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2021 DIGILAW 263 (ORI)

AFR Mamata Pati v. State Of Odisha

2021-06-22

B.R.SARANGI

body2021
JUDGMENT B.R. Sarangi, J. - The petitioner, by means of this writ petition, seeks to quash the order dated 27.11.2004 under Annexure-8, by which the joining report of the petitioner received on 23.11.2004, has not been accepted, and to issue direction to the opposite parties to allow her to work as Jr. Diarist by accepting her joining report and grant all consequential service benefits. 2. The factual matrix of the case, in brief, is that the husband of the petitioner Late Godabarish Pati, who was working as a Junior Clerk in the office of the D.F.O., Plantation Division, Berhampur, died prematurely on 13.03.2000, while in service, leaving behind his old mother, wife and two children. As the family members faced acute hardship, the petitioner applied for compassionate appointment as per the provisions of Orissa Civil Service (Rehabilitation Assistance) Rules, 1990, but the same was not considered by the Conservator of Forest. Consequentially, she filed representation before the Chief Conservator of Forests, Orissa, Bhubaneswar, who directed for production of vacancy position. In compliance of the same, the Conservator of Forests, vide letter dated 10.06.2003, informed the Principal, Chief Conservator Forests that one Lalmohan Panigrahi, Junior Diarist has already been retired from service on 31.05.2003 and the said post is lying vacant w.e.f. 01.06.2003. But prior to such vacancy, there were other vacancies available, which fact was not brought to the notice of the Principal, Conservator of Forests, Bhubaneswar. However, the Principal, Conservator of Forests, vide letter dated 03.07.2003, requested the State Government for issuance of necessary instructions for appointment of the petitioner under rehabilitation assistance rules. In the said letter, it was pointed out that a post of Jr. Diarist has fallen vacant w.e.f. 01.06.2003 due to superannuation of Lalmohan Panigrahi on 31.05.2003. As a consequence thereof, on 28.10.2003, the matter was placed before the Finance Department for grant of permission for appointment of the petitioner. Accordingly, appointment order was issued in favour of the petitioner on 17.11.2004. 2.1 Prior to issuance of appointment order in favour of the petitioner on 17.11.2004, one Bhagwan Mohanty, who is continuing in class-IV post, filed an original application bearing O.A. No.1276 of 2004 before the Orissa Administrative Tribunal, Bhubaneswar claiming the post in which the petitioner was appointed contending that Jr. Diarist post is a promotional post and he, being the senior most in class-IV post, should be given promotion by holding DPC. Diarist post is a promotional post and he, being the senior most in class-IV post, should be given promotion by holding DPC. The tribunal, vide order dated 11.11.2004, disposed of the said original application and sent the paper book to the State authorities with the direction to consider the grievance of said Bhagawan Mohanty for promotion to the rank of Jr. Diarist within a period of two months. By the time the order of appointment dated 17.11.2004 was issued in favour of the petitioner, the order dated 11.11.2004 passed by the tribunal had not been communicated. But, when the petitioner submitted her joining report on 23.11.2004, since by then the order of the tribunal was received by the authority, her joining report was not accepted and accordingly a communication to that effect was made vide letter dated 27.11.2004 under Annexure-8, challenging which the petitioner filed O.A. No. 234 (C) of 2005 before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack. But, on abolition of the said tribunal, O.A. No. 234 (C) of 2005 has been transferred to this Court, in pursuance of order dated 19.11.2020 passed by a Division Bench of this Court in W.P.(C) No. 10157 of 2020 and registered as above. 3. Mr. S. Behera, learned counsel for the petitioner contended that in the order dated 11.11.2004 passed by the tribunal in O.A. No.1276 of 2004 only direction was issued to the Conservator Forests to consider the case of Bhagwan Mohanty for promotion to the post of Jr. Diarist considering the paper book within two months. Since joining report dated 23.11.2004 of the petitioner was not accepted, she submitted a representation to the Principal, Conservator Forests, Bhubaneswar on 01.12.2004 as against non-acceptance of joining report contending therein that it amounts to termination of service without complying the principles of natural justice. But on the basis of the direction given by the tribunal in O.A. No.1276 of 2004, the Principal, Conservator Forests took a decision on 14.03.2005 that the proposal for convening DPC to consider the promotion of Bhagwan Mohanty to the rank of Jr. Diarist has already been exhausted, as there was no vacancy in the rank of Jr. Diarist under the control of Conservator Forests and consequentially rejected the representation filed by Bhagwan Mohanty. Diarist has already been exhausted, as there was no vacancy in the rank of Jr. Diarist under the control of Conservator Forests and consequentially rejected the representation filed by Bhagwan Mohanty. It is contended that the Principal, Conservator of Forests also directed the Conservator of Forests on 28.07.2005 to allow the petitioner to continue in the post, pursuant to which the petitioner submitted her joining report dated 23.11.2004 and the same being accepted