Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P(C) NO. 612 OF 2016 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- AFR State of Odisha & Ors. ..… Petitioners -Versus- Nakula Chandra Singh & Anr. ….. Opp. Parties For petitioners : Mr. P.K. Muduli, Addl. Government Advocate For opp. parties : M/s. Biswabihari Mohanty, B.K. Tripathy and B. Samantray, Advocates, [O.P. No.1] P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR. JUSTICE G. SATAPATHY DECIDED ON : 23.04.2024 DR. B.R. SARANGI,J. The State and its functionaries, by means of this writ petition, seek to quash the order dated 29.09.2015 passed in O.A. No.04 (C) of 2015 under Annexure-3, by which the Odisha Administrative Tribunal, Cuttack Bench, Cuttack, while quashing the order dated 31.10.2014 at Annexure-10 to the O.A. Page 1 of 29 // 2 passed by the authority denying compassionate appointment to opposite party no.1, directed the petitioners to reinstate him in service with all consequential service and financial benefits notionally within a period of two months from the date of receipt of copy of the order and he will be entitled to actual financial benefit with effect from the date of his reinstatement in service. 2. The factual matrix of the case, in brief, is that one William Singh, who was working as an Assistant Teacher in U.P. School, Ketingia under the Block Education Officer, Baliguda in the district of Kandhamal, died on 09.04.1992 while in Government service. He, being issueless, had kept opposite party no.1 with him from the childhood with the consent of his natural guardian. After his death, his wife made a registered adoption deed in favour of opposite party no.1 and, thereafter, opposite party no.1 submitted an application for compassionate appointment under the Rehabilitation Assistance Scheme and produced the required documents before the Inspector of Schools on Page 2 of 29 // 3 30.07.1994. After thorough scrutiny of all the documents, petitioner no.3 directed the Block Education Officer, Baliguda to issue appointment order in favour of opposite party no.1 as an Asst. Teacher at Maskapanga Primary School under Rehabilitation Assistance Scheme. Pursuant to the appointment order, opposite party no.1 submitted his joining report before petitioner no.4 on 05.11.1993. While continuing as such, the Block Education Officer, Baliguda issued an order on 16.11.1993 keeping the appointment in abeyance of opposite party no.1, pursuant to which the B.D.0., vide memo no.2937 dated 20.11.1993, directed opposite party no.1 not to work in the school until further orders. 2.1. Aggrieved by the aforesaid order, opposite party no.1 filed O.A. No.295 of 1994, wherein the Tribunal granted interim stay of the impugned order and on the strength of the interim order, opposite party no.1 was continuing in service. Subsequently, the said O.A. was dismissed for default. The services of opposite party no.1 was terminated, vide order dated 24.03.2001. He
Legal Reasoning
challenged the said order by filing O.A.No.666/2001 and Page 3 of 29 // 4 also filed a petition for restoration of the O.A. No.295 of 1994. The Tribunal disposed of O.A.No.666/2001 with an observation that opposite party no.1 had earlier filed O.A.No.295 of 1994, in which the order of termination was stayed and O.A. No.666 of 2001 was not entertainable. Subsequently, O.A.No.295/1994 was
Decision
disposed of as infructuous with an observation that the termination order is in force and opposite party no.1 is out of employment vide order dated 21.11.2003. 2.2. Aggrieved by the said order, opposite party no.1 approached this Court by filing W.P.(C) No.17889 of 2008, wherein petitioner no.3 filed counter affidavit denying the averments made in the writ petition. However, in para-6 of the counter affidavit, petitioner no.3 stated that opposite party no.1 has approached the civil court to establish his status and thereafter only his claim can be considered for appointment under the Rehabilitation Assistance Scheme. The writ petition filed by opposite party no.1 was dismissed on 29.09.2011 upholding the order of the Tribunal. Thereafter, opposite party no.1 filed Civil Suit No.52 of 2012 before the Page 4 of 29 // 5 learned Civil Judge (Sr. Division), Baliguda for declaring him as adopted son of Smt. Niranjana Singh, wife of William Singh. The said suit was disposed of, vide order dated 25.04.2012, declaring opposite party no.1 as the adopted son of Smt. Niranjana Singh. 