Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P(C) NO. 28064 OF 2013 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- Sri Prasanta Nanda ..… Petitioner -Versus- Union of India & Another ….. Opp. Parties For Petitioner : M/s. L. Pradhan, A.K. Hota, D.P. Das, Advocate For Opp. Parties : Mr. P.K. Parhi, DSGI along with Mr. B. Maharana, C.G.C P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE B.P. SATAPATHY Date of Hearing & Date of Order:: 25.01.2023 B.P. SATAPATHY, J. The Present Writ Petition has been filed by the Petitioner challenging the order dated 05.09.2013 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack (in short, “The Tribunal”), / 2 / wherein the Tribunal rejected the prayer made in the Original Application on the ground that it is pre- mature and cannot be entertained. The Petitioner challenging the order passed by the Opposite Party No.2 on 30.04.2012 with regard to his appointment under the Rehabilitation Assistance Scheme had approached the Tribunal in the above noted Original Application. 2. The factual matrix giving rise to filing the present writ petition is that for establishment of Ordnance Factory at Badamal, all the landed properties of the Petitioner’s father when was acquired by the Opp. Parties, the Petitioner’s father was provided with the appointment as a distress family member in the establishment of Opp. Party No.3. While continuing as such, Petitioner’s father died while in service on 18.06.2008. The date of death is indicated in the Death Certificate issued under Annexure-2. 2.1. The Petitioner being the second son of the deceased employee made his application for his appointment under the Rehabilitation Assistance Scheme on 08.11.2008. In spite of making the application when the Petitioner was not provided with appointment on the ground that the Petitioner has secured less scoring point as per the scheme adopted / 3 / by the Opp. Parties in respect of the vacancies available for the year 2008 as well as for the year 2009, the Petitioner approached the Tribunal challenging the inaction of the Opp. Parties in providing him appointment in O.A No.226 of 2012. 2.2. The Tribunal vide
Decision
order dated 19.03.2012 disposed of the said O.A with a direction on the Opp. Party No.2 to consider the representation of the Petitioner taking into account the provisions of the DOP& T Memo dated 05.05.2003 and to pass a reasoned order thereon. On receipt of the order, when the representation of the Petitioner was rejected vide order dated 30.04.2012 under Annexure-8 on the ground that as per the G.O dated 05.05.2003, the Petitioner’s claim for appointment under the provisions of Rehabilitation Assistance Scheme can be considered for the third time as against the vacancy of the year 2010 as the last and final opportunity and the result thereof will be intimated in due course, the Petitioner challenging the same, once again approached the Tribunal in O.A. No.590 of 2013. But the Tribunal without proper appreciation of the grounds taken in the Original Application vis-à-vis the claim of the Petitioner for his appointment under the provisions of the Rehabilitation Scheme, rejected the Original Application vide impugned order dated 05.09.2013 under Annexure-12. The Tribunal refused to entertain the prayer in the O.A, by holding the same as pre-mature and not to be entertained as the / 4 / authority will consider the claim as against the vacancy of the year 2010, the result of which will be communicated in due course. 3. Mr. D.P. Das, learned counsel appearing for the Petitioner contended that for establishment of the Ordinance Factory at Badamal since all the landed properties of his father were acquired by the Opp. Parties, Petitioner’s father having belong to a distress family, was provided with appointment as Danger Building Worker which is a Class-IV post, in the establishment of Opp. Party No.3. In the Identity Card issued in favour of the employee under Annexure-1, the date of Birth of the Petitioner’s father was reflected as 01.09.1954 and in due course, he would have retired on 31.08.2014. But while working under the Opp. Party No.3, when Petitioner’s father died on 18.06.2008, the petitioner being the second son of the deceased employee, made an application for his appointment under the Rehabilitation Assistance Scheme on 08.11.2008. The death of the Petitioner’s father on 18.06.2008 and the Petitioner being the second son of the deceased employee are reflected in the death certificate and legal heir certificate issued under Annexures-2 & 3. 3.1. After making such application, when the claim of the Petitioner for his appointment as against the the available vacancies for the year 2008 and 2009 though was considered, but the Petitioner was not / 5 / found eligible for his appointment taking into account his position in the list prepared by Opp. Party No.3 for both the years. While as against vacancies for the year 2008, the petitioner was assigned 12th position with scoring point of 35, as against the 2009 vacancies, the Petitioner was assigned 8th position with 54 scoring point. Taking into account the vacancies meant to be filled up from amongst eligible candidates under the Rehabilitation Assistance Scheme, the Petitioner being placed below in the list, he could not be provided with the appointment. 