(An application under Articles 226 & 227 of the Constitution of India.) Ajit Kumar v. Union of India and others
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-Nov-2024 19:11:23 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.26534 of 2020 (An application under Articles 226 & 227 of the Constitution of India.) Ajit Kumar Khuntia and another …… Petitioners Versus Union of India and others …... Opposite Parties Advocate(s) appeared in this case :- For Petitioners For Opposite Parties : : Mr.S.K.Das, Advocate Mr.P.K.Parhi, DSG & Mr.U.R.Jena, CGC CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 21st October 2024 B.P. Routray,J. 1. Heard Mr. Das, learned counsel for the Petitioners and Mr. Parhi,
Legal Reasoning
learned Dy. Solicitor General along with Mr.Jena, learned Central Government Counsel for the Opposite Parties. 2. Petitioners’ case is that they are husband and wife. Petitioner No.1 while serving as C.T/G.D in CRPF was physically injured due to a blast by terrorists. For such injuries sustained, he became physically disabled W.P.(C) No.26534 of 2020 Page 1 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-Nov-2024 19:11:23 and recommended to be boarded out from the force on 7th March 2014. Thereafter, his wife i.e. Petitioner No.2 applied for compassionate appointment as per the existing scheme. Subsequently her application for compassionate appointment was denied by letter dated 21st May 2014 (Annexure-8) and 15th December 2014 (Annexure-17) of the authority on the ground that vacancies are not available for compassionate appointment. 3. Thereafter, the Petitioners approached this Court on two occasions i.e. in W.P.(C) No.16734 of 2014 and W.P.(C) No.1180 of 2015. Then Petitioner No.2 was subjected to an assessment test and she failed in the said test resulting rejection of her application for compassionate appointment. In the impugned order dated 18th June 2020 under Annexure- 19, the authority has passed a speaking order refusing compassionate appointment to Petitioner No.2 in HC/MIN post and further stated that she refused to the post in C.T/G.D (Constable ground duty). 4. Mr. Das, learned counsel for the Petitioners submits that subjecting the Petitioner to a written test for compassionate appointment is not in accordance with the existing norms prevailing at the time of application and therefore, refusal on the part of the authority to extend compassionate appointment in favour of Petitioner No.2 in the Ministerial Cadre is W.P.(C) No.26534 of 2020 Page 2 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-Nov-2024 19:11:23 illegal. It is further submitted by Mr. Das that the Petitioner has the qualification of graduation with PGDCA and she is qualified for the post of Head Constable (Ministerial) in terms of the scheme dated 16th January 2013 prevailing at the time of application and she was not required to be subjected for any written test as per the norms prescribed in the said notification. 5. Mr. Parhi, learned DSG submits on the other hand that, in terms of this standing order No.5 of 2001 an applicant for compassionate appointment is liable to pass the written test for appointment to the post of Head Constable (Ministerial). Petitioner No.2 had appeared the written test and remained unsuccessful being secured 50 out of 200 marks. Therefore she was refused appointment in the Ministerial Cadre and then was offered the post in the cadre of Constable (ground duty), which she refused by expressing her unwillingness. Therefore, the Petitioner is not entitled to get any compassionate appointment and no more right survives in her favour to get the compassionate appointment as per her choice. Accordingly, Mr. Padhi prays for dismissal of the Writ Petition. 6. Before delving into the controversy, it needs to be mentioned here that on 16th January 2013 the authority had introduced the scheme for compassionate appointment (Annexure-A). Undisputedly, the Petitioner W.P.(C) No.26534 of 2020 Page 3 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-Nov-2024 19:11:23 qualifies for compassionate appointment as per said scheme being a dependent family member. The said scheme does not prescribe any specific procedure for test for compassionate appointment. But at Clause 6 of the said scheme, it is prescribed, inter alia, that compassionate appointments are exempted from observance of the recruitment procedure. The entire case of Opposite Parties put Petitioner No.2 into the written test is based on Standing Order No.5 / 2001 (Annexure-A/IX). 7. Perusal of Annexure-A/IX, appended to the counter affidavit, reveals that the same is the standing order relating to compassionate appointment that prescribed eligibility on test and examination. Clause 2 of said Order 5/2001 specifies that the standard of test/examination will be the same as applicable for normal recruitment. So, it is the case of the Opposite Parties that Petitioner No.2 was subjected to a written test before given compassionate appointment and since she failed in that written test, the question of her appointment to any Ministerial Cadre is not considered. 