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2009 DIGILAW 85 (ORI)

PRANAB RANJAN BHUYAN v. STATE OF ORISSA

2009-01-30

P.K.TRIPATHY, R.N.BISWAL

body2009
JUDGMENT : R.N. Biswal, J. - The Petitioner has filed this Writ Petition to quash Annexure 3 and to issue a direction to the Opp.Parties to appoint him under the Rehabilitation Assistance Scheme. As per the Writ Petition the father of the Petitioner, namely, Panchanan Bhuyan while working as the Headmaster of Bhagbanpur L.P. School died in harness about 12 years earlier of the date of his superannuation. At the time of his death the Petitioner was only one year old. After attaining majority, he applied to the authorities paying for employment under the Rehabilitation Assistance Scheme. Since the same was not considered, he approached this Court in O.J.C. No. 13890 of 1997, which was disposed of with a direction to the Opp. Parties to consider his application. The prayer having rejected, once again the Petitioner approached this Court in O.J.C.No.2374 of 1999 wherein this Court directed the Opp. Parties to reconsider the case of the Petitioner in terms of Sub-rule 8 of Rule 9 and Rule 11 of the Orissa Civil Services (Rehabilitation Assistance) Rules 1990. After reconsideration, the Director, Elementary Education, Orissa, rejected the prayer of the Petitioner vide Annexure-3. Under such circumstances the Petitioner has filed the present Writ Petition with the prayer to quash Annexure-3 and to direct the Opp. Parties to appoint him under Rehabilitation Assistance Scheme as stated earlier. 2. Opp. Parties 1 and 2 in their joint counter affidavit stated that the Government in erstwhile Education and Youth Services Department in their Resolution No. 20306/EYS dated 20.5.1985 decided that Rehabilitation Assistance may be made available to a member of the family of the deceased or permanently disabled, non-Government primary School Teachers, subject to certain conditions vide Annexure A/2. The Orissa Civil Services (Rehabilitation Assistance) Rules 1990 came into operation with effect from 24.9.1990. As per Rule (2), the provisions of the Rules have been made applicable with effect from 24.9.1990 to the family members of Govt. Primary school and non-Govt. primary school teachers and teachers of aided Institutions under the Education and Youth Services Department. The father of the Petitioner, late Panchanan Bhuyan died on 17.3.1978, while working as a non-Govt primary school teacher, by which time Orissa Civil Service (Rehabilitation Assistance) Rules (hereinafter called 'the 1990 Rules') had not seen the light of the day. Primary school and non-Govt. primary school teachers and teachers of aided Institutions under the Education and Youth Services Department. The father of the Petitioner, late Panchanan Bhuyan died on 17.3.1978, while working as a non-Govt primary school teacher, by which time Orissa Civil Service (Rehabilitation Assistance) Rules (hereinafter called 'the 1990 Rules') had not seen the light of the day. The Govt, in their erstwhile Education and Youth Services Department introduced the Rehabilitation Assistance Scheme for non-Government Primary Schoolteachers with effect from 20.5.1985. So, the Petitioner is not entitled to get employment under the Rehabilitation Assistance Scheme and that the Director Elementary Education Orissa rightly rejected the prayer of the Petitioner under Annexure-3. So, the Learned Addl. Standing Counsel prayed to dismiss the Writ Petition. 3. Opp. Parties 3 and 4 did not prefer to file any counter affidavit. Learned Counsel appearing for the Petitioner submitted that Rule 11 of the 1990 Rules specifically lays down that the facilities provided under the said Rules would, mutatis mutandis, be applicable to the families of non-Govt. primary school teachers and teachers of aided institutions under the Education and Youth Services Department. As per the Resolution dated 20.5.1985 of the Government in Education and Youth Services Department one of the family members of the deceased or permanently disabled non-Government Primary School teacher who dies or suffers permanent incapacitation while in service be eligible for appointment to Class-Ill or Class-IV post under the Govt., including a post of primary school teacher and teacher of aided institution as the case may be; Sub-rule 7 of Rule 9 further stipulates that if at the time of death or invalid retirement of an employee, there was a ward who was minor and who alone was available for employment, he/she would apply for a job under these Rules as soon as he/she attained the age of eighteen years and in no case beyond one year, from such date. In the present case, the Petitioner applied for employment within one year of his attaining majority. As per Sub-rule 8 of Rule 9, such assistance would not be available to the family of Govt. Servant, who died or retired before issue of Labour and Employment Department Resolution No. 17188 dated 9.9.1976. In the present case, the Petitioner applied for employment within one year of his attaining majority. As per Sub-rule 8 of Rule 9, such assistance would not be available to the family of Govt. Servant, who died or retired before issue of Labour and Employment Department Resolution No. 17188 dated 9.9.1976. Since the father of the Petitioner expired in the year 1978-two years after the said resolution, according to the Learned Counsel for the Petitioner, the Petitioner is entitled to get employment. 4. On the contrary, Learned Addl. Standing Counsel submitted that Resolution No. 1788 dated 9.9.1976 of the Government in Labour and Employment Department did not cover the case of the employees of non-Govt. primary schools. According to him, only in the year 1985 Government in erstwhile Education and Youth Services Department in their Resolution No. 20306/EYS dated 20.5.1985 decided that Rehabilitation Assistance would be made available to a member of the family of the deceased or permanent disabled non-Govt. primary school teacher who dies or suffers from permanent incapacitation while in service subject to certain conditions. Since the father of the Petitioner expired in the year 1978, much prior to commencement of 1985 Resolution, the Petitioner is not entitled to get employment under the Rehabilitation Assistance Scheme. Accordingly the Learned Addl. Standing Counsel prayed to dismiss the Writ Petition. 