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2016 DIGILAW 1220 (ORI)

AJIT KUMAR BEHERA v. STATE OF ORISSA

2016-12-08

S.N.PRASAD, SANJU PANDA

body2016
JUDGMENT : Sri. S.N. Prasad, J. - The petitioner being aggrieved with the order dated 20.3.2004 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No. 1676 of 2002 is before this Court by which the relief sought for by the petitioner for his appointment on compassionate ground under the Rehabilitation Assistance Scheme has been rejected. 2. The brief fact of the case of the petitioner is that he being the 4th son of Late Dandapani Behera, who while serving as peon had died in harness on 19.9.1993. The petitioner being the 4th son had made an application for getting appointment on compassionate ground under the provisions of the Rehabilitation Assistance Scheme. The matter was examined by different functionaries of the State posted in the district and submitted a report on 22.6.1996, but when no action was taken, the petitioner filed one Original Application being O.A. No. 2525 of 1997, which was disposed of vide order dated 10.11.2001 directing the authorities to consider the case of the petitioner for appointment in Class-IV post under the Rehabilitation Assistance Scheme. In pursuance to the aforesaid order of the learned Tribunal, the Tahasildar Berhampur has issued a letter on 14.1.2002 and thereafter inquiry was conducted for ascertaining the annual income of the family members of the deceased employee and it was found that the total income of the deceased family from all sources was Rs.53,004/- during the year 1995 and on that basis the authorities have passed order holding the petitioner not entitled to get the benefit under the Rehabilitation Assistance Scheme vide order passed in this regard on 26.4.2002. The petitioner being aggrieved with the said order, has again approached the Orissa Administrative Tribunal vide O.A. No. 1676 of 2002, which is the subject matter in the present writ petition, but the claim of the petitioner has been rejected. The petitioner has filed the present writ petition on the ground that the authorities while rejecting his claim has not taken into consideration the provisions of Rehabilitation Assistance Scheme, which has been formulated to give immediate relief to the distress family, but without taking into consideration, the claim of the petitioner has been rejected merely on the ground of financial viability. 3. 3. Learned counsel representing the opposite party-State vehemently opposed the prayer made on behalf of the petitioner and has submitted that the petitioner is not entitled to get the benefit of Rehabilitation Assistance Scheme for the reason that the appointment on compassionate ground cannot be made the alternative way to get appointment by snatching the right of legitimate candidate, who is to get appointment by participating in a regular recruitment process by following the principle of Article 16 of the Constitution of India. He submits that the State has formulated Rehabilitation Assistance Scheme to provide immediate relief to the distress family so that the bereaved family may not face hardship in getting bread and butter due to the sudden demise of the bread earner. He submits that the authorities have examined the financial viability of the deceased family to ascertain whether the family of the deceased employee is in need of appointment by way of mercy and in course of examination, it was found that the family of the deceased employee was financially viable and hence, came to the conclusion that the family does not require help under the provisions of the Rehabilitation Assistance Scheme and accordingly, rejected the claim of the petitioner. 4. Heard the learned counsel for the parties and perused the documents available on record. 5. There is no dispute about the fact that the State Government has come up with Rehabilitation Assistance Scheme for providing appointment on compassionate ground for the dependent of the deceased employee to provide immediate relief due to the sudden demise of the bread earner. It is also not in dispute that the appointment on compassionate ground cannot be made as an alternative way to get appointment, since the appointment on compassionate ground is in the teeth of the provision of Article 16 of the Constitution of India and it cannot be given in a routine manner by snatching the right of the other legitimate candidate, who in spite of merit, is being deprived for getting the chance for consideration. It is also not in dispute that while giving appointment on compassionate ground, the financial viability is also to be seen in order to ascertain as to whether the dependent of the deceased employee is in a position to survive from the available means or not, if not, then certainly the appointment is to be provided and if yes, then certainly appointment should not have been given, and that is the spirit of the appointment to be provided under the Rehabilitation Assistance Scheme. In this respect, reference may be made to the judgment of 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. 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 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." 6. In the case of Life Insurance Corporation of India v. 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. 7. Further in the case of General Manager(D&PB) and others v. 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. 8. In another judgment of the Hon'ble Supreme Court in the case of Union of India and another v. Shashank Goswami and another, reported in (2012) 11 SCC 307 it has been held at paragraphs 9,10 and 13 which are being quoted here-in-below 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. 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 Yunus Mulani (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 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." 9. In the light of the aforesaid settled proposition of law, the fact of the case is that after the death of the father of the petitioner in the year 1993, he made an application for compassionate appointment and in course of consideration of the said application, it was found that the income of the family members from all sources was quite good and simultaneously it was found that two brothers of the petitioners were working as Junior Clerks and J.C. Amin on the date of death of deceased Govt. servant and the widow is in receipt of family pension and as such, the dependents of the deceased employee were in such a financial position that there is no likelihood of sustenance of life in absence of means to earn bread and butter. Taking into consideration this aspect of the matter, the claim of the petitioner has been rejected. In view of the settled proposition that compassionate appointment cannot be made as an alternative way to get appointment by snatching the right of others, but simultaneously the distress of the deceased family is also to be seen and balance is to be made, if the dependent of the deceased family is in a position to sustain their life, then there is no requirement of providing appointment on compassionate ground and taking into consideration this principle, we gathered from the record that two sons of the deceased employee were in Govt. service and the widow is also getting family pension, hence, the decision of the authorities in not appointing the petitioner on compassionate ground cannot be said to be not just and proper. Moreover, we are in the end of the year 2016 and the death occurred in the year 1993 and as such, almost 23 years have already elapsed and when the family is surviving for such a long period, there is no need to show any compassion towards them. 10. In view of the foregoing reasons, we find no reason to interfere with the writ petition. Accordingly, the writ petition stands closed.