she was continuing in the post w.e.f. 30.07.2005. It is contended that if the post of Jr. Diarist was lying vacant because of retirement of Lalmohan Panigrahi and the same was filled up by giving appointment to the petitioner under rehabilitation assistance rules, merely because Bhagwan Mohanty filed an original application, that ipso facto cannot entitle him to get such benefit, as the post had already been filled up and furthermore his representation had been rejected by the Principal, Conservator of Forests on 14.03.2005. In the circumstances, it is contended that the joining of the petitioner in the post of Jr. Diarist w.e.f. 23.11.2004 should be accepted and the date 30.07.2005, with effect from which the petitioner was effectively allowed to join, should relate back to the initial date of her joining on 23.11.2004, by quashing Annexure-8, and she should be granted all differential consequential benefits for the period from 23.11.2004 to 30.07.2005 as admissible to her. 4. Mr. M. Balabantaray, learned Addl. Standing Counsel for the State argued with vehemence contending that as per the resolution dated 29.01.1997 of the G.A. Department, Jr. Diarist post is a promotional post above the base level post. The OCS (RA) Rules, 1990 was subjected to amendment by notification dated 07.10.1998, in which Rule-5 stood substituted to the extent that in deserving cases, a member of the family of the government servant, who died while in service, may be appointed to any Group-C or Group-D posts only by the appointing authority of that deceased government servant, provided he/she possessed requisite qualification prescribed for the post in the relevant recruitment rules or instructions of the government without following the procedure prescribed for recruitment to the post either by statutory rules or otherwise irrespective of the fact that recruitment is made by notification of vacancies to the employment exchange or through recruitment examination under relevant rules. Rule-7 provides that appointment under these rules shall be made once against any post either in Group-C or in Group-D, which is a base post in the said groups. It is further contended that though a post of Jr. Diarist was lying vacant because of retirement of Lalmohan Panigrahi, but by the time the petitioner submitted her application, it being a promotional post, appointment could not be given to her by the authority concerned. It is further contended that even though the petitioner submitted her joining report on 23.11.2004, the same was not accepted, as one Bhagwan Mohanty approached the tribunal by filing O.A. No.1276 of 2004 claiming such post by way of promotion which was already due by then. As such, the tribunal directed to consider his representation for promotion by convening DPC within two months and, thereby, the order impugned vide Annexure-8 was issued. Consequentially, no illegality or irregularity has been committed by the authority concerned in passing the order impugned, so as to warrant interference by this Court. 5. This Court heard Mr. S. Behera, learned counsel for the petitioner and Mr. M. Balabantaray, learned Addl. Standing Counsel appearing for the State opposite parties by virtual mode, and perused the record. Since pleadings have been exchanged between the parties, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. There is no dispute with regard to the factual matrix, as delineated above, and also there is no dispute with regard to the appointment letter issued in favour of the petitioner on 17.11.2004, pursuant to which she submitted her joining report on 23.11.2004. But her joining report was not accepted, as is evident from Annexure-8 the letter dated 27.11.2004, presumably because of the order passed by the tribunal on 11.11.2004 in O.A. No.1276 of 2004 filed by Bhagwan Mohanty claiming for promotion to the post of Jr. Diarist. In the said order, the tribunal directed to consider his representation. But pending consideration of the representation, the joining report of the petitioner has not been accepted vide letter dated 27.11.2004 under Annexure-8. By issuance of appointment letter in favour of the petitioner appointing her in the post of Jr. Diarist. In the said order, the tribunal directed to consider his representation. But pending consideration of the representation, the joining report of the petitioner has not been accepted vide letter dated 27.11.2004 under Annexure-8. By issuance of appointment letter in favour of the petitioner appointing her in the post of Jr. Diarist, when the said post had already been filled up, question of consideration of candidature of any other candidate either by way of promotion or otherwise for appointment against the said post once again does not arise, as there was no vacancy available at the relevant point of time. 7. In Haryana State Electricity Board v. Hakim Singh, (1997) 8 SCC 85 , the apex Court explained the rationale of the rule relating to compassionate appointment with the following words:- "The rule of appointments to public service is that they should be on merits and through open invitation. It is the normal route through which one can get into a public employment. However, as every rule can have exceptions, there are a few exceptions the said rule also which have been evolved to meet certain contingencies. As per one such exception relief is provided to the bereaved family of a deceased employee by accommodating one of his dependants in a vacancy. The object is to give succor to the family which has been suddenly plunged into penury due to the untimely death of its sole breadwinner. This Court has observed time and again that the object of providing such ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment." 8. In Sushma Gosain v. Union of India, (1989) 4 SCC 468 , the apex Court held as follows: "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 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 and when such minor becomes a major he can be appointed without any time consciousness or limit. Such appointments should, therefore, be provided immediately to redeem the family in distress. The 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 and 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) Supp2 SCC 689 and Union of India v. Bhagwan Singh, (1995) 6 SCC 476 . 