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2017 DIGILAW 488 (ORI)

Dillip Kumar Parida v. State of Orissa

2017-04-27

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT S.N. PRASAD, J. - This writ petition is under Articles 226 & 227 of the Constitution of India whereby and where under the order passed by the Orissa Administrative Tribunal, Bhubaneswar dated 8.11.1999 in O.A. No.1866 of 1999 has been assailed by which the Tribunal has dismissed the Original Application by rejecting the claim of the petitioner to hold the higher post of Junior Assistant. 2. The brief fact of the case is that the father of the petitioner while working as a Peon in the Directorate of Sports and Youth Services, Orissa, Bhubaneswar became permanently incapacitated to discharge his duties due to ailment and therefore he was retired from the service on 3.12.1997. The petitioner who is the eldest son, being a graduate and also bachelor in Physical Education had submitted an application for appointment in a suitable available vacancy before the Director, Sports and Youth Services, Orissa and after due enquiry conducted by the Collector, Cuttack and as per the rule in vogue he was appointed vide order dated 28.12.1998 as Peon in the Directorate of Sports and Youth Services. Subsequently when it was brought to the notice of the Director that a post of Junior Assistant was lying vacant in the Directorate and as such the Director has taken proper action in pursuance to the provision of the scheme prevalent at the relevant time, considering the reason that the petitioner, although the post was there under Class-III category but could not have been appointed in the said category rather he has been appointed in Class-IV category, hence modified the order of appointment with a direction to the petitioner to join as Junior Assistant vide order dated 15.2.1999. The Department on enquiry has found that the up-gradation of the petitioner to the post of Junior Assistant was contrary to the scheme and hence taken a decision to revert him from the post of Junior Assistant to the post of Peon and accordingly passed an order to that effect. 3. The petitioner being aggrieved with the same has approached the Tribunal vide O.A. No.1866 of 1999 wherein the Tribunal while dismissing the Original Application without interfering with the order of revision, has approved the decision of the authority on the ground that there is no provision in the Rehabilitation Assistance Scheme to upgrade the post once the incumbent accepts the office on due consideration by the competent authority. 4. The petitioner being aggrieved with the order passed by the Tribunal is before this Court on the ground that the Rehabilitation Assistance Scheme provides for appointment on the ground of medical incapacitation or the death of the employee in harness, subject to availability of vacancy in Class-III or Class-IV post. Since his father has become medically unfit and taken retirement from the service with effect from 3.12.1997, hence he has made an application for consideration of his case for appointment on compassionate ground to the available vacancy either of Class-IV or Class-III, but even though the post was available under Class-III category, he has not been appointed in Class-III rather he has been appointed in Class-IV post. The Director after considering this aspect of the matter and when he found that the vacancy was available under Class-III category which could not have been traced out due to oversight at the time when the case of the petitioner was considered by the selection committee, hence taken a decision to modify the order of appointment by passing an order to appoint him in Class-III post. It has been submitted that the ground for his reversion is that the rule does not provide regarding up-gradation of post once appointment has been made for the reason that the appointment on compassionate ground cannot be claimed as a matter of right. 5. Learned Counsel for the petitioner submits that at the time when the case of the petitioner was considered, the provision of Rule enshrined under Article 309 of the Constitution of India notified on 7th October, 1998 was not in vogue rather the rule promulgated by the State of Orissa on 13th. September, 1990 was in vogue wherein there is no provision having been made by the legislature not to upgrade the post. However the said provision has been made in the Notification dated 7th October, 1998 wherein under Clause 7 the provision has been made that once a member of the family has been appointed to a particular post no further claim shall be entertained for appointing the same person to a higher post. For any further advancement in service, he will have to take his chance in the normal course and compete with other eligible persons. For any further advancement in service, he will have to take his chance in the normal course and compete with other eligible persons. He submits that since the case of the petitioner has been considered prior to 7th October, 1998, meaning thereby the rule issued on 13th September, 1990 will be applicable. He has refuted the stand taken by the authorities that merely on account of the fact that the appointment letter has been issued after commencement of the Notification dated 7th October, 1998 i.e. 15.2.1999 hence the rule notified by virtue of the notification dated 7th October, 1998 will be applicable for the reason that the rule can only be applicable on the date the case of one or other is being considered. He further submits that the letter of appointment cannot be stated to be the determining factor for applicability of the rules since issuance of appointment letter is on its initiation of recruitment process and conclusion of the decision admittedly the decision of the authority to appoint the petitioner was initiated and taken prior to commencement of rule issued by virtue of the notification dated 7th October, 1998 rather on the date of consideration of the Rule 1990 was applicable. He further submits that the petitioner has not made any claim regarding up-gradation rather he has only made a representation for consideration of his case and in course of consideration, the Director has come to a conclusion that the vacancy in the category of Class-III was available but due to inadvertence and oversight the petitioner could not have been appointed in Class-III cadre. Hence fore the laches committed on the part of the authorities, the petitioner may not