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2017 DIGILAW 20 (MAN)

Thoudam Raghumani Singh v. State of Manipur

2017-08-08

KH.NOBIN SINGH

body2017
JUDGMENT : Kh. Nobin Singh, J. Heard Shri Th. Roson, the learned counsel appearing for the petitioner and Smt. Th. Sobhana, the learned Government Advocate appearing for the respondents. 2. Challenging the Government order dated 11-08-2015, the instant writ petition is being filed by the petitioner and in addition thereto, one prayer has been made to direct the respondents to consider the case of the petitioner for appointment to a suitable post under the Die-in-Harness Scheme in the Department of Horticulture & Soil Conservation, Government of Manipur. 3.1. According to the petitioner, his father Shri (L) Th. Amutomba Singh who was serving as EX-SCO/Chingai in the Department of Horticulture & Soil Conservation, Government of Manipur, had expired on 21-05-2003 while in service and accordingly, a termination order dated 17-07-2003 was issued by the concerned authority. On the expiry of his father, his mother submitted an application seeking an appointment of his sister namely, Ms. Th. Bidyarani Devi under the Die-in-Harness Scheme to a suitable post vide application dated 19-07-2003 submitted by her. While pursuing her application for appointment, she got married, as a result of which the petitioner submitted his application dated 25-04-2011 along with the relevant documents seeking nomination for appointment under the Die-in-Harness Scheme to a suitable post. After the receipt of the said application dated 25-04-2011 of the petitioner, the Director (Horticulture & Soil Conservation), Government of Manipur vide its letter dated 24-06-2011 forwarded his application for change of the nominee. 3.2. The Department of Horticulture & Soil Conservation, Government of Manipur vide its letter dated 23-12-2014 prepared an updated seniority list of applicants for appointment under the Die-in-Harness Scheme as on 22-12-2014 wherein the name of the petitioner figured at Sl. No. 12. Pursuant to the application as aforesaid, the SDC/Imphal West (N), Sekmai issued a land valuation certificate dated 26-02-2015, unemployment certificate dated 26-02-2015 and certificate of list of family membership dated 26-02-2015 and moreover, the members of the petitioner's family have no objection to the appointment of the petitioner under the Die-in-Harness Scheme. But to his utter shock and surprise, the Commissioner (Horticulture & Soil Conservation), Government of Manipur issued the order dated 11-08-2015 by which the proposal for compassionate appointment of the petitioner was rejected in terms of the observation and recommendation made by the Department of Personnel and Administrative Reforms, Government of Manipur vide its letter dated 30-04-2015. But to his utter shock and surprise, the Commissioner (Horticulture & Soil Conservation), Government of Manipur issued the order dated 11-08-2015 by which the proposal for compassionate appointment of the petitioner was rejected in terms of the observation and recommendation made by the Department of Personnel and Administrative Reforms, Government of Manipur vide its letter dated 30-04-2015. Being aggrieved by the said order dated 11-08-2015, the instant writ petition has been filed by the petitioner on the inter-alia grounds that the petitioner's case is covered by various Office Memoranda dated 29-04-2003, 23-05-2005, 16-12-2006, 06-06-2007 and 01-04-2011; that the case of the petitioner was processed for appointment under the Die-in-Harness Scheme and that the rejection of the proposal for appointment of the petitioner was due to non-application of mind being highly illegal, arbitrary and curtailing of his legal right to be considered for appointment to a suitable post. 4. The stand of the respondents as indicated in the affidavit filed on behalf of the respondent Nos. 1 & 3, is that as per rules under the Die-in-Harness Scheme, one who has not completed the age of 15 years at the time of death of the Government employee, may not be nominated for appointment. The petitioner is the fourth child/son of the late Shri Th. Amutomba Singh and at the time of his father's expiry, he was only 10 years, 2 months and 14 days and therefore, the Department of Personnel and Administrative Reforms (Personnel Division), Govt. of Manipur recommended that a speaking order be issued rejecting the case of the petitioner as per existing provisions/guidelines. 