2.3. Opposite party no.1 submitted representation before the authority to appoint him under the Rehabilitation Assistance Scheme, since he was declared as adopted son of Smt. Niranjana Singh, wife of William Singh. But the petitioners, who had filed their counter affidavit before this Court stating that they would consider the case of opposite party no.1 after a decree from the civil court is obtained, sat over the matter despite the fact that opposite party no.1 brought to the notice of the authority by filing such representation. As no action was taken for his appointment under Rehabilitation Assistance Scheme, the opposite party no.1 approached the Tribunal by filing O.A. No.2223 (C) of 2012, which was disposed of on 30.09.2014 with a direction to the State-petitioners to take appropriate decision with respect to the prayer of opposite party no.1 Page 5 of 29 // 6 for appointment under the Rehabilitation Assistance Scheme within a period of three months from the date of receipt of a copy of the order keeping in view the judgment of the civil court in C.S.No.52 of 2012 dated 25.04.2012 and communicate such decision to opposite party no.1 as expeditiously as possible. Thereafter, petitioner no.1, vide order dated 31.10.2014, rejected the claim of opposite party no.1 on the ground that the adoption deed was executed and registered long after the death of deceased government servant and, therefore, the same cannot be considered for the purpose of providing employment under Rehabilitation Assistance Scheme. Aggrieved thereby, opposite party no.1 preferred O.A. No. 4(C) of 2015 and the Tribunal, vide order dated 29.09.2015, disposed of the said O.A. by quashing the order dated 31.10.2014 passed by petitioner no.1 denying compassionate appointment to opposite party no.1, directed the petitioners to reinstate opposite party no.1 in service with all consequential service and financial benefits notionally within a period of two months from the date of receipt of copy of the Page 6 of 29 // 7 order and he will be entitled to actual financial benefit with effect from the date of his reinstatement in service. Hence, this writ petition by the State-petitioners. 3. Mr. P.K. Muduli, learned Addl. Government Advocate appearing for the State-petitioners contended that since opposite party no.1 was adopted after the death of the deceased government employee, in view of circular dated 24.10.1996 issued by the Government of Odisha in G.A. Department, the case of opposite party no.1 for compassionate appointment under the R.A. Scheme was considered and rejected. Opposite party no.1 challenged the said order before the Tribunal by filing O.A. No.04(C) of 2015 and the Tribunal, vide order dated 29.09.2015 extended the benefit to opposite party no.1. Therefore, the State-petitioners have approached this Court by filing this writ petition. 4. Mr. B.B. Mohanty, learned counsel appearing for opposite party no.1 vehemently contended that the Tribunal passed order on 29.09.2015 in O.A. No.04(C) of 2015 and the State-petitioners have approached this Court by filing this writ petition on 12.01.2016. Page 7 of 29 // 8 Therefore, the writ petition, having suffered from delay and laches, should be dismissed. In support of his contention, he has relied upon the order dated 18.03.2014 passed by this Court in W.P.(C) No.11635 of 2020 (Ranjan Kumar Mohanty v. State of Odisha), wherein the judgment of this Court in State of Odisha v. Surama Manjari Das [W.P.(C) No.15763 of 2021 dismissed on 16.07.2021] has been referred to, which has been confirmed by the apex Court, vide order dated 05.04.2023 in SLP (C) Dairy No.9259 of 2023. As regards the merit, he contended that the grievance of opposite party no.1 for compassionate appointment has been rejected basing on the circular dated 24.10.1996 issued by the Government of Odisha in G.A. Department. The said circular cannot be sustained in the eye of law, as it has frustrated the provisions contained in the OCS (Rehabilitation Assistance) Rules, 1990, which had been framed in exercise of power conferred under Article 309 of the Constitution of India. Therefore, the Tribunal has not committed any illegality or irregularity in passing the order dated 29.09.2015 in O.A. No.04(C) of 2015 Page 8 of 29 // 9 granting relief to opposite party no.1, so as to cause interference of this Court. 