The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.777 of 2024 1. State of Odisha, represented through its Addl. Secretary to Govt., Department of Water Resources, Rajib Bhawan, Unit-V, Bhubaneswar, Dist- Khurdha. 2. The Collector & District Magistrate, Mayurbhanj, Baripada, At/PO/PS- Baripada, Dist- Mayurbhanj. 3. The Engineer-in-Chief, Water Resources, Odisha, Bhubaneswar. 4. The Chief Engineer & Basin Manager, Subarnarekha & Budhabalanga Basin, Laxmiposi, At/PO/PS- Laxmiposi, Dist- Mayurbhanj. 5. The Superintending Engineer, Subarnarekha Irrigation Circle, Laxmiposi, At/PO/PS- Laxmiposi, Dist- Mayurbhanj. 6. The Executive Engineer, Subarnarekha Irrigation Division No.2, Deuli, At/PO/PS- Deuli, Dist- Mayurbhanj. …Appellants -Versus- Geetamani Soren @ Majhi, aged about 29 years, Daughter of Late Parameswar Majhi @ Soren, resident of Village At/PO- Rajabasa, PS- Baripada Sadar, Dist- Mayurbhanj, At present residing At- Village- Janardanpur, Unit No.15, PS- Baripada Town, Dist- Mayurbhanj. …Respondent W.A. No.777 of 2024 Page 1 of 12 Advocates appeared in the case: For the Appellants Additional Government Advocate
Legal Reasoning
Single Judge of this Court in W.P.(C) No.1665 of 2017 whereby, the learned Single Judge has allowed the writ petition filed by the petitioner (respondent herein) by setting aside an order whereby the respondent’s application for appointment under rehabilitation scheme was rejected. After having set aside the said order of rejection, the learned Single Judge has directed the appellants to process the respondent’s application for providing her employment under the Orissa Civil Services (Rehabilitation Assistance) Rules, 1990 (in short ‘the 1990 Rules’), based on the principles laid down by the Supreme Court in case of Malaya Nanda Sethy v. State of Orissa, reported in 2022 SCC Online SC 684. W.A. No.777 of 2024 Page 2 of 12 2. We have heard Mr. Manoja Kumar Khuntia, learned Additional Government Advocate (AGA), appearing on behalf of the appellants and Mr. Bijaya Kumar Behera, learned counsel appearing on behalf of the respondent. 3. It would be apt to take note of at the outset certain basic facts necessary for present adjudication. 4. The respondent is the daughter of late Parameswar Majhi who died in harness on 28.09.2006 while working as a Junior Stenographer-cum-Typist under appellant No.6. On the date of death of her father, the respondent was a minor. The respondent, after attaining the age of majority, applied for her appointment under the Rehabilitation Assistance Scheme on 06.07.2013. She attached with her application a medical certificate issued on 28.06.2013 to the effect that her mother was physically and mentally not fit to be appointed on compassionate ground. As the said application remained pending, the respondent filed a writ petition giving rise to W.P.(C) No.21675 of 2016 which was disposed of with a direction to the appellants No.4 and 5 to pass appropriate orders. 5. Finally, by an order dated 18.01.2017, the respondent’s application was rejected, mainly on the ground that when the spouse W.A. No.777 of 2024 Page 3 of 12 of the deceased Government employee was available, the claim of the daughter (respondent) could not be entertained. It is not in dispute that the respondent’s mother, i.e., the widow of the deceased Government servant had never applied for compassionate appointment under the Rules. 6. It was the case of the respondent before the learned Single Judge that because of her mother’s illness and the fact that she was physically unfit, she waited for her daughter to attain majority and seek appointment under the Rehabilitation Assistance Scheme. 7. Rule-9(7) of the 1990 Rules provides that if at the time of death of the Government servant, there is a ward who is a minor and who alone is available in the family of the deceased Government servant for employment, he/she shall apply for job under these rules on attaining the age of eighteen years and in no case beyond three years from the date of attaining the age of eighteen years. 8. It was the respondent’s case in the writ proceeding that she attained the age of eighteen years in 2012 and she applied for compassionate appointment under the Rehabilitation Assistance Scheme on 06.07.2013. It was further her case that the widow of the deceased employee was suffering from chronic diseases and was so W.A. No.777 of 2024 Page 4 of 12 physically and mentally unfit to get service under the Rehabilitation Assistance Scheme. 9. Relying on the decisions of this Court in case of Ajit Kumar Barik v. State of Orissa, reported in 2018 (II) OLR-10, Biswaranjan Barik v. State of Orissa, reported in 2018 (II) OLR-795 and Bibhuti Bhusan Patnaik v. State of Orissa, reported in 2018 (Supp.-II) OLR- 918, the learned Single Judge opined that because the widow of the deceased employee who was to be given the first preference in the matter of grant of appointment on compassionate ground was physically unfit, the appellant’s ought to have considered the case of the respondent who was alone available in the family and was minor at the time of death of the Government servant. 