Subham Dey vs Saradindu Choudhury

Akil Kureshi, CJ

This contempt petition is taken out by the original petitioner, the son of a deceased Government Servant who died in harness. His grievance is that the State authorities in particular respondent No.1 herein Additional Secretary, Department of Home, has not implemented the directions issued by this Court in a judgment dated 22.11.2018 in Writ Appeal No.45 of 2014.

To appreciate the rival stands, brief facts may be recorded:

Petitioner is the son of one Nantu Kumar Dey, a Government servant who died in harness on 06.06.2001 leaving behind 3(three) daughters and the petitioner who was at the time of the death of the father aged about 7 years. All the daughters were already married and residing separately from the family when the Government servant expired. The deceased was a constable working with the Superintendent of Police, West Tripura on the date of his death.

On 10.02.2012 the petitioner acquired majority. He applied for being appointed on compassionate basis as per the scheme of the Government under application dated 19.09.2012. His application was rejected by the competent authority by an order dated 24/25.05.2013 on the ground that "The family member of the deceased did not submit a prayer for Govt. job within 1(one) year after the death of the Govt. servant. As per terms & conditions laid down by the GA(P&T) Deptt. Vide Memo No.F.1(3)- GA(P&T)/98, dated 26-12-2011, the petition of Shri Subham Dey, S/O. Lt. Const. Nantu Kumar Dey for govt. job cannot be considered under the die-in-harness scheme."

The petitioner challenged the decision of the Government before learned Single Judge of this Court in WP(C) No.270 of 2013. The writ petition was dismissed by the learned Single Judge by an order dated 23.04.2014. Following observations may be noted:

"08. Before this Court considers the ramifications of the decision of Batuklal Girijashankar Tarwadi (supra) in this case, it would be appropriate to examine whether the provisions of Section 6 of the Limitation Act can have any manner of application for appointment under the die-in-harness scheme inasmuch as the procedure of the die-in-harness scheme is self contained and it does not guarantee the appointment alone. Rather, it provides by a clause that if no person is available in the family of the Government employee for appointment, who died in the harness, a lump sum amount of Rs.50,000/- shall be paid to the family for overcoming the financial hardship that visited them for sudden death of the Government employee. As such, no insulated provision for appointment on compassionate ground has been engrafted in the scheme. Such appointments are subject to satisfying several requirements as provided in the said scheme. Section 6 of the Limitation Act provides that where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule. For having the benefit of the legal disability the minor must have a subsisting legal right. The minor may also be represented by his next friend. If the representation is found not tenable in law or he was not at all represented, the minor‟s rights cannot eclipse and that right would subsist till he becomes the major and takes recourse to law within the period of limitation from the day of his attaining the majority. On attaining his majority, he may take the recourse of law within the same period as prescribed by the Limitation Act after the disability has ceased. In this case, the minor does not have any subsisting right to get appointment under the die-in-harness scheme and as such on end of the legal disability he or she cannot claim appointment under die-in-harness scheme taking recourse to provisions of Section 6 of the Limitation Act. Further, the proposition as advanced by Mr. Deb, learned senior counsel does not hold any substance. The pertinent question that is required to be considered by this Court is that whether on attaining the majority, any right to get considered for appointment on compassionate ground revives or did any right subsist till the disability for minority is over. The die-in-harness scheme, no doubt is a welfare scheme of the Government for its own employees, particularly for the family of an employee who died in harness. In the scheme, it has been provided that no person will be allowed to apply for the appointment on the compassionate ground after one year from the death of the Government employee who died in harness. That prescription has to be read and understood with the other provisions where it has been provided that if there is no eligible person in the family for giving the appointment on compassionate ground, the „family‟ will be provided with a lump sum amount instead of the appointment on the compassionate ground. It has been further asserted that a minor who acquires majority within a year from the death of the Government employee he would also be eligible for appointment under die-in-harness scheme. Therefore, a minor who was 17 years of age at the time of death of the employee who died in harness, on his attaining 18 years he would be eligible for consideration for appointment under the said scheme. Even the said minor on his attaining the majority would be allowed to make the application within another year from attaining such majority. When the provisions laying down the conditions for having the benefit of the die-in-harness scheme is well delineated, the person who seeks for the benefit under that scheme shall be governed by the provisions of that scheme only. In Batuklal Girijashankar Tarwadi (supra) the apex court did not lay down any universal rule. What the apex court has held has been so held "having referred to the fact and circumstances of the case". Those fact and circumstances had prompted the apex court to pass the said order for doing the complete justice. Thus, the petitioners in both the writ petitions cannot get any benefit on placing reliance on Batuklal Girijashankar Tarwadi (supra).

