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2005 DIGILAW 589 (ORI)

Basanta Kumar Baral v. Vice-Chancellor, OUAT

2005-10-04

A.K.SAMANTARAY, B.P.DAS

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JUDGMENT A. K. SAMANTARAY, J. — In this writ application under Articles 14 and 16 of the Constitution of India the petitioner seeks a direction from this Court to the opposite parties, more particu¬larly opposite parties 1 and 2, to provide appointment to him under the Rehabilitation Assistance Rules within a period of two months to save the distressed family of the deceased employee from immediate starvation. 2. The facts leading to the filing of this writ petition is reproduced here for better appreciation of the circumstances, which compelled the petitioner to come to this Court. The petitioner’s father was working as a Village Agricultur¬al Worker in the Department of Agronomy, College of Agriculture, Bhubaneswar and was a permanent employee of the Orissa University of Agriculture and Technology (OUAT). On 20.10.2000 while the petitioner’s father was working in the instructional farm of the Department of Agronomy, died of snake bite. After sudden and premature death of the deceased employee his family became total¬ly distressed and faced starvation. Faced with this situation, the petitioner applied to the University authorities for provid¬ing him a compassionate appointment under the Rehabilitation As¬sistance Scheme, but no step was taken by them on his applica¬tion. Thereafter, he submitted a representation before the Regis¬trar of the OUAT (OP No.2) vide Annexure-4, but since no step was taken to provide him appointment he ultimately approached this Court by filing writ petition to direct the opposite parties to cause an enquiry and obtain report from the Collector, Puri and provide compassionate appointment to the petitioner to save the distressed family from starvation. 3. Notice of admission was issued to all the opposite parties and after valid service of notice opposite parties 1 to 4 entered appearance and have filed counter affidavit. None entered appearance for O.P. No.5. 4. Opposite parties 1 to 4 have filed counter affidavit and it is admitted therein that the petitioner’s father Brundaban Baral died in harness on 20.10.2000 while serving as Village Agricultural Worker in the Department of Agronomy, OUAT and the petitioner applied on 8.12.2000 for his appointment under Reha¬bilitation Assistance Scheme. The petitioner applied for the post of Junior Assistant/Computer Assistant/Auditor or any similar post in the Class-III category and with his qualification he is eligible for the post of Junior Assistant as he is a Commerce Graduate and has completed PGDCA in Computer and Financial Ac¬counting. The petitioner applied for the post of Junior Assistant/Computer Assistant/Auditor or any similar post in the Class-III category and with his qualification he is eligible for the post of Junior Assistant as he is a Commerce Graduate and has completed PGDCA in Computer and Financial Ac¬counting. It is stated further in the counter affidavit that 17 Junior Assistant posts have been abolished by the Board of Man¬agement as per Finance Department memorandum No.FR-53/99-31271/F dated 16.7.1999. In pursuance of circular No.5108 (8)dated 2.2.2000 of the Finance Department the non-teaching base level vacancies in the aided institutions are deemed to have been abol¬ished. Besides, in view of the austerity measure imposed by the Finance Department vide Office memorandum No.10954/F dated 14.3.2001, 50% of the base level posts as on 31.3.2001 or 20% of the total base level posts in any grade whichever is less are abolished by the end of September, 2001. It is added further in the counter that prior to receipt of the application of the peti¬tioner for his appointment under Rehabilitation Assistance Scheme, twenty applicants are there in wait for appointment under the said scheme and the petitioner is at Sl. No.21 and in toto there are twenty two applicants including the petitioner as on date. It is also stated that due to heavy financial constraint imposed by the Finance Department of the Government, the opposite parties could not consider the case of the applicant under Reha¬bilitation Assistance Scheme and the Office memorandum No.10954/F dated 14.3.2001 circulated vide OUAT letter No.30473 dated 18.12.2001 since stipulates that any candidate considered eligi¬ble under the rules in force for appointment under the Rehabili¬tation Assistance Scheme has to wait for a regular vacancy in the unabolished vacant posts with the clearance of the Finance De¬partment. O.Ps. 1 to 4 in the counter affidavit admit that the application of the petitioner should have been sent to the dis¬trict Collector to report as to the financial conditions of the family of the deceased employee and if the family actually is in financial distress condition. But due to heavy curtailment of the posts and ban on fresh appointment the petitioner’s applica¬tion has not been considered for his appointment under the Reha¬bilitation Assistance Scheme. 5. From the aforesaid pleadings it is crystal clear that soon after the death of his father while in service under O.Ps. But due to heavy curtailment of the posts and ban on fresh appointment the petitioner’s applica¬tion has not been considered for his appointment under the Reha¬bilitation Assistance Scheme. 5. From the aforesaid pleadings it is crystal clear that soon after the death of his father while in service under O.Ps. 1 to 4, the petitioner made an application for his appointment to a Class-III post under O.Ps. 1 & 2 under the Rehabilitation Assist¬ance Scheme to save the distressed family from immediate starva¬tion. It is also an admitted position that the petitioner pos¬sesses qualification for appointment to a Class-III post i.e. Junior Assistant. The counter affidavit makes it amply clear that only due to abolition of base level posts as per Finance Depart¬ment memorandum and the direction issued by the Finance Depart¬ment, that any rehabilitation assistance appointment that is to be made is to be made against regular vacancy in the unabolished vacant post with the concurrence of the Finance Department. The counter has also clarified that in view of the above constraint and drastic abolition of base level posts no action was taken by the opposite parties on the application of the petitioner as his serial number is 21 and twenty more applicants are there in wait above him to get appointment under the Rehabilitation Assistance Scheme. 