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HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.32836 of 2020, W.P.(C) No.32837 of 2020 & W.P.(C) No.24762 of 2021 In the matters of the applications under Articles 226 and 227 of the Constitution of India. ----------- Jyotiranjan Pradhan (In W.P.(C) No.32836 of 2020) Goutam Pradhan (In W.P.(C) No.32837 of 2020) Mahima Prasad Sahoo (In W.P.(C) No.24762 of 2021) … Petitioners - Versus - State of Odisha and others (In all cases) … Opposite parties For Petitioner … M/s. Gyana Ranjan Sethi & B.K. Pattanaik. (In all cases) For Opposite Parties … Mr. Saswat Das, Additional Government Advocate (In all cases) -------------- // 2 // PRESENT: THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing : 19.10.2023 : Date of judgment : 31.10.2023 A.K. Mohapatra, J. All the above noted writ applications involve adjudication of a common question of law as well as interpretation of Rule-2(b) and Rul3-9(7) of the OCS (RA) Rules, 1990. It is needless to mention here that the above noted writ applications are based on identical set of facts. Therefore, all the three matters are being taken up together for hearing and the same is being disposed of by the following common judgment. W.P.(C) No.32836 of 2020 2. In the present writ petition, the father of the applicant, namely, Brundaban Pradhan died in harness on 5.11.2013. Thereafter, the present Petitioner submitted an application for appointment on compassionate ground under the O.C.S. (R.A.) Rule, 1990. While the application was pending, a notice was issued to the mother of the Petitioner who // 3 // submitted the medical certificate in support of her physical inability to discharge official duty. On 2.2.2015, the Medical Board declared the mother of the Petitioner as unfit to perform official duties. Such report of the Medical Board was forwarded by the C.D.M.O., Ganjam to the authorities concerned. On 4.3.2015, the Petitioner was asked to appear before the S.P., Ganjam for measurement of his height. Accordingly, the Petitioner appeared on 7.3.2015. Thereafter, the application of the Petitioner was forwarded to Opposite Party No.2 on 12.3.2015. In the meantime, Home Department, Government of Odisha issued letter to D.G. & I.G. of Police, Odisha to conduct the qualifying test for the post of Junior Clerk. On 10.1.2016 such qualifying test was conducted wherein the Petitioner had appeared and he was declared qualified for appointment to the post of Junior Clerk. // 4 // 3. The result of the qualifying test was placed before a committee under the Chairmanship of Special Secretary to G.A. Department. In the said meeting, the case of the Petitioner was considered and rejected vide order dated 28.06.2016 under Annexre-5 Series. Such conduct of the Opposite Parties compelled the Petitioner to approach the Tribunal by filing O.A. No.236(C) of 2017. The learned O.A.T. vide its order dated 10.01.2018 allowed the O.A. and quashed the rejection order. Further, the Opposite Party No.4 was directed to give appointment to the Petitioner under O.C.S. (R.A.) Rules, 1990. The Opposite Party No.2 again on 25.03.2020 rejected the application of the Petitioner for appointment on compassionate ground despite specific order by the Tribunal to give such appointment. Challenging the said rejection order, the present writ petition has been filed. // 5 // W.P.(C) No.32837 of 2020 4. This writ petition has been filed by the legal heir of a deceased Government employee for appointment on compassionate ground. The father of the Petitioner, who was working as A.S.I., died in harness on 6.7.2012 leaving behind his wife, one son (Petitioner) and a married daughter. The Petitioner being one of the legal heirs submitted an application on 18.08.2012 under the O.C.S. (R.A.) Rules, 1990. Like the previous case, the mother of the Petitioner was issued with a letter to produce her medical certificate in support of her physical inability to discharge official duty. Accordingly, the mother of the Petitioner appeared before the District Medical Board and on due examination, the Medical Board has opined that she is incapable/unfit to discharge official duty. A copy of such report has been filed as Annexure-4 to the writ petition. While the matter was pending, the Government directed the // 6 // D.G. & I.G. of Police, Odisha to conduct a qualifying test. Accordingly, a qualifying test was held on 10.01.2016 wherein the Petitioner appeared and was selected for appointment under the O.C.S. (R.A.) Rules as his name appears against Serial No.1 of the select list. Thereafter, the result was placed before the committee constituted for the purpose under the Chairmanship of the Special Secretary to G.A. Department. The said