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2016 DIGILAW 298 (ORI)

Sundarmani Das v. Orissa State Electricity Board

2016-04-18

S.N.PRASAD

body2016
JUDGMENT : S.N. Prasad, J. 1. This writ petition has been filed for issuance of direction upon the opposite parties to consider and dispose of the petitioner’s grievance within the period fixed by this Court. 2. The grievance of the petitioner is that her husband late Hemanta Kumar Das was working as Jr. Engineer under Orissa State Electricity Board (in short O.S.E.B.) and while working under the City Distribution Division, Ranihat, Cuttack died on 11.6.1992 leaving behind him his wife, at that time aged about 56 years and three sons and one daughter. Out of the three sons the eldest son was residing separately during the lifetime of his father. The other children, namely, Arup Kumar Das, at that time 24 years and Arun Kumar Das, 22 years at the time of filing of the writ petitioner who were unemployed and residing with the mother, hence in view of the power conferred U/s.79 of the Electricity Supply Act wherein a regulation known as O.S.E.B. Service (Rehabilitation Assistance) Regulation, 1992 has been formulated for rehabilitation of the family members of the employees who had died or has suffered from permanent disability while in the employment of the Board and whose earning capacity is up to Rs.12,000/- a year and the family has no adequate income from the immovable property to earn its livelihood, provision has been made for their appointment on compassionate ground if the candidate is found to be eligible. Accordingly, an application was filed for consideration of candidature of the second son of the deceased employee under the O.S.E.B. Service (Rehabilitation Assistance) Regulation, 1992 but in spite of the report having been submitted regarding hardship which was being faced by the family members of the deceased employee, no decision was taken, hence the petitioner has filed writ petition being O.J.C. No. 8410 of 1994 which was withdrawn on 18.4.1995 with a view to move the Board Authority to consider her case. When the petitioner has approached the Board Authority, the eldest son who was residing separately has also died and as such the family has again come to a very miserable situation which has been brought to the notice of the authority by way of repeated representations having been filed in this regard but no decision has been taken, hence this writ petition has again been filed. 3. 3. Counter affidavit has been filed on behalf of opposite parties wherein it has been stated that after commencement of Orissa Electricity Reform Act, 1995, the Orissa State Electricity Board has been ceased to exist and Grid Corporation of Orissa has come into existence with effect from 1.4.1996. By virtue of a gazette notification the O.S.E.B. Service (Rehabilitation Assistance) Regulation, 1992 has been repealed w.e.f. 29.3.1996 and as such after 29.3.1996 the petitioner is not entitled to get any consideration on the basis of O.S.E.B. Service (Rehabilitation Assistance) Regulation, 1992. It has been stated that after coming into effect of Grid Corporation of Orissa, the Grid Corporation of Orissa is not obliged under the law to grant rehabilitation assistance appointment w.e.f. 1.4.1996. Rejoinder affidavit has also been filed wherein it has been stated that other persons have been provided appointment and as such the petitioner is also entitled to be given appointment on compassionate ground. 4. Heard the learned counsels for the parties and perused the documents on record. The undisputed fact in this case is that the husband of the petitioner who was working under the Orissa State Electricity Board has died on 11.6.2992 and after his death the petitioner has made an application for providing appointment to the second son in pursuance to the O.S.E.B. Service (Rehabilitation Assistance) Regulation, 1992 and when decision has not been taken the petitioner has filed writ petition before this court being O.J.C. No. 8410 of 1994 but the same was withdrawn on 18.4.1995 with a view to move the Board Authority to consider her case. It is the case of the petitioner that when she was pursuing the matter before the Board, the eldest son of the deceased employee who was in service but living separately has also died leading to the financial position more critical which has been brought to the notice of the authorities concerned but no decision has been taken and again this second writ petition has been filed. Thus, it is evident that for the same cause of action two writ petitions have been filed, that to after withdrawal of the first writ petition with liberty to move the department. Thus, it is evident that for the same cause of action two writ petitions have been filed, that to after withdrawal of the first writ petition with liberty to move the department. There is no dispute about the fact that if an aggrieved party preferred a writ petition or any litigation before any court of law and if the same is being withdrawn with liberty to move the board or any departmental authority and on that ground second writ petition cannot said to be maintainable. This writ petition has been filed for issuance of direction upon the opposite parties to take decision on the representation which has been filed after withdrawal of writ petition being O.J.C.8410 of 1994 but that does not give any fresh cause of action to the petitioner since there is no direction having been passed by this court in the earlier round of litigation in O.J.C. No. 8410 of 1994, however the copy of the same has not been annexed, but it has been stated at paragraph 9 of the writ petition that O.J.C. No. 8410 of 1994 has been withdrawn on 18.4.1995 with a view to move the board Authority to consider her case, hence there is no direction passed by this court to consider her case, rather the petitioner on her own has withdrawn the writ petition with liberty to move the Board Authority for consideration of her case and as such when the authority has not decided, the petitioner cannot be said to have a fresh cause of action for issuance of writ in the nature of command or mandamus to direct them to take decision on the representation. In view of such a situation no positive direction can be passed in favour of the petitioner. Even otherwise also the petitioner’s grievance is against Orissa State Electricity Board, that to on the basis of O.S.E.B. Service (Rehabilitation Assistance) Regulation, 1992 which is no more in existence after 1.4.1996, i.e. after coming into effect of GRIDCO w.e.f. 1.4.1996 and as such GRIDCO cannot be said to be appropriate authority to provide appointment to the dependents of the deceased. Otherwise also the petitioner cannot be given any consideration for appointment on compassionate ground considering the fact that the husband of the petitioner had died in the year 1992 and after lapse of more than twenty four years she has made an application and as on date it is almost 24 years, hence the entire purpose for providing appointment on compassionate ground have been achieved since the very purpose of appointment on compassionate ground is to provide immediate relief to the deceased family who is in grave financial hardship due to sudden demise of the bread earner of the family. Admittedly the death has occurred in the year 1992 and if the family would survive for a period of 24 years, there is no question of providing financial relief in such a belated stage. In this connection reference may be made to 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 wherein it has been held at paragraphs 9, 10 and 13 which are being quoted herein 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 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. 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 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.” In view of such settled proposition of law and in view of the facts discussed herein above, there is no merit in this writ petition and accordingly the writ petition stand dismissed being devoid of merit.