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2017 DIGILAW 1254 (ORI)

Jayanti Samal v. N. T. P. C. Ltd. O. S. E. B.

2017-11-03

S.N.PRASAD

body2017
JUDGMENT S.N. PRASAD, J. - In these batch of writ petitions, common question has been raised which pertains to the grievance of the petitioners to provide appointment on compassionate ground and as such the same has been directed to be heard together and accordingly heard together and are being disposed of by this common order. The relief sought for in these batch writ petitions is to quash the order passed by the National Thermal Power Corporation (in short ‘NTPC’) whereby and where under the claim of the petitioners have been rejected to appoint them on compassionate ground under Rehabilitation Assistance Scheme and in consequent upon the same to provide appointment under the provision of the Scheme forthwith. 2. Brief facts of the case of the petitioners in all these cases are that the fathers of the petitioners were working under the erstwhile Orissa State Electricity Board (in short ‘OSEB’). The State Government has come out with the Orissa Electricity (Reforms) Act, 1995, whereby and where under the OSEB has been ceased to exist and in its place the Grid Corporation of Orissa Ltd. has come into existence w.e.f. 1.4.1996. The services of the deceased employees were taken over by the State Government and subsequently transferred to the N.T.P.C. w.e.f. 3.6.1995 and while working the employees had died in harness. The dependants of the bereaved family has made application under the provision of the Rehabilitation Assistance Scheme to provide appointment in their favour but the same has been rejected by the NTPC which is under challenge in these writ petitions. The petitioners have taken ground that the provisions of the Scheme was in existence wherein there is provision under Condition No. 11 to provide appointment to the dependant of the deceased employee and as such the Rehabilitation Assistance Scheme, 1990 having been adopted by the OSEB by incorporating it in the name of Orissa State Electricity Board Services (Rehabilitation Assistance)Regulations, 1992 and as such after the Transformation Act, 1995, whatever the provisions was existing with the erstwhile Board will ipso facto came into being in the transferee company, hence the provision of the Section 11 of the Orissa State Electricity Board Service (Rehabilitation Assistance) Regulations, 1992 will be applicable but the authorities while rejecting the claim of the petitioners, has not considered this aspect of the matter, hence these writ petitions. 3. 3. The opposite party-NTPC has filed counter affidavit and contested the case by filing detail counter affidavit wherein inter alia the ground has been taken that due to commencement of the Orissa Electricity (Reforms) Act, 1995, OSEB has been ceased to exist and in its place the GRIDCO has come into existence w.e.f. 1.4.1996 and as per the Orissa Electricity Reform Act, 1995, the GRIDCO has only liability to take over the personnel and liabilities of erstwhile OSEB as on 1.4.1996. The contention has been raised therein that upon operation of the Talcher Thermal Power Station (Acquisition and Transfer) Act, 1994, the services of the deceased employees were taken over by the Government and subsequently transferred to the NTPC. w.e.f. 3.6.1995 and under that establishment the services of the deceased employees have been placed and while working there, they have died. It has been contended that due to commencement of the Orissa Electricity (Reforms) Act, 1995, the OSEB has been ceased to exist and further by Notification published in the Official Gazette, the OSEB Service (Rehabilitation Assistance) Regulations, 1992 (hereinafter referred to as the Regulation, 1992) has been repealed w.e.f. 29.03.1996, the GRIDCO has come into existence only w.e.f. 1.4.1996, thereby by the Regulation, 1992 was not in force while the GRIDCO took over the assets and business of erstwhile OSEB. In view of such position, the opposite party No. 2 is not liable to entertain the claim of the petitioners. 4. The opposite party no. 1 has filed another counter affidavit, wherein it has been stated that the NTPC is a Govt. of India undertaking and the management of Talcher Super Thermal Power Station which was earlier owned and managed by the erstwhile OSEB was acquired and transferred to NTPC, pursuant to promulgation of T.T.P.S. (Acquisition & Transfer) Act, 1994. As per the provision made under Section 3 of the aforesaid Act, the power station and right, title and interest of the Board in relation thereto stood transferred and vested in the State Government on the appointed day i.e. 3.6.1995 and in terms of Section 5 of the said Act w.e.f. 3.6.1995, the right, title and interest of the said power station stood vested in the Corporation free from all encumbrances and the Corporation became the owner of the power station. Chapter-5 of the aforesaid Act deals with the provision relating to employees of the power station. Chapter-5 of the aforesaid Act deals with the provision relating to employees of