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Tripura High Court · body

2018 DIGILAW 41 (TRI)

Rajesh Sarkar, son of late Hirendra Sarkar v. State of Tripura, represented by the Secretary-Cum-Commissioner, Department of Industries, Government of Tripura

2018-02-09

S.TALAPATRA

body2018
JUDGMENT AND ORDER : Heard Mr. K. Roy, learned counsel appearing for the petitioner as well as Mr. Samarjit Bhattacharjee, learned counsel appearing for the respondents. 2. The facts laid in this writ petition are mostly admitted. The petitioner’s father namely Hirendra Sarkar who was serving as the Night Guard in the Department of Handloom, Handicrafts & Sericulture, Government of Tripura, Agartala, died on 13.03.2004 in the harness. From the survival certificate dated 01.07.2004 as issued by the Sub-Divisional Magistrate, Bishalgarh, West Tripura it would transpire that the deceased employee is survived by his widow Ms. Maya Rani Sarkar, Sri. Rajesh Sarkar, the petitioner (his son), Sri. Jitan Sarkar (his son) and Sri. Babul Sarkar (his son). 3. The widow of the deceased employee made an application on 17.03.2004 for the first time seeking a job to any of the members of the family so that they can tide over the serious stringency visited for death of the deceased employee. On 26.07.2010 the petitioner made the prayer for providing appointment under the Die-in-harness Scheme. The petitioner produced a few documents like citizenship certificate, mark-sheet and admit card certificate. Again on 30.07.2010, the widow of the deceased employee made a further representation to the Director of Handloom, Handicrafts & Sericulture, Government of Tripura. It appears that the petitioner had also made an application on 18.10.2004. In response to the prayer dated 30.07.2010 made by the widow of the deceased employee to the Director of Handloom, Handicrafts & Sericulture communicated that the prayer for appointment under the Die-in-harness Scheme had already been regretted by the government after due consideration. Thereafter, on 27.06.2017 another representation was filed by the petitioner for providing compassionate appointment under the Die-in-harness Scheme. For that purpose, all the relevant facts were averred for consideration, but no positive result has yielded. Hence, the petitioner has approached this court for an appropriate direction on the respondents to provide him the appointment under the Die-in-harness Scheme. 4. Filing the reply, the respondents have stated that by the letter dated 29.08.2005 [Annexure-R/2 to the reply] the petitioner was informed that his prayer for employment under Die-in-harness Scheme has been regretted by the Government on due consideration. A similar communication was made on 31.08.2010 [Annexure-R/3 to the reply] to the widow of the deceased employee. 4. Filing the reply, the respondents have stated that by the letter dated 29.08.2005 [Annexure-R/2 to the reply] the petitioner was informed that his prayer for employment under Die-in-harness Scheme has been regretted by the Government on due consideration. A similar communication was made on 31.08.2010 [Annexure-R/3 to the reply] to the widow of the deceased employee. The respondents, therefore, have contended that the writ petition is hit by delay and laches and it is not competent to derive any benefit under the Die-in-harness Scheme. That apart, the respondents have stated further that the deceased employee was unauthorisedly absent from the duties for a period of 1587 days with effect from 08.11.1999 till his death. Even, when the correspondence were made to him, he did not make any reply and suddenly, the widow of the deceased employee made the prayer for the employment under the Die-in-harness Scheme where she had apprised the competent authority that on 13.03.2004 the said employee died while he was in harness. In Para-10 of the reply, the respondents have stated as under : “But the Finance Department regretted the proposal vide U.O No.579/FIN(G)/05, dated, 01.08.2005. Accordingly, the petitioner was communicated about the views of the Finance Department vide letter dated 29.08.2005. The petitioner knowing fully well about the letter dated 29.08.2005 suppressed the same in the instant writ petition. Moreover, the letter dated 29.08.2005 is unchallenged in the instant writ petition. No averment in respect to the letter dated 29.08.2005 has been made by the petitioner in the instant writ petition.” 5. Mr. K. Roy, learned counsel appearing for the petitioner has submitted that the petitioner’s family has come impoverished for sudden death of the deceased employee. They made the application in due time but that was regretted. It appears now that no reasons was assigned by the Finance Department. It is evident from the note at Annexure-R/1 that the Finance Department had observed as under : “Action as per advice vide N-21 ante of us, Fin No. been completed. (Ref. ‘X’ of N-27 ante). This may kindly be considered for approval views towards die-in-harness entitlements, (Ref. ‘Y’ of N-27 ante)” 6. The Finance Department, in the note which was processed by the Commissioner and Secretary, Government of Tripura, Department Handloom, Handicrafts & Sericulture, has simply observed as follows: “Finance Department regrets its inability to concur the proposal” Nothing more is assigned. 