Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 914 (ORI)

Prem Sagar Naik v. State of Orissa

2017-08-21

S.K.MISHRA

body2017
JUDGMENT : S.K. Mishra, J. The petitioner happens to be the son of late Ushatram Naik, who died in harness while working as a Laboratory Attendant in Kuchinda College, Kuchinda, which is a fully aided educational institution. The petitioner’s father was a regular employee of the college and was discharging his duties since 04.11.1994. He died on 03.03.2009. At that time, the petitioner was a minor. The deceased employee of the aforesaid College was succeeded by his wife-Anuchhaya Naik(1), married daughters-Jasmita Naik(2) and Madhusmita Naik(3), sons Milan Naik(4) and the present petitioner -Prem Sagar Naik(5). At the time of death of the deceased, the petitioner was 16 years old. After attaining majority, the petitioner filed an application before the Principal of Kuchinda College for his appointment under the Rehabilitation Assistance Scheme to be appointed as a Peon in the said College. The Principal of that College, as per his letter No. 796 dated 08.08.2013, forwarded his application along with all the documents to the District Magistrate and Collector, Sambalpur to enquire and report whether the family of the deceased Government servant is in financially distress condition. The Collector, Sambalpur on 01.08 2014 returned the application along with documents and the report and certificate to the effect that the annual income of the family from all sources excluding pension and T.I. is Rs.30,000/- for the year 2014 and also certified that the family of the deceased employee is in distress. On receipt of such report and certificate from the district Magistrate and Collector, Sambalpur, the Principal of the College forwarded the same to the Director, Higher Education, Orissa, Bhubaneswar requesting him to take necessary action as per letter dated 12.08.2014. 2. The Director, Higher Education as per his letter dated 06.08.2015 directed the Principal of the College to submit correct Income Certificate. On receiving the aforesaid letter along with the documents, the petitioner applied for another income certificate from the office of the Tahasildar and filed the same before the Principal of the College. The Principal also forwarded the same to the Director, Higher Education for appointment of the petitioner under the Rehabilitation Assistance Scheme. On receiving the aforesaid letter along with the documents, the petitioner applied for another income certificate from the office of the Tahasildar and filed the same before the Principal of the College. The Principal also forwarded the same to the Director, Higher Education for appointment of the petitioner under the Rehabilitation Assistance Scheme. However, the Director, Higher Education did not consider the application of the petitioner favorably and the Joint Secretary communicated the rejection of his application vide order dated 04.04.2016 i.e. Annexure-9 on the ground that Rehabilitation Assistance is meant to help a family in distress and is not in the nature of a transferable right. The petitioner challenges the said letter dated 04.04.2016 i.e. Annerxure-9 on the ground that it is a cryptic order and contrary to the statutory provisions of the O.C.S. (Rehabilitation Assistance) Rules, 1990. Hence, he prayed that Annexure-9 should be quashed and the opposite parties be directed to give appointment to the petitioner as a Peon in the aforesaid College within a reasonable time. 3. The Deputy Director, Higher Education, opposite party no.2 being authorized by the Director, Higher Education, Orissa filed a counter affidavit. In the counter affidavit the opposite party has taken a plea that the Rehabilitation Assistance Scheme is meant for to save a family from distress condition due to death of an employee as per Rule 2(b) of the O.C.S. (R.A.S.) Rule, 1990. It is stated that first preference is to be given to the wife/husband for the said benefit, then the elder son will be considered for this purpose. In the instant case, the youngest son has applied for appointment under the Rehabilitation Assistance Scheme, which is not acceptable, as the Rehabilitation Assistance Scheme is not in the nature of a transferable right. After due consideration of the proposal in favour of the petitioner, the Government have rejected the same. 4. The specific case of the opposite parties is that while considering the case of the petitioner, the Higher Education Department took note of the fact that the 1st to 4th legal heirs, who are elders to the petitioner, have not applied for the same benefit. It is proposed that the third legal heir, who happens to be the elder brother of the petitioner could have applied for the same benefit. It is proposed that the third legal heir, who happens to be the elder brother of the petitioner could have applied for the same benefit. It is stated that there are two other elder legal heirs are available namely Jasmita Naik and Madhusmita Naik, but they have not applied for the said benefit, but the youngest son has applied for such benefit, which is not correct. Hence, the Government have rejected the proposal of the petitioner. It is further pleaded that though the Collector, Sambalpur has declared the family of the deceased to be in financially distress condition and the Principal of the College has not recommended for appointment of the petitioner under the Rehabilitation Assistance Scheme, rather he has only submitted report to the Government in the Higher Education Department for consideration and after due consideration the Government have rejected the application holding that the appointment under the Rehabilitation Assistance Scheme is not a transferable right rejected the claim. 