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2019 DIGILAW 320 (ORI)

Tushar Mallick v. State of Odisha

2019-04-12

B.R.SARANGI

body2019
JUDGMENT : B.R. Sarangi, J. 1. The petitioner has filed this application seeking to quash Annexure-3, the order dated 11.04.2016 passed by the Managing Director-opposite party No. 3, by which the application filed by the petitioner for compassionate appointment under rehabilitation assistance scheme has been rejected on the ground that he does not possess the minimum qualification for the post of Sub-Staff. 2. Factual matrix of the case, in hand, is that the father of the petitioner was "working as a sub-Staff under Odisha State Cooperative Bank since 31.03.1976. While he was continuing in the said post died in harness on 28.09.2013. Thereafter, the petitioner submitted representation for compassionate appointment under rehabilitation Assistants scheme by collecting the relevant documents such as Death Certificates, Resident Certificate, Caste Certificate, Legal Heir Certificate from the competent authority. When the case of the petitioner was not considered by the authority, the petitioner on 20.10.2015 approached the authority through another representation enclosing all the documents to opposite party No. 3 for consideration of his case. In pursuance of the representation, the opposite party No. 3 intimated the petitioner indicating therein that the case of the: petitioner for appointment in the Bank under Rehabilitation Assistance Scheme on the Compassionate Ground is not considered by the Appointment Committee, since the petitioner does not possess the minimum qualification for the post of sub-staff. Hence this application. 3. Mr. A. Mohanty, learned counsel for the petitioner contended that the order under Annexure-3 dated 11.04.2016 cannot sustain in the eye of law in view of the fact that as per Rule 7(O) of the Staff Service Rules, 1980, the qualification and experience for the post of Sub-Staff shall be fixed by the Management of the Bank and as per Rule 8 of the Staff Service Rules, 1980, it deals with Special Provision regarding appointment of son, daughter, widow of a deceased employee for the service of the Bank. Without following the said Staff Service Rules, 1980 in proper perspective, the opposite party No. 3 has rejected the claim of the petitioner for compassionate appointment only on the ground that the petitioner does not possess the minimum qualification for the post of Sub-Staff, therefore, the petitioner has filed this application. 4. Mr. B. Senapati, learned Addl. Without following the said Staff Service Rules, 1980 in proper perspective, the opposite party No. 3 has rejected the claim of the petitioner for compassionate appointment only on the ground that the petitioner does not possess the minimum qualification for the post of Sub-Staff, therefore, the petitioner has filed this application. 4. Mr. B. Senapati, learned Addl. Government Advocate for the State contended that since it is a matter between the opposite party No. 3 vis-a-vis the petitioner, the State has nothing to say in the matter, thereby, the claim made by the petitioner is to be considered by opposite party No. 3. 5. Mr. K.P. Nanda, learned counsel for opposite parties No. 2 and 3 reiterated the contention that since the petitioner does not possess the minimum qualification for the post of Sub-Staff therefore, the appointment committee considering the application filed by the petitioner, has rejected the same, which is well justified and may not be interfered by this Court. To substantiate his contention he has relied upon the judgment of the apex Court in Chief Engineer (Naval Works) v. A.P. Asha, (2015) 15 SCC 310 . 6. The fact remains the father of the petitioner was working under the Odisha State Cooperative Bank in the post of Sub-Staff from 31.03.1976 and while in service he died on 28.09.2013. After his death, the petitioner submitted an application for consideration of his case under compassionate ground along with relevant documents, but the same has not been considered. Therefore.. the petitioner pursued his remedy before the authority concerned time and again and ultimately, the order impugned dated 11.04.2016 in Annexure-3 has been passed rejecting his claim that he does not possess minimum qualification for the post of Sub Staff. Needless to say that admittedly the petitioner has appeared the Class-X examination, but has not passed the HSC examination by the time he submitted the application but as on date he has already acquired HSC qualification. It is stated that the minimum qualification of HSC is required for the post of Sub-Staff. Since the petitioner had not acquired the minimum qualification of HSC pass, it is contended that the appointment committee has considered his application and rejected the same. But fact remains to regulate the service conditions of the employees of the Bank, Staff Service Rules, 1980 is in operation. Since