Appointment on compassionate ground cannot be claimed as a matter of right. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. Thus, applicant cannot claim appointment in a particular class/group of post. In such cases the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. Thus, applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. 9. The petitioner no doubt, stated that her husband, the deceased Sudhir Chandra Debnath was the sole bread earner of the family consisting herself and three other members of the family and that there is no other source of income of the family. That is one of the criteria for giving employment under die-in-harness scheme. But the principal criteria is that the deceased employee must be a Government servant/employee and a contract employee since cannot be treated as a Government employee, the legal representatives of such an employee cannot claim an employment as of right and I find no scope to extend the benefit to the petitioner on humanitarian ground. 10. Referring to Secretary, State of Karnataka and Others Vs. Umadevi and Others, (2006) 4 SCC 1 , the Supreme Court in the case of Official Liquidator Vs. Dayanand and Others, (2008) 10 SCC 1 , has held that in exercise of the power vested in it under Article 226 of the Constitution of India, the High Court cannot issue mandamus and compel the State and its instrumentalities/agencies to regularize the services of temporary/ad-hoc/daily wager/casual/contract employee and directions cannot be issued to the public employer to prescribe or give similar pay scales to employees appointed through different modes, with different conditions of service and different sources of payment. It is liable to be construed from the ratio of that decision that this Court in exercise of its power under Article 226 cannot issue a mandamus to the State Government to give compassionate appointment to the petitioner for the death of her husband, who was a contractual employee since such a contractual employee is not covered under the purview of the die-in-harness scheme. In view of the discussions made above, the petitioner being a legal heir/dependant of a contract employee, since not covered by the die-in-harness scheme, is not entitled to get an employment under the Government and hence the writ petition stands dismissed, but in the circumstances without cost.