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2019 DIGILAW 63 (TRI)

Subhojit Shil v. State of Tripura

2019-12-10

AKIL ABDUL HAMID KURESHI

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JUDGMENT : AKIL ABDUL HAMID KURESHI, J. 1. Heard learned counsel for the parties for final disposal of the petition. 2. The petitioner has challenged a communication dated 25th September, 2018 under which the Officer on Special Duty for Director of Elementary Education conveyed to the petitioner that his request for providing employment under the Die-in-harness Scheme cannot be granted as he is not eligible for employment under the said Scheme. Instead he would be eligible for one time financial assistance of Rs.1,00,000/- (Rupees one lakh) for which he may apply. 3. Brief facts are as under: Petitioner is a son of one Gita Debnath who was working as an Assistant Teacher under the State of Tripura when unfortunately she died while still in service on 24th November, 2017 leaving behind the petitioner the elder son, his younger brother and his father. At the time of death of the mother, the petitioner was aged 16 years 10 months and 22 days (his date of birth being 2nd January, 2001). The father of the petitioner did not have a steady job. He was working as a conductor employed by private agencies. According to the petitioner, upon death of the mother the family was left in destitute condition and therefore, the petitioner was in urgent need of employment. The petitioner had the necessary educational qualifications for being appointed to Class III or Class IV post. He, therefore, applied for being appointed on compassionate grounds under an application dated 30th January, 2018 which was accompanied by necessary documents. His application was however turned down by the impugned communication dated 25th September, 2018 upon which this petition is filed. 4. Learned counsel for the petitioner submitted that the Government does not dispute that the death of the Government servant left the family in deep financial crisis justifying appointment on compassionate ground in the Die-in-harness Scheme. The sole ground for rejection was that the petitioner was underage on the date of death of the Government servant. He pointed out that the scheme prescribes a minimum age of 17 years of the dependent of the Government servant seeking employment under the said scheme. The petitioner was thus short by barely one month and a few days of such requirement. This requirement is not rigid and can be relaxed for valid reasons. 5. He pointed out that the scheme prescribes a minimum age of 17 years of the dependent of the Government servant seeking employment under the said scheme. The petitioner was thus short by barely one month and a few days of such requirement. This requirement is not rigid and can be relaxed for valid reasons. 5. In this context he relied on a decision of learned Single Judge of this Court dated 13th March, 2018 in W.P.(C) No. 150/2017 in Case of Diptanu Majumder Vs. State of Tripura and Anr. in which following observations were made: "5. The object of the Die-in-harness scheme is to give succour to the family to tide over the sudden financial crisis befallen the Page 3 of 3 dependants on account of the untimely demise of its sole breadwinner. The intention of the rule making authority appears to give relief to the family of the Government servant from financial destitution and to assist it to get over the financial hardship. 6. Keeping in view of the above principles and the object of the Die-in-harness scheme into consideration, indisputably the petitioner has crossed the age of 18 years and the earlier impediment which was taken a note of the respondents in their impugned communication dt: 19.12.2015 may not now hold good in the changed circumstances. At the same time, it is not the case of the respondents that the petitioner is not holding the minimum qualification for the post of Group-C even at the relevant point of time. 7. After having heard the counsel of the parties, in my considered view the impugned letter dt: 19.12.2015 (Annexure-4) may not now hold good and deserves to be set aside and accordingly it is set aside. The respondents are directed to consider candidature of the petitioner for compassionate appointment under the Die-in-harness rules/scheme to any suitable post according to his qualification and necessary orders be passed within two months." 6. On the other hand, the learned Government counsel opposed the petition contending that the Scheme envisages the minimum age of the applicant to be of 17 years from the date of the death of a Government servant which condition in the present case the petitioner did not fulfill. His application was, therefore, correctly rejected. 7. In the context of the present controversy we may peruse the relevant provisions of the Die-in-harness Scheme framed by the Government closely. His application was, therefore, correctly rejected. 