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2003 DIGILAW 145 (ORI)

Lingaraj Das v. Union of India

2003-02-19

B.P.DAS, B.PANIGRAHI

body2003
JUDGMENT B. PANIGRAHI, J. — In this writ petition the petitioner has challenged the order passed by the learned Central Adminis¬trative Tribunal in O.A. No. 694 of 1995 whereby the petitioner’s prayer for directing the opposite party, Nos.2 and 4 to provide him a job under Rehabilitation Scheme in “Hot Weather Establish¬ment” has been rejected. 2. The petitioner has alleged that he was taken in adop¬tion by one late Fakir Das, who was a Peon working under the establishment of opposite party Nos.2 and 4. It is alleged in the application that Fakir Das died in harness on 2.1.1979. His wife had predeceased him before adoption. The petitioner submitted an application before opposite party Nos.2 and 4 to be appointed under Dying in Harness Scheme. But it is stated by the opposite party Nos.2 and 4 that he could not be accommodated under that scheme. But however in subsequent years taking into consideration the vacancy position in Hot Weather establishment, he was accom¬modated for some time. 3. In this case, it has to be considered whether any direction can be issued to the opposite party No.2 and 4 to engage the petitioner under rehabilitation scheme. Time and again, the apex Court has depricated the practice followed by different Courts by issuing such directions to the authorities for giving employment to the person applying under 'Dying in Harness Scheme.' 4. While considering the case of the petitioner for giving him appointment under Rehabilitation Scheme, the Supreme Court in a recent judgment reported in AIR 1998 SC 2230 in the case of Director of Education (Secondary) and another v. Pushpendra Kumar and others held that :- “The object underlying a provision for grant of compassion¬ate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appoint¬ment. Such a provision makes a departure from the general provi¬sions providing for appointment on the post by following a par¬ticular procedure. Such a provision makes a departure from the general provi¬sions providing for appointment on the post by following a par¬ticular procedure. Since such a provision enables appointment being made without following the said procedure. It is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee.” 5. Therefore, following the law laid down by the Supreme Court, we observe our judicial restraint in giving such direction to appoint the petitioner under the “Dying in Harness Scheme”. But however, for few years the opposite party Nos.2 and 4 had considered the application filed by the petitioner for accommo¬dating him as a casual worker in “Hot Weather Establishment”. Then if such an application would be renewed by the petitioner, they may consider the same and pass appropriate orders. 6. Therefore, in view of the principles laid down by the Supreme Court in the above case, no such direction to appoint the petitioner under Rehabilitation scheme can be issued against the Opposite party Nos. 2 and 4. 7. With the above observation, the writ application is dismissed. B. P. DAS, J. I agree. Application dismissed.