5. The counter affidavit filed by the opposite party no.2 appears to be contrary in law in the sense that at paragraph 9 the opposite party has taken the plea that “xxx Principal recommended for appointment of the petitioner.” On the next sentence, the opposite party has taken the plea: “This Opp. Parties has not recommended for appointment of the petitioner rather this Opp. Parties only submitted report to Govt. in Higher Education Department for consideration.” In any case, the Principal of the College cannot recommend for appointment of the petitioner. It is the duty of the State Government to accord administrative approval for appointment of the petitioner as the same is required. On such plea, learned Addl. Government Advocate submitted that the application of the petitioner should be rejected. 6. In his rejoinder affidavit the petitioner has averred that the opposite party no.2 in their counter affidavit mentioned that first preference should be given to the wife/husband then the elder son will be considered for this purpose. It is further pleaded that because of the fact that the widow of the deceased was 55 years of age at the time of death of the deceased, which is evident from Annexure-3 and she is suffering from old age diseases, she could not be appointed. Thus, she has already been over age to hold employment and she is not willing to take an appointment. Thus, she has already been over age to hold employment and she is not willing to take an appointment. As far as the elder brother of the petitioner is concerned, he has no objection if the rehabilitation assistance is given to the petitioner. 7. Section 2(a) of the O.C.S. (Rehabilitation Assistance) Rules, 1990 defines “deserving case”. A deserving case has been defined to mean that a case where the appointing authority is satisfied, after making such enquiry as may be necessary:- (i) that the death of the employee has adversely affected his family financially because the family has no other alternative mode of livelihood: (ii) that there is existence of distress condition in the family after death of the employee; (iii) that none of the family members of the employee who has died while in service is already in the employment of Government/Public or Private Sector or engaged in independent business with an earning capable to tide over the distress condition of the family arising out of the sudden death of the employee; and (iv) that the family does not have adequate income from the immovable properties to earn its livelihood. 8. “Family members” has been defined under Rule 2(b) of the aforesaid Rules. It means and include the following members in order of preference :- (i) Wife/Husband; (ii) Sons or step sons or sons legally adopted through a registered deed: (iii) Unmarried daughters and unmarried step daughters; (iv) Widowed daughter or daughter-in-law residing permanently with the affected family. (v) brother or unmarried Government servant who was wholly dependent on such Government servant at the time of death. A plain reading of the aforesaid provision reveals that Rehabilitation Assistance to the family members, who are eligible for appointment under Rehabilitation Assistance Scheme, should be provided in order of preference as indicated above. Thus, a plain reading of the provisions means that a person who is entitled to any appointment under the Rehabilitation Assistance Scheme, the authority has to see if the spouse of the deceased employee is alive and intends to avail the benefit under the Rehabilitation Assistance Scheme. If he/she is ineligible for over age, ailment or cannot be given appointment under the Rehabilitation Assistance Scheme, as per the scheme, the second preference will be given to the sons. If he/she is ineligible for over age, ailment or cannot be given appointment under the Rehabilitation Assistance Scheme, as per the scheme, the second preference will be given to the sons. The Rules do not provide that a younger son should not be treated in a preferential manner and the elder son should be given appointment. There is no provision in the said Rules that while considering the second category of persons, the elder son should be given appointment and the younger son cannot be appointed. However, the State government has devised an expression namely “transferable right” and has taken a stand that since the spouse of the deceased is alive, elder son is living there, right cannot be transferred in favour of the petitioner. The decision taken by the opposite parties 1 and 2 is illegal and contrary to the basic scheme of the aforesaid Rules. 