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2009 DIGILAW 194 (ORI)

GOKULANANDA PRADHAN v. STATE OF ORISSA

2009-03-05

B.N.MAHAPATRA, B.S.CHAUHAN

body2009
JUDGMENT : B.S. Chauhan, C.J. - This case has a chequered history as it is the second round of litigation in this Court for seeking a direction to the opposite parties to give him appointment on compassionate ground. 2. The facts and circumstances giving rise to this case are that father of the Petitioner died on 16.2.1982 in harness. As the Petitioner was born on 7.6.1971 he was only 11 years of age at that time and after attaining the majority in 1989 he filed an application for compassionate appointment which was rejected vide order dated 7.7.1997. Being aggrieved the Petitioner filed OJC No. 16299 of 1998 and this Court by judgment and order dated 30.7.2007 disposed of the said writ petition directing the opposite parties to re-consider the whole case. Case of the Petitioner was considered by the opposite parties and same was rejected vide order dated 10.12.2007 that he was not found eligible for employment on compassionate ground. 3. Mr. Mohapatra, learned Counsel for the Petitioner has raised large number of issues submitting also that the candidature of the Petitioner has wrongly been rejected. He is entitled for employment on compassionate ground. The Petitioner has been seeking for compassionate appointment for last 26 years and order rejecting the application of the Petitioner has been passed taking into consideration the income of the family wrongly. The Petitioner has an elder brother who is in service but he has no concern with the Petitioner and is living separately and a decree of the Civil Court has been passed in this regard. The petition deserves to be allowed taking into consideration the decree passed by the Civil Court. 4. On the contrary, Mr. P. Panda, learned Additional Standing Counsel has opposed the petition contending that the Petitioner has rightly been refused the employment on compassionate ground and the decree of the Civil Court cannot be relied upon as it is evident from the said decree that the Petitioner has an elder brother who is in service and there has been a specific finding of fact by the Civil Court that the Plaintiff, i.e., brother of the Petitioner is not living separately so far as the property is concerned. However, he is living separately only so far as mess is concerned. Therefore, the petition is liable to be dismissed. 5. However, he is living separately only so far as mess is concerned. Therefore, the petition is liable to be dismissed. 5. We have considered the rival submissions of the learned Counsel for the parties and perused the record. 6. Appointment on compassionate ground can be made in view of the provisions of the Orissa Civil Service Rehabilitation Assistance Rules, 1990. As per the amendment to the said Rules from time to time, it is clear that under the provisions of Rule 2(a), the expression "deserving case" has been defined in Clause (iii) thereof, which reads as under: that none of the family members of the employee who has died or has suffered from permanent disability while in service is already in the employment of Government/Public or private sector or engaged in independent business with an earning above Rs. 20,000/- a year;.... (emphasis added) 7. Further, the expression "family members" have also been defined in Clause (b) of Section 2 which reads as under: (b) Family members shall mean and include the following members in order of preference; (i) wife/husband; (ii) sons or step sons or sons legally adopted through a registered deed; (iii) unmarried daughters and unmarried step daughters; (iv) widowed daughters if they reside with the affected family; and (v) unmarried or widowed sister permanently residing with the affected family (emphasis added) Therefore, it is evident from the aforesaid Rules that no family member should be in employment and the income of the family including sons and step sons of the deceased employee has to be taken into consideration and it should not exceed Rs. 20,000/- a year. There is no provision in the aforesaid Rules to exclude any family member who is living separately even, where there has been partition by metes and bounds by virtue of a decree of the Civil Court. Therefore, in case Petitioner's brother was in employment, under the Rules it was not permissible for the Petitioner to make an application under the said Rules and to get the employment. 8. Annexure - 5, which is a document issued by the Tahasildar, Athmallick dated 5.10.2001, discloses many facts in respect of this case and according to it, the Petitioner had another brother named Debananda Pradhan, who is admittedly in service. There are two married sisters of the Petitioner and the Petitioner is the youngest son. 8. Annexure - 5, which is a document issued by the Tahasildar, Athmallick dated 5.10.2001, discloses many facts in respect of this case and according to it, the Petitioner had another brother named Debananda Pradhan, who is admittedly in service. There are two married sisters of the Petitioner and the Petitioner is the youngest son. In the pleadings in paragraph 4, the Petitioner has shown that he has a younger brother also who is minor. Mr. Mohapatra, learned Counsel for the Petitioner could not explain as to under what circumstances such pleading has been taken. However, it is not denied by Mr. Mohapatra that the Petitioner stands disqualified for such employment because his brother is in employment. 9. More so, we are very much doubtful regarding validity of Rule 9(7) of the said Rules which provides that a person can apply for compassionate appointment on attaining majority within a period of one year from the date of attaining the majority if at the time of death of the father he was minor. The provisions of Rule 9(7) seems to be directly inconsistent with the provisions of Rule 4, which provides as under: 4. Objective of the Scheme: The rehabilitation assistance is conceived as a compassionate measure of saving the family of a Government servant from immediate distress, when the Government servant suddenly dies or is permanently incapacitated. The concept is based on the premises that in case of sudden incapacitation or death, the Government servant or his family would not face starvation. The scheme has a direct relationship, therefore, with the economic condition of the family of the Government servant. Appointment of the family member of the Government servant under these rules shall be subject to the provisions contained in Rule 9 and cannot be claimed as a matter of right. (emphasis added) 10. However, we are not going into the merit of the issue of validity of this provision. In the circumstances, we are of the view that the Petitioner is not entitled to get employment on compassionate ground under the 1990 Rules for the reason that his brother is in service and if his income is added to consider the income of the family, the Petitioner is not eligible as per the Rules, even to make the application. The writ petition lacks merit and is dismissed. Final Result : Dismissed