the petitioner had not acquired the minimum qualification of HSC pass, it is contended that the appointment committee has considered his application and rejected the same. But fact remains to regulate the service conditions of the employees of the Bank, Staff Service Rules, 1980 is in operation. So far as qualification of different posts under different grade IS concerned, the same is guided under Rule 7 of the Rules and the Sub-Staff is concerned, the same is covered under Rule-7(O), wherein it has been mentioned that the qualification and experience for the post of Sub-Staff shall be fixed by the Management of the Bank. 7. Opposite party No. 3 have filed counter affidavit, nowhere it has been indicated with regard to qualification and experience to the post of Sub-Staff has been fixed by the Management. Thereby, Rule 7(O) of the Staff Service Rules, 1980 has not been complied with in proper perspective. Apart from the same, under Rule 8 of the Staff Service Rules, 1980, when special provision IS made for giving a compassionate appointment in that case, the compassionate appointment should be extended to the legal heirs of the deceased employees, who died in harness and was only bread earner of the family. So far as minimum qualification fixed for Sub-Staff is concerned, that can be relaxed so far compassionate appointment is concerned. On that ground, no where the Management has taken steps for granting such benefit of compassionate appointment, otherwise the meaning of giving compassionate appointment will be frustrated. The compassionate appointment will only be given to support the family who lost their bread earner at a premature stage. Therefore, by taking a technical plea of non-possession of requisite qualification, the application could not have been rejected at a threshold. Therefore, opportunity should be given to the person concerned by giving employment and permitting him to acquire the minimum requisite qualification. 8. In Sushma Gosain vrs. Union of India, (1989) 4 SCC 468 , the apex Court observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. That fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as anti when such minor becomes a major he can be appointed without any time consciousness or limit. The above View was reiterated in Phoolwati v. Union of India, 1991 Supp (2) SCC 689 and Union of India vrs. Bhagwan Singh, (1995) 6 SCC 476 . 9. In State of U.P. v. Paras Math, (1998) 2 SCC 412 , the apex Court held that the purpose of providing employment to the dependant of a government servant dying-in-harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are rules providing for such appointments. 10. Reliance has been made in the judgment of the apex Court in Chief Engineer (Naval Works) (supra). The apex Court held that appointment under compassionate ground as per policy of the appellant issued to most deserving candidate available at that time, but here it is not the case, which comes under the purview of the judgment of the apex Court. Admittedly, the petitioner has no requisite qualification of HSC pass for compassionate appointment. That may not be bar for opposite party No. 3 not to consider the case of the petitioner for giving compassionate appointment, otherwise the purpose of compassionate appointment will become nugatory for which it has been formulated. 11. In paragraph 14 and 15 of this writ petition, the petitioner has stated as follows: "14. That, so far the qualification of different posts under different grade is concerned, the same is guided under Rule-7 of the Staff Service Rules and the Sub-Staff is concerned, the same is covered under Rule-7(O), where it has been mentioned that, the qualification and experience for the post of Sub-Staff shall be fixed by the Management of the Bank. 15. That, so far the qualification of different posts under different grade is concerned, the same is guided under Rule-7 of the Staff Service Rules and the Sub-Staff is concerned, the same is covered under Rule-7(O), where it has been mentioned that, the qualification and experience for the post of Sub-Staff shall be fixed by the Management of the Bank. 15. That so far the Rule-8 of the Staff Service Rules, 1980 is concerned which deals with the Special Provision regarding Appointment of Son, Daughter, Widow of a deceased employee for the service of the Bank which is quoted hereunder for necessary perusal of this Hon'ble Court: "(8) SPECIAL PROVISION: Appointment of son/daughter/widow of a deceased employee in the service of the Bank (As per RCS Order No. XIV-34/95/13256/Bk-I dt. 30th October 2004): (1) Notwithstanding anything contained in these rules, the Managing Committee may, with the approval of the Register/Competent Authority appoint the son, daughter or widow of a deceased employee of the Bank on Rehabilitation Assistance Scheme in any post up to the rank of Junior Manager and the provisions of Orissa Civil Services Rehabilitation Assistance