5. This Court heard Mr. P.K. Muduli, learned Addl. Government Advocate appearing for the State- petitioners and Mr. Biswabihari Mohanty, learned counsel appearing for opposite party no.1 in hybrid mode. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission. 6. On the basis of the pleadings available on records, the following issues emerge for consideration:- (i) Whether the writ petition suffers from delay and laches? (ii) Whether opposite party no.1 is to get compassionate entitled appointment? (iii) Whether G.A. Department circular dated 24.10.1996 is ultra vires to the statute? 7. Issue no.(i) Learned Addl. Government Advocate brought to the notice of this Court that the Tribunal passed order Page 9 of 29 // 10 on 29.09.2015 in O.A. No.04(C) of 2015 and the State- petitioners have approached this Court by filing this writ petition on 12.01.2016. Thereby, it cannot be construed that there is gross delay and laches on the part of the State-petitioners to approach this Court. So far as applicability of the judgment in Surama Manjari Das (supra) to the present case is concerned, the facts and circumstances of that case are different from the present one. Therefore, the objection raised by learned counsel for opposite party no.1, that the writ petition suffers from delay and laches, has no leg to stand. 7.1. In view of such position, this Court is of the considered view that the objection raised by learned counsel for opposite party no.1, that the writ petition suffers from delay and laches, cannot be sustained in the eye of law, as the State-petitioners have approached this Court well within the reasonable time. Thereby, the law laid down by this Court in Surama Manjari Das (supra), which has been confirmed by the apex Court, has no application to the present case. Accordingly, issue no.(i) is answered in favour of the petitioners. Page 10 of 29 // 11 8. Issue no.(ii) As per the facts delineated above, it is made clear that opposite party no.1 time and again has approached various forums ventilating his grievances for compassionate appointment. More so, when opposite party no.1 got employment on the basis of R.A. Scheme, the said appointment was kept in abeyance because of the objection received by the authority. Subsequently, he was allowed to continue, but, on the ground of execution of adoption deed after the death of the deceased government employee, he was terminated from service, which was the subject matter of challenge before the Tribunal in O.A. and subsequently before this Court in W.P.(C) No. 17889 of 2008, wherein the State-authorities filed counter affidavit specifically mentioning therein that the opposite party no.1 has to approach the Civil Court to establish his status and thereafter only his claim can be considered for appointment under the OCS (Rehabilitation Assistance) Rules, 1990. Accordingly, opposite party no.1 approached the Civil Court by filing Page 11 of 29 // 12 Civil Suit No.52/2012 in the Court of the Civil Judge (Senior Division), Balliguda, who, vide order dated 25.4.2012, declared opposite party no.1 to be the adopted son of Smt. Niranjan Singh. Taking note of the decree in the civil suit, the Tribunal, vide order dated 30.09.2014 passed in O.A.2223(C) of 2014, directed petitioner no.1 to take appropriate action for appointment of opposite party no.1 under Rehabilitation Assistance Scheme. Therefore, if on solemn declaration of the State-petitioners counter affidavit was filed, now they cannot turn around and say that the benefit cannot be extended to opposite party no.1, when he has got valid declaration by the civil court that he is the adopted son of the deceased government employee. But, instead of giving him appointment, petitioner no.1 has rejected the claim of opposite party no.1 in utter non-application of mind. In any event, the petitioners are duty bound to provide compassionate appointment to opposite party no.1 in view of the provisions contained in OCS (RA) Rules, 1990. Accordingly, issue no.(ii) is answered in favour of opposite party no.1. Page 12 of 29 // 13 9. Issue no.