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2021 DIGILAW 73 (MAN)

W. Jico Singh v. State of Manipur

2021-11-10

M.V.MURALIDARAN

body2021
JUDGMENT This writ petition has been filed by the petitioner seeking to quash the impugned order dated 6.9.2018 passed by the third respondent whereby rejecting the claim of compassionate appointment. [2] The case of the petitioner is that his father Tikendrakumar died-in-harness on 19.6.2005 and the petitioner is one of the dependents to his deceased father and also unmarried living with his brother and rest of the family members are settled and supported by his mother at another place. After the death of his father, the petitioner applied for appointment under the compassionate grounds on 29.8.2005 under die-in-harness scheme. The respondent authorities rejected the application of the petitioner on the ground that it was applied during the time when the scheme was banned on 15.6.2002 through the office letter dated 1.9.2005. Later the scheme was lifted and restored on 16.12.2006 stating that the families who died-in-harness during the period from 15.6.2002 upto the date of restoration will be covered under the scheme with immediate effect. Consequent to the restoration of the scheme, the Department of Personnel and Administrative Reforms issued a memorandum dated 6.6.2007 that all those applications made under the scheme between 15.6.2002 to 16.12.2006 should submit fresh applications within two months from the date of the order. According to the petitioner, since he was unaware of the office memorandum, the petitioner approached the respondent as soon as it came to his knowledge with a representation dated 10.7.2007 and again on 21.4.2017 to consider the application. However, the said application was rejected by the fourth respondent through an order dated 18.4.2012 stating that the petitioner cannot further claim under die-in-harness scheme. [3] Further case of the petitioner is that since the authority handled the matter technically rather than on humanistic and compassionate grounds, he filed W.P.(C) No.319 of 2017 praying for consideration of appointment under compassionate ground on 3.5.2017 and by an order dated 11.6.2018, the said writ petition was disposed of by directing the State respondents to consider for appointment under die-in-harness scheme as per rules. Subsequently, the petitioner sent a legal notice on 20.6.2018 to abide by the order dated 11.6.2018 passed in the said writ petition. In response to the said legal notice, an order dated 6.9.2018 was issued by the third respondent rejecting the application of the petitioner. Challenging the same, the petitioner has filed the present writ petition. Subsequently, the petitioner sent a legal notice on 20.6.2018 to abide by the order dated 11.6.2018 passed in the said writ petition. In response to the said legal notice, an order dated 6.9.2018 was issued by the third respondent rejecting the application of the petitioner. Challenging the same, the petitioner has filed the present writ petition. [4] Respondent Nos.3 and 4 filed affidavit-in-opposition stating that since the petitioner himself affirmed that the mother of the petitioner i.e. wife of the deceased Government employee was serving as a regular Assistant Teacher under the Government of Manipur upto 30.6.2012, the petitioner cannot be considered for appointment under die-in-harness scheme. As such, the third respondent passed the impugned order dated 6.9.2018 rejecting the application of the petitioner and therefore, there is no illegality in passing the impugned order. [5] Assailing the impugned order, the learned counsel for the petitioner submitted that the constant and undeterred refusal on the part of the respondent authorities to consider the application filed by the petitioner under die-in-harness scheme is intentional and deliberate and that the claim of the petitioner should not be dealt with technically by the respondent authorities. [6] The learned counsel further submitted that the grounds on which compassionate appointment sought by the petitioner was heard by this Court earlier in W.P.(C) No.319 of 2017 and considering the facts established as to the dire need of the compassion, this Court directed the State to consider the application of the petitioner. However, by the impugned order, the third respondent rejected the application of the petitioner. [7] The learned counsel next submitted that die-in-harness scheme is welfare policy of the Government to rule out appointments under considerate and compassionate grounds inclined towards the need and circumstances of the dependents. However, the State respondents misunderstood such policy and furthermore interpreted it in the wrong way by limiting its scope to mere technicalities. He would submit that the object of the compassionate appointment is to relieve the family of the deceased employee from financial hardship and the employment of other dependents is no bar in providing the relief and therefore, the plea raised by the respondents that wife of the deceased was employed at the time of the submission of the application is unsubstantial. In fact, the impugned order dated 6.9.2018 has been issued disobeying this Court’s order dated 11.6.2018 passed in W.P.