Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 294 (ORI)

Chandan Kumar Mania v. State of Odisha

2014-04-25

B.R.SARANGI

body2014
Judgment Dr. B.R. Sarangi, J. The petitioner has filed this petition assailing the communication dated 26.7.2012 passed by the Government in Agriculture Department under Annexure-12 series rejecting his application for compassionate appointment and further seeking for a direction to consider his case for compassionate appointment within a stipulated time. 2. The fact in nutshell is that the petitioner's father Late Bijay Kumar Mania was working as a Driver (L.V.) on regular basis under the opposite party No. 2 and during the course of his employment, in a motor accident, he died prematurely on 31.8.2005. The petitioner, who is one of the legal heirs of the deceased-employee, applied for grant of compassionate appointment under the Rehabilitation Assistance Scheme applicable to opposite party No. 2. He filed such application on 1.8.2006, i.e. within one year from the date of death of the deceased employee as per rules. The said application being not in proper form, the opposite party No. 2 by letter dated 9.3.2009 (Annexure-7) communicated a letter to the petitioner to apply in prescribed Form-A as required under Rule (1)(a) of the O.C.S. (Rehabilitation Assistance) Rules, 1990. Thereafter, the petitioner submitted his application in Form-A. On receipt of the prescribed application, the opposite party No. 2 vide letter 15.5.2009 under Annexure-8 requested the Collector and District Magistrate, Jagatsinghpur to cause enquiry regarding the financial status of the family of the deceased employee and to give a report. On the basis of the letter under Annexure-8, the Collector & District Magistrate, Jagatsinghpur caused an enquiry on the financial status of the family of the deceased employee and by letter dated 9.11.2009 communicated the distress certificate to opposite party No. 2. Thereafter, the opposite party No. 2 recommended the case of the petitioner for approval of administrative department vide letter dated 31.12.2009 under Annexure-10. Again as per the requirement of the opposite party No. 1, the petitioner submitted all the original documents for necessary verification. Since no action was taken, the petitioner moved this Court in W.P.(C) No. 21690 of 2011. On considering the said petition and after hearing the learned counsel for the parties, this Court by order dated 19.4.2012 disposed of the said writ petition directing the opposite party No. 1 to take a decision on the recommendation/proposal for appointment under the Rehabilitation Assistance Scheme within a period of two months from the date of communication of the order. On considering the said petition and after hearing the learned counsel for the parties, this Court by order dated 19.4.2012 disposed of the said writ petition directing the opposite party No. 1 to take a decision on the recommendation/proposal for appointment under the Rehabilitation Assistance Scheme within a period of two months from the date of communication of the order. Pursuant to such order of this Court, though the opposite party No. 1 rejected the claim of the petitioner on the ground that the petitioner supplied the application form seeking appointment under the scheme for the prescribed period of one year, did not communicate the same to the petitioner. Thereafter, the petitioner made necessary application under the Right to Information Act seeking information regarding the action taken in his case. In response to the said application, the opposite party No. 2 provided information under Annexure-12 series, whereby his claim for rehabilitation assistance has been rejected by the opposite party No. 1 vide letter dated 26.7.2012 on the ground that the application was filed at a very very belated stage, which is in contravention of Rule 9(6) of the Odisha Civil Services (R.A.) Rules, 1990. Challenging such rejection of his claim, the present writ petition has been filed. 3. Mr. Biswajit Mohanty-3, learned counsel for the petitioner submits that the ground on which the claim of the petitioner has been rejected is not sustainable in view of the fact as per Rule 9(6) of the Odisha Civil Services (R.A.) Rules, 1990, the petitioner made the application within one year from the date of death of the deceased employee. He further submits that because of the premature death of the deceased employee, the family is in drastic economic ruination and unless compassionate appointment is made to mitigate the immediate hardship, family will suffer irreparably. 4. Mr. K.K. Jena, learned counsel appearing for opposite party No. 2 submits that the Agriculture Department is the parent department of opposite party No. 2 and recommendation has been made for consideration for compassionate appointment, but the same has been rejected, which has only been communicated vide Annexure-1 series. Therefore, no illegality has been committed by making such communication to the opposite party No. 2 rejecting the claim of the petitioner for compassionate appointment. 5. Therefore, no illegality has been committed by making such communication to the opposite party No. 2 rejecting the claim of the petitioner for compassionate appointment. 5. Considering the contentions raised by the parties and after going through the materials available on record, it appears that the deceased employee, who was working as a driver, expired in a motor accident on 31.8.2005 and accordingly certificate of death has been issued by the competent authority vide Annexure-1 dated 6.10.2008. Apart from that the Tahasildar, Jagatsinghpur has also issued legal heirs certificate on 16.9.2005 in Misc. Case No. 245 dated 16.9.2005 under Annexure-2 indicating the legal heirs, wherein the name of the petitioner finds place at SI. No. 2. On the basis of the said documents, the petitioner made an application on 1.8.2006, under Annexure-3 to the opposite party No. 2, which is well within the limitation period as prescribed under the Odisha Civil Services (R.A.) Rules, 1990. It further appears that instead of acting upon the same, the matter was kept pending with the opposite party No. 2 for quite long time and thereafter, only, on 3.7.2008 request was made by the opposite party No. 2 to opposite party No. 1 seeking concurrence/approval of the Government. Thereafter, the opposite party No. 2 by letter dated 13.3.2009 under Annexure-7 asked the petitioner to submit application for appointment under the rehabilitation assistance scheme in the prescribed form giving all particulars, whereafter his case can be considered. In response to the said letter, the petitioner filed a fresh application in conformity with the provisions of the Odisha Civil Services (R.A.) Rules, 1990 on 1.6.2010. On receipt of the same, the opposite party No. 2 recommended his case to the Government for consideration. But the Government remained silent over the matter for long time. Thereafter, the petitioner filed W.P.