the power station. In terms of Section 10 of the said Act, the employees on the rolls of the power station on the date of vesting stood absorbed in the services of the N.T.P.C. with a view to achieve better productivity and efficiency subject to the conditions of re-deployment of those employees in T.S.T.P.S. or any other project or Power Station belonging to NTPC. The Section 11 provides the terms and conditions of services of the employees of Power Station not to be varied to their disadvantage. It has been submitted on the strength of the Chapter-5 of the statue that there is no provision in the aforesaid Act relating to claim for any such rehabilitation/compassionate appointment and in absence thereof, neither the NTPC nor the opposite party no. 1 are authorized to consider any such claim relating to rehabilitation/compassionate appointment in the said Power Station. It is, thus, stated by the opposite parties that the claim raised by the petitioners in nothing but misconceived, as such the writ petitions are not fit to be allowed. 5. Heard the learned counsel for the parties and on appreciation of the rival submission, it is evident that the petitioners are claiming appointment on compassionate ground under the Rehabilitation Assistance Scheme made effective by the OSEB. This Court has thought it proper before going into the factual aspects of the matter to deal with certain legal position which is necessary for proper adjudication of this case. 6. In the State of Orissa, there was Orissa State Electricity Board in which the deceased employees had been engaged. The State Government has come out with Orissa Electricity (Reforms) Act, 1995, whereby and where under the OSEB has been ceased to exist and in its place the GRIDCO has come into existence w.e.f. 1.4.1996. 7. It is evident from the provision as contained in Orissa Electricity (Reforms) Act, 1995 that the GRIDCO has only liability to take over the personnel’s and liabilities of the erstwhile OSEB as on 1.4.1996. The other provision has been made by way of enacting and Act known as TTPS (Acquisition and Transfer) Act, 1994 whereby and where under the service of the persons working under the TTPS has been transferred to the NTPC w.e.f. 3.6.1995. The other provision has been made by way of enacting and Act known as TTPS (Acquisition and Transfer) Act, 1994 whereby and where under the service of the persons working under the TTPS has been transferred to the NTPC w.e.f. 3.6.1995. The provision of the TTPS (Acquisition and Transfer) Act, 1994 provides the provision under Section 3 containing therein that the Power Station, right title and interest of the OSEB in relation thereto stood transferred and vested in the State Government on the appointed day i.e. 3.6.1995 and in terms of Section 5 of the said Act, the right, title and interest of the said Power Station stood vested in the Corporation free from all encumbrances and the Corporation became the owner of the power station w.e.f. 3.6.1995. It is evident from the Chapter-5 of the aforesaid Act deals with the provisions relating to employees of the Power Station. In terms of Section -10 of the Act, the employees on the rolls of the power station on the date of vesting stood absorbed in the services of the NTPC. Section-11 provides the terms and conditions of services of the employees of the Power Station not to be varied to their disadvantage. 8. It is also necessary to refer herein that the OSEB Service (Rehabilitation Assistance) Regulations, 1992 has been promulgated by the State Government providing therein the provision to provide appointment on compassionate ground under the provision of Section 11, but the same has been repealed w.e.f. 29.03.1996. In this legal background, the case of the petitioners is to be assessed as to whether they are entitled to be considered for engagement on compassionate ground or not? 9. The petitioners, who are the dependants of the deceased employees, who has been appointed under erstwhile OSEB and subsequently by virtue of the provision of the Orissa Electricity (Reforms) Act, 1995, their services have come under the GRIDCO and services of some of the employees who were working under the TTPS has come under the NTPC. 9. The petitioners, who are the dependants of the deceased employees, who has been appointed under erstwhile OSEB and subsequently by virtue of the provision of the Orissa Electricity (Reforms) Act, 1995, their services have come under the GRIDCO and services of some of the employees who were working under the TTPS has come under the NTPC. The dependants who are the petitioners herein, have made applications for consideration of their cases for appointment on compassionate ground as per the regulation known as OSEB Service (Rehabilitation Assistance) Regulations, 1992, wherein the provision has been made to provide appointment to the dependant of the deceased employees which has been rejected by the opposite parties on the ground that there is no such provision to provide appointment on compassionate ground. The claim of the petitioners is that the provision to provide appointment on compassionate ground as provided under the OSEB Service (Rehabilitation Assistance) Regulations, 1992 has held mutatis and mutandis applicable in other establishment and as such considering the provision to provide appointment on compassionate ground, since the provision of the OSEB Service (Rehabilitation Assistance) Regulations, 1992 is applicable to the GRIDCO and also the NTPC and since the deceased employees who were the employees of the erstwhile OSEB and hence they will be entitled for appointment on compassionate ground on account of death of their bread earners. 