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2014 DIGILAW 83 (TRI)

State of Tripura v. Chitra Sabar

2014-02-14

DEEPAK GUPTA, S.C.DAS

body2014
JUDGMENT Deepak Gupta; C.J.:- This appeal by the State is directed against the judgment of a learned Single Judge of this Court whereby he issued the following directions: 16. Therefore, according to this Court it would meet the ends of justice if the instant writ petition is disposed of with a simple direction. Accordingly, it is directed to the respondent No. 2 and 3 to re-examine the case of the petitioner taking note of the clarification provided by the Deputy Secretary to the Govt. of Tripura, Revenue Department in Annexure-R4 to the affidavit in opposition i.e. the letter No. F. 10(30)-REV/EXT/2002 dated 9.7.2002. As the petitioner has attained 18 years of age at the time of filing of application, his case should be considered with some humane touch so that he can get the benefit of the Extremist Violence Scheme prepared by the State for providing certain benefits to the family of the deceased killed by the extremists. The entire exercise has to be completed within three months from the date of receipt of copy of this order. 17. The petitioner is directed to furnish a copy of this order along with copy of Annexure-R4 to the affidavit in opposition to the respondent No. 2 and 2, the Chief Secretary, Government of Tripura and the District Magistrate & Collector, Govt. of Tripura, West Tripura respectively so that they can comply with the order of this Court. The undisputed facts are that the respondent-petitioner Smt. Chitra Sabar is the daughter of Late Monoranjan Sabar. Her father was killed by extremists on 08.01.2000. At that time this girl was not even 15 years of age since she was born on 25.08.1985. After she attained majority she filed an application in Nov. 2004 for grant of employment under a scheme framed by the State of Tripura for giving certain financial benefits and/or employment to next of kin of the deceased killed in extremist violence. The scheme which was notified on February 19, 1996 reads as follows: No. F. 11(1)-FIN(G)/94 GOVERNMENT OF TRIPURA DEPARTMENT OF FINANCE February 19, 1996 MEMORANDUM Subject:- EX-GRATIA ASSISTANCE IN THE EVENT OF DEATH DUE TO EXTREMISTS' VIOLENCE PAYABLE TO MEMBERS OF THE PUBLIC. The scheme which was notified on February 19, 1996 reads as follows: No. F. 11(1)-FIN(G)/94 GOVERNMENT OF TRIPURA DEPARTMENT OF FINANCE February 19, 1996 MEMORANDUM Subject:- EX-GRATIA ASSISTANCE IN THE EVENT OF DEATH DUE TO EXTREMISTS' VIOLENCE PAYABLE TO MEMBERS OF THE PUBLIC. The question of providing ex-gratia assistance to the members of the Public killed due to extremists violence in Tripura had been active consideration of the State Government for some time, the Governor is hereby pleased to order that in the event of death of any family member of the public due to extremists' violence, following assistance shall be given:- (i) An immediate assistance of Rs. 5,000/- for one death in the family and Rs. 10,000/- for more than one death in the family shall be disbursed. (ii) Government job to the spouse or children or parents, as the as may be, in the above given order of preference will be provide. The job shall be provided without any relaxation of rules regarding qualification, Agartala limit etc. The employment will be provided to only one of the survivors. (iii) If the Government job cannot be provided for want of eligible persons in the family, Rs. 50,000/- shall be paid to a family if the person killed is of and above 18 years of age (adult). Rs. 25,000/- shall be paid if the person killed is below 18 years of age (minor). In case of death of more than one adult member in a family, financial assistance shall be limited to Rs. 50,000/- only. In case of death of more than one minor member in a family, financial assistance shall be limited to Rs. 25,000/- only. In case of death of one or more adults along with one or more minors in a family, the financial assistance shall be limited to Rs. 50,000/- only. (iv) The ex-gratia of Rs. 50,000/-, as mentioned above, shall be in the form of a Fixed Deposit Receipt in the name of the spouse or children or Parents, as the case may be, in the above given order of preference. (v) The concerned District Magistrate shall, after an enquiry, on the report of the Superintendent of Police and after full satisfaction that the death is due to extremists' violence, make payment to surviving family members in the order of preference as given in the preceding paragraphs. (v) The concerned District Magistrate shall, after an enquiry, on the report of the Superintendent of Police and after full satisfaction that the death is due to extremists' violence, make payment to surviving family members in the order of preference as given in the preceding paragraphs. The amount shall be paid from the non-plan budget of the Revenue Department. 2. This order is issued in suppression of all previous instructions and shall take effect from the 10th April, 1993. Sd/- (B.K. Chakraborty) Joint Secretary to the Government of Tripura. 2. A perusal of the scheme shows that assistance of Rs. 5000/- was to be provided immediately at the time of the death. Thereafter Government job to the spouse or children is to be given. Only one family member is entitled to the job and the job is only to be given if the family member fulfills all the rules regarding employment and no relaxation in the rules can be made. In case, the government cannot provide a job then it is required to pay Rs. 50,000/- to the next of kin. We are told this amount now stands enhanced to Rs. 1,25,000/-. 