10. The learned Single Judge, in the impugned judgment, has noted apparent delay in processing the respondent’s application for appointment on compassionate ground and, accordingly, referring to the decision of the Supreme Court in case of Malaya Nanda Sethy (supra), has directed the appellants to consider the respondent’s case for appointment on compassionate ground under the 1990 Rules. The learned Single Judge has noted in the impugned judgment that if the respondent’s application was to be rejected on the ground of delay or W.A. No.777 of 2024 Page 5 of 12 on the ground of availability of the spouse of the deceased Government employee, her application ought to have been rejected promptly. Further, there was a medical certificate made available to the effect that the respondent’s mother was suffering from chronic disease, like Diabetes type-2, HTN and IHD and she was physically and mentally unfit to work as an employee under the Rehabilitation Assistance Scheme. The said medical certificate was never disbelieved nor questioned by the authorities concerned, rather the respondent’s application was processed. 11. In such view of the matter, the grounds taken to deny the respondent benefit of compassionate appointment under the Rehabilitation Assistance Scheme was unsustainable, the learned Single Judge held. 12. Assailing the impugned order of the learned Single Judge, Mr. Manoja Kumar Khuntia, learned Additional Government Advocate appearing on behalf of the appellants has submitted that the decision of the Supreme Court in case of Malaya Nanda Sethy (supra) does not lay down a law on the point of appointment on compassionate ground rather the order has been passed in the said case in the peculiar facts and circumstances keeping the larger question open. He has W.A. No.777 of 2024 Page 6 of 12 submitted that it cannot be said that no person was available in the family of the deceased employee. The learned Single Judge has incorrectly applied the provision under Rule-9(7) of the 1990 Rules as it cannot be said that the respondent, alone available in the family of the deceased, who was a minor and in which case she could have applied on attaining the age of eighteen years. He has relied on the Supreme Court’s decision in case of State of West Bengal v. Debabrata Tiwari, reported in 2023 SCC Online SC 219, paragraph 35 of which reads thus: “35. Considering the second question referred to above, in the first instance, regarding whether applications for compassionate appointment could be considered after a delay of several years, we are of the view that, in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Further, the financial circumstances of the family of the deceased, may have changed, for the better, since the time of the death of the government employee. In such circumstances, Courts or other relevant authorities are to be guided by the fact that for such prolonged period of delay, the family of the deceased was able to sustain themselves, most probably by availing gainful employment from some other source. Granting compassionate appointment in such a case, as in Haryana State Electricity noted by Board v. Hakim Singh, (1997) 8 SCC 85 would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession which is contrary to the Constitution. Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government this Court W.A. No.777 of 2024 Page 7 of 12 employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee.” 13. Mr. Khuntia submits that if the respondent’s mother was physically unfit to seek appointment on compassionate ground after sudden demise of her husband, she could have expressed her inability to seek such appointment. The respondent has based her claim on a medical certificate obtained 7 years after the death of the deceased employee to the effect that the widow of the deceased employee was suffering from certain diseases and therefore, unfit to claim appointment on compassionate basis. It has also been argued that the facts of Malaya Nanda Sethy (supra) are substantially different from the facts of the present case. In the present case, the application for compassionate appointment was filed in the year 2013. 14. Learned counsel appearing on behalf of the respondent, on the other hand, has argued that as in the case of Malaya Nanda Sethy (supra), the respondent was diligently pursuing her matter and soon after she attained the age of eighteen years, she filed the application for appointment on compassionate basis rightly in terms of Rule-9(7) of the 1990 Rules. He contends that the learned Single Judge has rightly set aside the order rejecting the respondent’s claim for W.A. No.777 of 2024 Page 8 of 12 appointment on compassionate basis by the impugned order and has directed consideration of the respondent’s case for appointment on compassionate ground following the law laid down by this Court and the Supreme Court in various cases. 15. We have carefully perused the pleadings and materials on record and we have given our thoughtful consideration to the rival submissions advanced on behalf of the parties. 