10. It is not in dispute that the OSEB has been decided to be ceased and in its place the GRIDCO has come into existence with effect from the promulgation of the Orissa Electricity (Reforms) Act, 1995. It is also not in dispute that after coming into effect of the Orissa Electricity (Reforms) Act, 1995, the GRIDCO of Orissa has been constituted w.e.f. 1.4.1996. It is also not in dispute that after coming into effect of the Orissa Electricity (Reforms) Act, 1995, the GRIDCO of Orissa has been constituted w.e.f. 1.4.1996. The Orissa Civil Services (Rehabilitation Assistance) Rules, 1990 has been enacted upon, wherein there is provision to provide appointment on compassionate ground and under the said provision, there is a provisions under Rule 11 which provides with applicability of the provision of Rules, 1990 to OSEB but the provision of Rule 11 of the Orissa Civil Services (Rehabilitation Assistance) Rules, 1990 has been repealed by virtue of the notification dated 7.10.1998, meaning thereby the applicability of the provision of the Orissa Civil Services (Rehabilitation Assistance) Scheme, 1990 is no more applicable with respect to other establishment of the State Government since the said provision was enacted upon making the provision of Orissa Civil Services (Rehabilitation Assistance) Scheme, 1990 applicable to all non-government private schools, aided educational institutions under the Education Department, the work-charged and NMR/DLR employees working under the Public Sector Undertakings of the State Government. This Court has also taken note of the fact that even though the provision of Rule 11 of the Orissa Civil Services (Rehabilitation Assistance) Rules, 1990 has been repealed by virtue of the Notification dated 7.10.1998 which is after the services of the deceased employee under the transferee establishment but even on that account, the petitioners being the dependants of these deceased employees will not get any relief for the reason that the OSEB, in view of the provision of the Rule 11 of the Orissa Civil Services (Rehabilitation Assistance) Rules, 1990 has been adopted by virtue of the OSEB Service (Rehabilitation Assistance) Regulations, 1992, the same has been repealed w.e.f. 29.03.1996 and as such the relevant fact to be considered would be the repealment of the provision of the OSEB Service (Rehabilitation Assistance) Regulations, 1992 and the same has been done prior to take over the assets and liabilities either by GRIDCO or by the NTPC for the reason that the arguments of the petitioners is that in view of the provision of Rule 11 of the Orissa Civil Services (Rehabilitation Assistance) Rules, 1990, the same having been adopted by the OSEB by virtue of the OSEB Service (Rehabilitation Assistance) Regulations, 1992 and as such they are to be engaged under the provision of the Rehabilitation Assistance Scheme, but the said argument is not acceptable to this Court, hence rejected for the reason that the material date would be the replacement of the Regulations, 1992 and that is admittedly w.e.f. 29.03.1996 and thereafter the applicability of the Rules, 1990 has also been repealed vide Notification dated 7.10.1998, be that as it may, the relevant appointed date would be the repealment of the Regulations, 1992 i.e. 29.03.1996 i.e. the date after that GRIDCO or NTPC has taken over the liability of the OSEB and in absence of any statutory provision in this field under the OSEB before handing over the asset and liability of the transferee company, the employees working under the erstwhile OSEB now transferred to this establishment cannot raise their demand on the basis of the said provision of law. 11. 11. The petitioners are claiming appointment on compassionate ground on the strength of the provision of the Orissa Civil Services (Rehabilitation Assistance) Scheme, 1990 which was made applicable to the OSEB being a Public Sector Undertakings of the State Government, but after the Orissa Electricity (Reforms) Act, 1995 as per the provision of the said Act, no provision has been made regarding the future of the dependant of the deceased employee in case of death rather the only reference has been made with respect to asset and liability. 12. It is also the legal position that the OSEB Service (Rehabilitation Assistance) Regulations, 1992 has been enacted upon in the light of the provision of Orissa Civil Service (Rehabilitation Assistance) Scheme, 1990 but the same has also been repealed w.e.f. 29.03.1996 and it is only thereafter the GRIDCO has come into existence w.e.f. 1.4.1996. 