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2017 DIGILAW 1348 (ORI)

Ashok Kumar Sen v. OLIC

2017-11-24

SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. This writ petition is under Article 226 and 227 of the Constitution of India, whereby and where under the order under Annexure-4 dated 29.07.2000 passed by the Managing Director, Orissa Lift Irrigation Corporation Limited, Bhubaneswar has been sought to be quashed by which the appointment to provide the petitioner under the Rehabilitation Assistance Scheme has been cancelled. 2. Brief facts of the case is that the late father of the petitioner namely Bansidhar Sen was an employee working as Pump Helper under the administrative control of the opposite party no.2 died in harness on 5.5.1994 at the age of 46 years at the time of death, the petitioner was 14 years old and as such could not made application for appointment under the Rehabilitation Assistance Scheme but on attaining majority, he has made an application on 27.04.1997 under the provision of the O.C.S. (Rehabilitation Assistance) Rules, 1990, the petitioner has been appointed on 7.7.2000 and immediately after 22 days, the order of cancellation of his appointment has been passed which is under challenge in this writ petition. The petitioner assails the order on the following grounds; (i) The order under Annexure-4 is without any reason. (ii) The father of the petitioner dated on 5.5.1994 and at that time, he was minor but on attaining majority, he has filed an application under the provision of Rule 9(7) of the O.C.S. (Rehabilitation Assistance) Rules, 1990 which provides limitation in case of minor i.e. on 27.04.1997, accordingly, his case was considered and he was engaged as Peon vide order dated 7.7.2000. Accordingly, he has started discharging his duty. The authority while cancelling the appointment order has not taken into consideration the fact that the appointment was made under the provision of the Scheme which was applicable at the time of death of his father and also on the date when the application has been filed. (iii) The opposite party-Corporation has taken a ground of stopping the appointment on compassionate ground w.e.f. 12.03.1998 but that decision will not come in the way of the petitioner since the application or death was prior to that date and if the appointment made by the authority after delay of about more than 3 years and in the meantime if any appointment would have been made by the authority, the petitioner cannot made to be suffered. (iv) The O.C.S. (Rehabilitation Assistance) Rules, 1990 has been made applicable to other Corporation of the State in view of the provision of Rule 11 which has been repealed vide G.A. Department Notification No. 28761 dated 7.10.1998 and prior to that the application or the death is there and as such even the repealment of that provision will not come in way of the petitioner. 3. Learned counsel for the opposite party-State has submitted on the strength of the counter affidavit that the Rehabilitation Assistance Scheme although has been adopted by the Corporation but due to financial crunch which the Corporation was facing during the relevant time, the decision has been taken by its 117th Meeting held on 12.03.1998 to stop appointment under Rehabilitation Assistance Scheme until further orders and in view thereof, the appointment order has been issued in his favour in violation of the above decision, hence the same has been cancelled. He further submits that there is no illegality in the decision taken by the authority in cancelling the appointment. 4. Heard the learned counsel for the parties and on appreciation of the rival submission, it would be evident that the petitioner is against the order passed by the authority dated 29.07.2000 by which the appointment made to him under Rehabilitation Assistance Scheme has been cancelled. 5. This Court has thought it proper to look into the provision of law governing the field before entering into the factual aspect raised by the parties. The State Government of Odisha has formulated a Rule in exercise of power conferred by the proviso to Article 309 of the Constitution of India known as O.C.S. (Rehabilitation Assistance) Rules, 1990 to achieve the objectives to provide rehabilitation assistance as a compassionate measure of saving the family of the Government servant from immediate distress when the Government servant suddenly dies while in service. The concept is based on the premises that in case of sudden death his family would not face starvation. The provision has been made to appoint on the basis of the evaluation report of the committee. The concept is based on the premises that in case of sudden death his family would not face starvation. The provision has been made to appoint on the basis of the evaluation report of the committee. Further provision has been made under the provision of Rule 9(7) providing therein the limitation for the period of making application i.e. if at the time of death of the Government servant, there is a word who is minor and who alone is available in the family of the deceased Government for employment, he/she shall apply for job under these rules on attaining the age of eighteen years and in no case beyond three years from the date of attaining the age of eighteen years. Under the provision of Rule 9(6) provide that application for appointment under these rules shall be considered if it is received within one year from the date of death of the Government servant. The provision has been made under Rule 11 regarding extension of the Scheme to be adopted by the Corporation, Public Sector Undertakings and Local Bodies of the State Government but however, the same has been deleted vide G.A. Department Notification No. 28761 dated 7.10.1998. In the light of these provisions, fact of the case needs to be examined. 