Having held so, this Court does not find any merit in these petitions and accordingly the same are dismissed. However, in the circumstances of the case, there shall be no order as to costs."

The petitioner challenged the decision of the learned Single Judge in Writ Appeal No.45 of 2014 which came to be allowed by order dated 22.11.2018. Following observations were made:

"2. Certain following facts are not in dispute. Petitioner was born on 11.02.1994; his mother namely Kanan Dey expired on 7th of January, 2000; his father namely Nantu Kumar Dey died in harness on 6th of June, 2001. He was gainfully employed in the service of the State; one Sri Jhantu Kumar Dey was appointed as a guardian of the minor (writ petitioner) as also his property for withdrawal of family pension and other pensionary benefits having accrued as a result of service benefits of the deceased employee; on 19th of September, 2012, after attaining the age of majority, writ petitioner applied for benefits under the scheme.

The learned Single Judge after elaborately discussing the scheme(s) and the decisions rendered by this Court as also the Hon‟ble Apex Court purportedly emanating out of similar facts, by distinguishing the ratio of law laid down therein, explaining as to how the same was inapplicable to the instant facts, holding the writ petitioner not to have any subsisting rights under the scheme, dismissed the writ petition, in which the impugned order dated 25.05.2013 was assailed.

In our considered view, the learned Single Judge moved on the premise that the claim of the writ petitioner stood considered, adjudicated and rejected on merits which, in fact, is not the case in hand. The rejection was simplicitor on the ground of limitation. It is here we find the error to have been crept in, warranting interference by the Court.

As on the date of the death of the deceased employee, the writ petitioner was minor, in fact just little more than 7 years of age. Upon attaining the age of majority, within the stipulated period of one year, he did apply for the benefits under the scheme. As to whether he had a vested right for grant of monetary compensation or employment is a different issue which was required to be considered by the authorities, but it could not be said that the case of the writ petitioner was stale for neither he, nor could his guardian ever claim any benefits under the scheme for employment. It is true that the scheme postulates benefits both of employment and monetary compensation. But then the guardian so appointed in the case of the writ petitioner had limited mandate and that being withdrawal and disbursement of pensionary benefits of the deceased employee. And the writ petitioner, in any event, being a minor could not have applied for the same.

It is under these circumstances, we find the stand taken by the State not to be in consonance with the settled principles of law for which purpose Sri Deb, learned Sr. counsel rightly invites our attention to the provisions of the General Clauses Act, applicability whereof is not in dispute.

Under these circumstances, we are constrained to hold that the action of the State in rejecting the petitioner‟s application on the ground of delay to be unsustainable in law and as such, quash the impugned order dated 24/25th May, 2013 (Annexure-10 to the writ petition) with a further direction to the State Authorities concerned to consider the petitioner‟s application afresh in accordance with law, more so, in view of the observations made here-in-above. It stands clarified that we have not adjudicated the petitioner‟s right of entitlement of the benefits under the scheme, which issue is left open to be considered and decided by the authorities. However, we clarify that the issue of limitation would not come in the way of such decision.

Needful shall positively be done within a period of 3(three) months from the date of production of copy of this judgment/order.

Impugned order dated 23.04.2014, passed in WP(C) No.270 of 2013, titled as Shri Subham Dey Vrs. The State of Tripura & Ors. stands modified accordingly."

Pursuant to such directions of the Division Bench, the respondents undertook the exercise of considering the application of the petitioner for compassionate appointment once again and passed fresh order dated 16.01.2019 relevant portion of which reads as under:

"Whereas, Sri Subham Dey filed a Writ Appeal No.45 of 2014 challenging the judgment dated 23.04.2014 in Writ Petition No.270 of 2013 and the Division Bench of the Hon‟ble High Court of Tripura by judgment dated 22.11.2018 has observed inter-alia that rejecting the petitioner‟s application on ground of delay is unsustainable in law and as such quashed the impugned order dated 24/25th May, 2013(Annexure-10 to the Writ Petition) with a further direction to consider the petitioner‟s application afresh in accordance with law. The Hon‟ble High Court has also observed that the petitioner‟s right of entitlement of the benefits under the scheme is left open and to be considered and decided by the State authorities and the issue of limitation would not come in the way of such decision.