3.2. The Petitioner challenging such action of the Opp. Parties in allowing low scoring point and thereby denying him the benefit of appointment approached the Tribunal in O.A. No.226 of 2012. The Tribunal vide order dated 19.03.2012 under Annexure-7 disposed of the said matter with a direction on the Opp. Party No.2 to consider the representation of the Petitioner dated 10.02.2012 taking into account the provisions of DOP & T Memo dated 05.05.2003, whereby the Petitioner’s case can be considered for the third time. The Tribunal also directed the Opp. Party No.2 to pass a reasoned order within a period of 60 days from the date of receipt of the said order. 3.3. It is contended that on receipt of the order passed by the Tribunal under Annexure-7, Opp. Party No.2 though considered the Petitioner’s claim, but when passed an order on 30.04.2012 indicating / 6 / therein that the case of the Petitioner has been considered for the third time as against the vacancy of 2010 which is the last and final opportunity for such consideration. In the said order, the Petitioner was intimated that in due course of time his position in the list with scoring point will be intimated. The Petitioner challenging such order passed by the Opp. Party No.2 on 30.04.2012 under Annexure-8 once again approached the Tribunal in O.A. No.590 of 2013. 3.4. It is contended that the Tribunal taking into account the stand of the Opp. Party No.4 that the claim of the Petitioner is being considered for the third time against the vacancy of the year 2010 which was the last and final opportunity for such consideration as per the existing instruction that the outcome of his eligibility would be intimated to him in due course of time, refused to entertain the O.A on the ground that it is too pre-mature vide the impugned order at Annexure-12. 3.5. Mr. Dash, learned counsel appearing for the Petitioner vehemently contented that since the Petitioner’s father being a displaced person was provided with appointment in the establishment of Opp. Party No.3 in a Class-IV post and he died while in service with his date of retirement due on 31.08.2014, the claim of the Petitioner should not have been considered along with other candidates / 7 / claiming benefit of compassionate appointment. It is contended that the Petitioner having belong to a Class apart and being not similarly situated as like other candidates who had made such applications for appointment under the Rehabilitation Assistance Scheme, the Petitioner’s case should have been considered as a special case without adhering to the principle followed by the Opposite Parties in awarding scoring points and filling up the available vacancies for different year basing on the position of the candidates who have made their applications for such appointment under the Rehabilitation Assistance Scheme. 3.6. It is contended that because of such faulty approach adopted by the Opp. Parties, the Petitioner’s case though was considered for the year 2008 to 2010, but all through he was not found eligible because of his position in the list having scored lesser scoring point. Accordingly, it is contended that the approach adopted by the Opp. Parties while considering the claim of the Petitioner is not just and proper and cannot sustain legal scrutiny. In support of such submission learned counsel appearing for the Petitioner relied on the decision of the Hon’ble Apex Court reported in the case of Balbir Kaur and another vs. Steel Authority of India Ltd. and Others AIR 2000 S.C 1596. In the said reported decision, Hon’ble Apex Court in Para 6, has held as under: / 8 / from to obtain regular salary the management remained “Mr. Bhasme, learned Advocate appearing for the Steel authority contended that the Family Benefit Scheme was introduced on 21st November, 1992 and the salient features of the Scheme were to the effect that the family being unable the management, could avail of the scheme by depositing the lump sum provident fund and gratuity amount with the company in lieu of which the management would make monthly payment equivalent to the basic pay together with dearness allowance last drawn, which payment would continue till the normal date of superannuation of the employee in question. Mr. Bhasme further contended that adaptation of this Family Benefit Scheme was meant to provide an assured or regular income per month, while the bulk amount deposited by way of provident fund and gratuity with intact. Mr. Bhasme, contended that consequently on deposits as above, with the management, the employees family could avail of pay up to normal date of superannuation on the footing that the employee though not actually working but notionally continued to work till the normal date of superannuation and such a scheme in fact stands at a much better footing and much more beneficial to an employee or a deceased employee. Apparently these considerations weighed with the High Court and the latter thus proceeded on the basis that by reason of adaptation of a Family Benefit Scheme by the Employees Union, question therefrom or any compassionate of any departure appointment does not and cannot arise. But in our view this Family Benefit Scheme cannot be in any way equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump sum amount being made available to the family This is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and it is at that juncture if some lump sum amount is made available with a compassionate appointment, the grief stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is to that monetary benefit would be the replacement of the bread earner, but that would undoubtedly bring some solace to the situation.” 