7. Mr. This may kindly be considered for approval views towards die-in-harness entitlements, (Ref. ‘Y’ of N-27 ante)” 6. The Finance Department, in the note which was processed by the Commissioner and Secretary, Government of Tripura, Department Handloom, Handicrafts & Sericulture, has simply observed as follows: “Finance Department regrets its inability to concur the proposal” Nothing more is assigned. 7. Mr. K. Roy, learned counsel has in this context emphatically submitted that the rejection of the prayer of the petitioner for the compassionate appointment under the Die-in-harness Scheme is grossly arbitrary and an act of colourable exercise of power, in contrast to the equality clause [Article 14 of the Constitution of India]. Every action of the state must be informed with reasons, but there is no reason. Even though, the case of the petitioner is squarely covered by the scheme and the respondents have nowhere whispered in their reply that the petitioner has the eligibility to get an appointment under the Die-in-harness Scheme. Their only objection arises from the doctrine of laches. 8. Mr. Roy, learned counsel has further submitted that there is no lach on the part of the petitioner as the petitioner within the stipulated time has made his application for getting the appointment under the Die-in-harness Scheme. It is the respondents who had arbitrarily rejected it and when they made a repeat of that prayer for the compassionate appointment under the Die-in-harness Scheme, they had simply referred to that earlier communication of rejection but did not exercise any consideration whether the petitioner is eligible to get such benefit or not. 9. Mr. Samarjit Bhattacharjee, learned counsel appearing for the petitioner has submitted that the apex court in Shreejith L. Versus Deputy Director (Education) Kerela and Others reported in (2012) 7 SCC 248 has observed as follows : “28.There is, in our view, considerable merit in the contentions urged on behalf of the petitioners. The application filed by respondent No.1 was indeed belated having been filed 14 years after the respondent attained majority. No explanation, much less a worthwhile one is forthcoming, for this kind of inordinate and unexplained delay. Delay assumes greater significance keeping in view the fact that respondent No.1 has got married and has now settled with her husband comprising a separate family. No explanation, much less a worthwhile one is forthcoming, for this kind of inordinate and unexplained delay. Delay assumes greater significance keeping in view the fact that respondent No.1 has got married and has now settled with her husband comprising a separate family. The appointment of the said respondent may not in that view lead to any financial help for the other members of the family left behind by the deceased. While it is true that marriage by itself does not in view of the language employed in the scheme, disqualify the person concerned from seeking a compassionate appointment, the fact remains that delay of more than 14 years could itself prove fatal to the prayer for a compassionate appointment. The orders passed by the Educational Officer and the Government and those by the High Court in Writ Petition and in Writ Appeal are therefore unsustainable and, hence liable to be set aside.” [Emphasis added] 10. Having appreciated the submissions made by the learned counsel for the parties, this court would examine the objection raised on the laches by Mr. S. Bhattacharjee, learned counsel appearing for the respondents at the threshold. In this regard, the report of the apex court as relied by Mr. Bhattacharjee, learned counsel does not help the respondents. In that case, there was 14 years delay in filing the application for getting the job. But in this case, the application was filed for getting the appointment under the Die-in-harness Scheme within the time as stipulated, but there is no whisper in the reply in this regard. It cannot be denied that there is laches in filing the writ petition. But laches do not create in all circumstances, an embargo in considering the prayer made in the writ petition, where it is found that the entire action of the respondents are so arbitrary, illegal and colourable in nature. 11. This court, by exercise of its jurisdiction is inclined to interfere with the decision of rejection as stated. This is a case where it is found that there was no consideration at all-whether the petitioner is eligible for getting the compassionate appointment under the Die-in-harness Scheme or not. In view of that, the respondents are directed to consider the appointment of the petitioner under the Die-in-harness Scheme within a period of 4(four) months from the day when a copy of this order will be submitted by the petitioner. In view of that, the respondents are directed to consider the appointment of the petitioner under the Die-in-harness Scheme within a period of 4(four) months from the day when a copy of this order will be submitted by the petitioner. The petitioner shall cooperate and file such documents and testimonials within the time as would be stipulated by the respondents. 12. In terms of the above, this writ petition stands allowed. There shall be no order as to costs. A copy of this order be furnished to the learned counsel appearing for the respondents.