9. In State of U.P. v. Paras Nath, (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. In Haryana State Electricity Board v. Krishna Devi, (2002) 10 SCC 246, the apex Court held that "compassionate appointment" is given only on humanitarian consideration. 11. In Commissioner of Public Instructions v. K.R. Vishwanath, (2005) 7 SCC 206 , the apex Court taking into consideration the above mentioned judgments discussed the object and nature of "compassionate appointments". 12. In Balbir Kaur v. Steel Authority of India, (2000) 6 SCC 493 , the apex Court in paragraph-8 of the said judgment held as follows:- "The employer being Steel Authority of India, admittedly an authority within the meaning of Article 12 has thus an obligation to act in terms of the avowed objective of social and economic justice as enshrined in the Constitution but has the authority in the facts of the matters under consideration acted like a model and an ideal employer It is in this factual backdrop, the issue needs an answer as to whether we have been able to obtain the benefit of constitutional philosophy of social and economic justice or not. Have the lofty ideals which the founding fathers placed before us any effect in our daily life the answer cannot however but be in the negative what happens to the constitutional philosophy as is available in the Constitution itself, which we ourselves have so fondly conferred on to ourselves. Have the lofty ideals which the founding fathers placed before us any effect in our daily life the answer cannot however but be in the negative what happens to the constitutional philosophy as is available in the Constitution itself, which we ourselves have so fondly conferred on to ourselves. The socialistic pattern of society as envisaged in the Constitution has to be attributed its full meaning: A person dies while taking the wife to a hospital and the cry of the lady for bare subsistence would go unheeded on certain technicality. The bread earner is no longer available and prayer for compassionate appointment would be denied, as it is likely to open a Pandora's box- this is the resultant effect of our entry into the new millenium. Can the law courts be a mute spectator in the matter of denial of such a relief to the horrendous sufferings of an employee's family by reason of the death of the bread-earner?" 13. Taking into consideration the above judgments, can this Court be a mute spectator in the matter of denial of a relief which has already been granted to the petitioner in the present case. More so, in Paras Nath mentioned supra, the apex Court already 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 and to alleviate the distress of the family, such appointments are permissible. 14. In view of such position, even though Bhagwan Mohanty approached the tribunal for consideration of his case for promotion to the post of Jr. Diarist and the tribunal disposed of the original application directing to consider his representation, which was duly considered by the Principal, Conservator of Forests, Orissa, Bhubaneswar and rejected vide order dated 14.03.2005, as the post of Jr. Diarist has already been exhausted and there was no vacancy available under the control of Conservator of Forests, Berhampur. Therefore, there is no iota of doubt that the joining report of the petitioner, which was submitted on 23.11.2004, was not accepted purportedly vide letter dated 27.11.2004, and on the other hand admittedly the petitioner was allowed to join in service w.e.f. 30.07.2005. Therefore, there is no iota of doubt that the joining report of the petitioner, which was submitted on 23.11.2004, was not accepted purportedly vide letter dated 27.11.2004, and on the other hand admittedly the petitioner was allowed to join in service w.e.f. 30.07.2005. Therefore, her joining should be relegated back to 23.11.2004 instead of 30.07.2005 and, as such, for the period from 23.11.2004 to 30.07.2005 she will be entitled to get the consequential benefits treating her initial date of joining as 23.11.2004. Consequentially, the communication vide Annexure-8 dated 27.11.2004 is hereby quashed. Needless to say, the petitioner has not discharged the duty for the period from 23.11.2004 to 30.07.2005 and, therefore, she will not be entitled to get any financial benefit for the said period, but her joining should be notionally treated with effect from 23.11.2004 to entitle her to get all consequential benefits in accordance with law. 15. In the result, the writ petition is allowed. However, there shall be no order as to costs. 16. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the judgment available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No. 4798 dated 15th April, 2021.