(C) No.319 of 2017 and therefore, the impugned order is unsustainable in law and the petitioner has to be considered for giving compassionate appointment. [8] Per contra, the learned counsel for the respondent State submitted that the benefit of the die-in-harness scheme will apply only to those families of the deceased Government servant where none of the member is in Government service. However, in the case on hand, it is revealed that the mother of the petitioner was serving as regular Assistant Teacher under the Government of Manipur till 30.6.2012 and in fact, the petitioner himself stated that his mother was serving as Assistant Teacher upto 30.6.2012. As such the case of the petitioner cannot be considered for appointment under die-in-harness scheme and therefore, there is no wrong in passing the impugned order. [9] This Court considered the submissions raised by the learned counsel appearing on either side and also perused the materials available on record. [10] The petitioner’s father died on 19.6.2005 and after the death of his father, the petitioner submitted an application on 29.8.2005 seeking appointment under die-in-harness scheme. Since die-in-harness scheme abolished at the relevant point of time, by the order dated 1.9.2005, the application of the petitioner dated 29.8.2005 was rejected. Thereafter, the Government restored the die-in-harness scheme by imposing certain conditions and one of the conditions stipulated is that the families of the Government servant who died in harness during the period from 15.6.2002 up to the restoration of die-in-harness scheme i.e. 16.12.2006 will also be covered under the scheme with an immediate effect. [11] According to the petitioner, he was unaware of the restoration of the scheme and after coming to know the restoration of the scheme, he had submitted an application/representation on 10.7.2007 seeking appointment to any Government job under die-in-harness scheme. According to the petitioner, despite the receipt of the application/representation dated 10.7.2007, the same has not been considered by the authority and in the meanwhile also the petitioner submitted several representations and the last representation of the petitioner is dated 21.4.2017. According to the petitioner, despite the receipt of the application/representation dated 10.7.2007, the same has not been considered by the authority and in the meanwhile also the petitioner submitted several representations and the last representation of the petitioner is dated 21.4.2017. [12] It appears that by the order dated 18.4.2012, the fourth respondent rejected the application of the petitioner dated 29.8.2005 stating that pursuant to the restoration of the die-in-harness scheme and the office memorandum dated 6.6.2007, the petitioner did not submit any fresh application and therefore the petitioner cannot claim benefits under die-in-harness scheme and finally disposes his application dated 29.8.2005 as rejected. [13] The office memorandum dated 6.6.2007 stipulates that all applications submitted in between 15.6.2002 and 16.12.2006 shall be treated as invalid applications and applicants whose applications have been treated invalid as above should submit fresh applications to the concerned Department within two months from the date of issue of the official memorandum. According to the petitioner, he came to the knowledge of the official memorandum dated 6.6.2007 only on 10.7.2007 and on 10.7.2007, the petitioner submitted a representation/application seeking to appointment him on compassionate ground. [14] The respondent State has not disputed the submission of the representation/application dated 10.7.2007 by the petitioner. The order dated 18.4.2012 rejecting the original application of the petitioner dated 29.8.2005 also does not reflect the submission of the application by the petitioner on 10.7.2007 pursuant to the official memorandum dated 6.6.2007. Instead paragraph 7 of the said order says that the petitioner did not submit any fresh application. The said observation made by the fourth respondent in its order dated 18.4.2012 is absolutely incorrect for the simple reason that once the application dated 29.8.2005 was rejected by the fourth respondent vide order dated 1.9.2005 on the ground of ban, how the said authority could after a long period of time that too in the year 2012 reject the original application of the petitioner dated 29.8.2005. In this regard, there is no proper and convincing explanation forthcoming from the side of the respondent State. In this regard, there is no proper and convincing explanation forthcoming from the side of the respondent State. [15] It also appears that since the respondent State has not considered the claim of the petitioner and that the authority handled the matter technically rather than on humanistic and on compassionate grounds, on 21.4.2017, the petitioner submitted a representation to the fourth respondent requesting for appointment under the die-in-harness scheme on humanitarian ground and to cancel/review the order dated 18.4.2012. Since the respondent State has not taken any action on the representation of the petitioner in considering to give compassionate appointment, the petitioner filed W.P.(C) No.319 of 2017 before this Court. The said writ petition was contested by the respondent State by contending that the mother of the petitioner was serving as an Assistant Teacher in Ch. Iboyaima High School (Government). While considering the writ petition, this Court observed as under: “The claim of the petitioner has been contested by the State respondents by contending that the mother of the petitioner is serving as an Assistant Teacher in Ch, Iboyaima High School (Government). However, the same has been disputed by the petitioner stating that the mother of the petitioner had already retired from service w.e.f. 30.06.2012 vide order dated 25.06.2012 and accordingly, there is no one in the family of the petitioner who are serving in the Government.” [16] Considering the arguments of the learned counsel appearing on either side, this Court, by an order dated 11.6.2018, disposed of the writ petition with the following direction: “Accordingly, this Court is of the view that, the petitioner’s case may be considered for appointment under Die-in-harness scheme as per rules. The aforesaid exercise shall be undertaken by the State respondents within a period of 4 (four) months from today by informing the petitioner of the steps taken in that regard.” [17] The respondent State has not preferred any appeal against the order