8. Mr. Das, on the other hand, submits that this Standing Order No.5/2001 (Annexure-A/IX) has been superseded by Standing Order No.4/2011 dated 27th July 2011 (Annexure-C) appended to the rejoinder affidavit. Therefore the conditions of test as mentioned in the Standing W.P.(C) No.26534 of 2020 Page 4 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-Nov-2024 19:11:23 Order No.5/2001 is not applicable to the case of the Petitioners for compassionate appointment. 9. Perusal of Annexure-C, i.e. the Standing Order No.4/2011 dated 27th July 2011 speaks that the same was issued in supersession of the earlier orders and instructions on the subject of rehabilitation of disabled persons. The same does not refer anything with regard to compassionate appointment. 10. As referred earlier, the Office Memorandum dated 16th January 2013 prescribes the scheme of compassionate appointment up to 2021 till the subsequent Standing Order No.2/2021 come into force on 3rd March 2021. This Standing Order No.2/2021 specifies at the beginning that the same is in superstation of Standing Order No.5/2001 to streamline the procedure for compassionate appointment. Further, it is mentioned that the said Standing Order dated 3rd March 2021 is based on the consolidated instructions issued, including the scheme dated 16th January 2013. Therefore the question falls to decide is, whether subjecting the applicant (Petitioner No.2) for a written test in terms of Standing Order No.5/2001 for compassionate appointment would be valid after coming into force of the scheme dated 16th January 2013 ? W.P.(C) No.26534 of 2020 Page 5 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-Nov-2024 19:11:23 11. A thorough perusal of the scheme dated 16th January 2013 reveals that no recruitment procedure for compassionate appointment is mentioned there nor do it expressly supersedes the earlier guidelines. As per the forwarding letter, it is mentioned that all the important/relevant office memorandums and orders on the subject of compassionate appointment have been consolidated for reference and guidance in the scheme to be followed by the authority. The object of the scheme narrates that to grant appointment on compassionate ground to a dependent family member, the scheme has been formulated. As per the scheme, Petitioner No.2 falls within the definition of a dependent family member eligible for getting compassionate appointment and there is no quarrel on this issue. It is also not disputed that Petitioner No.2 did not have the requisite eligibility qualification for being appointed in the Ministerial Cadre as per the scheme. The only question is whether the exemption clause (Clause-6) of the scheme would mean to waive out applicability of the written test examination for a candidate for compassionate appointment. 12. As said earlier, this scheme was prevalent from 2013 till 2021 scheme came into force. This scheme does not specifically refer to the procedure mentioned in Standing Order No.5/2001. It is the consolidated instructions imparted with regard to compassionate appointment till 2013. W.P.(C) No.26534 of 2020 Page 6 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-Nov-2024 19:11:23 It is true that Petitioner No.2 is the spouse of a serving constable of the force, who was boarded out due to such physical injuries sustained in a terrorist attack. The qualification of Petitioner No.2 to hold a Ministerial Cadre post (in the rank of Head Constable) is also not questioned. Initially her application for the post was refused on the ground of non-availability of vacancies and finally her case was considered upon availability of vacancies in the year 2016 and has been rejected on the ground that she could not able to qualify in the written test. The written test was conducted in September 2016 as per the statements mentioned in the impugned order. 13. It is true that unlike the Standing Order of the year 2021 prescribing the scheme of compassionate appointment, the scheme prescribed in 2013 under Annexure-A to the rejoinder does not expressly supersede Standing Order No.5/2001. As per the forwarding letter as well as the object of the scheme of the year 2013, the guidelines have been consolidated and applied to the case of compassionate appointment. When it is not specifically saying regarding applicability of normal recruitment procedure as per Standing Order No.5/2001 and only prescribes the eligibility and exemption clause (already stated earlier and the same is exempting the recruitment procedure), the applicability of conditions for written test as mentioned in the Standing Order No.5/2001 cannot be W.P.(C) No.26534 of 2020 Page 7 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-Nov-2024 19:11:23 applied strictly for the cases falling under 2013 scheme. From the contents of the scheme of 2013, it is understood that these are such consolidated guidelines prescribed on 16th January 2013 to be followed for future compassionate appointment till Standing Order No.2/2021 came into force on 3rd March 2021. Therefore, subjecting Petitioner No.2 to a compelling written test is not found justified for the purpose of compassionate appointment. 