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2023 DIGILAW 198 (ORI)

Balaram Behera v. State of Odisha

2023-11-06

MURAHARI SRI RAMAN

body2023
JUDGMENT Murahari Sri Raman, J. - THE CHALLENGE: Questioning the propriety of returning the documents (except death and legal heir certificate) enclosed to Letter No.94, dated 28.01.2015 of the Deputy Superintendent, Government Ayurvedic Hospital, Bhubaneswar, who suggested for consideration of appointment of the son of deceased Government employee, died in harness, under the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 (in short, 'RA Rules'), citing that wife of the deceased Government employee comes first in the order of preference, the petitioner had approached the Orissa Administrative Tribunal, Cuttack Bench, Cuttack by way of filing Original Application under Section 19 of the Administrative Tribunals Act, 1985, which was registered as O.A. No.2513 (C) of 2016, with a prayer to direct the opposite party No.2-Director, AYUSH, Odisha, Bhubaneswar 'to engage the applicant under the Rehabilitation Assistance Scheme of the State Government in any of the available vacancy and to grant all consequential service and financial benefits to him'. 1.1. After abolition of the Orissa Administrative Tribunal by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F. No. A-11014/10/2015-AT [G.S.R.552(E).], dated 2nd August, 2019), the said case having been transferred to this Court, O.A. No. 2513 (C) of 2016 has been re-registered as WPC (OAC) No.2513 of 2016. THE FACTS: 2. The factual matrix as adumbrated by the petitioner reveals that father of the petitioner, Late Mukunda Behera, who was working as cook in Government Ayurvedic Hospital, Bhubaneswar, having joined on 06.05.1977, died in harness on 08.10.2014 leaving behind wife, two sons and one daughter. 2.1. The first legal heir, namely, Smt. Pramila Behera, mother of the petitioner, though comes first in order of preference as per Rule 2(b) of the RA Rules, was found to be suffering from 'Hypertension with poly arthritis'. Since the physician advised rest due to ill-health, the Establishment Officer, Directorate of AYUSH by Letter bearing No.5951-OE-I(a)-5/2015/AYUSH, dated 27.06.2015 requested the Chief District Medical Officer, Khordha for convening Medical Board 'for examination of health condition of Smt. Behera and report findings of the Board to this Directorate for further action'. 2.2. Since the physician advised rest due to ill-health, the Establishment Officer, Directorate of AYUSH by Letter bearing No.5951-OE-I(a)-5/2015/AYUSH, dated 27.06.2015 requested the Chief District Medical Officer, Khordha for convening Medical Board 'for examination of health condition of Smt. Behera and report findings of the Board to this Directorate for further action'. 2.2. Accordingly, on the request vide Letter No.6767, dated 25.07.2015 of the Chief District Medical Officer, Khordha, the District Medical Board being constituted comprising Specialist in Orthopaedic, Specialist in Opthalmology and Specialist in Medicine, the following report was submitted on 05.08.2015: 'Medical Board examination of Smt. Pramila Behera, W/o. Late Dasarathi Behera on dated 05.08.2015 as per the CDMO, Khordha Letter No.6767 dated 25.07.2015. On examination and verification of treatment papers of Smt. Pramila Behera, it is found that she is suffering from Hypertension with poly arthritis. She is unable to walk properly. So she is unfit for the Govt. job.' 2.3. Since mother was found to be unfit for undertaking Government job, the petitioner, unmarried son, applied for engagement under the RA Rules, 1990, as his elder married brother and married sister expressed their unwillingness to undertake employment. Accordingly, they have sworn to affidavits indicating 'no objection' in case the petitioner is given employment under the said Rules. 2.4. In consideration of the application for engagement, the Deputy Superintendent, Government Ayurvedic Hospital, Bhubaneswar forwarded necessary documents including affidavits showing no objection by mother, brother and sister along with such application form to the Director of AYUSH, Odisha, Bhubaneswar for consideration of appointment of the petitioner. However, the Directorate of AYUSH, Odisha, Bhubaneswar vide Letter No. 3594- OE.I.(a).V.5/2015/AYUSH, dated 23.03.2015 (Annexure- 5) has returned the documents (except death and legal heir certificate) to the Deputy Superintendent, Government Ayurvedic Hospital. 2.5. Such action is under challenge in the present case. ARGUMENTS RESPECTIVE COUNSELS FOR THE PARTIES: 3. Though the learned Orissa Administrative Tribunal, Cuttack Bench, Cuttack vide Order dated 28.10.2016 issued notice on admission and directed to file counter within four weeks, the opposite parties have chosen not to furnish counter-affidavit till date. This matter has been pending since 2016 and no explanation is forthcoming from the side of the opposite parties as to why the Order dated 28.10.2016 remained non- complied. Therefore, the matter was heard for final disposal on the consent of counsel for both the sides. 4. This matter has been pending since 2016 and no explanation is forthcoming from the side of the opposite parties as to why the Order dated 28.10.2016 remained non- complied. Therefore, the matter was heard for final disposal on the consent of counsel for both the sides. 4. This Court heard Sri Sameer Kumar Das, learned advocate appearing for the petitioner and Sri Sachidananda Nayak, learned Additional Standing Counsel for the opposite parties. 