suffer, as such in this situation the order of appointment to the higher post of Junior Assistant cannot be said to be illegal. He further submits that there is no embargo in appointing the representative of the family under the scheme in Class-III cadre rather it is to be appointed either in Class-III or Class-IV subject to availability of vacancy and admittedly on the due date of consideration, the vacancy in Class-III post was available but even thereafter the petitioner has not been appointed in Class-III cadre rather he has been appointed in Class-IV post. Hence the authorities, after coming to know this fact, have rectified their mistake. Hence the authorities, after coming to know this fact, have rectified their mistake. As such the decision taken by the authority subsequently recalling the order is absolutely illegal. The Tribunal while disposing of the Original Application has not taken into consideration all these aspects of the matter. Hence according to him the order passed by the learned Tribunal is not sustainable. 6. While on the other hand learned Counsel representing the State of Orissa submits that the appointment either on account of unfitness on medical ground or death of the employee in harness cannot be claimed as a matter of right. He submits that the scheme provides for appointment on compassionate and it is settled that on compassion there is no legal vested right. He further submits that since the petitioner has been offered appointment in Class-IV post which he has accepted and after his acceptance he cannot claim to come to the higher post. 7. We have heard learned Counsel for the parties and perused the documents available on record. There is no dispute in the settled principle of law that the appointment on compassionate ground due to medical unfitness or due to death of the employee in harness cannot be claimed as a matter of right. But simultaneously it is also not in dispute that when the appropriate authority or the Government formulates the scheme to provide appointment on compassionate ground either on the ground of medical unfitness or death of an employee in harness, the employment is to be provided under the provisions of the scheme. If any illegalities are being committed by the authorities certainly the same is to be assailed. In the State of Orissa a Rule has been formulated in exercise of the powers conferred under Article 309 of the Constitution of India by virtue of enshrining the Notification dated 13th September, 1990 which provides assistance to be given to the member of the family of a Government servant who dies while in service or retires under the provisions of Orissa Pension Rules, 1977 on the ground of permanent incapacitation. The appointment under this Rule shall be made against Class-III or Class-IV post excluding the posts which are specially declared gazetted. The appointment under this Rule shall be made against Class-III or Class-IV post excluding the posts which are specially declared gazetted. Rule 8 (d) stipulates the provision that the appointing authority upon receipt of the report, consider the same and in case of favourable report, appoint the applicant in a suitable available vacancy under his control. If a vacancy does not exist under the administrative control the appointing authority may forward the application to the head of the department with suitable recommendations. The Heads of the Department shall locate vacancies in other offices under his administrative control and direct Head of the Office where there is vacancy to appoint the applicant. If no vacancy is immediately available the application shall be considered for the immediate subsequent vacancy. In cases arising in office of the Heads of Departments, the Head of Department shall appoint the candidate in the office or in the office sub-ordinate thereto. It is evident from the statute that the appointment is to be made against available vacancies either in Class-III or Class-IV posts, and if the post is not available, the post has to be located in other offices under the administrative control of the Head of the Department. This provision clearly clarifies the position that the appointment is to be made subject to availability of vacancy either in Class-III or Class-IV post. Subsequently the Government has come out with another notification in exercise of the power conferred under Article 309 of the Constitution of India by virtue of notification dated 07.10.1998 known as Orissa Civil Service (Rehabilitation Assistance) Amendment Rules, 1998 wherein a provision has been incorporated in Rule 6 to the effect that the appointment under these Rules shall be made once against any post either in Group-C or Group-D which is a base post in the said groups and the maximum scale of pay for such post in Group-C and Group-D shall not exceed Rs.6,000/- and Rs.3,200/- respectively, as revised by Government from time to time. When a member of the family has been appointed to a particular post, no further claim shall be entertained for appointing the same person to a higher post. For any further advancement in service, he will have to take his chance in the normal course and complete with other eligible persons. 8. When a member of the family has been appointed to a particular post, no further claim shall be entertained for appointing the same person to a higher post. For any further advancement in service, he will have to take his chance in the normal course and complete with other eligible persons. 8. There is no dispute in the settled proposition that the applicability of the rule is to be seen on the due date of consideration subject to availability of the vacancy on that date, in the instant case, the initiation to appoint the petitioner was prior to commencement of Rule 1998 as also its decision however appointment order has been issued only after the Rule 1998 came into being but merely on the ground that the appointment letter has been issued after commencement of the Rule 1998, the provisions of that Rule will not be applicable, rather settled proposition of law is that on the due date of consideration, the rule is in vogue will be applicable. The admitted position in the case in hand is that the father of the petitioner has got his retirement on the ground of medical incapacitation on 3.12.1997. The petitioner has made an application for consideration of his case for appointment under the Rehabilitation Assistance Scheme immediately thereafter and on the due date of consideration of the candidature of the petitioner the Rule issued by virtue of Notification dated 13th September, 1990 was in vogue hence, the provision contained therein will be applicable. 