Applications under Articles 226 & 227 of Constitution of India. Chittaranjan Dalabehera .… v. State of Odisha and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 11556 of 2023 Applications under Articles 226 & 227 of Constitution of India. Chittaranjan Dalabehera .…… Petitioner --------------- - Versus - State of Odisha and others ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioners : M/s. L. Mohanty, R. Das, M.R. Pradhan & S. Das, Advocates For Opp. Parties : Mr. Saswat Das, Addl. Government Advocate _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 25th September, 2023 SASHIKANTA MISHRA, J. The petitioner has filed this writ application with the following prayer; “It is, therefore, prayed that this Hon’ble Court may graciously be pleased to issue notice to the opp. Parties, calling upon them to file show cause as to why the order of rejection dated 8.3.2021 under Annexure-11 shall not be quashed as the said order has been passed contrary to the judgment passed by Hon’ble Apex Court of India in between Malayananda Sethi Vrs State of Orissa reported in 2022(1) OLR (SC) Page-1; and after hearing the Page 1 of 11 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Oct-2023 12:14:43 parties be pleased to quashed/ set aside the order of rejection dated 8.3.2021 under Annexure-11. The opp. parties be further directed to consider the case of the petitioner for appointment under R.A. Rules 1990 and issued order of appointment in his favour against any Class-III post taking into consideration his educational qualification; within a date to be fixed by this Hon’ble Court; And order/orders, other pass any direction/directions as deemed fit and proper; And for which act of kindness, the petitioner shall as in duty bound, ever pray.” 2. The facts of the case are that the father of the petitioner, Kashinath Dalabehera was working as Amin under the consolidation organization. He died in harness on 22.09.1998 leaving behind his wife and two minor sons. His wife, Tilotama Dalabehera was given appointment under the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 (in short, “1990 Rules”). She also died in harness on 07.10.2018 leaving behind her two sons including the petitioner, who is the younger son. The elder son, Manoranjan Dalabehera had applied for appointment under Rehabilitation Assistance Scheme. But as ill luck would have it, he also died on 23.03.2019 before his application could be processed. The petitioner was therefore, left alone in the unfortunate family. He submitted an application on 19.08.2019 for appointment under the Rehabilitation Page 2 of 11 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Oct-2023 12:14:43 Assistance Scheme addressed to the Deputy Director, Consolidation Bhubaneswar. Vide order dated 24.02.2020, the Asst. Consolidation Officer (Hqrs), Bhubaneswar wrote to Tahasildar, Badamba requesting for furnishing of the latest economic status of the petitioner. After receipt of the economics status, the application of the petitioner was forwarded to the Additional Sub-Collector, Khurdha for taking necessary action. The matter remained pending with the Additional Sub-Collector for long for which, the petitioner
Legal Reasoning
approached this Court in W.P.(C) No.22087 of 2020. By order
Decision
dated 10.09.2020, this Court disposed of the writ application directing the Deputy Director, Consolidation, Bhubaneswar to take decision, as appropriate, in the matter of appointment under rehabilitation assistance scheme within a period of one and half months. Pursuant to such order, the Deputy Director passed an order on 08.03.2021 rejecting the application of the petitioner on the ground that he had failed to secure the minimum eligibility points under Part-I as per the Rule 6(2)(b) of Orissa Civil Service (Rehabilitation Assistance) Rules, 2020 (in short “2020 Rules”). The said Page 3 of 11 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Oct-2023 12:14:43 order, which is enclosed as Annexure-11 to the writ petition, is impugned. 3. Heard Mr. Manas Ranjan Pradhan, learned counsel for the petitioner and Mr. Saswat Das, learned Addl. Government Advocate for the State. 4. It is submitted by Mr. Pradhan that the petitioner’s mother having expired on 07.10.2018 and the application seeking appointment under the Rehabilitation Assistance Scheme being submitted in time on 19.08.2019, the same should have been considered as per the provisions of the 1990 Rules. He further submits that it was incumbent upon the authorities to act upon the application of the petitioner with due diligence and promptitude but they kept it pending for as long as two years without any reasonable cause. Mr. Pradhan has relied upon the decision of the Supreme Court rendered in the case of Malaya Nanda Sethy v. State of Orissa, reported in 2022 SCC OnLine SC 684 and of a Division Bench of this Court in the case of Suchitra Bal vs. State of Odisha and batch of cases [W.P.