5. It is submitted by Sri Sameer Kumar Das, learned counsel for the petitioner that the return of the documents in absence of plausible reason would tantamount to refusal to extend the benefit provided under the RA Rules, 1990. He further urged that the rejection is not only mechanical one, but also the Letter dated 23.03.2015 issued by the Establishment Officer to the Deputy Superintendent, Government Ayurvedic Hospital is ex facie untenable inasmuch as said letter requests 'to furnish the documents' such as 'application forms in duplicate of Smt. Pramila Behera, wife of the deceased and first legal heir with her dated signature'. The application of the petitioner along with documents forwarded clearly indicated that Smt. Pramila Behera was not in a position to take up job due to ill- health as certified by the District Medical Board and the affidavits of mother, brother and sister indicated that they have 'no objection', if the petitioner is allowed to be appointed as per the provisions of the RA Rules. 5.1. Referring to object of the scheme for rehabilitation assistance as provided under Rule 4 of the said RA Rules, Sri Sameer Kumar Das, learned counsel for the petitioner cited that it is a compassionate measure of saving the family of a Government servant from immediate distress when the Government servant suddenly dies while in service. The benefit of employment so extended is to one of the family members with a pious obligation that in case of sudden death of the breadwinner of the family, his family should not face starvation. The scheme aims at restricting deterioration of economic condition of the family of the Government servant. The benefit of employment so extended is to one of the family members with a pious obligation that in case of sudden death of the breadwinner of the family, his family should not face starvation. The scheme aims at restricting deterioration of economic condition of the family of the Government servant. In a catena of decisions it has been stressed that equal opportunity should be provided to all the aspirants as mandated under Articles 14 and 16 of the Constitution of India, yet in respect of appointment on compassionate ground offered to a dependent of the deceased employee, such benefit is an exception to the said norm. The compassionate ground is a concession and not a right. The underlying principle of compassionate appointment under the Rehabilitation Assistance Scheme is that it is not a source of recruitment, but a means to enable the family of the deceased to get over a sudden financial crisis. The compassionate appointment as an exception is in favour of the dependents of a deceased dying-in-harness and leaving his family in penury and without means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet. A provision is made in the Rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. Regard may be had to the observations made in State of Uttar Pradesh and Others Vrs. Premlata, (2022) 1 SCC 30 . Reliance is also placed on the decision vide Order dated 07.08.2023 passed in W.P.(C) No.1723 of 2016 (Suryamani Nayak Vrs. State of Orissa and Others) and it has been asserted that the said decision squarely applies to the facts of the present case. 5.2. Sri Sameer Kumar Das, learned counsel for the petitioner put forth that for the aforesaid purpose, Rule 8 is the guiding provision which lays mode of appointment, whereas Rule 9 provides for condition of service. The petitioner having adhered to the manner of approaching the authority concerned, there was no occasion for the Director of AYUSH to return the documents, which leads to denial of succor to the family of the deceased Government servant. 5.3. The petitioner having adhered to the manner of approaching the authority concerned, there was no occasion for the Director of AYUSH to return the documents, which leads to denial of succor to the family of the deceased Government servant. 5.3. Per contra, Mr. Sachidananda Nayak, learned Additional Standing Counsel appearing for the opposite parties- State of Orissa submitted that reading of Annexure-5, i.e., Letter dated 23.03.2015 reveals that the documents returned to the Deputy Superintendent, Government Ayurvedic Hospital, Bhubaneswar with a request to furnish application form in duplicate of Smt. Pramila Behera, wife of the deceased, who happens to be the first legal heir with her dated signature. It is inconceivable to construe said letter to mean that the Government has refused to extend the benefit of rehabilitation assistance under the provisions of the RA Rules, 1990 to the family of the deceased Government employee who died in harness, rather said letter is in conformity with the definition of the term 'family members' contained in clause (b) of Rule 2 of the RA Rules. Therefore, he submitted that the application of the petitioner, who is son of the deceased Government employee, was not eligible for appointment when the first legal heir, i.e., wife of the deceased employee was available. Opposing the contentions raised by the petitioner, Sri Sachidananda Nayak, learned Additional Standing Counsel vehemently argued that the action of the opposite party No.2 cannot be said to be unjustified and illogical. DISCUSSIONS AND ANALYSIS: 6. It is gathered from the arguments and submissions with reference to RA Rules that the scheme for compassionate appointment acts as an umbrella for the family of the deceased, while struck in a heavy downpour. Compassionate appointment is an exception to the rule of equality, which enables the dependent family members of a medically incapacitated employee who has no option, but to retire, or a deceased employee, to tide over the immediate crisis caused by the incapacitation or death of the breadwinner. Compassionate Appointment excludes equally or more meritorious candidates, much in need of a job, from the zone of consideration. Consideration for compassionate appointment must, therefore, be strictly in accordance with the prevalent rules for compassionate appointment applicable to the deceased/prematurely retired employee. [See, Central Bank of India Vrs. Nitin, 2022 LiveLaw (SC) 690]. 