9. The Notification dated 7th October, 1998 although has come after the appointment letter having been issued in favour of the petitioner i.e. 15.2.1999. Considering the settled proposition as stated above we have scrutinized the case on the basis of applicability of the Rule enshrined by virtue of Notification dated 13th September, 1990 wherein there is no clause having been reflected to the effect that once an appointment has been given to a particular post no further claim shall be entertained for appointing the same person to a higher post on that of the rule notified on 7th October, 1998. The fact of the case in hand is that the petitioner initially was appointed in Class-IV post but subsequently the Director, on enquiry, has found that the post in Class-III category was available but due to oversight the vacancy under that category could not have been ascertained, hence the appointment has been made to the petitioner under Class-IV category. Immediately after realising this laches committed on the part of the authorities the Director has taken a decision on 20.03.1999 by stating therein that although there was a vacancy in the post of Jr. Assistant which could not be detected by oversight, as a result of which the petitioner was appointed in the vacant post of Peon. However, immediately vacancy of the post of Jr. Assistant was detected, it was felt necessary to modify the order of appointment and accordingly the order was modified on the principles that due to fault and omission of the parties why the employee or the affected person will be made to suffer. The Director has appointed the petitioner by modifying the order of earlier appointment to the post of Jr. Assistant which has subsequently been directed by the Higher Authority to recall the same, the direction to revert the petitioner to the post of Peon which ultimately has been approved by the Tribunal, the same is under challenge in this writ petition. The Tribunal while dismissing the Original Application has taken the ground that the appointment on compassionate ground cannot be claimed as a matter of right and once the appointment has been made there cannot be any up-gradation, which will be contrary to the provisions of Rule 7 of Rule 1998. 10. We have already discussed hereinabove that the Rule which will said to be applicable at the time of consideration of candidature of the petitioner would be the provision of Rule 1990, wherein there is no provision to restrain the authority not to upgrade, but the Tribunal has not taken note this aspect of the matter while dismissing the Original Application. We have already discussed hereinabove that the Rule which will said to be applicable at the time of consideration of candidature of the petitioner would be the provision of Rule 1990, wherein there is no provision to restrain the authority not to upgrade, but the Tribunal has not taken note this aspect of the matter while dismissing the Original Application. Further the Tribunal has also not taken into consideration the stand of the authorities regarding the applicability of the Rule, since we have gathered from the communication of the authorities dated 30.11.1998, wherein it has been clarified by them regarding the applicability of the Rule and it has been stated therein that the matter which is pending prior to 8.10.1998 will be governed by Rule 1990, although the same is for assessment of the annual income of the family of the deceased-employee, but the said principle will also be applicable in the case in hand. The other aspect which has also been ignored by the Tribunal is that the petitioner has never claimed as a matter of right, rather it is the Director who has taken the decision to modify the order of appointment on the pretext of laches as has been committed on their part due to non-ascertaining the post of Jr. Assistant even though the vacancy in that post was available at the time of consideration of the candidature of the petitioner, which he has rectified by issuing the modified order. The decision of the Director cannot be said to be illegal for the reason that the appointment is to be made in Class-III or Class-IV post subject to availability of the vacancy. Not only that if the vacancy is not available under the administrative control, the post is to be located in the subordinate offices also as would be evident from the provision of Rule 8 (d) of Rule 1990. This provision clearly stipulates that the appointment is to be made against the available vacancy and admittedly as has been admitted by the Director in its letter dated 20.3.1990 that the vacancy under the cadre of Jr. Assistant was available which itself suggest that if the authority would have acted properly certainly the vacancy position of the post of Jr. This provision clearly stipulates that the appointment is to be made against the available vacancy and admittedly as has been admitted by the Director in its letter dated 20.3.1990 that the vacancy under the cadre of Jr. Assistant was available which itself suggest that if the authority would have acted properly certainly the vacancy position of the post of Jr. Assistant must have been provided at the time of consideration of candidature of the petitioner but due to the laches on the part of the authorities the vacancy of Class-III which was available at that time could not have been brought to the notice of the committee which resulted into the appointment of the petitioner in Class-IV post. Hence there is laches on the part of the authorities and as such the authorities have rectified the same, which cannot be said to be contrary to the provision of the scheme applicable at that time. The Tribunal without taking into consideration all these aspects of the matter as discussed hereinabove has dismissed the Original Application. 11. As such in our considered view, the order passed by the Tribunal is contrary to the settled proposition of law and also on fact. Hence, not sustainable and accordingly the same is quashed. The authorities are directed to restore the position of the petitioner by taking consequential steps in this regard within a reasonable period, preferably within a period of six weeks from the date of communication of this order. In the result, the Writ Petition is disposed of. Petition disposed of.