13. Now, the question is that when the Corporation has been created only after the repealment of the provision of OSEB Service (Rehabilitation Assistance) Regulations, 1992, can the dependants of the deceased employees working under the Corporation be directed to be provided appointment on compassionate ground, the answer of this Court is in negative for the reason the Orissa Electricity (Reforms) Act, 1995 provides the provision to create the GRIDCO with a specific condition that the GRIDCO will only be liable to take over the personnels and liabilities of the erstwhile OSEB as on 1.4.1996 and as such the grievance of the petitioners is to be seen on the basis of the appointed date i.e. 1.4.1996 and admittedly on 1.4.1996, the provisions to provide appointment to the dependants of the deceased employees working under the OSEB Service (Rehabilitation Assistance) Regulations, 1992 has already been repealed w.e.f. 29.03.1996 and as such as on the date of creation of the Corporation i.e. 1.4.1996, there was no provision to provide appointment to the dependant of deceased employees of the erstwhile OSEB, rather GRIDCO has formulated new Scheme only to provide compensation to the dependants of deceased employees. 14. In that view of the matter, no direction can be given to the GRIDCO to provide appointment to the dependants of the deceased employees whose services have been transferred to the GRIDCO, in absence on any Scheme as on the appointed date i.e. 1.4.1996. 15. 14. In that view of the matter, no direction can be given to the GRIDCO to provide appointment to the dependants of the deceased employees whose services have been transferred to the GRIDCO, in absence on any Scheme as on the appointed date i.e. 1.4.1996. 15. So far as the claim of the petitioners whose bread earners were working under the NTPC, it is evident from the material available on record and the provision of the law as discussed above that the service of the persons along with the asset and liability of the employees working under the TTPS has been taken over by the NTPC in pursuance of the promulgation of Talcher Thermal Power Station (Acquisition and Transfer) Act, 1994 (Orissa Act, 7 of 1995), Section 3 contains the provision to take over right title and interest of the Board in relation thereto which shall be transferred and vested in the State Government on the appointed date i.e. 3.6.1995 and accordingly in terms of the Section 5 of the said Act, the right, title and interest of the said Power Station stood vested in the Corporation w.e.f. 3.6.1995 and the Corporation became the owner of the power station. The services of the deceased employees who has died while discharging their duties under the NTPC after coming from the service of the OSEB the petitioners are claiming their appointment on the strength of the OSEB Service (Rehabilitation Assistance) Regulations, 1992 but the said provision having been repealed w.e.f. 29.03.1996 and it is thereafter i.e. w.e.f. 3.6.1995, the liability has been taken over by the NTPC under the statutory provision of the Talcher Thermal Station (Acquisition and Transfer) Act, 1994. It is the specific stand taken by the NTPC that there is no Scheme formulated to provide appointment on compassionate ground which the petitioners have not rebutted. Case of the petitioners is that since the bread earners were working under the erstwhile OSEB and there was provision to provide appointment on compassionate ground under the Regulations, 1992, hence on being transferred to the NTPC, the provision of Regulations, 1992 will be applicable and in that view of the matter, they are entitled to get appointment on compassionate ground. 16. 16. But this submissions is not acceptable to this Court as such the same is rejected, reason being that the Regulations, 1992 has been repealed on 29.03.1996 and it is thereafter at that time TTPS was under the OSEB but subsequently it was taken over by the NTPC and as such on 3.6.1995, there was no provision to provide appointment on compassionate ground since the provision has been repealed by the OSEB on 29.03.1996. Accordingly, the bread earners of the petitioners who were working under the NTPC cannot be held entitled to get appointment on compassionate ground. It is settled proposition of law that appointment on compassionate ground is not a legal vested right and it cannot be claimed as matter of right. The appropriate Government although has made provision to provide appointment on compassionate ground for the immediate succor to the bereaved family whose bread earners had died suddenly, but if there is Scheme or the provision to provide appointment on compassionate ground, the same cannot be directed to be given by invoking extraordinary jurisdiction of this Court sitting under Article 226 and 227 of the Constitution of India. 17. This Court after discussing the factual aspects vis-à-vis the legal positions as discussed above, is of the considered view that the petitioners have failed to make out case. Accordingly, all writ petitions are dismissed. Petitions dismissed.