7. Compassionate Appointment excludes equally or more meritorious candidates, much in need of a job, from the zone of consideration. Consideration for compassionate appointment must, therefore, be strictly in accordance with the prevalent rules for compassionate appointment applicable to the deceased/prematurely retired employee. [See, Central Bank of India Vrs. Nitin, 2022 LiveLaw (SC) 690]. 7. Given aforesaid perspective with regard to compassionate appointment, from the rival contentions and documents available on record, the sole issue that falls for consideration of this Court is whether son, second legal heir of deceased Government employee, is entitled to apply for appointment under the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990, even as wife of deceased Government employee is available, but found to be unfit as per report submitted by the District Medical Board? 8. Considering the rival contentions vis-a-vis perusal of record transpires that the contention of Sri Sameer Kumar Das is acceptable, inasmuch as the Disctrict Medical Board constituted pursuant to request made by the Chief District Medical Officer, vide Letter dated 05.08.2015 in Annexure-8 certified that Smt. Pramila Behera, wife of the deceased Government employee, was not fit enough to undertake Government job. urthermore, the affidavits, as available at Annexure-4 series, indicate that the elder brother and sister showed indifference to undertake employment under the RA Rules. Further, Smt. Pramila Behera also filed affidavit affirming 'no objection' if her son, namely Balaram Behera, the present petitioner, gets employment under the aforesaid Rules. Under such premise, it is apparent from the Letter dated 23.03.2015 indicating return of documents with request to furnish application form with dated signature of Smt. Pramila Behera, wife of deceased employee, is fallacious inasmuch as such request is contrary to report of the duly constituted District Medical Board. 8.1. This Court is fortified with Coordinate Bench decision in the aforesaid case of Suryamani Nayak, as referred to by Sri Sameer Kumar Das, the learned counsel for the petitioner. Vide Order dated 07.08.2023, it has been observed as follows: 'The issue that fell for consideration before the coordinate Bench was whether an application made under the Rehabilitation Assistance Scheme could be rejected on the ground that the first legal heir had not applied. After referring to the relevant rules this Court held as follows: '11. Vide Order dated 07.08.2023, it has been observed as follows: 'The issue that fell for consideration before the coordinate Bench was whether an application made under the Rehabilitation Assistance Scheme could be rejected on the ground that the first legal heir had not applied. After referring to the relevant rules this Court held as follows: '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 considered necessary for dealing with the case a just and equitable manner. Relying upon this provision, a Division Bench of this Court in Smt. Ketaki Manjari Sahu Vrs. State of Orissa and others, 1998 (II) 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 circumstances 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 that benefit to the deserving persons in a just and equitable manner.' ***' 8.2. The Division Bench of this Court in the case of Ajit Kumar Barik Vrs. State of Orissa and Others, 2018 (II) OLR 10 , considered certificate of Medical Board certifying widow of the petitioner therein to be unfit for undertaking job, and made the following observations: '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. he Rules also define 'Family Members' means include the following members in order of performance- (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. 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.' 8.3. Said Ajit Kumar Barik's case was carried to the Hon'ble Supreme Court of India by the State of Orissa in S.L.P. (Civil) Diary No.35835 of 2018, which came to be disposed of with the following Order on 26.10.2018: 'Delay condoned. We find no reason to entertain this Special Leave Petition, which is, accordingly, dismissed. Pending application(s), if any, shall stand disposed of' 8.4. Yet another case, namely, State of Orissa Vrs. Kartika Bhoi, W.P.