7. In the context of the present controversy we may peruse the relevant provisions of the Die-in-harness Scheme framed by the Government closely. The scheme has been promulgated under a notification dated 26th December, 2015. This notification records the object of the Scheme as under: "OBJECT : The object of the Scheme is to extend benefits either by an appointment in Government service on compassionate ground or admissible Financial Assistance to an eligible dependant member of family of a deceased Government servant in the event of death while in service provided that there is no earning member in the family of the deceased. The intention is to relieve the family of the Government Servant from financial destitution and to help it get over the financial hardship. Employment would be provided to one of the eligible dependents of the deceased Government servant." 8. Paragraph 1 of the Scheme provides the eligibility criteria. It envisages that the benefit of the Scheme would not be given if there is any earning member in the family of the deceased. Paragraph 2 of the Scheme defines the term 'dependant members'. Paragraph 3 provides that the appointments under Die-in-harness Scheme can be made only against Group C or Group D posts against direct recruitment quota. Paragraph 4 envisages grant of financial assistance, in case there is no eligible member of the deceased who can take the benefit of compassionate appointment. Other relevant paragraphs of the said Scheme read as under: "6. Age limit - Minimum age is 18(eighteen) years and upper age limit is 40(forty) years. Upper age limit is relaxable by 5(five) years in case of SC/ST/PH candidates. 7. Relaxations on age limit- (a) Minimum Age is relaxable by 1(one) year i.e. age of an applicant on the date of death of deceased Govt. servant shall not be less than 17 years to make him/her eligible to get the benefit of Government job under Die in harness scheme. It may be noted that actual employment shall be provided on attaining the age of 18 years. (b) Upper age limit for the applicant(s) under Die-in-harness Scheme is relaxable by 1(one) year i.e. for candidates of un-reserved category, age should not be more than 41(forty one) years and candidates of SC/ST/PH category should not be more than 46 (forty six) years to get the benefit of Govt. job under Die-in-harness Scheme. (b) Upper age limit for the applicant(s) under Die-in-harness Scheme is relaxable by 1(one) year i.e. for candidates of un-reserved category, age should not be more than 41(forty one) years and candidates of SC/ST/PH category should not be more than 46 (forty six) years to get the benefit of Govt. job under Die-in-harness Scheme. (c) No age limit is prescribed for having the benefits of financial assistance under Die-in-harness Scheme. (d) There will be no other relaxation in any provisions of Recruitment Rules of any particular post for the purpose of providing compassionate employment under the Scheme. * * * * 9. Limitations for making claim and dispose of cases under Die-in-harness Scheme- Claims for employment/financial assistance under Die-in-harness Scheme should be submitted before the appropriate authority within 1(one) year from the date of death of the Government servant as per provisions contained under Para-1 (II) above. The eligibility in all respect shall be determined as on the date of death of the concerned employee. 10. Responsibilities of the Department concerned:- (i) The respective Department shall have to dispose of the cases of Die-in-harness where the application is complete in all respects within 6(six) months from the date of receipt of the claim/application submitted by the applicant. (ii) Sometimes the members of the family of deceased may not be aware of the provisions of the Die-in-harness scheme and the formalities to be observed in submitting the application (i.e. time limit of submission of application, consequence of submission of false documents etc.) Therefore, the Department, when they get information about the death of any of their employees, while in service shall immediately communicate in written to the respective family so that application for employment/financial assistance under Die-in-harness scheme from the family of the deceased should be submitted before the appropriate authority in prescribed manner within the stipulated period. (iii) The concerned Department shall also intimate in written to the applicant(s) of die-in-harness cases that they should not submit the false/fake documents for having the benefits of die-in-harness scheme. * * * * 15. Powers to Relax : Where the State Government is of the opinion that if it is felt necessary or expedient to do so, it may, by order, for reasons to be recorded in writing relax any of the provisions of this scheme." 9. * * * * 15. Powers to Relax : Where the State Government is of the opinion that if it is felt necessary or expedient to do so, it may, by order, for reasons to be recorded in writing relax any of the provisions of this scheme." 9. It is undoubtedly true as has been held in a series of decisions of Supreme Court that the appointment on compassionate basis is not meant to be a parallel source of recruitment and such appointment can be made only subject to the provisions made in the Scheme upon finding that on account of sudden death of a Government servant the family is left in financial destitution. However, once the Government has framed the Scheme for such compassionate appointment, the interpretation of the terms of Scheme must be in consonance with the object for which the Scheme is framed namely, as in the present case, to extend the benefits by an appointment in Government service on compassionate ground or admissible financial assistance where there are no earning members in the family of the deceased in order to relieve the family of the Government servant from financial destitution and to help the family get over the financial hardships. 