AND

Whereas, the matter was also taken up with the Law Department and they have opined inter-alia to consider the case of the petitioner on its contents.

AND

Whereas, as per the die-in-harness scheme issued by the GA(P&T) Department, Government of Tripura, vide Notification dated 26.12.2015, the minimum age for benefit under the scheme has been prescribed as 18 years and it is relaxable by 1(one) year i.e. age of an applicant on the date of death of the deceased Government 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.

AND

Whereas, from the available records and copy of the documents it appears that the petitioner was born on 11.02.1994 and his father who was the Government servant died in harness on 06.06.2001 and the petitioner was approximately 7 years of age on the date of death of his father.

AND

Now therefore, the representation of the petitioner submitted in pursuance of the direction of the Hon‟ble High Court has been duly considered by the State Government and the petitioner is not found eligible for obtaining Government job under Die-in-harness scheme as he was less than 17 years of age on the date of death of his father, which is a minimum requirement of age as per the scheme and the representation is hereby rejected."

According to the learned counsel for the petitioner, the said order dated 16.01.2019 was passed in utter disregard of the decision of the Division Bench of this Court. The Government counsel, however, submitted that all that the Division Bench required the Government to do was to consider the case of the petitioner on merits instead of rejecting his application on the ground of limitation. He submitted that as per the scheme for compassionate appointment, application for compassionate appointment can be made only within one year from the date of the death of the Government servant and such application has to be by the applicant who is not below the age of 18 years. In other words, the dependant of the Government servant on the date of the death of the Government servant should not be below the age of 17 years. This was the ground on which the application of the petitioner was rejected.

In our opinion, the order dated 16.01.2019 suffers from inherent lack of understanding of the decision of the Division Bench dated 22.11.2018 and contrary to the directions, whether willfully done or otherwise. It may be recalled, originally the application of the petitioner was rejected on the ground that he had not made application for appointment within one year of the death of the Government servant. The Division Bench set aside this order on the ground that the petitioner was 7 years old when his father died and could not be expected to make application within 1 year of the death. The Court directed the respondents to consider his case on merits. While doing so, the respondents passed order dated 16.01.2019 and rejected his application on the ground that he was below 17 years of age on the date of death of his father. This figure of 17 years raised by the Government arises out of the provision of the scheme that the application for compassionate appointment can be made only within 1 year of death of the Government servant and the applicant must be minimum 18 years of age.

Permitting any such argument to prevail, would amount to ignoring the decision of Division Bench of this Court dated 22.11.2018. We have reproduced the relevant portion of the judgment of the learned Single Judge which came to be reversed by the Division Bench. In fact, the learned Single Judge had accepted the Government point of view that since the present petitioner, the applicant for appointment on compassionate cases was not over 17 years of age on the date of death of his father, his application was rightly rejected. This decision was not confirmed by the Division Bench. While reversing the decision, the Court took into account the fact that the applicant was barely 7 years old when his father expired. His application which was filed within one year from his attaining majority, was within time and could not be rejected on the ground of limitation and had to be decided on merits. When the Court, therefore, directed the Government to consider his application on merits, the respondents did not have an option to reject it on the ground that the scheme did not cover a case of a dependant of a Government servant who was below 17 years of age on the date of the death of the Government servant. If we permit the Government this argument, it would virtually amount to allowing the respondents to overrule the decision of the Division Bench and bring through back door the original ground for rejection of the petitioner‟s application which was not accepted by the Division Bench. The Division Bench had held that the application filed by the petitioner was within time and necessarily, therefore, it had to be decided on merits. When the Court, therefore, required a decision on merits from the Government, it had to be a decision whether as per the parameters laid down in the scheme, the financial condition of the family and other relevant aspects justified grant of appointment on compassionate basis. Without undertaking any such exercise, his application has been rejected on the ground that it was not maintainable.

We would have taken further action on this contempt petition against the respondent No.1. However, instead we allow him to pursue the contempt. In the result, we direct the respondents to recall the said order dated 16.01.2019 and pass a fresh order bearing in mind the observations made by the Division Bench of this Court in the order dated 22.11.2018 as explained by this Court in the present order. This fresh exercise shall be completed within a period of 2(two) months from the date of receipt of a copy of this order.

Contempt petition is disposed of.