committee rejected the case of the Petitioner on the ground that the spouse of the deceased Government employee is alive and available for consideration vide order dated 03.10.2016 under Annexure- 7 to the writ petition. Challenging the aforesaid order, the Petitioner approached the Odisha Administrative Tribunal, Cuttack Bench, Cuttack by filing O.A. No.3816(C) of 2016. The said O.A. was allowed vide order dated 20.11.2017 and the impugned order of rejection was quashed by the Tribunal with a further direction to Opposite Party No.4 to // 7 // give appointment to the applicant under the O.C.S. (R.A.) Rules, 1990. Since the order of the Tribunal was not implemented by the Opposite Parties, the Petitioner had earlier approached this Court by filing W.P.(C) No.6818 of 2020 which was disposed of vide order dated 25.02.2020 by directing the Opposite Party No.4 to implement the order passed by the O.A.T. as has been referred to hereinabove. Finally, the Opposite Party No.4 vide order dated 25.03.2020 rejected the claim of the Petitioner ignoring the order passed by the O.A.T. Such rejection
Decision
order has been annexed to the writ petition as Annexure-9. W.P.(C) No.24762 of 2021 5. The present writ petition has been filed challenging the impugned rejection order dated 25.3.2020 thereby rejecting the Petitioner’s prayer for appointment under OCS (RA) Rules, 1990. // 8 // 6. The factual matrix in brief is that the father of the Petitioner, who was working as a Senior Clerk in the office of the Opposite Party No.4, died in harness on 5.1.2006 leaving behind his wife and two sons. At the time of the death of the deceased Government employee the present Petitioner was aged about 14 years. On attaining the age of majority, the Petitioner applied for appointment under the O.C.S. (R.A.) Rules, 1990 in July, 2010. 7. The application for appointment on compassionate ground filed by the Petitioner was kept pending for an unreasonably long time. Thereafter, a letter was issued to the mother of the Petitioner to furnish her medical certificate in support of her health status that she is unfit to discharge official duties. The mother of the Petitioner appeared before the District Medical Board on 23.8.2014. After due examination, the Medical Board opined that she is incapable/unfit to discharge official duties. A copy of the // 9 // report dated 8.9.2014 under Annexure-4 to the writ petition was forwarded to the competent authority. As is the case in the previous two writ petitions, the Home Department, Government of Odisha directed D.G. & I.G. of Police, Odisha, Cuttack to conduct a qualifying test for the post of Junior Clerk. Accordingly, the Petitioner appeared in the qualifying test held on 10.01.2016. Thereafter, the Petitioner was declared qualified and the result of the qualifying test was placed before a committee presides over by the Special Secretary to G.A. Department. Such committee has rejected the Petitioner’s claim mechanically on the ground that the mother of the Petitioner is alive and she has not made the application as per provisions of O.C.S. (R.A.) Rules, 1990. 8. Thereafter, the Petitioner approached the Tribunal by challenging the decision of the Opposite Parties in rejecting his claim for appointment on compassionate ground. The // 10 // Tribunal after hearing the parties vide order dated 10.11.2017 allowed the O.A. thereby quashing the impugned rejection order dated 28.6.2016 under Annexure- 6 series and further directed the Opposite Party No.4 to give appointment to the Petitioner under OCS (RA) Rules, 1990. Although the State-Respondents filed a review petition before the O.A.T., such review bearing R.P. No.07(C)/2018 was dismissed on 19.3.2018. 9. For implementation of the Tribunal’s order, the Petitioner had earlier approached this Court after abolition of the Tribunal by filing W.P.(C) No.19881 of 2018. A coordinate Bench of this Court vide order dated 24.1.2019 disposed of the writ petition by directing the Opposite Parties to consider the case of the Petitioner for appointment on compassionate ground. Since the order of the Tribunal as well this Court was not being implemented, the Petitioner again approached this Court by filing // 11 // W.P.(C) No.2709 of 2020. The said writ petition was also disposed of on 28.1.2020 thereby directing the Opposite Parties to implement the order of the Tribunal within a stipulated period of time. Since the order of this Court was not being implemented, the Petitioner filed CONTC No.1594 of 2020 and a review petition bearing Review Petition No.267 of 2020 filed by the Opposite Parties. While the matter stood thus, the Opposite Parties have rejected the prayer of the Petitioner for appointment on compassionate ground vide letter dated 25.03.2020 under Annexure-12 to the writ petition completely ignoring the order passed by the Tribunal dated 10.11.2017 in O.A. No.3814(C) of 2016. Being aggrieved by such order of the Opposite Parties, the Petitioner has approached this Court by filing the present writ petition. 