(C) No. 21690 of 2011 seeking for a direction to opposite party No. 1 to consider the recommendation made by opposite party No. 2 within a stipulated period. This Court by order dated 19.6.2011 disposed of the said writ petition directing the opposite party No. 1 to take a decision on the recommendation/proposal for appointment under the Rehabilitation Assistance Scheme within a period of two months from the date of communication of the order. This Court by order dated 19.6.2011 disposed of the said writ petition directing the opposite party No. 1 to take a decision on the recommendation/proposal for appointment under the Rehabilitation Assistance Scheme within a period of two months from the date of communication of the order. In response to the same, the Government has passed the order on 26.7.2012 rejecting the claim of the petitioner for rehabilitation assistance since the application was filed at a very belated stage, which contravenes the provisions of Odisha Civil Services (R.A.) Rules, 1990 as amended from time to time and also in the view of the judgment of the apex Court passed in Civil Appeal No. 7243 of 2010 arising out of SLP (Civil) No. 12636 of 2006 (Nanda Kishore v. State of Uttarpradesh and others), but such communication has not been made the petitioner at any point of time. But when the petitioner sought for information from opposite party No. 2 under the Right to Information Act, 2005, the opposite party No. 2 has enclosed the order of the State Government rejecting the proposal for appointment of the petitioner under the Rehabilitation Assistance Scheme. As such, there is no decision by the opposite party No. 2 rejecting the claim of the petitioner for compassionate appointment. Therefore, the reasons assigned by the Government in rejecting the proposal submitted by opposite party No. 2 is not justified in view of the fact that the opposite party No. 2 in its letter dated 13.3.2009 under. Annexure-7 referring to the petitioner's application dated 1.8.2006 asked the petitioner to submit prescribed application as per the provisions contained in Rule 8(1)(a) of the Odisha Civil Services (R.A.) Rules, 1990 giving all particulars, which has been complied with by the petitioner in due time. Therefore, the application having been filed in terms of the said Rules, 1990, the same should have been considered in proper perspective. 6. The apex Court in Balbir Kaur and another v. Steel Authority of India and others, AIR 2000 SC 1596 held that compassionate appointment benefit cannot be negatived on the ground of introduction of scheme assuring monthly income to disabled employee or dependants of deceased employee. 6. The apex Court in Balbir Kaur and another v. Steel Authority of India and others, AIR 2000 SC 1596 held that compassionate appointment benefit cannot be negatived on the ground of introduction of scheme assuring monthly income to disabled employee or dependants of deceased employee. The petitioner's claim for compassionate appointment to mitigate the sudden jerk of the family by reason of death of bread earner by taking some plea or other to deprive the legitimate claim for providing compassionate appointment and that itself amounts to violation of Article 21 of the Constitution. The apex Court further held that right to live in dignity being the facet of right to life, the authorities cannot reject the application on flimsy ground. This Court in Dhira Kumar Parida v. Mahanadi Coalfields Ltd. {W.P. (C) No. 1608 of 2005 disposed of on 11.4.2014} held that any other mode of benefit will not give solace to the family, rather compassionate appointment will give adequate sustenance for the survival of the family on the death of the bread earner. 7. That apart, taking into consideration the distress condition of the petitioner, the opposite party No. 2 has also recommended the case of the petitioner to the Government for approval. Therefore, the rejection of the application by the State Government on the ground that it is a belated application, has absolutely no basis for the foregoing reasons and it is not proper on the part of the State Government to simply throwaway the application of the petitioner on technical ground. At the same time, the opposite party No. 2 has not discharged his duty properly by sitting over the matter without communicating the decision on the recommendation made by it. Furthermore, the reasons assigned in the Government order relying upon the judgment of the apex Court that it is a belated application, cannot be sustained. This is not a case where such situation has arisen for consideration. Therefore, the order passed by the apex Court referred to by the Government is not applicable to the present case since in that case the application for rehabilitation appointment was made after five years of the death of the deceased. 8. In view of the foregoing reasons, the impugned letter dated 22.8.2012 as well as the Government order dated 26.7.2012 under Annexure-12 series are hereby set aside. 8. In view of the foregoing reasons, the impugned letter dated 22.8.2012 as well as the Government order dated 26.7.2012 under Annexure-12 series are hereby set aside. Opposite parties 1 and 2 are directed to reconsider the application of the petitioner for compassionate appointment afresh in proper perspective in consonance with Rules within a period of three months from the date of communication of this order. 9. Let a copy of this judgment along with a copy of the writ petition be communicated to opposite parties 1 and 2, who shall act upon the same. Requisites for communication of this order shall be filed within a week. 10. With the aforesaid observation and direction, the writ petition is disposed of. No cost. Petition disposed of.