3.7. It is also contended that basing on the decisions of the Hon’ble Apex Court as cited supra, this Court in the case of Dillip Kumar Nayak Vs. Union of India and Others reported in 2006 (Suppl. I) OLR 660 allowed similar nature of claim. This Court in Para 7 to 9 of the said judgment held as follows: “7. The deceased was having a burden of eight family members i.e. his wife and seven children (including the eldest son who was living separately due to his own family set up) and hence the authorities should have / 9 / considered the case of the petitioner for granting him the Rehabilitation compassionate appointment under Assistance Scheme taking into account the income of the deceased during his life time and the income of the dependents of the deceased after his death. If there was some agricultural income, it cannot be said that the said income started after the death of the deceased. It must have existed in the life time of the deceased also. Whether the family pension at the rate of Rs.900/- per month is sufficient for eight family members in comparison to the income of the deceased during his life time and whether the amount of gratuity given to the widow of the deceased would be utilized for the livelihood of the family or it is likely to be utilized for the purpose of marriages of the daughters, in case, there was any unmarried daughter of the deceased should have also been considered by the authorities, which has not been done. 8. In view of the above, the authorities concerned should reconsider the question of grant of compassionate appointment to the petitioner under the Rehabilitation Assistance Scheme but only after verifying the above mentioned facts, that too in case the other dependents of the deceased give consent to provide compassionate appointment to the petitioner in his favour. 9. In the result, the writ petition is allowed in part. The impugned judgment and order passed by the Tribunal is quashed. the representation of for compassionate appointment is also quashed.” rejection order made on the petitioner The 04. Mr. B. Maharana, learned Central Government Counsel along with Mr. P.K Parhi, learned D.S.G.I on the other hand made his submission basing on the stand taken in the counter affidavit. Though it was not disputed that the Petitioner’s father being a displaced family was provided with appointment as per the Scheme and Policy of the Government of India meant for such displaced person and as aggreed by both the Government of India and the Government of Odisha, but the Petitioner’s father while in service died in the year 2008. On such death of the Petitioner’s father, when the Petitioner made an application for his appointment under the provisions of Rehabilitation Assistance Scheme, his claim was / 10 / considered as against the vacancy available for the year 2008 and 2009. But since the Petitioner’s scored lesser scoring point as against other similarly situated candidates, taking into account the vacancy available in the year 2008 and 2009, the Petitioner could not be provided with an employment on compassionate ground. 4.1. It is further contended that since the notification governing the field was revised with issuance of guideline vide office memorandum dated 22.01.2010, the Petitioner’s claim was again considered as against the vacancy for the year 2010. But since the petitioner secured 15th position in the scoring sheet, he once again was not found eligible for his appointment under the provisions of Rehabilitation Assistance Scheme. However, it is contended that basing on the DOP & T Office Memorandum dated 26.08.2012, the time limit of 3 years which was prescribed vide office memorandum dated 5.5.2003 for consideration of the cases of compassionate appointment has been relaxed and the Petitioner’s candidature can be considered against future vacancies. 4.2. It is also contended that on the establishment of the Ordnance Factory, a policy was made by the State Government wherein it was agreed to provide employment to one member of each listed distress family. Accordingly, the father of the petitioner was provided with an employment in the factory as per the above scheme and policy of the Government of India / 11 / applicable to the listed distress persons. Once employment is provided to a displaced person under the Rehabilitation Assistance Policy, the commitment of the Government towards the said family is fulfilled and no further relaxation for extension of the benefit is applicable. Accordingly, it is contended that the petitioner’s case can be considered as per the existing rules on compassionate ground appointment formulated by the Government of India vide Memorandum dated 26.08.2012. 4.3. It is also contended that the process of compassionate appointment is carried out in terms of the Government instructions issued from time to time and it has been followed by Opp. Party No.2 being a Department under the Government of India. Since the Petitioner has not succeeded to get an employment on compassionate ground due to his low rank in the prepared list, his allegation about discrimination is not borne in the record. Lastly, it is contended that since in the meantime DOP & T has issued another office memorandum on 26.07.2012 withdrawing the time limit of three years for consideration of compassionate appointment cases, the name of the Petitioner will be considered against the vacancies of subsequent years. 