Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 1177 (ORI)

State of Orissa v. Rabindranath Samal

2016-12-01

SANJU PANDA, SUJIT NARAYAN PRASAD

body2016
JUDGMENT : S.N. Prasad, J. The order dated 17.06.1999 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in Original Application No.1200(C) of 1989 has been assailed by the State of Orissa, whereby and whereunder the learned Tribunal while allowing the Original Application directed the authorities to provide appointment to opposite party no.1 on compassionate ground. 2. The brief fact of the case, in brief, is that his father Late Sudhansu Sekhar Samal, who was working as a Peon in the office of the Block Development Officer, Nuapada, petitioner no.3 herein, expired on 18.11.1984 while in service and at that time, opposite party no.1 was only 7 year old. Opposite party no.1 after attaining majority in the year 1995 submitted an application before the Block Development Officer, Nuagaon for giving him appointment in Class-IV post on compassionate ground under the provisions of the Rehabilitation Assistance Scheme floated by the State Government. 3. The main ground taken by the petitioner, State of Orissa is that under the Scheme there is no provision to maintain a live roster, i.e. no appointment can be provided to the dependent of the deceased employee if he is minor at the time of his death and further no appointment on compassionate ground can also be given after lapse of a fairly long period, which is contrary to the spirit of providing appointment on compassionate ground, but without taking into consideration these aspects of the matter, the learned Tribunal has passed an order directing the State authorities to provide him appointment on compassionate ground. 4. Opposite party no.1 has appeared and filed a detailed counter affidavit stating therein that he is entitled to get appointment on compassionate ground under the provisions of Rehabilitation Assistance Scheme. The competent authorities had recommended his case but the same has not been given effect to and as such, he has filed an application before the learned Tribunal. Taking into consideration his grievance, the learned Tribunal has passed the impugned order directing the authorities to engage him on compassionate ground. 5. We have heard the learned counsel for the parties and perused the documents available on record. 6. Taking into consideration his grievance, the learned Tribunal has passed the impugned order directing the authorities to engage him on compassionate ground. 5. We have heard the learned counsel for the parties and perused the documents available on record. 6. Before appreciating the argument advanced on behalf of the parties, it is relevant to have a discussion regarding the provision of Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 and on a bare perusal, we find that there is no provision to maintain a live roster. Keeping one post reserved for the dependent of the deceased employee awaiting his majority. We have further found from the Rehabilitation Assistance Rules that the State has formulated a scheme to provide appointment on compassionate ground taking into consideration the objective to provide succor from the immediate distress due to death of the sole bread earner. The word “immediate distress” is of paramount consideration and that is the spirit of providing appointment on compassionate ground under the Rehabilitation Assistance Scheme, meaning thereby if the immediate relief will not be provided, the whole purpose of providing appointment on compassionate ground will be frustrated for the simple reason that when the dependents of the deceased employee could be able to sustain their live fairly for a long period, then after sustaining for substantial period providing appointment on compassionate ground would have got no meaning. In this respect, it is relevant to refer to the judgment rendered by the Hon’ble Supreme Court in the case of Umesh Kumar Nagpal v State of Haryana and others, reported in (1994)4 SCC 138 wherein their Lordships have been pleased to observe as follows: “As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of 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 post held by the deceased. What is further, 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 condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family.” 7. In the case of Life Insurance Corporation of India vs Asha Ramchandra Ambekar(Mrs) and another, reported in (1994)2 SCC 718 it has been held that courts cannot order appointment on compassionate grounds dehors the provisions of statutory regulations and instructions. 8. Further in the case of General Manager(D&PB) and others –vs- Kunti Tiwary and another, reported in (2004)7 SCC 271 the Hon’ble Supreme Court has held that criteria of penury is to be applied only in case of condition of the petitioner who is without any means of livelihood and living hand to mouth that compassionate appointment was required to be accorded. 9. In another judgment of the Hon’ble Supreme Court in the case of Union of India and another vs Shashank Goswami and another, reported in (2012) 11 SCC 307 it has been held at paragraphs 9, 10 and 13 which are being quoted hereinbelow for ready reference. “9. 9. In another judgment of the Hon’ble Supreme Court in the case of Union of India and another vs Shashank Goswami and another, reported in (2012) 11 SCC 307 it has been held at paragraphs 9, 10 and 13 which are being quoted hereinbelow for ready reference. “9. There can be no quarrel to the settled legal proposition that the claim for appointment on compassionate ground is based on the premises that the applicant was dependent on the deceased employee. Strictly, such a claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and 10 dies while in service. Appointment on compassionate ground cannot be claimed as a matter of right. 10. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. Thus, applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. 13. In Mumtaz YunusMulani (Smt.) v. State of Maharashtra & Ors., (2008) 11 SCC 384 , this Court examined the scope of employment on compassionate ground in a similar scheme making the dependant of an employee ineligible for the post in case the family receives terminal/ retiral benefits above the sealing limit and held that the judgment in Govind Prakash (supra) had been decided without considering earlier judgments which were binding on the Bench. The Court further held that that the appointment has to be made considering the terms of the scheme and in case the scheme lays down a criterion that if the family of the deceased employee gets a particular amount as retiral/terminal benefits, dependent of the deceased employee would not be eligible for employment on compassionate grounds.” 10. It is evident from the aforesaid judgments that the principle of granting appointment on compassionate ground is to provide immediate succor to the bereaved family in order to able to sustain their life. In the instant case, the admitted position is that the father of opposite party no.1 has died while in service on 18.11.1984 and at that time opposite party no.1 was only 7 years old. Further, the age of opposite party no.1 has been disputed by the petitioner stating that he was only one year old at that time. Be that as it may, the admitted position is that at the time of death of his father, he was minor. Opposite party no.1 made an application for getting appointment on compassionate appointment in August, 1998, i.e. after lapse of 14 years from the date of death of his father. His application was forwarded for conducting inquiry. Taking into consideration this aspect of the matter, the learned Tribunal has directed to complete the exercise in order to provide him appointment. Learned Tribunal while passing the order has not taken into consideration the settled position of law for providing appointment on compassionate ground, which is admittedly in the teeth of Article 16 of the Constitution of India and directed the authorities to complete the exercise in order to provide appointment. As has been settled that appointment on compassionate ground is to be given immediately for the simple reason that the bereaved family requires monetary help immediately due to the sudden demise of the bread earner and if during the relevant time it has not been provided and the family has survived, then there is no purpose of providing appointment on compassionate ground by snatching a right of the legitimate candidate. This aspect of the matter has not been taken into consideration by the learned Tribunal as also the Tribunal has also not taken note that there is no provision in the Rehabilitation Assistance Rules regarding a provision for live roster. 11. This aspect of the matter has not been taken into consideration by the learned Tribunal as also the Tribunal has also not taken note that there is no provision in the Rehabilitation Assistance Rules regarding a provision for live roster. 11. In the entirety of the facts and circumstances and as per the discussions made hereinabove, we are of the conscious opinion that the learned Tribunal has passed the impugned order contrary to the settled proposition of law. Accordingly, the same is not sustainable. Hence, the impugned order dated 17.06.1999 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in Original Application No.1200(C) of 1989 is set aside. 12. The writ application is accordingly allowed.