6. It is not in dispute that the father of the petitioner died on 5.5.1994 and at that time, the petitioner was at the age of 14 years and he was minor, he immediately on attaining the age of majority has made application to get appointment on compassionate ground on 27.04.1997 under the provision of the O.C.S. (Rehabilitation Assistance) Rules, 1990 (in short Rules 1990), since in view of the provision of Rule 11, the provision of Rules, 1990 has been adopted by the Corporation which the opposite party is not disputing. 7. 7. It is evident from the date of death and the date of application that the same is within the time as provided under the provision of Rule 9(7) as has been reflected hereinabove that appointment on compassionate ground under the Rules 1990 is to be made in order to provide rehabilitation assistance as compassionate measure of saving the family of a Government servant from immediate distress when the Government servant suddenly dies while in service, but the authorities have not followed the basic objectives of the Scheme to provide appointment on compassionate ground, since he has been issued with the appointment letter on 7.7.2000 as would be evident from Annexure-1, accordingly he has been appointed as Peon and while discharging his duty, his appointment has been canceled vide order dated 29.07.2000 vide Annexure-4 annexed to the writ petition. 8. The opposite parties have taken a ground that the day when the petitioner has been appointed, the Corporation in its 117th Meeting has taken decision to stop the appointment of the dependant of the deceased employee w.e.f. 12.03.1998 and as such the appointment of the petitioner has been treated to be contrary to the decision taken by the Corporation which they have taken to stop appointment w.e.f. 12.03.1998. 9. This Court is of the considered view that when the opposite parties have adopted the provision of a Scheme to provide immediate relief to the dependant of the bereaved family and in terms thereof the application has been filed well within the time by the petitioner i.e. on 27.04.1997, in view thereof he has been appointed on 7.7.2000, hence there is considerable delay caused on the part of the opposite parties in providing appointment to the petitioner and in the meanwhile the Corporation has taken decision in its 117th meeting to stop making appointment on compassionate ground w.e.f. 12.03.1998 but the decision taken by the Corporation will not come in the way and the petitioner cannot be made to suffer due to that decision since the delay has been caused by the Corporation in providing appointment after delay of considerable period of more than 3 years which itself is contrary to the Scheme which provides to give immediate relief to the dependant of the bereaved family. The opposite party save and except has not mentioned any reason as such according to the considered view of this Court, the reason taken in the counter affidavit in this regard is not sustainable. 10. This Court has also examined the applicability of the provision of Rule 11 by which the provision of O.C.S. (Rehabilitation Assistance) Rules, 1990 has been adopted by the Corporation on the date when the petitioner has made application, thus the provision of Rule 11 was well in existing since it has been repealed w.e.f. 7.10.1998 even on this ground the claim of the petitioner cannot be denied since the application has been filed prior to 7.10.1998. 11. Further the order under Annexure-4 is not sustainable in the eye of law, because the same is without any reason. It is settled that if the order is without any reason and the said order is said to be the order not in accordance with law and if the authority tried to justify by reflecting the reasons in the counter affidavit which is against the settle proposition of law, the reason which is not in the face of order impugned cannot be improved by way of counter affidavit, which has been held by the Hon’ble Supreme Court in the case of Mohinder Singh Gill and another vrs. The Chief Election Commissioner, New Delhi and others, 1978 AIR 851. 12. The opposite party has taken a ground of financial crunch but in course of argument, the opposite party has admitted that even the appointees on compassionate ground are still continuing in service. It is settled that the appointment on compassionate ground is exception to the regular appointment i.e. to be done to provide immediate succour to the dependant of the bereaved family and as such the Corporation cannot take the plea of the financial crunch for the reason that the Corporation is well running and the persons appointed on compassionate ground are also continuing in the job. 13. In view of the entirety of facts and circumstances, the order under Annexure-4 is quashed and the matter is remitted before the authority to consider the case of the petitioner in view of the observation made hereinabove. Accordingly, the writ petition is disposed of.