3. The stand of the State Government is that on the date when the father was killed, the petitioner was not eligible for government appointment since she even less than 15 years of age and the minimum age for giving employment is eighteen years. On this ground it was urged that the petitioner was not eligible for employment and hence could not have been offered of appointment. The learned Single Judge took note of a clarification issued by the Government itself which was filed by the State along with its reply affidavit to the writ petition. The clarification reads as follows: No. F. 10(30)-REV/EXT/2002 GOVERNMENT OF TRIPURA REVENUE DEPARTMENT 29th July, 2002 To The D.M. & Collector, West Tripura District, AGARTALA. Sir, I am directed to refer to your letter No. 41/F. 11(318)/DM/W/CON/2001 dated 28th January 2002 Government has clarified the contentions of the DM (West) as per following manner indicating against each:- Yours faithfully, Sd/- (B. Bhattacharya) Deputy Secretary to the Government of Tripura. When this clarification is read it is more than apparent that the Government clarified that on the date when the person is appointed he or she should have attained the age of 18 years. When this clarification is read it is more than apparent that the Government clarified that on the date when the person is appointed he or she should have attained the age of 18 years. Relying upon this circular the leaned Single Judge allowed the writ petition. Even while allowing the petition he only directed that the case of the petitioner be considered in a humane manner for granting her employment. 4. We are shocked and surprised that the Government chose to file an appeal against such an innocuous judgment which was based on the communication of the Government itself. 5. We have heard Mr. S. Deb, learned Sr. counsel for the appellant-State and Mr. S.M. Chakraborty, learned Sr. counsel appearing for the respondent. 6. Sri Deb has raised two contentions before us. The first contention is that the writ petition was filed in the year 2011 and, therefore, should not have been entertained and the petitioner is not entitled to any relief. His second contention is that the petitioner was not eligible for appointment on the date of death or within one year thereafter and therefore could not have been given appointment under the scheme. As far as the first issue is concerned we find that no such plea was raised before the learned Single Judge. Having held so, since we have heard Sri Deb at length we are deciding this issue also. Reliance has been placed by Sr. Deb on the following judgments of the Apex Court: (1) State of J & K and others v. Sajad Ahmed Mir (2006) 5 SCC 766 ; (2) Santosh Kumar Debey v. State of Uttar Pradesh and Other 2009 (6) SCC 481 ; and (3) Eastern Coalfields Limited v. Anil Badyakar and Others 2009 (13) SCC 112 7. Before dealing with each individual citation we may mention that all these cases relate to appointment of next of kin on compassionate basis. The principles with regard to appointment on compassionate basis are totally different from the principles which apply when appointment is given to victims or the relatives of victims of extremist violence. In the case of next of kin employment or die-in-harness schemes of the Central Government or of the State Governments employment is being offered to people who are relatives of Govt. servants. In the case of next of kin employment or die-in-harness schemes of the Central Government or of the State Governments employment is being offered to people who are relatives of Govt. servants. Their next of kin were already in Government Service getting pay and on their death they get retiral benefits, gratuity, pension etc. This does not happen in cases like the present one where the deceased is not in government service and is killed because of extremist violence. The basis of any die-in-harness or grant of employment on compassionate basis scheme to next of kin of employees is that the employment is to be offered when the family of the employee has to face financial deprivation or is placed in such a position that there is great financial problem for the family members. Compassionate employment cannot be sought as a matter of right and these judgments have to be understood in that context. 8. In State of J & K and others v. Sajad Ahmed Mir (2006) 5 SCC 766 the application for compassionate appointment was made four and half years after the death of the father. The application was rejected and still for three years the petitioner kept silent. It was in that context that the Apex Court observed as follows: 11. We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought 'compassion', the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the set back. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the set back. Once it is proved that in spite of death of breadwinner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution. 9. In Santosh Kumar Debey v. State of Uttar Pradesh and Others 2009 (6) SCC 481 case the rules provided a time limit of five years for seeking compassionate appointment. There is no such provision in the present scheme. Furthermore the Apex Court held that since the application for employment was made after seven years of the death and the family had survived for seven years it showed that the family had not been reduced to such a destitute state that it could not survive without employment being granted. 10. The facts in the case Eastern Coalfields Limited v. Anil Badyakar and Others 2009 (13) SCC 112 are totally different. In that case the employee had died on 31.12.1981 and offer of appointment was made to the husband of the second daughter of the employee 12 years later on 10.05.1993. No doubt this offer was made after taking the no objection of the other relatives but the offer was made to a son-in-law after 12 years. Later the offer was cancelled. The Apex Court upheld the cancellation on the ground that the die-in-harness scheme was not of the purpose of granting employment but providing relief and succor to the family of a deceased Govt. servant which is reduced to a state of penury. 