10. At the outset, this Court would like to observe that on a careful analysis of the factual background of all the above // 12 // noted three writ petitions, it appears that the factual background of all three cases are almost identical. Moreover, the grounds of rejection of their claim for appointment under the O.C.S. (R.A.) Rules, 1990 are also identical. In all the aforesaid three writ petitions the Opposite Parties have rejected the claim of the Petitioners for appointment on compassionate grounds by referring to Rule-2(b) and Rule-9(7) of the O.C.S. (R.A.) Rules, 1990. Therefore, this Court is required to adjudicate a common question of law in the background of a similar factual scenario and is also required to interpret the identical provisions of the O.C.S. (R.A.) Rules, 1990. 11. Learned counsel appearing for the Petitioners in all the above noted three writ petitions submitted before this Court that the applications submitted by the Petitioners, who are legal heirs and sons of the deceased Government employees respectively. It was also contended that all three // 13 // applications have been rejected basing upon a common ground, i.e., while the spouse of the deceased Government employee is alive, the applications submitted by the Petitioners are not entertainable. 12. In course of their argument, learned counsel appearing for the Petitioners submitted that no doubt Rule-2(b) of the O.C.S. (R.A.) Rules, 1990 defines the family member. For better appreciation, the aforesaid Rule-2(b) has been quoted herein below:- Sons or step sons or sons legally adopted “2(b) – “Family Members” shall mean and include the following members in order of preference- i) Wife/husband ii) through a registered deed; iii) Unmarried daughters and unmarried step daughters; iv) Widowed daughter or daughter-in-law residing permanently with the affected family; v) Unmarried or widowed sister permanently residing with the affected family; // 14 // vi) Brother of unmarried Government servant who was wholly dependent on such Government servant at the time of death.” 13. By referring to the aforesaid provisions, learned counsel appearing for the Petitioners submitted that both wife/husband and son/unmarried daughters are kept under the definition of family members as defined under Rule- 2(b) of the Rules, 1990. It was also contended that the said rule provides that in order of preference the persons named in the said rule are to be considered for appointment on compassionate ground. They further contended that the said rule nowhere prescribes that the surviving spouse has to produce a medical certificate showing his/her incapacity/unfitness to discharge the official duties. As such, it was submitted that production of a medical certificate showing unfitness is not the mandate of the rules. 14. Similarly, learned counsel appearing for the Petitioners also referred to Rule-9(7) of the O.C.S. (R.A.) Rules, 1990 which provides that if at the time of the death // 15 // of Government servant there is a ward and who is minor and alone, he/she shall apply for a job on compassionate ground on attaining the age of 18 years and in no case beyond three years from the date of attaining the age of 18 years. 15. In view of the provisions contained in Rule-2(b) and Rule-9(7) of the Rules, 1990, learned counsel appearing for the Petitioners emphatically contended before this Court that as per the definition of family members’ preference will be first given to the wife/husband and then sons, unmarried daughters. Such order of preference does not preclude the son from making an application if the mother is still alive. Learned counsel appearing for the Petitioners in the aforesaid context referred to the report submitted by the District Medical Board with regard to incapacity/unfitness of the mother to discharge the official duties. Therefore, the authorities are under a legal // 16 // obligation to take up and consider the cases of the Petitioners who are next in the order of preference. Accordingly, on the basis of their performance in the qualifying test, the Petitioners should have been given appointment to the post befitting to their qualification. They further contended that the conduct of the Opposite Parties in rejecting the claim of the Petitioners for appointment under the Rules, 1990 on the ground that the spouse of the deceased Government employee who happens to be the mother of the present Petitioners are still alive is not legally sustainable as the same is not the mandate of the rule referred to hereinabove. 