16. Certain dates are crucial for determination of present case and needs to be taken note of at the outset. The respondent’s father died on 28.09.2006. The widow of the deceased employee was eligible for appointment under the 1990 Rules. Rule-9(3) of the 1990 Rules reads thus: “3. Where a widow of the deceased Government servant is appointed on compassionate ground against a Group D post, she is not required to satisfy the educational qualification prescribed for the said post, provided the duties attached to the post can be satisfactorily performed without having the requisite educational qualification.” 17. Evidently thus, the widow of the deceased employee was not required to satisfy the educational qualification. Despite availability of the widow of the deceased employee with eligibility, no application was made seeking appointment on compassionate ground. W.A. No.777 of 2024 Page 9 of 12 18. We are of the considered view that in order to attract Rule-9(7) of the 1990 Rules, it has to be established that the ward of the deceased Government servant was minor at the time of death of the Government servant and he/she was alone available in the family of the deceased. Physically incapacity of the respondent’s mother was required to be determined as on the date of death of the Government servant not on the date when the respondent filed the application for appointment on compassionate ground. The fact remains that she did not claim such appointment soon after the death of the deceased and she waited for the respondent to attain majority. 19. Further, in the case of Debabrata Tiwari (supra), the Supreme Court, after having noticed all important Supreme Court’s decisions on the point of grant of appointment on compassionate basis, has held in paragraphs 45 and 46 as under: In the present case, for “45. the applications the compassionate appointment were made by Respondents-Writ Petitioners in the year 2005-2006. Admittedly, the first concrete step taken by the Chairman of the Burdwan Municipality was in the year 2013, when the said authority forwarded a list of candidates to be approved by the Director of Local Bodies, Burdwan Municipality. The Respondents-Writ Petitioners knocked on the doors of the High Court of Calcutta only in the year 2015, i.e., after a lapse of nearly ten years from the date of making for compassionate the application appointment. The Respondents-Writ Petitioners were not W.A. No.777 of 2024 Page 10 of 12 prudent enough to approach the Courts sooner, claiming that no concrete step had been taken by the Appellant- State in furtherance of the application by seeking a Writ in the nature of Mandamus. in 46. The sense of the matter of immediacy compassionate appointment has been lost in the present case. This is attributable to the authorities of the Appellant-State as well as the Respondents-Writ Petitioners. Now, entertaining a claim which was made in 2005-2006, in the year 2023, would be of no avail, because admittedly, the Respondents-Writ Petitioners have been able to eke out a living even though they did not successfully get appointed to the services of the Municipality on compassionate grounds. Hence, we think that this is therefore not fit cases to direct that the claim of the Respondents-Writ Petitioners for appointments on compassionate grounds, be considered or entertained.” (Emphasis added) 20. The decision of the Supreme Court in case of Malaya Nanda Sethy (supra) is clearly distinguishable on facts inasmuch as in the said case the son of the deceased employee had applied for the Government job soon after the death, as the widow was unable to undertake the Government job due to her medical condition. Distinct from the said case, in the present case, the respondent filed an application for appointment on compassionate basis seven years after the death of the deceased Government employee with a plea that the widow was unfit for doing any job. The respondent has not been able establish a case that on the date of death of the deceased employee, her mother was unfit for doing any job, even if her subsequent W.A. No.777 of 2024 Page 11 of 12 medical certificate, for the first time issued in 2013, was to be believed. 21. We are of the further view that the issuance of a direction by this Court for considering the respondent’s case for appointment on compassionate basis, more than 17 years after the death of the Government servant, defeats the very purpose of the Scheme of appointment on compassionate ground. 22. In view of the aforesaid reasons, the impugned order passed by the learned Single Judge requires interference. 23. This writ appeal is accordingly allowed. The impugned order dated 31.10.2023 passed by the learned Single Judge is hereby set aside and the writ petition being W.P.(C) No.1665 of 2017 stands dismissed. Chief Justice (Chakradhari Sharan Singh) Savitri Ratho, J. (Savitri Ratho) Judge I agree. S. Behera Signature Not Verified Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Jan-2025 12:45:25 W.A. No.777 of 2024 Page 12 of 12
Arguments
: Mr. Manoja Kumar Khuntia, For the Respondent : Mr. Bijaya Kumar Behera, Advocate CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO JUDGMENT 13.01.2025 Chakradhari Sharan Singh, CJ. The State of Odisha, in the present intra-court appeal, has put to challenge a judgment/order dated 31.10.2023 passed by a learned