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2014 DIGILAW 657 (ORI)

Manmathnath Das v. State of Orissa

2014-09-29

B.K.DASH, S.K.DASH

body2014
ORDER : S.K. DASH, J. Manmathnath Das, the applicant, being the son of the deceased employee i.e. late Sri Jagannath Das who died during the tenure of his service, has filed this O.A. with a prayer for a direction to the respondents to issue appointment orders in his favour as against a substantive post commensurate to his educational qualification with immediate effect under Rehabilitation Assistance Scheme (R.A.S.). 2. The background of this case is that the applicant had applied for a job under R.A. Scheme. Because of non-consideration of his Case by the competent authority he has approached this Tribunal with the prayer for giving him following relief: (i) The respondent authorities be directed to issue necessary appointment orders in favour of the applicant as against a substantive post commensurate to his educational qualification. (ii) The applicant's case may be considered at the earliest failing which one post may be kept vacant under the jurisdiction of the respondent No. 3/District Inspector of Schools, Khurda Education District, Khurda. 3. The father of the applicant late Sri Jagannath Das, while functioning as Head Pandit in Ratamati Primary School breathed his last on 27.1.1992 leaving behind his wife and son who was a minor at that point of time. The mother of the applicant intended to have her son avail the benefit of Rehabilitation Assistance Scheme when he became a major. By then she was already 46 year old and under the prevailing circumstances she could not have accepted any such appointment. 4. The applicant made an application to the competent authority in the year 2003 for appointment under R.A. Scheme and all the relevant documents such as death certificate, legal heir certificate as well as affidavit in proper format made by the applicant and his mother's no objection if the job is given to the son, were submitted alongwith application. This has not been considered for quite a long period. The applicant, therefore, submitted a representation on 23.7.2003 for consideration of his case. Subsequently the respondent vide letter No. 2225 dated 31.10.2008 directed the applicant to produce the original adoption deed through which he was adopted by late Sri Jagannath Das. It is needless to say the applicant produced the original adoption deed before the Establishment Officer, Khurda. 5. The applicant, therefore, submitted a representation on 23.7.2003 for consideration of his case. Subsequently the respondent vide letter No. 2225 dated 31.10.2008 directed the applicant to produce the original adoption deed through which he was adopted by late Sri Jagannath Das. It is needless to say the applicant produced the original adoption deed before the Establishment Officer, Khurda. 5. It was verbally intimated to the applicant by Khurda office that he cannot be extended with the benefits of R.A. Scheme since he had not been adopted prior to the death of the government employee. From this the logical act emerging forth is that till the death of Jagannath Das he had not adopted any child. His wife adopted the applicant after the death of her husband. As such the applicant was not considered as a family member of the deceased government employee in accordance with the provisions of Rule 2 (b) of the OCS (Rehabilitation Assistance) Rules, 1990. The definition of family members has been defined under the Rules in order of preference such as (i) Wife/husband, (ii) sons or step sons or son legally adopted through a registered deed, (iii) unmarried daughters and unmarried step daughters, (iv) Widow daughter or daughter-in-law residing permanently with the affected family (v) unmarried or widow sister permanently residing with the affected family and (vi) Brother of unmarried Govt. servant who was wholly dependent on such Govt. servant at the time of death. Furthermore Rule 15 envisages that the provisions of these rules shall have effect notwithstanding anything to the contrary in any other Recruitment Rules made under the proviso to Article 309 of the Constitution of India. Rule 16(i) postulates that if the State Government is satisfied that the operation of all or any provisions of these rules causes undue hardship in any particular case" it may dispense with or relax the provisions to such extent as it may consider necessary for dealing with the case in a just and Equitable manner. Such cases shall be examined in General Administration Department (G.A.) and orders of Chief Minister shall be obtained as per Rule 16(2). From the above, it emerges that the applicant was in fact adopted by the Government servant during his life time and there having no instrument to that effect that the mother of the applicant vide the deed in question did only acknowledge the completion of such adoption. From the above, it emerges that the applicant was in fact adopted by the Government servant during his life time and there having no instrument to that effect that the mother of the applicant vide the deed in question did only acknowledge the completion of such adoption. This adoption also got ratified from the certificates issued by the primary school when the applicant was admitted in the elementary class on 13.7.1989. The certificates issued in favour of the applicant on 21.2.1994 and on 18.6.2014 in a clear and unambiguous manner indicate that the deceased government servant is reflected to be the father of the. applicant during his life time also. 6. Even for the sake of argument, if it is concluded that the applicant was not adopted during the life time of the deceased employee and he was adopted by the mother after the death of the Government employee, as per Sec. 12 and 14 of the Hindu Adoptions and Maintenance Act, the son adopted by the widow becomes a son not only of the widow but also of the deceased husband. Therefore, on unequivocal terms it can be inferred that even if in certain circumstances a widow adopts a child then the child does attend the status of a family member as per the definition under Rule 2 (b) especially when there is no prohibition with regard to such adoption. . 7. In this entire matter, the only issue to be decided regarding adopted son. From various records, it emerges that the applicant was adopted by the wife of late Jaganath Dash. There is nothing wrong in the same as the applicant was adopted by the deceased Govt. employee. However, that could not be reduced in the form of document. Before that is done, Shri Jagannath Dash expired for which the adoption was done by his wife. After the death of the husband, it was the first right of the wife to get employment under Rehabilitation Assistance Scheme (R.A.S.). However, she was over-aged for any govt. service. She also belongs to the category of "pardanashin" lady as per the prevailing customary right of the locality. That being the position, the lady cannot get a job and not willing to do any job. Accordingly, it is imperative to extend such benefit to the applicant who is the only family member of the deceased govt. servant. service. She also belongs to the category of "pardanashin" lady as per the prevailing customary right of the locality. That being the position, the lady cannot get a job and not willing to do any job. Accordingly, it is imperative to extend such benefit to the applicant who is the only family member of the deceased govt. servant. So, there should not be any bar or impediment to grant such benefit to an adopted son who is validly adopted and is a family member for all practical purpose. 8. That applicant has given the death certificate of his father, the adoption deed, legal heir certificate and no objection certificate from mother for giving employment to the adopted son as he cannot be got any govt. job. These are .essential documents and nothing wrong and irregularly was detected in any of the document. The learned counsel for the applicant also relies on the decision of this Tribunal in the case of Mohinimalati Das v. State of Orissa 2002 (II) OLR (CSR) 24, wherein it has been held that in support of his claim that the legality adopted son even when adopted by the widow after the death of the deceased Government servant shall be eligible for appointment under Rehabilitation Assistance Scheme. 9. In view of the position stated above, the O.A. is allowed and the respondents are directed to appoint the applicant under Rehabilitation Assistance Scheme by providing compassionate appointment against a substantive vacant post commensurate to his qualification within a stipulated time frame i.e. three months time is given to complete all the formalities and finally appointing him under the scheme against a substantive vacant post. The O.A. is disposed of accordingly.