16. In course of his argument, learned counsel appearing for the Petitioners referred to the judgment of this Court in Ajit Kumar Barik v. State of Orissa and others, reported in 2018 (II) OLR- 10 (BD). In Ajit Kumar Barik’s case (supra), the Division Bench of this Court while examining // 17 // the claim of the son while the spouse of the deceased Government employee was alive had an occasion to interpret the Rule-2(b) and Rule-9(7) of the Rules, 1990. On a careful analysis of the factual background as well as the legal position, the Division Bench has arrived at a conclusion that the first preference is to be given to the wife/husband of the deceased employee, then the sons and the unmarried daughters. It was also observed by the Division Bench that nowhere it has been stated that in case a family member in order of preference in the hierarchy is unfit, a medical certificate is required to be furnished to that effect, otherwise his/her claim shall not be considered for appointment under the Rules, 1990. Accordingly, the order passed by the Tribunal in the said judgment was set aside by the Division Bench of this Court and, further, the Opposite Parties were directed to issue appointment letters to the claimants within a period of two months. // 18 // 17. The order passed by the Division Bench setting aside the order passed by the O.A.T. was assailed before the Hon’ble Supreme Court by the State-Opposite Parties by filing Special Leave Petition (Civil) Diary No(s).35835/2018. The Hon’ble Supreme Court vide order dated 26.10.2018 after condoning the delay in filing the SLP, dismissed the SLP thereby upholding the validity of the judgment delivered by the Division Bench of this Court. 18. Similarly, in the case of Subash Chandra Khatua v. State of Odisha & Others (W.P.(C) No.22678 of 2020), another Division Bench of this Court vide its judgment dated 5.11.2020 was pleased to set aside the impugned rejection order passed by the Odisha Administrative Tribunal in O.A. No.2740 of 2016. On a perusal of the said order, this Court observed that the subsequent Division Bench by relying upon the judgment of Ajit Kumar Barik’s case (supra) has allowed the writ petition and, accordingly, // 19 // direction has been given to the Opposite Parties in that case to issue appointment order in favour of the Petitioner. The order passed by the Division Bench in Subash Chandra Khatua’s case (supra) was assailed before the Hon’ble Supreme Court by filing Special Leave to Appeal (C) No(s).13459/2021. The Hon’ble Supreme Court vide order dated 06.09.2021 dismissed the appeal of the State- Opposite Parties and thereby affirmed the judgment of the Division Bench of this Court. 19. Learned counsel for the Petitioners also referred to the order passed by another Division Bench of this Court in State of Odisha & others v. Biranchi Nayak (W.P.(C) No.33872 of 2020, disposed of on 28.10.2021). On perusal of the order dated 28.10.2021 passed in the said writ petition, this Court observed that the State-Opposite Parties had approached this Court by challenging the order of the Tribunal passed in O.A. No.1295 of 2017 wherein the // 20 // Tribunal while quashing the impugned orders directed the Government to appoint the applicant before the Tribunal under Rehabilitation Assistance Scheme within three months. In that case, the Division Bench of this Court while interpreting the Rule-2(b) read with Rule-9(7) of the OCS (RA) Rules, 1990 has categorically held that the application for appointment on compassionate ground by the legal heirs even where the spouse of the deceased Government employee is alive is maintainable and entertainable. While disposing of the said writ petition, the Division Bench had reminded the State of its welfare duties towards the citizens who are in difficulty due to the sudden demise of their beloved family members who was a Government employee. In the said case, the applicant’s son had submitted affidavits by other legal heirs/family members in support of the claim of the Petitioner. It is stated by the learned counsel for the Petitioners that the // 21 // order passed in the above noted writ petitions directing the Opposite Parties to give appointment to the Petitioners has already been implemented in the meantime. 