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2018 DIGILAW 545 (ORI)

Ajit Kumar Barik v. State of Orissa

2018-05-11

K.R.MOHAPATRA, S.PANDA

body2018
JUDGMENT S. PANDA, J. - Petitioner in this writ petition assails the order dated 17.11.2017 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.375 (C) of 2016 wherein the Tribunal rejected the prayer of the applicant for engagement under Rehabilitation Assistance Rules by dismissing the original application. 2. Mr. B.K.Routray, learned Counsel for the petitioner submits that after the death of the father of the applicant who was a Government employee in the year 2002, the widow filed an application for appointment under Rehabilitation Assistance Rules (hereinafter referred to as Rules). The family was in a distress condition due to sudden death of the sole bread earner. The said application was kept pending for want of distress certificate from the competent authority which was issued in the year 2015 only. The widow in the meantime has suffered from serious ailment due to poverty and became unfit for any job. Thus, she made a representation to the appointing authority to consider engagement of her son in her place under the aforesaid scheme. However the appointing authority did not consider such representation. Due to such inaction the petitioner had approached this Court in W.P. (C) No.403 of 2016 which was withdrawn with a liberty to approach the appropriate forum. Accordingly the petitioner has filed the aforesaid original application before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack as under such circumstances there is no bar to consider the claim of the person who is at serial No. (ii) as preference No. (i) is unfit. However the Tribunal has rejected the prayer of the applicant without considering the aforesaid facts on its proper perspective and passed the impugned order. Hence the same is liable to be set aside. 3. The learned Addl. Government Advocate submits that since the appointment letter was issued in favour of the mother of the applicant and without joining the Class-IV post she has sworn an affidavit in favour of the present applicant showing her illness. Her appointment under Rehabilitation Assistance Rules was rightly rejected by the Tribunal by impugned order considering the provision of Rule 9 (6) and 9 (7) of Orissa Civil Service (Rehabilitation Assistance) Rules, 1990. Hence the same need not be interfered with. Her appointment under Rehabilitation Assistance Rules was rightly rejected by the Tribunal by impugned order considering the provision of Rule 9 (6) and 9 (7) of Orissa Civil Service (Rehabilitation Assistance) Rules, 1990. Hence the same need not be interfered with. He has further submitted that the Government in G.A. Department approved for appointment of the widow under the Rehabilitation Assistance Rules and accordingly appointment letter was issued vide letter dated 7.6.2016. Since she has not come forward to join the post, claim of the applicant has no merit. 4. The brief fact of the case is that one Biranchi Narayan Barik, the father of the applicant was appointed as a ‘Mali’, in the Odisha Administrative Tribunal, Principal Bench, Bhubaneswar w.e.f. 4.3.1987. He died in harness on 5.8.2002 leaving behind his widow, two sons and one daughter. Thereafter the widow had applied for appointment under the Rehabilitation Assistance Rules before the authority. The Registrar, Orissa Administrative Tribunal vide his letter dated 26.12.2002 had forwarded the application form and the copy of annexures to the Collector-cum-Dist. Magistrate, Cuttack to enquire into the matter and to furnish a distress certificate of the family members of the deceased Government employee. As no report was received from the Collector, Cuttack, the Registrar, Orissa Administrative Tribunal again issued another reminder vide letter dated 17.1.2015 to the Collector, Cuttack to furnish the report of finance distress condition of the family members of the deceased Government employee. In the meantime the mother of the applicant is suffering from chronic disease and the elder brother of the applicant is a mentally disabled person, she has made a representation to the Registrar, OAT to engage her 2nd son i.e. the present applicant in her place under the Rehabilitation Assistance Rules. The widow had filed an affidavit to the effect that her eldest son is mentally disabled and her younger son be considered for appointment under the Rules. The Registrar, Orissa Administrative Tribunal did not consider the case of applicant for appointment under Rehabilitation Assistance Rules for which the applicant approached this Court in W.P. (C) No.403 of 2016. The same was withdrawn on 19.1.2016 with liberty to the petitioner to approach the appropriate forum and accordingly the applicant approached the Tribunal in the present original application with a prayer to direct the opposite party No.2 to consider his application for appointment under the Rehabilitation Assistance Scheme. 5. The same was withdrawn on 19.1.2016 with liberty to the petitioner to approach the appropriate forum and accordingly the applicant approached the Tribunal in the present original application with a prayer to direct the opposite party No.2 to consider his application for appointment under the Rehabilitation Assistance Scheme. 5. The Tribunal while passing the impugned order taken note of aforesaid facts i.e. regarding application filed by the widow of the deceased Government employee within the time which was received by the appointing authority and forwarded the same on 26.12.2002 to the Collector-cum-District Magistrate, Cuttack for enquiry and to furnish the distress certificate of the family members of the deceased Government employee. Due to delay and laches on the part of the Collector to furnish such distress certificate and the illness of the widow developed in the meantime due to poverty which lead to her incapacity to discharge the duties and responsibilities of a Government service even though the appointment letter was issued in her favour. 6. The Rules as contended in the above paragraph nowhere restricted the jurisdiction of the appointing authority to consider the application for appointment in a suitable available vacancy under his control. The Rules also define “Family Members” means 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) Unmarried or widowed sister permanently residing with the affected family; (vi) Brother of unmarried Government servant who was wholly dependent on such Government servant at the time of death. 7. Of course the first preference is to be given wife/husband of the deceased employee then son and unmarried daughter. However no where it was stated that in the case a family member in order of preference in the hierarchy is unfit and a medical certificate furnished to that effect, claim shall not be considered for engagement of the other eligible members in case of distress condition of the family. Therefore, the finding given by the Tribunal in the impugned order that she is not prepared to accept Group-‘D’ post and offered it to her son in ignoring the material on records is not sustainable. 8. Therefore, the finding given by the Tribunal in the impugned order that she is not prepared to accept Group-‘D’ post and offered it to her son in ignoring the material on records is not sustainable. 8. Rule, 9 (7) of the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 referred to a ward who is minor at the time of death of a Government servant. The case of the applicant is not covered under the said provision. In the present case due to delay and laches on the part of the Collector to issue distress certificate after 13 years from the date of when the Registrar, Orissa Administrative Tribunal vide his letter dated 26.12.2002 forwarded the application for enquiry into the distress condition of the family as required under Rule, 8 (1) (b) of the Rules. The appointment letter was issued in favour of widow of the deceased employee in the year 2016. However she was not fit to discharge the duties which was not disputed by the parties. As such the impugned order is an error apparent on the record. Accordingly, we set aside the impugned order dated 17.11.2017 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.375 (C) of 2016 and direct the opposite party No.2 to issue appointment order in favour of the petitioner within a period of two months from today. No cost. A free copy of the judgment be handed over to learned Addl. Government Advocate for compliance. K.R. MOHAPATRA, J. I agree. Ordered accordingly.