Rules, 1992, shall, mutatis-mutandis apply to the Bank on such rehabilitation appointment. (2) For rehabilitation appointment under Sub-rule(I), the Managing Committee may with the approval of the Registrar/Competent Authority relax the education qualification without sacrificing the minimum standard for requirement for the post and job to which such appointment is made." While filing the counter affidavit, in paragraph-8 the opposite parties No. 2 and 3 has given reply to the following effect: "That in reply to Paragraphs 72 and 78 of the writ petition) it is humbly submitted that it is not legally possible to appoint any person under rehabilitation appointment scheme in any post in which he does not possess the required qualification. Petitioner had applied for the post of sub-staff in the year 2015 and at that time the required qualification for the post of sub-staff i.e. any class-IV post is H.S.C. pass and the petitioner does not possess that educational qualification for which his application was rejected by the Appointment Committee' of the bank. Therefore, the decision of the Appointment Committee is justified. A copy of the Appointment Committee resolution dtd. 5.4.2016 is filed herewith a Anx-B/3." From the above paragraph no where it has been dealt controverting the fact which are pleaded in paragraph-14 and 15 of the writ petition. Therefore, the decision of the Appointment Committee is justified. A copy of the Appointment Committee resolution dtd. 5.4.2016 is filed herewith a Anx-B/3." From the above paragraph no where it has been dealt controverting the fact which are pleaded in paragraph-14 and 15 of the writ petition. Rather, the petitioner in its rejoinder In paragraph-8 has answered to paragraph-8 of the counter affidavit, which is stated as follows : "8. That in reply to the averments made para-8 to the counter affidavit, it is respectfully submitted on behalf of the petitioner, that the answering opposite parties are persistently and strenuously pressing that the case of the petitioner have rejected due to not possessing the required qualification. To that effect, it is submitted on behalf of the petitioner, that the minimum qualification cannot be insisted, upon for appointment under rehabilitation assistant case, rather the same can be adhered to in case of regular appointment. So far the Rule-8 of Staff Services Rules, 1980 is concerned, there is nothing mentioned about the minimum education qualification for Rehabilitation Assistant Scheme. But if the gradation list of the employees of the Orissa State Cooperative Bank Limited, Bhubaneswar will be considered for a moment in relation to sub-staff, the Junior Assistance, then it will be conspicuously clear that number of regular employee as such one B.K. Sahoo, N.K. Sahoo, J.P. Das, D. Pani, CR. Passa and P.C. Sethi and in Junior Assistant Grade, they have possessed the qualification of plucked-matriculation, M.E., Class-VIII, & VII, but the likewise the employees namely, Arjuna Sethi, Bhadeswar Pati and B. C Chhetri and many more under the sub-staff grade they have possessing the qualification-VII, liberate, Class-V. So, question arose when the Bank have engaged the employee on regular post having qualification less than the matriculate, then why the petitioner's case is not be considered in the post of sub-staff under compassionate ground where the petitioner was a pluck-matric as per the documents banks under Annexure-A series to the petitioner. The copy of the relevant portion of the gradation list filed herewith as ANNEXURE I for kind perusal of this Hon'ble Court." 12. It is contended that some of the candidates, who does not possess the minimum qualification and plucked matriculation, they are continuing in the post of sub-staff. Thereby, in no Circumstances, the petitioner could have been discriminated for consideration of compassionate appointment. It is contended that some of the candidates, who does not possess the minimum qualification and plucked matriculation, they are continuing in the post of sub-staff. Thereby, in no Circumstances, the petitioner could have been discriminated for consideration of compassionate appointment. It is also now seen that the petitioner has already got the minimum qualification of matriculation for the post of sub-staff, thereby, the stand taken that the petitioner has no requisite qualification for consideration of his case for compassionate appointment, is no more available to be raised. 13. In view of the above, this Court is of the considered view that the order dated 11.04.2016 passed by opposite party No. 3 in Annexure-3 cannot sustain in the eye of law. Accordingly, the same is hereby quashed and the opposite parties No. 2 and 3 are directed to reconsider the case of the petitioner afresh by giving him compassionate appointment under Rehabilitation Assistance Scheme as expeditiously as possible. 14. Accordingly, the writ petition is allowed. No order to cost.