4.4. The stand taken by the Opp. Parties in para 12, 20 and 21 are reproduced hereunder-: 12. At no point of time, the opp. Parties have communicated to the petitioner about the scoring sheet vide Annexure-R/1 & R/2 / 12 / and letter dt.16.08.2009, only false plea are taking only to mis-lead this Hon’ble Court. So far the signature is in Annexure- R/3 that is not the signature of the petitioner, wher hve mentioned about the amunt availed, but not shown how the destitute points been given. It is respectfully submitted tht in OFFICE NOTE-16 dt.31.08.2009 page 19 of the writ petition in paragraph 4 it has been that “As on date, no clearly stated representation from the individuals has been received by Recruitment Group. Two individuals namely Shri Ganesh Nanda & Shri Prasant Nanda came to recruitment Group on 31.08.2009 and asked for rectification of date of birth & scoring sheet verbally. These two individuals also stated that they have represented through Labour Welfare Officer the Appointing to Authority”. that petitioner It is respectfully submitted that the Opp. Parties have admitted herein their had the pleading approached for rectification of scoring sheet, it proves that the opp. parties have never visited for the spot inquiry only a rough calculation of destitute point has been prepared in the office which is not correct for which the petitioner is suffering a lot being discriminated and has been deprived of to get appointment. 20. That, as regards to para 22 of the counter, it is respectfully submitted that the opp. Parties have not replied to the pargraph 6 of the writ application so it deemed to have admitted the grievance of the petitioner. 21. That, as regards to para 23 of the counter it is respectfully submitted that the opp. Parties have not replied to the paragraph 6 of the writ application so it deemed to have admitted the grievance of the petitioner. / 13 / 4.5. Making all such submissions, learned Central Government Counsel contended that since the case of the Petitioner as per the Office Memorandum dated 26.07.2012 will be considered subject to availability of the vacancy and his suitability in subsequent years, no illegality has been committed by the Tribunal while not entertaining the Original Application vide orderAnnexure-12. 5. We have heard Mr.D.P. Das, learned counsel appearing for the Petitioner and Mr. B. Maharana, learned Central Government Counsel appearing for the Union of India-Opp. Parties. On their consent, the matter was finally heard and disposed of vide the present order. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that the Petitioner’s father having belong to listed distress family, as per the policy proposed by the State Government and agreed by the Union of India, he was provided with employment in the establishment of Opp. Party No.3. As reflected from Annexure-1, the date of birth of the Petitioner’s father is recorded as 01.09.1954 and he was due to retire on 31.08.2014 on attaining the age of superannuation. But since he died pre-maturely on 18.06.2008, the Petitioner being the second son of the deceased employee made his application for his appointment under the Provisions of Rehabilitation Assistance Scheme from 08.11.2008. / 14 / 6.1. In consideration of his application as against the vacancies available for 2008,2009 & 2010, the Petitioner was not found eligible because of his position in the list which is prepared by taking into account the scoring points. It is also found that the Opp. Parties consider the case of the Petitioner along with other candidates who have also made their applications for their appointment under the provisions of Rehabilitation Assistance Scheme. But it is the view of this Court that since petitioner’s father was appointed as a member of the displaced family, his case cannot be equated with the cases of other candidates who have also made their applications for appointment under the Rehabilitation Assistance Scheme. The Petitioner having belong to a distress family and his father since was appointed as a member of distress family, the case of the Petitioner is required to be considered as a special case and without being guided by the guidelines issued by the Opp. Parties with regard to appointment under the Rehabilitation Assistance Scheme. Though in the counter, a stand has been taken that in view of the office memorandum dated 26.07.2012, the case of the Petitioner will be considered against vacancies of subsequent years, but no material was produced by the Opp. Parties before this Court with regard to the outcome of the consideration for the year 2011 onwards. 6.2. Therefore, placing reliance on the decisions of the Hon’ble Apex Court in the case of Balbir Kaur as cited supra which is followed by this Court in the case of / 15 / Dillip Kumar Nayak, this Court is of the opinion that the case of the Petitioner is required to be considered as a special case and his claim should not be considered along with similarly situated candidate with award of scoring points. Hence, this Court while interfering with the impugned order of Annexure-12 directs the Opp. Party No.2 to consider the case of the Petitioner as a special case and on such consideration, if it is found that the petitioner is otherwise eligible, then appropriate order be passed in providing him appointment in a Class-IV Post. Since the Petitioner is waiting from the year 2008, Opp. Party No.2 is directed to take a decision within a period of two months from the date of receipt of this order. 6.3. The Writ Petition stands disposed of with the aforesaid observation and direction. There shall be no order as to costs. (B. P. SATAPATHY) JUDGE DR. B.R. SARANGI, J. I agree. (DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack 25th January, 2023 /sangita