5. There is no dispute that the facilities provided under the 1990 Rules was extended mutatis mutandis to the non-Govt. primary school teachers and teachers of aided institutions under the Education and Youth Services Department. As per Sub-rule 8 of Rule 9, no rehabilitation assistance would be made available to the family of Govt. servants who died or retired before issue of Labour and Employment Department Resolution No. 17188 dated 9.9.1976 in respect of posts which were filled up by reference to the Employment Exchange. The Government in Labour, Employment and Housing Department in their Resolution No. 19479- dated 19th November, 1975 laid down that all vacancies whether permanent, temporary, casual or work-charged, to be filled otherwise than in consultation with the Public Service Commission or on the basis of competitive examinations prescribed under any statutory rules, must be notified to the local Employment Exchange. While reporting the vacancies, the appointing authority should report the number of such vacancies, the qualifications prescribed for filling them and reservations, if any, in respect of Scheduled Castes, Tribes, etc. While reporting the vacancies, the appointing authority should report the number of such vacancies, the qualifications prescribed for filling them and reservations, if any, in respect of Scheduled Castes, Tribes, etc. The probable date of interviewing the candidates should also be indicated, as far as possible, to facilitate timely pre-submission screening by the Employment Exchange wherever necessary. The Employment Exchange shall submit nominations, or if suitable candidates are not available, a non-availability certificate, within three weeks of the receipt of requisition from the appointing authority. Recruitment should be made only from among the candidates sponsored by the Employment Exchange. As per this regulation, unless the name of a candidate is sponsored by the Employment Exchange, the employer cannot give him appointment, even if it is on the basis of Rehabilitation Assistance Scheme. In other words, unless the name of a family member of the deceased or permanently disabled employee is sponsored by Employment Exchange he/she can not be given employment on Rehabilitation Assistant. So to get over the difficulty in providing Rehabilitation Assistance to the families of the employees, who died or suffered permanent incapacitation while in service, the Government in Labour, Employment and Housing Department vide Resolution dated 9.9.76 laid down that notwithstanding the instructions contained in Resolution No. 19479- L.E.H. dated the 19th November, 1975, the appointing authorities would be competent to give employment to a member of the family of an employee who suffered death or permanent incapacitation, while in service, irrespective of whether the name of the candidate is sponsored by the Employment Exchange. But at the time of notifying the vacancies, the employer should clearly mention that since the vacancy is proposed to be filled by a member of the family of the deceased/permanently disabled employee whose disability occurred while in service, sponsoring action by the Employment Exchange is not necessary. 6. Sub-section 8, Rule 9 of 1990 Rules reads as follows: The assistance shall not be available to the families of Government servant who died or retired before issue of Labour and Employment Department Resolution No. 17188, dated the 9th September 1976, in respect of posts which are filled up by reference to the Employment Exchange;... As per the 1975 Resolution the appointing authorities were duty bound to notify the vacancies to the Employment Exchange and select the candidates sponsored by it (Employment Exchange). As per the 1975 Resolution the appointing authorities were duty bound to notify the vacancies to the Employment Exchange and select the candidates sponsored by it (Employment Exchange). Deviation was made in respect thereof in 1976 Resolution, wherein it was laid down that notwithstanding the instructions contained in 1975 Resolution appointing authorities would be competent to give employment to a member of the family of a deceased or permanently disabled employee, who suffers such disability while in the service of the employer in question, whether or not the name of the candidate is sponsored by the Employment Exchange. In other words after 1976 Resolution, employment on Rehabilitation Assistance can be given to the families of the Government servants who died or suffered permanent incapacitation while in service, even if the name of the candidate is not sponsored by the Employment Exchange. But it does not cover the case of non-Government Primary School teachers. As per Sub-rule 8, Rule 9 of 1990 Rules, as quoted earlier the posts which have already been filled up by reference to the Employment Exchange, before issue of Labour and Employment Department Resolution.No.17188 dated the 9th September, 1976, those posts cannot be available to be filled up under Rehabilitation Assistance Scheme. Resolution of the Govt. in Education and Youth Service Department No. 20306 dated 20.5.1985 specifically deals with rehabilitation assistance to the families of non-Govt. primary school teachers under the Education and Youth Services Department, who died or suffered from permanent incapacitation while in service. Since the father of the Petitioner expired in harness in the year 1978, the said resolution would not be applicable to his case and accordingly the Director, Elementary Education, Orissa rightly rejected the prayer of the Petitioner, seeking employment under the Rehabilitation Assistance Scheme, vide Annexure-3. In view of the discussions made above, the Writ Petition, being devoid of merit, stands dismissed. No cost. P.K. Tripathy, J. I agree. Final Result : Dismissed