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2018 DIGILAW 725 (ORI)

Biswaranjan Barik v. State of Orissa

2018-08-09

A.K.RATH

body2018
JUDGMENT Dr. A.K.RATH, J. - By this application under Article 226 of the Constitution of India, challenge is made to the order dated 6.10.2016 passed by the Joint Secretary to Government of Orissa, Department of Higher Education, Annexure-10, rejecting the claim of the petitioner for compassionate appointment under Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 (“Rules, 1990”) on the ground that the petitioner is the third legal heir of the deceased employee in order of preference. 2. Bereft of unnecessary details, the case of the petitioner is that Bula Barik, father of the petitioner, was working as Peon in Kishore Nagar College. He died on 14.5.2006 leaving behind his widow, three daughters and one son, petitioner while in service. The petitioner made an application for appointment under the Rules, 1990. The same was sent to the Government of Orissa by the Principal of the Kishore Nagar College on 2.11.2006. By letter dated 6.10.2016, the Joint Secretary to Government of Orissa, Department of Higher Education intimated the Director, Higher Education, Orissa rejecting the claim of the petitioner on the ground that he is the third legal heir of the deceased employee in order of preference and the same is in contravention of Rule 2(b) of the Rules, 1990. 3. A counter affidavit has been filed by opposite party no.2 justifying the order. It is stated that of Rules, 1990 is meant to save the family from distress condition due to death of an employee. The first preference is given to wife/husband for the said benefit. In the instant case, the widow of the deceased employee is alive. She was 38 years old at the time of death of her husband. She should apply for the benefit under the Rules, 1990. But then, her son being the third legal heir applied for the job. Further, as per Rule 9(6) of the Rules, 1990 application should be submitted within one year from the death of the employee. The employee expired in the year 2006. The incomplete application was submitted in the year 2011 i.e., after lapse of five years, which is in contravention of Rule 9(6) of Rules, 1990. In view of the same, the case of the petitioner was rejected. 4. Heard Mr.Sangram Jena, learned Advocate for the petitioner and Mr.Bikram Senapati, learned Additional Government Advocate. 5. The incomplete application was submitted in the year 2011 i.e., after lapse of five years, which is in contravention of Rule 9(6) of Rules, 1990. In view of the same, the case of the petitioner was rejected. 4. Heard Mr.Sangram Jena, learned Advocate for the petitioner and Mr.Bikram Senapati, learned Additional Government Advocate. 5. Before adverting to the contentions raised by the learned counsel for the parties, it will be necessary to set out some of the provisions of Rules, 1990. Deserving case has been defined under Rule 2(a) of the Rules, 1990, as follows:- “2. Definitions – xx xx xx (a) “Deserving Case” means 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 had 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”. “Family members” have been defined under Rule 2(b) of the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990, as follows: (b) “Family Members” shall mean 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 unmarred 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 dependant on such Government servant at the time of death.” 6. Admittedly, Bula Barik, father of the petitioner was working as a Peon in Kishore Nagar College. He died on 14.5.2006 leaving behind his widow, three daughters and one son, petitioner while in service. (vi) Brother of unmarried Government servant who was wholly dependant on such Government servant at the time of death.” 6. Admittedly, Bula Barik, father of the petitioner was working as a Peon in Kishore Nagar College. He died on 14.5.2006 leaving behind his widow, three daughters and one son, petitioner while in service. The petitioner made an application for appointment under the Rules, 1990 in the year 2006 as would be evident from the letter dated 2.11.2006 sent by the Principal of the Kishore Nagar College to the Deputy Secretary to Government, Department of Higher Education vide Annexure-3 series. The same was rejected in the year 2016. There was no justification on the part of opposite parties 1 and 2 to sit over the application for an indefinite period. 7. On a conspectus of the Rules, 1990, it is evident that six category persons have been enumerated in family members. If the family is in distressed condition, any member of the family can make an application, provided the conditions mentioned in Rule 2(a) are satisfied. 8. It is apt to state here that in course of hearing, learned Advocate for the petitioner files an affidavit in Court stating therein that the legal heirs have sworn an affidavit before the Execution Magistrate that they have no objection, if the petitioner is appointed under the Rules, 1990 and the other legal heirs have not been engaged in Govt. or non-Govt. organization. 9. The application was rejected solely on the ground that the petitioner is the third legal heir. It is too late in the day to contend that the application was not made within one year from the death of the employee as per 9(6) of the Rules, 1990. The order of rejection cannot be justified by taking another ground. In the case of Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 , Justice Vivian Bose proclaimed that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. 10. For the lackadaisical attitude exhibited by the opposite parties, the petitioner has suffered. He is waiting since 2006. His application was rejected on jejune grounds. 11. A priori, the writ petition is allowed. The matter is remitted back to opposite party no.1 to consider the case of the petitioner for appointment under the Rules, 1990 within three months from the date or production of certified copy of the judgment. Petition allowed.