9. Moreover, it is seen that in this case while applying for appointment under the Rehabilitation Assistance Scheme, the petitioner has annexed two affidavits; one sworn by his mother Anuchhaya Naik, who was 58 years of old at the time of swearing the affidavit and she has no objection if the petitioner is appointment under the Rehabilitation Assistance Scheme and another is sworn by his elder brother Milan Naik, who has stated on oath that he has no objection if his younger brother Prem Sagar Naik is appointed under the Rehabilitation Assistance Scheme as he is looking after the affairs of the family. While scrutinizing the records, the authorities should have taken into consideration the reluctance of the spouse of Late Ushat Ram Naik, i.e. Anuchhaya Naik that she is 58 years old and she is not able to take up the employment because originally the age of retirement was 58, which has recently been enhanced to 60 years. But in the year when the application was filed i.e. in the year 2013, the age of retirement is 58 years. Once it is held that the spouse of the deceased employee cannot be appointment in a Government service, the second preference is son of the employee who died in harness. It is not a case of the opposite parties that the elder brother of the petitioner is working somewhere else and has sufficient means to manage the affairs of the family. It is not a case of the opposite parties that the elder brother of the petitioner is working somewhere else and has sufficient means to manage the affairs of the family. Only on the ground that the elder brother has not applied and he could have applied under the Rehabilitation Assistance Scheme, the application of the petitioner was rejected on the ground that Rehabilitation Assistance is not a transferable right. 10. Transferable right means any right of an individual over goods, properties etc., which can be transferable in favour of any person either for consideration or as a gift. As far as appointment under the Rehabilitation Assistance Scheme is concerned and the present petitioner comes under the second category of preferential family members and only because Milan is elder to the petitioner, it cannot be said that the petitioner’s case will not be considered and only the case of Milan, the elder brother of the petitioner is to be considered and in case he refused to accept the Rehabilitation Assistance, appointment of the petitioner will be transferred as a right from the elder brother Milan in favour of the petitioner. 11. Rule 16 of the aforesaid Rules provides that the State Government where satisfied that the operation of all or any provisions of these rules causes undue hardship in any particular case, it may dispense with or relax the provisions to such extent as it may consider necessary for dealing with the case in a just and equitable manner. Relying upon this provision, a Division Bench of this Court in Smt. Ketaki Manjari Sahu v. State of Orissa and others, 1998 (2) OLR 452, has held that in some abnormal cases when the petitioner wants to help the family in distress, even the rule can be relaxed to give rehabilitation assistance to an alternate candidate if the facts and circumstance of the case justifies the same. Rule 16 of the aforesaid Rules is in fact an extension of the principle of the Government being a model employer looking after the welfare of the citizens of the State. Even in cases, where Rules do not permit, the State Government may relax the Rules to extend the benefit to the deserving persons in a just and equitable manner. 12. Even in cases, where Rules do not permit, the State Government may relax the Rules to extend the benefit to the deserving persons in a just and equitable manner. 12. Keeping in view the aforesaid consideration, this court is of the opinion that rejection of the representation of the petitioner for appointment on the Rehabilitation Assistance Scheme due to death of his father is illegal on the face of it and is liable to be quashed. 13. Accordingly, the writ petition is allowed. The order dated 04.04.2016 of the Joint Secretary to Government as at Annexure-9 is hereby quashed. Opposite party no.1 is hereby directed to accord necessary administrative approval for appointment of the petitioner in the Rehabilitation Assistance Scheme because of death of his father, who was working as Laboratory Attendant in Kuchinda College, Kuchinda, within twenty-one working days from the date of receipt of certified copy of this order or production of the certified copy of this order, whichever is earlier. On receipt of administrative approval from the O.P.no.1, the O.P. no.3 shall immediately issue letter of appointment by following the relevant procedure. Keeping in view the facts of the case, there shall be no order as to costs.