The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 19125 of 2015 (An Application Under Articles 226 and 227 of the Constitution of India) --------------- AFR Subhrarasmi Beura ...… Petitioner -Versus- State of Odisha and others .... Opposite Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/S. R.K.Behera, R.C. Pradhan Advocates.
Legal Reasoning
taken thereafter, the petitioner approached this Court in the present writ application with the following prayer: Admit the writ application, It is prayed therefore that this Hon’ble Court may be graciously pleased; i) ii) Call for the records, iii) Issue RULE NISI calling upon the opp. parties to show cause as to why the order of the D.E.O dated 27.03.2014 under Annexure-6 shall be quashed and they shall not be directed to give appointment to the petitioner under Rehabilitation Assistance Scheme within a time to be stipulated by this Hon’ble Court, Page 2 of 7 And if the Opp. Parties do not show cause or show insufficient cause, quash the order dated 27.03.2014 (Annexure-6) and issue a necessary direction to the opp.parties to give appointment to the petitioner within a time to the stipulated by the Hon’ble Court, And further be pleased to pass any other appropriate order/direction as this Hon’ble court may deem fit and proper for the ends of justice, And for which act of kindness, the petitioner shall as in duty bound ever pray. 2. A counter affidavit has been filed by the District Education Officer. Referring to the provisions of OCS (R.A.) Rules, 1990 it is stated that the petitioner being married daughter of the deceased employee is not eligible for compassionate appointment. The petitioner filed a rejoinder stating that at the time of submitting application, she was unmarried but because of delay in consideration of her application she was ultimately denied the benefit as she had married in the meantime. Therefore, the relevant rule cannot be made applicable to her case. 3. Heard Mr. Amiya Kumar Mohanty, learned counsel for the petitioner and Mr. D. Mohapatra learned Standing counsel (S & M.E. Department). 4. Mr. Mohanty, has argued that admittedly the father of the petitioner died in harness leaving behind his wife, a son, a married daughter and the petitioner. The Page 3 of 7 petitioner was unmarried. Therefore, she submitted application for appointment under the Rules on 10.08.2010. However, the authority took a long time to process her application and furnished the distress certificate only on 27.09.2013. In the meantime, the petitioner had got married. Therefore, the delay in processing her application cannot lead to rejection of her application which is completely unjustified. 5. Mr. Mohapatra, on the other hand has argued that compassionate appointment can only be granted as per rules. Since the rules do not permit such appointment to a married daughter, the petitioner is not entitled to relief as claimed in this writ application. 6. The facts of the case are undisputed inasmuch as the father of the petitioner while serving as Hindi Teacher expired on 13.05.2010. The petitioner being his younger daughter applied for appointment on 10.08.2010. There is no dispute that she was unmarried at that time. Her application was processed as per rules and the required distress certificate was issued by the Tahasildar on 27.09.2013. Then also the authorities do not appear to have further processed the application and kept it pending. In the meantime, the petitioner got married on 23.06.2012 which was registered on Page 4 of 7 25.03.2014. Ultimately, her application was returned by the Collector, Kendrapara on the ground that she is the married daughter of the deceased employee and hence, not eligible to be covered under the Rehabilitation Assistance Scheme. 7. Reference to the provisions of Odisha Civil Service (Rehabilitation Assistance Rules, 1990) would reveal that family members of the deceased Government servant have been enumerated under Rule 2 (b) for the purpose of the Rules. The said Rules reads as under: “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 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. (C) “Government “means the Government of Odisha; (d) [***] (e) “Rehabilitation the assistance provided under these rules to a member of the family of a Government servant who died while in service” (f) “year” means the calendar year Thus a married daughter does not come within the meaning of family members as per the rules. Assistance” means 8. As has already been stated hereinbefore, the petitioner was unmarried at the time of submitting application for compassionate appointment. The question is, Page 5 of 7 whether the same would be a determining factor to decide her entitlement for appointment under the Rules. Undoubtedly, there was delay on the part of the authorities in processing her application. Obviously the petitioner cannot be blamed for such delay. However, given the very object of the Rules, delay in processing of the application cannot enure to the benefit of the applicant. In this regard it would be apt to refer to the objective of the scheme as provided under Rule 4 of the rules which is quoted herein below: immediate distress when Objective of the scheme- The rehabilitation assistance is conceived as a compassionate measure of saving the family of a Government servant from the Government servant suddenly dies while in service. The concept is based on the premises that in case of sudden death his family would not face starvation. The scheme has a direct relationship with the economic condition of the family of the Government servant. Appointment of the family member of the Government servant under these rules shall be subject to the provisions contained in Rule 9 and can not be claimed as a matter of right. In the case of Life Insurance Corporation of India Vrs. Asha Ramachandra Ambedkar reported in (1994) 2 SCC 718 the Supreme Court observed as under: “Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Court and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration… Willing to instinct intend to ignore the cold logic of law. It should be remembered that is embodiment of all wisdom.” Justice “law Page 6 of 7 according to law is a principle as old as the hills. The courts are to administer law as they find it, however, inconvenient it may be….” Such being the position of law and considering the objective of the Rules referred above, there is no way by which it can be said that the petitioner is entitled to be appointed under the Rules inasmuch as the immediate distress that the family of the deceased employee may have faced at the relevant time cannot, under any stretch of imagination be said to have subsisted after so many years; to be precise for 13 years after his death. True, the concerned authorities should have exhibited due diligence and promptitude in dealing with such a case but their inaction cannot be a ground for this Court to take a view in favour of the petitioner at this distance of time. 9. For the following reasons therefore, this Court finds no merit in the writ application, which is therefore, dismissed. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, 4th April, 2023/ Deepak Page 7 of 7
Arguments
For Opp. Parties : Mr. D. Mohapatra, Standing Counsel for (S & M.E. Department) _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 4th April, 2023 SASHIKANTA MISHRA, J. The petitioner’s father, while serving as Hindi Teacher in Balabihari Bidyapitha, Mahal in the district of Kendrapara died on 13.05.2010. The petitioner being one of his daughters applied for appointment under OCS (Rehabilitation Assistance Rules, 1999). The said application was forwarded to the Inspector of Schools Kendrapara. The Tahasildar, Page 1 of 7 Garadpur vide letter dated 27.09.2013 issued distress certificate. In the meantime, the petitioner got married on 23.06.2012. Since no action was taken in the matter she submitted representation to the Collector, Kendrapara. By letter dated 27.03.2014, the District Education Officer, Kendrapara informed the petitioner that her application for issue of distress certificate has been returned with objection that she is the married daughter of the deceased employee and hence, not eligible to be covered under the R.A. scheme. The petitioner thereafter met the Collector in his grievance cell and submitted representation mainly contending that she was unmarried at the time of submitting application. Further, by order dated 25.07.2015, the District Education Officer, Kendrapara sought clarification from the Director of Secondary Education in this regard. Since no action was