(iii) As is evident, petitioner no.1 has rejected the claim of opposite party no.1 for compassionate appointment on the basis of G.A. Department circular dated 24.10.1996, which reads as follows:- “From To Shri T. S. Chakraborty, Under-Secretary to Government The Additional District Magistrate, Ganjam Subject- providing employment under R. A. Scheme clarification Issue of regarding Sir, In inviting a reference to your Letter No. 5775, dated the 29th August 1996 on the subject noted above I am directed to say that the membership of the family of an employee, who dies while in service or who retires on the ground of permanent incapacitation, is decided on the basis of the status of the family concerned on the very day of death or invalid retirement for the purpose of rehabilitation assistance scheme as per Rule 2 (b) of O. C. S. (R. A.) rules 1990. It means that the persons who were not separated family as per procedure established by law on or before the date of death or retirement of the Government servant concerned cannot be said to have been separated from the family for the purpose of determination of family members under the O. C. S. (R. A.) Rules, 1990 as amended up-to-date. Hence, any separation or adoption deed executed and registered after the date of death or invalid retirement of an employee cannot be taken into consideration for the purpose of providing employment under R. A. Scheme to any one of his family members. from the Yours faithfully, T. S. CHAKRABORTY Under-Secretary to Government” Page 13 of 29 // 14 9.1. On a bare perusal of the above circular, it would be evident that the petitioners have clarified that any separation or adoption deed executed and registered after the date of death or invalid retirement of an employee cannot be taken into consideration for the purpose of providing employment under R.A. Scheme to any one of his family members. The said clarification is absolutely contrary to the Rules, i.e., OCS (Rehabilitation Assistance) Rules, 1990 framed in exercise of power conferred under Article 309 of the Constitution of India. 9.2. In B.S. Vadera v. Union of India, AIR 1969 SC 118, the apex Court held that proviso to Article 309, clearly lays down that 'any rules so made shall have effect, subject to the provisions of any such Act. Thus, if the appropriate Legislature has passed an Act under Article 309, the rules, framed under the Proviso, will have effect, subject to that Act; but, in the absence of any Act, of the appropriate Legislature, on the matter, the rules, made by the President, or by such person as he may direct, are to have full effect, both prospectively Page 14 of 29 // 15 and, retrospectively. Apart from the limitations' pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such-rules. In other words, the rules, unless they can be impeached on grounds such as breach of Part-III, or any other Constitutional provision, must be enforced, if made by the appropriate authority. 9.3. In Schedule Castes and Scheduled Tribes Officers Welfare Council v. State of Uttar Pradesh, AIR 1997 SC 1451, the apex Court held that under the scheme of the Constitution the political executive headed by the Governor of the State is assisted by the Chief Minister appointed by the Governor and the Council of the Ministers appointed on the advice of the Chief Minister who would be collectively responsible for the administration of the State. The administration is carried on by and in the name of the Governor but the Chief Minister, Council of Ministers and the individual Ministers in charge of the assigned subjects individually and collectively are responsible for the functioning of the concerned Ministry. The Constitution further envisages Page 15 of 29 // 16 permanent bureaucracy with all India services and State services envisaged in Part XIV. The political executive lays broadly the policies and programmes consistent with their political manifesto but should be in conformity with the Directive Principles of the State Policy which binds the Government in power and also the Fundamental Rights. The bureaucracy works out the details of the policy and applies the law to the given circumstances in assisting the political executive. Under Article 162, the executive has the power to issue executive instructions consistent with the fundamental rights in Chapter III, to regulate conditions of service but they are subject to the law made by the State Legislature or the Rules made by the Governor under proviso to Article 309 of the Constitution. Executive instructions can also be made to supplement the law to fill in the yawning gaps. The permanent bureaucracy, therefore, in evolving the principles or giving shape to the policy or the political executive on in applying the law, rules or instructions, is guided by constitutional philosophy and public policy envisaged thereunder. Article 261 of the Page 16 of 29 // 17 Constitution, therefore, accords full faith and credit to the executive acts and records of the Union and the States, the law made by the Parliament or the Legislature or such of the rules or regulations etc. made in furtherance thereof as well as judicial proceedings of the Union and of every State. 