(C) No.4239 of 2018, which came to be disposed of on 25.04.2018 by a Division Bench, this Court took similar view. It is pertinent to have regard to following observations made in the said Order: 'The Tribunal took into consideration the rules which were provided under Orissa Civil Service (Rehabilitation Assistance) Rules, 1990, such as Rule 2(b) as well as Rule 5. It has further observed that Rule 2(b) has only stipulated the family members in the order of preference. The Tribunal rather quoted the provision of Rule 5, which provides the appointment to be made in deserving cases and passed in the impugned order as indicated above. For ready reference, the provisions of Rule 2(b) and Rule 5 of the said Rules is quoted as hereunder: 2(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 unmarried step daughter; (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. (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. *** In deserving cases, a member of the family of the Government servant who dies 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 possesses 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 recruitment rules. At the time of notifying such vacancies to the Employment Exchange or the examining authority, the employer shall clearly mention that the vacancy is proposed to be filled up under rehabilitation assistance scheme and so, sponsoring of candidates by Employment Exchange or the examining authority is not necessary. In view of the above, it does not mean that in case the person who is coming under 1st preference and was medically declared unfit for such appointment or is found not suitable, then automatically the other members in the order of preference will be extinguished from the zone of consideration. Rule 2(b) of 1990 Rules does not debar the family member placed in the 2nd preference to get the appointment in case the member placed in the 1st preference is unfit medically. The Tribunal has quashed the rejection order as it was illegal and arbitrary one and held that the ground of rejection to the effect that it contravenes Rule 2(b) of the 1990 Rules is not at all sustainable. In view of such finding of the Tribunal, we are not inclined to interfere with the same, since there is no error apparent on the face of it.' 8.5. This Court in Division Bench, while considering 'no objection' submitted by mother, brother and sister in State of Orissa & Ors. Vrs. In view of such finding of the Tribunal, we are not inclined to interfere with the same, since there is no error apparent on the face of it.' 8.5. This Court in Division Bench, while considering 'no objection' submitted by mother, brother and sister in State of Orissa & Ors. Vrs. Biranchi Nayak, W.P.(C) No.33872 of 2020, vide Order dated 18.10.2021, repelling the contention that since the spouse of the deceased employee (mother of the opposite party) was available to be given compassionate appointment, the opposite party could not have applied as it violates the provision of Rule 2(b) read with Rule 9(7) of the RA Rules, 1990 and the Government was justified in rejecting the application of the opposite party for appointment under the Rehabilitation Assistance Scheme, observed as follows: '7. We perused the impugned order. Learned Tribunal, while disposing of the Original Application, has given a specific finding that, when the mother, younger brother and sister of the opposite party have sworn an affidavit in favour of the opposite party showing their 'no objection' for his appointment under the Rehabilitation Assistance Scheme, there is no violation of Rule 2(b) read with Rule 9(7) of the OCS (RA) Rules, 1990 especially when, admittedly the family of the deceased employee is a destitute family and in distress. 8. Having heard learned Additional Government Advocate and Mr. P.K. Mishra, learned counsel appearing for Opp. Party, we fail to understand in what way, the order of the learned Tribunal has come to prejudice a welfare State, which should look after the well-being of all sundry. Here, there is clear intention on the part of the other family members, namely, mother, brothers and sister of opposite party for compassionate appointment of opposite party in place of his deceased father. They must have expressed such intention on the trust, faith and belief that the opposite party, being appointed in place of his deceased father, shall revive the family from destitution.' CONCLUSION: 9. They must have expressed such intention on the trust, faith and belief that the opposite party, being appointed in place of his deceased father, shall revive the family from destitution.' CONCLUSION: 9. In view of the legal position as set forth by the Division Bench and the coordinate Bench of this Court coupled with the purport of compassionate appointment as discussed by the Hon'ble Supreme Court vis-à-vis documents available on record and taking note of fact of non-filing of the counter-affidavit by the opposite parties, the return of documents by Letter dated 23.03.2015 (Annexure-5) to the Deputy Superintendent, Government Ayurvedic Hospital, Bhubaneswar cannot be held to be proper. Therefore, it is directed that the opposite party No.2-Director, AYUSH, Odisha, Bhubaneswar shall call for the documents, which were returned to the Deputy Superintendent, Government Ayurvedic Hospital, Bhubaneswar by Letter dated 23.03.2015 (Annexure-5) within a period of fifteen days from today and also take into consideration the documents, which formed part of the present writ petition to take appropriate decision in the light of the discussions and observations made hereinabove. The opposite party No.2 shall be entitled to scrutinize whether the application for compassionate appointment fulfils all other requirements in accordance with the law. The process of consideration of the application shall be completed within a period of three months from today. 9.1. Needless to observe that for taking appropriate decision as directed supra the opposite party No.2 may also call for such other document(s) which may be required as envisaged under the RA Rules. 9.2. In the result, the writ petition is allowed with the aforesaid observation and direction, but in the circumstances, there shall be no order as to costs.