14. It is here submitted by Mr. Parhi, learned DSG that when the Petitioner has appeared the written test and remained unsuccessful, her challenge to prescription of written examination is unsustainable. Mr. Das submits in reply that Petitioner No.2 was in such a situation that she was compelled to appear the written examination and she did not have any other option at that time to raise any objection. Therefore, her subsequent challenge for subjecting her to written test cannot be taken against her. 15. It is the well-known principles of service law that after participating in the process and remaining unsuccessful a candidate is debarred from challenging the procedure of selection. But, this principle in case of compassionate appointment is hardly applicable, particularly in the facts of the present case. In State of Himachal Pradesh vrs. Shashi Kumar, (2019) 3 SCC 653, Hon’ble Supreme Court has stated that compassionate W.P.(C) No.26534 of 2020 Page 8 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-Nov-2024 19:11:23 appointment is an exception to the general rule of appointment to any public post in the service of the State which is to be made according with the principles under Article 14 and 16 of the Constitution and that, the basis of policy is to recognize that a family of the deceased employee may be placed in a position of financial hardship upon untimely death of the employee while in service. Further, in State of West Bengal vrs. Debabrata Tiwari and others, 2023 LiveLaw (SC) 175, the Supreme Court taking into consideration of various earlier decisions have observed the principles as follows:- “7.2. On consideration of the aforesaid decisions of this Court, the following principles emerge: i. That a provision for compassionate appointment makes a departure from the general provisions providing for appointment to a post by following a particular procedure of recruitment. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions and must be resorted to only in order to achieve the stated objectives, i.e., to enable the family of the deceased to get over the sudden financial crisis. ii. Appointment on compassionate grounds is not a source of recruitment. The reason for making such a benevolent scheme by the State or the public sector undertaking is to see that the dependants of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis. iii. Compassionate appointment is not a vested right which can be exercised at any time in future. Compassionate employment cannot be claimed or offered after a lapse of time and after the crisis is over. W.P.(C) No.26534 of 2020 Page 9 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-Nov-2024 19:11:23 iv. That compassionate appointment should be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years. v. In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family, its liabilities, the terminal benefits if any, received by the family, the age, dependency and marital status of its members, together with the income from any other source.” 16. In the case at hand, as for repetition, it is stated that the husband of Petitioner No.2 was severely injured in a terrorist attack while serving in his post and became disqualified for any future civil appointment even. Petitioner No.2, being her spouse and eligible for the post of Ministerial Cadre, has immediately applied for compassionate appointment, which was refused on the ground of non-availability of vacancy. In such circumstances, her willingness for pre-assessment training was obtained and she was compelled to appear in the written test examination for getting compassionate appointment. Thus, in the present facts of the case, it cannot be said that the Petitioner No.2 has participated in the examination process with her willingness and subsequently challenged such procedure after being failed in the same. 17. Appointment under rehabilitation scheme is a departure from the regular process of competition and right of equal opportunity in the matters of public employment. It is meant to give immediate financial assistance to the destitute family. When the husband of Petitioner No.2 W.P.(C) No.26534 of 2020 Page 10 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-Nov-2024 19:11:23 became disabled and boarded out from the force, the Petitioner No.2 being the dependent family member, should not have been compelled to a rigorous written examination process to compete to the post, because the intention of extending rehabilitation/compassionate appointment is a departure from the regular process. 18. In the given facts of the case, and for the reasons and discussions made above, the impugned order under Annexure-19 is set aside and the Opposite Parties are directed to extend the benefit of compassionate appointment to Petitioner No.2 in any vacant post of Head Constable (Ministerial Cadre), within a period of two months from the date of receipt of certified copy of this order.
Decision
19. The writ petition is disposed of. (B.P.Routray) Judge // C.R. Biswal, A.R.-Cum-Sr.Secy// W.P.(C) No.26534 of 2020 Page 11 of 11