11. There can be no quarrel with the proposition that the compassionate employment scheme or die-in-harness scheme cannot become means of providing employment only to the next of kin of government employees. In such cases the person seeking employment has to show how if he does not get employment, the family will suffer. 12. We are dealing here with a scheme which is totally different. In such cases the person seeking employment has to show how if he does not get employment, the family will suffer. 12. We are dealing here with a scheme which is totally different. Tripura faced a lot of extremist violence for more than two decades and it was only recently that the situation has improved. The Government took a conscious decision in the year 1996 that the victims of the extremist violence should be compensated in some manner. Therefore, the scheme under consideration was framed. The first clause of the scheme states that immediately on the death some cash compensation which initially was Rs. 5,000/- was to be paid to the nest of kin. The second clause states that a family member of the deceased should be given Govt. employment. There is no condition in this clause that the family should be destitute or that there is no other person in employment in the family. The scheme framed by the Government clearly indicates that if a person is killed due to extremist violence then one member of his/her family should be provided employment. No doubt, it is also provided that the person who is to be granted employment must fulfill all the necessary qualifications required under the recruitment rules. 13. Clause 3 starts with the words that if the Government cannot provide, for want of eligible person in the family, employment, then cash amount is to be given. It is, therefore, obvious that the emphasis of the scheme is first to providing employment and if employment cannot be provided because no eligible family member is available then only cash payment is to be made. 14. With regard to the eligibility and the cut of date for eligibility all we can say is that the communication dated 29th July, 2002 attached by the State with it's reply itself clearly indicates that there is neither any time limit for grant of employment nor is it necessary that the person to be granted employment should be 18(eighteen) years of age on the date when his/her father is killed. It is the date of employment which is the relevant date and on that date the person granted employment should fulfill all the necessary conditions. In the present case the petitioner attained majority in August, 2003 and in November, 2004 she applied for appointment. It is the date of employment which is the relevant date and on that date the person granted employment should fulfill all the necessary conditions. In the present case the petitioner attained majority in August, 2003 and in November, 2004 she applied for appointment. Her application was never rejected but on 1.1.2000 a communication was sent to the family members of the deceased that the Government had decided to grant financial assistance of Rs. 1,25,000/- to the family members of the deceased. The petitioner rejected this offer for payment of cash amount and stated that she wanted employment. 15. We are shocked that the Government which slept over the claim of the petitioner for being granted employment for six long years from 2004 to 2010 and made an offer to give the financial assistance of Rs. 1,25,000/- ten years after the father had been killed has now the audacity to raise a plea before this Court that the petition is barred by the principle of delay of laches. The State is expected to ensure that the rule of law is maintained. The communication dated 29th July, 2002 annexed by the State in no uncertain terms clarifies the issue that even if a person was a minor at the time when the extremist violence took place the qualifying age of 18 is only material for the date of employment. The learned Single Judge relying upon this order only directed that the State should consider the matter in a humane manner. Instead of accepting this judgment with grace, the State decided to file an appeal and waste public money and public time. 16. The State should behave like the model employer and a responsible litigant. The State when it frames schemes for the benefit of the public is expected to implement the schemes in letter and spirit. It does not behoove the State to take technical pleas to defeat the legitimate claims of the public. We are constrained to observe that in this case the stand of the State is totally contrary to its own clarification and on the face of it the stand is totally false. The State should also not indulge in unnecessary litigation. This is a case where the learned Single Judge only directed the State to follow its own clarification. We are constrained to observe that in this case the stand of the State is totally contrary to its own clarification and on the face of it the stand is totally false. The State should also not indulge in unnecessary litigation. This is a case where the learned Single Judge only directed the State to follow its own clarification. Despite this the State filed this appeal which is a total waste of public money and valuable time of the Court. In view of the above discussion, we have no hesitation in holding that this appeal is totally misconceived and the same is accordingly dismissed with costs assessed at Rs. 20,000/-. The State if it is so advised may recover the amount of costs from the erring officials who misguided it in filing the appeal. In view of the fact that the request of the petitioner for grant of employment has been pending since 2004 we direct the Government to take a decision in the matter latest by 31st May, 2014.