The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 27-Jan-2025 17:48:31 IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.31624 of 2021 Litu Naik …. Petitioner Mr. Gopal Prasad Jena, Advocate -versus- State of Odisha, represented through its Principal Secretary, Home Department and Others …. Opposite Parties
Legal Reasoning
Mr. D. Mohanty, Additional Government Advocate CORAM: SHRI JUSTICE B. P. ROUTRAY
Decision
ORDER 15.1.2025 Order No. 07. 1. The matter is taken up through hybrid mode. 2. Heard Mr. G.P. Jena, learned counsel for the Petitioner and Mr. D. Mohanty, learned AGA for State – Opposite Parties. 3. Petitioner’s father, namely Udayanath Naik died in harness on 26th April, 2001 while serving as Peon in Home Department of Government of Odisha. Then the wife of the deceased employee namely, Bhama Naik applied for appointment under Rehabilitation Assistance Scheme. But without giving her appointment immediately, the authourity offered her appointment on 24th December, 2013 (Annexure-C/3) in Group-D post. At that time she refused to accept the appointment in her favour on the ground of her ailment and old age and prayed to extend the appointment in favour of her son (petitioner), who in the meantime had attend majority, in any Group-D post in her place. However, the matter relating to appointment of the Petitioner was kept pending with the Opposite Parties though several correspondences have been made by the employer to submit his application and required documents time and again. Finally Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 27-Jan-2025 17:48:31 the prayer for appointment of the Petitioner was rejected vide impugned order dated 18th September, 2021 (Annexure-10) by the Secretary to Government in Home Department, on the ground that the family was not in distressed condition after death of the deceased employee since the wife did not accept the offer of appointment of the employer in the year 2013. 4. State has filed its counter reiterating its stand as reflected in the impugned order. 5. Mr. Jena, learned counsel for the Petitioner, submits that the wife of the deceased employee has nominated her son to be appointed in her place which was not refused immediately, but after 8 years, that too upon intervention of this court only. So it is not proper to say that the family is not in distressed condition. 6. It is seen from the record that after death of the employee on 26th April, 2001, the appointment under Rehabilitation Assistance Scheme was offered to the wife of the deceased employee in the year 2013, though she had applied immediately after death of the employee. The delay of twelve years, on the part of the employer, in offering appointment to the wife of the deceased employee is not explained anywhere in the counter affidavit. In the meantime the Rehabilitation Assistance Rules, 1990 have been substituted by new set of Rules, i.e. OCS (Rehabilitation Assistance) Rules, 2020. It is not the case where the prayer of the Petitioner has been rejected finding him disqualified either under the old rule or under the new rules. The only reason stated by the employer to refuse appointment is that, the family has recovered from the Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 27-Jan-2025 17:48:31 distressed condition since the wife refused to accept the offer of appointment in 2013. 7. Both in the old rules as well as in the new rules, the appointment under Rehabilitation Assistance Scheme can be extended in favour of other depending family members of the deceased employee. Even under Rule 4 of the New Rules, 2020, it is provided that in case the spouse is more than 50 years of age on the date of death of the deceased and not willing to serve, she can nominate any one of the eligible family members of the deceased employee for compassionate appointment. In the case at hand when the deceased employee died in the year 2001, the wife was 39 years old and by the time the appointment was offered to her in the year 2013 she has crossed 50 years of age. Accordingly considering her ailment, she requested for appointment of her son for compassionate appointment, which was kept pending with the authorities till 2021 and finally rejected stating that the family is no more in distressed condition. Said approach of the employer to reject the prayer for compassionate appointment of the son in place of the wife is not found justifiable for the reasons stated by the employer without finding any disqualification with him. 8. The essence of compassionate appointment under the old rules as well as under the new rules is to save the family from distressed condition. When the rules permit to give appointment to any eligible depending family member, it would unfair on the part of the employer to reject the prayer for compassionate appointment without considering the option by the spouse, who nominated her major son in her place. Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 27-Jan-2025 17:48:31 9. Further, it is found that the prayer for compassionate appointment was pending with the employer without any fault on the part of the applicant till 2013 and in the meantime the son had attended majority. Even after the same, though the nomination in favour of the son is recognized legally under the rules, the authorities kept the matter pending with them without any fault on the part of the Petitioner till 2021. So at such later stage refusing to give appointment to the Petitioner on compassionate ground by saying that the family has recovered from distressed condition is unjust and unfair. Accordingly, the impugned order under Annexure-10 is set aside. 10. The writ petition is allowed and the Opposite Parties are directed to extend appointment in favour of the Petitioner in any Group-D post within a period of two months from the date of receipt of certified copy of this order. M.K. Panda (B.P. Routray) Judge Page 4 of 4