20. A joint counter affidavit has been filed on behalf of the Opposite Parties No.1 and 4. In the said counter affidavit, the Opposite Parties apart from challenging the maintainability of the writ petition have also taken a stand that initially the Petitioner did not submit the medical unfitness certificate of his mother. Thereafter the same was submitted later on 04.02.2015 which was issued much after the date of application. The said counter affidavit reveals that the Opposite Parties have taken a stand that since the medical certificate was issued after the application was submitted by the Petitioner, the same does not satisfy the requirement that the mother of the Petitioner was medically unfit to discharge the official duties and that the same is an afterthought. It has also been contended in the counter // 22 // affidavit that the procedure adopted by the Petitioner is an attempt to circumvent the regular procedure of giving appointment to the aspirants after selecting them through a regular selection procedure. 21. In the present case, an attempt has been made to enter into Government service without facing the open competition. Such conduct on the part of the Petitioner violates the Rule-2(b) read with Rule-9(7) of the Rules, 1990. 22. In the counter affidavit, in para-10 it has been categorically stated that the Petitioner participated in the qualifying test wherein he was declared to have qualified in the test. Thereafter, all the relevant documents were sent to the Government for necessary verification. However, the committee which was scrutinizing the applications has rejected the claim of the Petitioner. This Court on a careful reading of the counter affidavit found that no ground // 23 // whatsoever has been indicated for rejection of the Petitioner’s claim by such committee. On the contrary, in the counter affidavit a stand has been taken by referring to the Rule-2(b) and Rule-9(7) of the O.C.S. (R.A.) Rules to the effect that in order of preference, as provided in Rule- 2(b), the case of the mother is to be considered first. It is only when the person who stands first in the priority list is found unsuitable, the question of considering the next person in the priority order comes into picture. In the instance case, the Petitioner submitted his application without any justification as to why his mother is not eligible for appointment as per the order of preference contained in Rule-2(b) of the Rules, 1990. 23. It was also contended that the Medical Certificate which was supplied subsequently is of no use as the same was submitted after submission of the application under the OCS (RA) Rules, 1990. Therefore, the Opposite Parties // 24 // have justified their conduct in rejecting the application of the Petitioner. In the counter affidavit, the Opposite Parties have also taken a stand that the judgment of this Court in Ajit Kumar Barik’s case (supra) is not applicable to the facts of the present case as the factual background of both the cases are different. The distinction cited in the counter with regard to non-applicability of Ajit Kumar Barik’s case (supra) is that the mother of the said Ajit Kumar Barik submitted application for appointment and later on she was found medically unfit for the job. Thereafter, the son applied for appointment under the O.C.S. (R.A.) Rules. So far the present case is concerned, the Petitioner applied directly when the mother is still alive that too without the medical unfitness certificate of the mother. On such grounds, the Opposite Parties have taken a stand that the writ petition is devoid of merit. Accordingly, the same should be dismissed. // 25 // 24. Having heard learned counsels appearing for the respective parties and on a careful examination of the background facts as well as the materials on record and on a careful analysis of the pleadings of the respective parties, this Court observed that the only question that falls for adjudication in the present batch of writ applications is as to whether the case of the son could be considered for appointment under the O.C.S. (R.A.) Rules, 1990 even when the mother/husband of the Government deceased employee is still alive? 25. In reply to the aforesaid question, this Court at the outset would like to refer to the provisions contained in Rule-2(b) of the OCS (RA) Rules, 1990. On a perusal of Rule-2(b) of the 1990 Rules which has also been quoted herein above clearly reveals that the same defines the family members. Such definition also mandates that the legal heirs who have been named in Rule-2(b) are to be // 26 // treated in a preferential order. Therefore, there is no quarrel with regard to the proposition that while considering the application for appointment on compassionate ground, the Opposite Parties are duty bound to consider the case of the wife/husband first before taking of the claim of other legal heirs. However, this Court is also of the considered view that the same does not debar consideration of the next person in the preferential order in the event when it is known to the person in the second position