6. Before going to discuss on the merit of the petition¬er’s case we would like to bring on record the object underlying compassionate appointment. This aspect need not be stressed beyond a point in as much as this question has received attention of the various High Courts as well as the apex Court in several decisions. The quintessence of what has been consistently held that the object underlying compassionate appointment is to enable the family to get over sudden financial crisis. In Umesh Kumar Nagpal v. State of Haryana and others reported in 1994 (68) FLR 1191 (SC), it has been observed by the apex Court that the ap¬pointment on compassionate ground is not another source of re¬cruitment, but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. It was further observed that in such cases the object is to enable the family to get over sudden financial crisis but such appoint¬ments on compassionate ground have to be made in accordance with rules, regulations or administrative instructions taking into consideration the financial condition of the family of the de¬ceased. 7. It would be eloquent from the above decision that much stress has been laid on ‘livelihood’. In another decision in Smt. Sushma Gosain and others vs. Union of India and others reported in 1989 (15) ALR 855 (SC) it has been held that the purpose of pro¬viding appointment on compassionate ground is to mitigate the hard¬ship due to death of the bread earner in the family and such appointment should be provided immediately to redeem the family in distress. The apex Court again in Phoolwati vs. Union of India and others, 1991 Supp. (2) SCC 689 and Union of India and others vs. Bhagwan Singh, reported in 1996 (72) FLR 782 (SC) held on the lines that out of purely 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, provisions are made for giving appointment to one of the depend¬ents of the deceased who may be eligible for appointment. Here the apex Court again have laid stress on ‘livelihood’. 8. In the case of Sushma Gosain (supra) the apex Court held “it can be stated unequivocally that in all claims for appointment on compassionate ground there should not be any delay in appointment. xxxx It is improper to keep such case pending for years. If there is no suitable post for appointment, a supernu¬merary post should be created to accommodate the applicant.” 9. In the case of Director of Education Secondary and another vs. Pushpendra Kumar and others 1998 (5) SCC 192 , the apex Court has observed as under :- “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, the provisions are made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment.” 10. But what we gather from the above observation of the apex Court is that the whole object for granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for the post held by the deceased. But for mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial position of the family of the deceased and it is only if satisfied with, but for the provi¬sion of employment the family will not be able to overcome the crisis with job is to be offered to the eligible member of the family. 11. Learned counsel appearing and addressing for opposite parties 1 to 4 fairly contended that but for the stipulation of the Finance Department that any candidate considered eligible for appointment under the Rehabilitation Assistance Rules has to wait for regular appointment in the unabolished vacant post with concurrence of the Finance Department, the petitioner’s case would not have been kept pending till date and opposite parties are quite conscious of the very purpose of the Rehabilitation Assistance Rules and the delay for not processing the application is due to Finance Department memorandum. 12. Before parting with the judgment, we would like to emphatically point out that the Finance Department memorandum runs contrary to the above referred guidelines of the apex Court which we have extensively quoted in the body of the judgment and the said memorandum totally frustrates the very purpose and object of Rehabilitation Assistance Rules. 13. Admittedly, the deceased employee has left behind his widow and three unemployed sons and soon after death of their deceased father on 20.10.2000 the petitioner applied for compas¬sionate appointment on 8.12.2000 to the opposite parties-employ¬er. 13. Admittedly, the deceased employee has left behind his widow and three unemployed sons and soon after death of their deceased father on 20.10.2000 the petitioner applied for compas¬sionate appointment on 8.12.2000 to the opposite parties-employ¬er. But no step was taken on his application.It is very much there in the counter affidavit and it was also informed by the learned counsel for the opposite parties that there are number of vacancies in the cadre of Junior Assistants as a result of aboli¬tion of base level posts and if the petitioner is found suitable after receipt of the report from the concerned District Collec¬tor, he can be absorbed in the post of Junior Assistant, provided the Finance Department accords concurrence. 14. On the aforesaid premises, we allow the writ petition and direct opposite parties 1 to 4 to immediately process and send the application of the petitioner to the Collector, Puri and after receipt of the report if the petitioner is found eligible, Finance Department concurrence be accorded and the petitioner be absorbed in one of the vacant posts of Junior Assistant which is said to have been abolished. We simultaneously direct the Secre¬tary to Government, Finance Department (O.P. No.5) to accord concurrence to fill up one of the posts of Junior Assistant in the establishment of O.Ps. 1 to 4 within a period of two months from the date of receipt of the communication from the Registrar, OUAT (O.P.2). We further direct the opposite parties to complete this exercise within a period of six months from the date of receipt of a copy of this judgment. A copy of this order along with a copy of the writ petition be communicated to O.P. 2 by regd. post with A/D, requisites for which shall be filed within seven days. The writ petition is accordingly allowed. B. P. DAS, J. I agree. Petition allowed.