dated 11.6.2018 and allowed the order to attain finality. Thus, as per the order of this Court dated 11.6.2018, the State respondents are bound to consider the case of the petitioner for appointment under die-in- harness scheme as per rules and as per the directions of this Court dated 11.6.2018. Thus, as per the order of this Court dated 11.6.2018, the State respondents are bound to consider the case of the petitioner for appointment under die-in- harness scheme as per rules and as per the directions of this Court dated 11.6.2018. However, the third respondent rejected the claim of the petitioner mainly by stating that the very factum of the mother of the petitioner working in Government service renders that the petitioner cannot be considered for appointment under the die-in-harness scheme. [18] When this Court dealt with the said issue and observed that there is no one in the family of the petitioner who are serving in the Government on the date of passing of the order and the State respondents allowed the said order to attain finality, the third respondent has no authority to reject the claim of the petitioner on the said ground of the mother of the petitioner being working in Government service. Further, the respondents are stopped from taking the said plea of mother being working in Government service in this writ petition. [19] Appointment could not be denied on the ground that other dependents of the deceased person who died in harness was already in employment. [20] It is also the observation of the third respondent in its impugned order that the petitioner’s family was not under an immediate financial need warranting a compassionate appointment under die-in-harness scheme. The said observation of the third respondent is not supported by any material. On the other hand, the petitioner has produced a certificate dated 23.3.2020 issued by the Councilor of Singjamei Constituency that the petitioner is indigent. In the said certificate, the Councilor has clearly stated that the said certificate has been issued prior observing the state of the petitioner. Thus, it is clear that the petitioner’s family is under an immediate financial need. [21] Further, the plea of the respondent State that if the scheme is extended to the petitioner, it will go against the spirit of the die-in- harness scheme and will open a flood-gate which will be unbearable to the Government. In the given facts and circumstances of the case, it cannot be contended that it will go against the spirit of the scheme and will open a flood-gate. In the given facts and circumstances of the case, it cannot be contended that it will go against the spirit of the scheme and will open a flood-gate. [22] This Court finds some force in the submission made by the learned counsel for the petitioner that the respondents misunderstood the scheme of the Government and interpreted it in the wrong way by limiting its scope to mere technicalities. That apart, the ground on which the compassionate appointment sought by the petitioner was already heard by this Court in W.P.(C) No.319 of 2017 considering the facts established as to the dire need of the compassion. As stated supra, when this Court had earlier dealt with the issue and directed to consider the claim of the petitioner, the respondent authorities are duty bound to obey the order of this Court. [23] It also appears that the State Government has also issued a official memorandum dated 1.4.2011 relaxing certain conditions as a special case as one time measure so as to enable to dispose for appointment under the die-in-harness scheme. One of the conditions is to relax the upper age limit and other eligibility criteria for four years period from 15.6.2002 to 16.12.2006. This relaxation will be applicable to the dependants of the Government servant who expired between 15.6.2002 to 16.12.2006. The said relaxation is also applicable to the case of the petitioner as the father of the petitioner died on 19.6.2005. [24] It is settled that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. In the case on hand, admittedly, the original application of the petitioner is dated 29.8.2005 and the said application was rejected two times by the respondent authorities, firstly on 1.9.2005 stating ban and secondly on 18.4.2012 stating that the petitioner cannot further claim under die-in-harness scheme. From the materials produced, it is seen that the respondent authorities alone delayed in considering the application of the petitioner for compassionate appointment. [25] Since the third respondent by disobeying the order of this Court dated 11.6.2018 passed in W.P.(C) No.319 of 2017 has issued the impugned order dated 6.9.2018, the same is liable to be set aside. Furthermore, the impugned order has been issued deliberately and intentionally to discourage the faith of law and therefore, the same is unsustainable in law. [25] Since the third respondent by disobeying the order of this Court dated 11.6.2018 passed in W.P.(C) No.319 of 2017 has issued the impugned order dated 6.9.2018, the same is liable to be set aside. Furthermore, the impugned order has been issued deliberately and intentionally to discourage the faith of law and therefore, the same is unsustainable in law. [26] For the foregoing discussions, the writ petition is allowed and the impugned order dated 6.9.2018 issued by the third respondent is set aside. The respondent authorities are directed to consider and appoint the petitioner to a suitable post commensurate with his educational qualifications under the die-in-harness scheme of the Government of Manipur as per the direction of this Court in W.P.(C) No.319 of 2017, dated 11.6.2018. The said exercise is directed to be completed within a period of four months from the date of receipt of a copy of this order. No costs. [27] Registry is directed to issue copy of this order to both the parties through their whatsapp/e-mail.