that the first person is unfit/incapable of performing official duties. However, such application by a person who comes after the wife/husband has to be accompanied by reasons and documents in support of such reason. Such view of this Court is supported by the judgments referred to hereinabove particularly in the case of Ajit Kumar Barik’s case (supra). // 27 // 26. In the instant case, after the applications were submitted by the Petitioners’, letters were issued to their mothers. The mothers of the Petitioners were directed to appear before the District Medical Board. They were also examined by the District Medical Board. Thereafter, reports were prepared by the District Medical Board showing incapacity/unfitness of the mothers of the Petitioners in the respective writ petitions and the same were forwarded to the competent authority before the final decision was taken in the matter. It is needless to emphasize here that such medical examination was conducted only on the direction of the Opposite Parties. It is also not disputed by the Opposite Parties that the Petitioners were made to appear in a qualifying test and in such qualifying test they were found qualified for such appointment under the O.C.S. (R.A.) Rules, 1990. While this was the position, the matter was placed before the scrutiny committee. The scrutiny // 28 // committee, as it appears, has rejected the applications of the Petitioners arbitrarily and illegally without taking note of the background facts and without considering the provisions of the relevant rules. 27. This Court further observed that after rejection of the application for compassionate appointment, the Petitioners initially approach the Tribunal by filing O.A. The Tribunal after hearing the counsels appearing for the respective parties was pleased to quash the impugned rejection order and directed the Opposite Parties to give appointment to the Petitioners. However, such order of the Tribunal was not carried out by the Opposite Parties. On the contrary, the Home Department, Government of Odisha again rejected the application of the Petitioners with utter disregard to the order passed by the Tribunal. Being aggrieved by such rejection order of the Government, the Petitioners have // 29 // approached this Court by filing the above noted writ petitions. 28. On a careful analysis of the factual background as well as the position of law, this Court is of the considered view that by the time the application of the Petitioners was being considered, the medical certificates were available before the authorities for consideration. Such medical certificates were issued by the District Medical Board on the direction to the Opposite Parties. Therefore, the Opposite Parties are estopped to take a ground that such certificates were not filed along with the RA applications. Moreover, by applying the law laid down by this Court in Ajit Kumar Barik’s case (supra) which was eventually affirmed by Hon’ble Apex Court, this Court is of the considered view that the conduct of the Opposite Parties in rejecting the claim of the Petitioners for appointment under the OCS (RA) Rules, 1990 is highly illegal and arbitrary. // 30 // Furthermore, in view of the judgment in Malaya Nanda Sethy v. State of Orissa and others, reported in 2022(II) OLR(SC)-1, the Opposite Parties cannot take a stand that the applications of the Petitioners cannot be considered under the O.C.S. (R.A.) Rules, 1990 as is revealed from the facts of the case that the death of the deceased employee occurred much prior to the new rules of the year 2020 came into force. In addition to that the applications of the Petitioners were considered and rejected under the 1990 Rules on a wrong notion and by misinterpreting the Rule-2(b) of the Rules, 1990. 29. In view of the aforesaid analysis, this Court has no hesitation in coming to a conclusion that the conduct of the Opposite Parties are highly illegal, arbitrary and discriminatory. Accordingly, the impugned rejection orders are liable to be set aside and the same is hereby set aside. The Opposite Parties are further directed to give // 31 // appointment to the Petitioners in all above noted three writ petition under the O.C.S. (R.A.) Rules, 1990 as directed by the Tribunal and from the time as directed by the Tribunal against any available vacancy within a period of two months from the date of communication of a copy of this judgment. 30. With the aforesaid observations and directions, all the writ petitions are allowed. However, there shall be no order as to cost. (A.K. Mohapatra) Judge Orissa High Court, Cuttack The 31st October, 2023/D. Aech, Secretary. Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC CUTTACK Date: 01-Nov-2023 17:44:23