(C) No.2081 of 2021 and batch, decided on 27th June, 2023]. According to Page 4 of 11 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Oct-2023 12:14:43 Mr. Pradhan therefore, the petitioner’s application should have been considered under 1990 Rules. 5. Mr. Saswat Das, on the other hand has referred to the judgment of the Apex Court in the case of State of Odisha and another vs. Anup Kumar Senapati, reported in (2019) 19 SCC 626 to contend that the repeal of a statute does not save any right accrued under it unless the same is specifically saved in the repealing statute. Therefore, the 1990 Rules having been repealed, no further right accrues to the petitioner under the said Rules. Mr. Das has also cited two judgments of the Apex Court namely, N.C. Santosh vs. State of Karnataka, reported in (2020) 7 SCC 617 and Director of Treasuries in Karnataka and another vs. V. Somyashree reported in (2021) 12 SCC 20 to contend that delay in processing the application cannot be of any consequence and that the law in vogue on the date of consideration of the application shall be applicable. 6. I have considered the rival contentions carefully. The basic facts of the case are not disputed. This is a case of an unfortunate family of a government servant, who died in Page 5 of 11 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Oct-2023 12:14:43 harness followed by his widow, who being appointed on compassionate basis, also died in harness. As if it was not enough, the elder son of the deceased government servants also died while his application for compassionate appointment was under consideration. So, when the petitioner applied for compassionate appointment, it is but natural that the authorities should have acted with promptitude and due diligence so as to save the family from further distress. From the materials on record and as stated earlier, it is seen that the petitioner submitted an application well within one year of the death of his mother, i.e. on 19.08.2019. According to this Court, even though no time limit has been specified in the 1990 Rules for consideration of such application, yet having regard to the very object behind the Rules, it is incumbent upon the authorities to consider the same as expeditiously as possible so that the family of the deceased Government servant is not to put to further financial distress. This Court however, finds that the application was kept pending for six months and thereafter the economic status report was called for from the Tahasildar. The same having been apparently received, the Page 6 of 11 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Oct-2023 12:14:43 application was forwarded to the Additional Sub-Collector for consideration after four months. Strangely, the Additional Sub-Collector sat over the application without passing any order whatsoever, forcing the distressed petitioner to knock the doors of this Court. It is only after this Court directed for consideration of the application that the impugned order came to be passed. It is worthwhile to note that though this Court had granted one and half months’ time for consideration of the application, the same was actually considered and disposed of after nearly three months. Thus, this Court finds that at all stages of processing of the application there was delay at the end of the opposite party authorities. No plausible reason is ascribed for the same. 7. In the case of Malaya Nanda Sethy (supra), the apex Court while deprecating the practice of the authorities in keeping the application under Rehabilitation Assistance pending for long periods, held as follows; 14. Thus, from the aforesaid, it can be seen that there was no fault and/or delay and/or negligence on the part of the appellant at all. He was fulfilling all the conditions for appointment on compassionate grounds under the 1990 Rules. For no reason, his application was kept pending and/or no order was passed on one ground or the other. Therefore, when Page 7 of 11 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Oct-2023 12:14:43 of on part there was no fault and/or delay on the part of the appellant and all throughout there was a delay on the part of the department/authorities, the appellant should not be made to suffer. Not appointing the appellant under the 1990 Rules would be giving a premium to the delay and/or inaction on the part of the department/authorities. There was an absolute callousness the the department/authorities. The facts are conspicuous and manifest the grave delay in entertaining the application submitted by the appellant in seeking employment which is indisputably attributable to the department/authorities. In fact, the appellant has been compassionate appointment, which he was otherwise entitled to under the 1990 Rules. The appellant has become a victim of the delay and/or inaction on the part of the department/authorities which