9.4. In Rajkumar and others v. Shakti Raj and others, AIR 1997 SC 2110, the apex Court held that where the 1955 Rules were modified by the Government by a notification in year 1970 clarifying that recruitment to posts of Canal Patwaris should be made through Sub- ordinate Service Selection Board unless under exercise of the power under proviso to Rule-6 excluding the requirement of consulting the Board, however, for impugned selection made in the year 1992, the Government conducted the examination as provided in 1955 Rules, and subsequently the posts were excluded from purview of Board in exercise of power under proviso to Rule-6 and a Selection Committee was constituted which called the names of successful candidates in written exam from the employment exchange and Page 17 of 29 // 18 interviewed them and selected them, such procedure adopted by Government was arbitrary and illegal. In view the aforesaid law laid down by the apex Court, it is made clear that the Rules framed under the proviso to Article 309 of the Constitution is legislative in character and is binding to all the parties. Therefore, the provisions contained in OCS (RA) Rules, 1990 is binding on the parties. Further, the G.A. Department Circular dated 24.10.1996 should be in consonance with the provisions contained in OCS (RA) Rules, 1990. The same being an administrative instruction, it cannot be contrary to the statutory provisions, if at all it will be contrary to the statutory provisions, then liable to be struck down. 9.5. In Ratan Kumar Tondon v. State of Uttar Pradesh, AIR 1996 SC 2710, the apex Court held that the excess urban land covered under the Ceiling Act is not required to be de-notified as it statutorily stands vested in the Government land and Government cannot be compelled to acquire the excess urban vacant land covered under the provisions of the Ceiling Act, and Page 18 of 29 // 19 compensation paid under the provisions contained in the Land Acquisition Act. Shri Satish Chandra also referred to us instructions issued by the Government of U.P. dated January 31, 1986. He placed reliance on paragraph-6 of the instructions. It is seen that the Government has given instructions to the respective authorities under Section 35 of the Ceiling Act that where the authorities were not able to dispose of the matter under the Ceiling Act and land is required for public purpose, it would be necessary to drop the proceedings under the Ceiling Act and to proceed under the Land Acquisition Act. These are only administrative instructions. They do not have any statutory effect on the operation of law. In case of yawning gaps, they may guide the officers. In view of the law laid down by this Court, the instructions do not have any over-riding effect on the operation of the Ceiling Act and the law declared by this Court under Article 141. Therefore, it is not necessary for the State to proceed with the determination of the compensation under Section 23(1) of the Act to the extent of the excess land found Page 19 of 29 // 20 under the Ceiling Act. Compensation shall be paid only as per Section 116 of the Ceiling Act. 9.6. Sub-rule (b) of Rule-2 of the OCS (Rehabilitation Assistance) Rules, 1990 deals with the definition of ‘family members’, which reads as follows:- “2. Definitions: In these rules, unless the context otherwise requires- (a) [Omitted] (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.” From the above definition of the ‘family members’, it is made clear that sons or step sons or sons legally adopted through a registered deed are included family members. Therefore, the son, who is adopted through registered deed, is entitled to get the benefit of Page 20 of 29 // 21 compassionate appointment. There is no dispute before this Court to indicate that opposite party no.1 has been adopted by way of registered deed and, therefore, question of denial of giving compassionate appointment to him under the OCS (Rehabilitation Assistance) Rules, 1990 does not arise. As such, denial of benefit of compassionate appointment to opposite party no.1 can be considered as ultra vires to the Statute. 9.7. In Union of India v. Somasundram