10. As noted, Paragraph 6 of the Scheme prescribes a minimum age limit of 18 years and upper age limit of 40 years (relaxable by 5(five) years in case of SC/ST/PH candidates) for appointment under the Scheme. As per paragraph 9 of the Scheme, the application for appointment should be submitted within one year from the date of death of the Government servant. Combining the provisions of minimum age limit of 18 years, as contained in Paragraph 6 and the time for making application of one year from the death of the Government servant for compassionate appointment contained in Paragraph 9, Paragraph 7(a) of the Scheme provides that the minimum age would be relaxable by 1(one) year i.e. the age of the applicant on the date of death of a Government servant should not be less than 17 years to make him or her eligible to get the benefit under the Scheme. However, actual employment would be provided upon him or her attaining the age of 18 years. 11. However, actual employment would be provided upon him or her attaining the age of 18 years. 11. Combined reading of Paragraphs 6, 7(a) and 9 of the said scheme would show that an aspirant for appointment on compassionate grounds under the Scheme, must make such an application within one year from the date of death of Government servant. On the date of appointment he or she must be of a minimum age of 18 years. Consequently, an application can be made by a person who is not below the age of 17 years on the date of death of the Government servant. However, actual appointment would be granted only upon completion of minimum age of 18 years. 12. In my opinion, this requirement is not inviolable or inflexible. In a given case for sound reasons, minor deviation is not ruled out even as per the provisions of the Scheme. We have noticed the provisions of Paragraph 10 of the Scheme which require the concerned department to educate the members of the family about their right and entitlement to seek companionate appointment or financial assistance. This proceeds on the basis that when a Government servant suddenly dies leaving behind distressed family members, they may not be fully aware about their entitlement under the Scheme. 13. Paragraph 15 of the Scheme which pertains to the power of the Government to relax the provisions of the Scheme, therefore, must be seen in light of these provisions. Paragraph 15 provides that if the State Government is of the opinion that it is necessary or expedient for the reasons to be recorded in writing, it may relax any of the provisions of the Scheme. This residuary power of relaxation is thus retained by the Government. For valid reasons to be recorded in writing, any provision of the Scheme can be relaxed. Learned Government Advocate is not correct in pointing out that in view of Clause (d) of Paragraph 7 there can be no further relaxation. What Clause (d) of Paragraph 7 refers to is the relaxation in any of the provisions of the recruitment rules of a particular post and does not refer to relaxation in terms of the Scheme. Learned Government Advocate is not correct in pointing out that in view of Clause (d) of Paragraph 7 there can be no further relaxation. What Clause (d) of Paragraph 7 refers to is the relaxation in any of the provisions of the recruitment rules of a particular post and does not refer to relaxation in terms of the Scheme. If Clause (d) of Paragraph 7 is read in the manner the Government Advocate wants us to read, it would be directly in conflict with Paragraph 15 which vests the power in the Government to relax any of the provisions of the Scheme. Thus the Government undoubtedly has power to accept an application for compassionate appointment beyond the period of 1(one) year prescribed in Paragraph 9 of the Scheme. This of course can be done only on exceptional circumstances justifying exercise of such powers and as provided in Paragraph 15 by recording reasons for exercising the same. 14. In the present case, we have noticed that the mother of the petitioner expired leaving behind the petitioner as her elder son who has just short of 17 years of age, a cut off provided in the Scheme for eligibility for making application for appointment on compassionate grounds. There was no other older sibling. The petitioner had a younger brother. The petitioner's father was over aged and therefore, not eligible for appointment in any case. Considering such factors and in particular, considering the fact that the petitioner's age was only about 6 weeks short of the minimum age required for making application, in my opinion, it is the fit case where the Government should be asked to exercise the power of relaxation. 15. Under the circumstances, impugned communication dated 25th September, 2018 is set aside. The petitioner's application for compassionate appointment shall be considered on merits with respect to which I have express no opinion. Decision on merits, whether to offer appointment on compassionate grounds on the basis of relevant considerations or not, shall be taken and communicated to the petitioner within a period of 3(three) months from today. Petition is disposed of accordingly. Pending application(s), if any also stands disposed of.