may be deliberate or for reasons best known to the authorities concerned. Therefore, in the peculiar facts and circumstances of the case, keeping the larger question open and aside, as observed hereinabove, we are of the opinion that the appellant herein shall not be denied appointment under the 1990 Rules. deprived seeking of 15. In view of the above discussion and for the reasons stated above, the impugned judgment and order passed by the High Court is hereby quashed and set aside. The respondents are directed to consider the case of the appellant for appointment on compassionate grounds under the 1990 Rules as per his original application made in July, 2010 and if he is otherwise found eligible to appoint him on the post of Junior Clerk. The aforesaid exercise shall be completed within a period of four weeks from today. However, it is observed that the appellant shall be entitled to all the benefits from the date of his appointment only. The present appeal is accordingly allowed. However, in the facts and circumstances of the case, there shall be no order as to costs. 16. Before parting with the present order, we are constrained to observe that considering the object and purpose of appointment on compassionate grounds, i.e., a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service and the basis or policy is immediacy in rendering of Page 8 of 11 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Oct-2023 12:14:43 financial assistance to the family of the deceased consequent upon his untimely death, the authorities must consider and decide such applications for appointment on compassionate grounds as per the policy prevalent, at the earliest, but not beyond a period of six months from the date of submission of such completed applications.” In Suchitra Bal (supra), the Division Bench of this Court hearing a batch of writ applications, mainly with regard to the effect of Rule 6(9) of the 2020 Rules also relied upon Malaya Nanda Sethy and took note of the fact that the applications having been submitted at a time when the 1990 Rules was in vogue, held that the said Rule ought to have been applied instead of the new Rule. 8. Coming to the decisions cited by Mr. Das namely, N.C. Santosh (supra) this Court finds that the Division Bench has also taken note of the same but distinguished it by holding that in Malaya Nanda Sethy’s case the Apex Court did not make any comment on the correctness of the decision of the N.C. Santosh (supra) but clearly laid down that the delay in making the decision on the application for rehabilitation assistance shall not give any premium to the authority. Further, if the delay is attributable to the authorities, the application of the petitioners should not be Page 9 of 11 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Oct-2023 12:14:43 frustrated by bringing them under the new Rehabilitation Assistance Rules. 9. In Director of Treasuries (supra), the Apex Court inter alia held that norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment. Evidently, the Apex Court was not seized with the question as to what would happen in case the authorities themselves have caused undue delay in considering the application. 10. In so far as Anup Kumar Senapati (supra) is concerned, in view of what has been stated hereinbefore, this Court fails to see as to how the same could be made applicable inasmuch as in the instant case, the lis is not a question so much as to repeal and saving of a particular statute but what effect delay would have on an application kept pending at the end of the authorities without any fault of the applicant. The contentions of the State Counsel are, therefore, untenable. Page 10 of 11 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Oct-2023 12:14:43 11. From a conspectus of the analysis of facts and law made hereinbefore, this Court is of the considered view that the application of the petitioner having been submitted well before the coming into force of the new Rules, i.e., 2020 Rules, should have been considered under the old rules, i.e. 1990 Rules. As such, the provisions under Rule 6(9) of the 2020 Rules cannot be invoked by the authorities to frustrate the claim of the applicant when they are themselves guilty of causing delay in processing the application. 12. For the foregoing reasons therefore, the writ petition is allowed. The impugned order under Annexure-11 is hereby quashed. The opposite party authorities are directed to consider the application of the petitioner under the 1990 Rules within a period of four weeks from the date of production of certified copy of this order by the petitioner under intimation to him and if found eligible, to give him appointment in an appropriate case without further delay. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Oct-2023 12:14:43 ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 25th September, 2023/ A.K. Rana, P.A. Page 11 of 11