5. In suppression of all previous orders/instructions/guidelines/Office Memoranda in respect of the appointment under the Die-in-Harness Scheme, the Under Secretary (DP), Government of Manipur issued an Office Memorandum dated 01-12-1995 laying down guidelines/instructions wherein it has been stated that the scheme is intended to help the victim of circumstances in dire financial conditions and does not create a right to a post under the State Government. The benefit under the scheme shall be extended only to the dependents of the employee who died while in service and the appointment thereunder will be applicable only to persons mentioned therein. The appointment shall be done by relaxing the requirement of coming through the employment exchange and will not require the recommendation of the DPC. The benefit under the scheme shall be extended only to the dependents of the employee who died while in service and the appointment thereunder will be applicable only to persons mentioned therein. The appointment shall be done by relaxing the requirement of coming through the employment exchange and will not require the recommendation of the DPC. Since the scheme is meant to give immediate relief, the application complete in all respects be submitted to the concerned department within a year from the date of expiry of the employee. The applicant/nominee will be considered against Class-III and IV posts as per the relevant recruitment rules in force at the time of issuing appointment order. Such appointment shall be made by the appointing authority concerned only after getting clearance from the Department of Personnel and Administrative Reforms (Personnel Division), Govt. of Manipur. In the said Office Memorandum, there is no provision as regards the change of nominee and in the Office Memorandum dated 13-01-1999 also which was issued in continuation of the O.M. dated 01-12-1995, there is no mention about the provisions for the change of nominee. Keeping in mind the observations made by the Hon'ble Supreme Court and the Hon'ble High Court, the State Government re-visited the existing scheme of Die-in-Harness and issued the Office Memorandum dated 04-10-2001 which does not contain any provision with respect to change of nominee. So is the case with the Office Memorandum dated 29-04-2003 followed by the Office Memorandum dated 23-05-2005 wherein one of the instructions was that in case the applicant is ineligible due to reasons mentioned therein, the case may be rejected by issuing a speaking order. The Under Secretary (DP), Government of Manipur issued an order dated 16-12-2006 to the effect that the Die-in-Harness Scheme which was abolished vide order dated 15-06-2002, was restored subject to the conditions mentioned therein and then, came the Office Memorandum dated 06-06-2007 in which one of the clarifications provides as under : "(v) The applicants should possess the essential qualification and should not be underage or overage as prescribed under the Recruitment Rules for the proposed post at the time when proposal in its complete form is submitted to the Government". In order to relax the conditions in respect of the appointment under Die-in-Harness Scheme as a special case and as one time measure, the Additional Secretary (DP), Government of Manipur issued an Office Memorandum dated 01-04-2011, two relevant conditions of which are reproduced hereinbelow:- "(iii) To consider the 2nd nominee by counting his/her seniority from the date of receipt of the 1st application where the applicants had to be changed because of compelling circumstances which are beyond his/her control such as death/marriage in case of women candidate/mental disorder and disability due to accident of the first applicant. (v) To consider cases in which the applicant was 15 years of age when his/her father/mother and unmarried brother/sister expired provided that the application is submitted within 3 (three) years from the date of expiry of the Government servant". 6. The Commissioner (H & SC), Government of Manipur vide its order dated 11-08-2015, impugned herein, rejected the proposal for compassionate appointment of the petitioner on the inter-alia grounds that the petitioner was only 10 years, 2 months and 14 days at the time of expiry of his father and that in terms of the provision under para (v) of the Office Memorandum dated 01-04-2011, he is not eligible for appointment under the Die-in-Harness Scheme. Shri Th. Roson, the learned counsel appearing for the petitioner has submitted that the impugned order was issued without any application of mind and that the provision of para (v) of the Office Memorandum dated 01-04-2011 is not applicable to the case of the petitioner for the reason that the case of the petitioner is that of a 2nd nominee and therefore, the provision of para (v) of the Office Memorandum dated 06-06-2007 wherein it has been provided that the applicant should be eligible at the time when the proposal is submitted to the government, is relevant for the present case. His further contention is that at the time when he applied for change of nomination, he was eligible as he was already above 18 years of age. 7. It is not in dispute that an appointment under the Die-in-Harness Scheme can be made only if the applicant is eligible in terms of the recruitment rules relating to the post for which he is considered for appointment. It is common knowledge that the recruitment rules provide the details as regards the age, essential qualification, pay scale etc. 7. It is not in dispute that an appointment under the Die-in-Harness Scheme can be made only if the applicant is eligible in terms of the recruitment rules relating to the post for which he is considered for appointment. It is common knowledge that the recruitment rules provide the details as regards the age, essential qualification, pay scale etc. But it is not clear as to whether the instructions/guidelines contained in the Die-in-Harness Scheme would apply equally to the case of 2nd nominee or not. In the Die-in-Harness Scheme as framed vide Office Memorandum dated 01-12-1995, para (iv) thereof provides that the applicant/nominee will be considered against the Class-III and IV posts as per the recruitment rules in force at the time of issuing the appointment order. Para (v) of the Office Memorandum dated 06-06-2007 provides that the applicants should possess the essential qualification at the time when the proposal in its complete form is submitted to the Government. The conjoint reading of these two provisions make it very clear that the applicant, whether he is the 1st nominee or the 2nd nominee, should fulfil the eligibility criteria as prescribed in the recruitment rules, at least, at the time of proposal being made to the Government. It may be noted that the instructions/guidelines contained in the Die-in-Harness Scheme have been relaxed vide Office Memorandum dated 01-04-2011 wherein para (iii) provides that the seniority of the 2nd nominee be counted from the date of receipt of the 1st application provided the applicant had to be changed because of the circumstances mentioned therein. On perusal of this para (iii) in isolation, the idea behind it appears to be that the 2nd nominee ought to have been eligible on the date the 1st application was submitted. But if this para (iii) is to be read with in consonance with para (iv) of the Office Memorandum dated 01-12-1995 and para (v) of the Office Memorandum dated 06-06-2007, it does not seem to be that. Thus, it is seen that there is no specific instruction/guideline, in the Die-In-Harness Scheme as shown above, as to how the application of the 2nd nominee is to be processed and considered and as to what are the requirements to be fulfilled by him at the time of submitting his application. The State Government appears to go on presumption without any specific guideline in respect thereof. The State Government appears to go on presumption without any specific guideline in respect thereof. In the affidavit filed on behalf of the State Government, nothing is mentioned about it nor has it produced any order or Office Memorandum wherein the details as regards the application of the 2nd nominee are provided. The case of the petitioner has been rejected on the ground that he does not come within the provisions of para (v) of the Office Memorandum dated 01-04-2011 but on perusal thereof, it is seen that it does not state anything about the 2nd nominee. What the para (v) provides is that the case of an applicant whose age is 15 years when his father/mother/unmarried brother/unmarried sister expired, can be considered provided the application is submitted within 3 (three) years from the date of expiry of the Government servant. The submission of application by the 2nd nominee for change of nominee cannot depend upon the death of the government servant but it does definitely depend upon the compelling circumstances that happened to the 1st applicant. It is not clear as to whether the expressions "expired" and "expiry" used in para (v) of the Office Memorandum dated 01-04-2011 refer to the same person or not and in other words, as to whether the expression "expired" refers to the 1st applicant only or not. The Office Memorandum dated 01-04-2011 is prospective in its operation and if the stand of the State Government that no person who is below 18 years could be appointed under the Die-In-Harness Scheme, is accepted, no body below 18 years might have applied for such appointment prior to the said Office Memorandum being issued by the State Government. In the present case, the petitioner was above 18 years of age when he applied for the change of nominee and moreover, he was eligible when the proposal was submitted to the State Government and therefore, para (v) of the Office Memorandum dated 01-04-2011 will have no application to the facts of the present case. In fact, the instructions/guidelines are not clear and ambiguous as regards the issue involved herein as a result of which the present controversy has arisen. It is the right time for the State Government to have an exhaustive scheme laying down the specific guidelines/instructions applicable to both the 1st applicant and the 2nd nominee so as to avoid any problem in future. It is the right time for the State Government to have an exhaustive scheme laying down the specific guidelines/instructions applicable to both the 1st applicant and the 2nd nominee so as to avoid any problem in future. Having heard the learned counsels appearing for the parties and having considered the facts and circumstances of the present case, this court is of the view that the Government Order dated 11-08-2015, impugned herein, is not sustainable in law. 8. In view of the above, the instant writ petition is disposed of with the direction that the respondents shall re-consider the case of the petitioner sympathetically within a period of thirty days from the date of receipt of a copy of the judgment and order and issue a speaking order in respect thereof.