The High Court
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IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.25636 of 2019 In the matter of an application under Articles 226 and 227 of the Constitution of India. ---------------------------- Anil Padhy ....... Petitioner -Versus- State of Odisha & others ....... Opp. Parties For Petitioner : Mr. P.K. Sinha, Advocate For Opposite parties : Mr. S.K. Samal, Addl. Government Advocate ---------------------------- P R E S E N T: MR. JUSTICE SANJAY KUMAR MISHRA ---------------------------------------------------------------------------------- Date of Hearing: 17.10.2022 Date of Judgment: 03.03.2023 ---------------------------------------------------------------------------------- S.K. Mishra, J. The Petitioner has preferred the Writ Petition seeking for a direction to the Opposite Parties to appoint him in any Group-C post in terms of the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990, shortly, 1990 Rules, keeping in view the distress condition of his family and approval of his application for appointment under the 1990 Rules by the Excise Commissioner, Odisha (Opposite Party No.3). 2. The factual matrix of the case, at hand, is that Petitioner is the son of Late Surendra Kumar Padhy, who was working as Assistant Sub-Inspector, Excise under Superintendent of Excise, Puri and expired on 02.08.2011 while in service. At the time of his death, the father of the Petitioner left behind his ailing widow, two sons and two daughters including the Petitioner. Though the elder sister of the Petitioner got married however, the Petitioner, his brother and younger sister are yet to marry. The father of the Petitioner was the sole bread earner of the family and after his death; the family of the Petitioner is in deep distress due to untimely death of the sole bread earner of the family. As the mother of the Petitioner and his brother were not in a position to work because of ailments and the elder sister then was about to marry, as per the decision of the family members, the Petitioner submitted the application for appointment under the Rehabilitation Assistance Rules, 1990 on W.P.(C) No.25636 of 2019 Page 2 of 24 27.09.2011 along with necessary documents for his appointment under the Rehabilitation Assistance Scheme. The other family members submitted their no objection in the said regard supported with affidavits. The Petitioner also furnished an undertaking to take care the family members. 3. After scrutiny of the documents submitted by the Petitioner, the matter was referred to the Collector, Ganjam to issue Distress Certificate, as required. Thereafter, the matter was transmitted to the Excise Commissioner for appropriate action at his end. The mother of the Petitioner is suffering from different diseases including brain stem hemorrhage. To ascertain the truth regarding her ailment, the authority asked her twice to appear before the Medical Board. Accordingly, she was also produced before the Board and both the Medical Boards declared the mother of the Petitioner to be unfit for any government job because of her serious ailment. Other than the pension, the family has no other source of income. Therefore, the Petitioner approached different offices regarding his appointment under the 1990 Rules. As he was not eligible for appointment in the post of Excise Constable, the authorities promised him to appoint in a Group-C post. W.P.(C) No.25636 of 2019 Page 3 of 24 Accordingly, the application of the Petitioner was approved and he was informed vide letter dated 26.06.2013 that he is to be given posting in the post of Junior Clerk in Excise Department under Rehabilitation Assistance Scheme. 4. After the said decision was taken to give appointment to the Petitioner, without providing him employment, once again he was asked to submit another application for appointment under the Rehabilitation Assistance Rules which was also duly complied by the Petitioner. Being satisfied with the distress condition of the family of the Petitioner and verifying other documents, the Excise Commissioner being the appointing authority, approved the prayer of the Petitioner for his appointment under the Rehabilitation Assistance Scheme. The further case of the Petitioner is that, as per the Annual Establishment Review of Finance Department as on 31.03.2017, there were 5,83,021 sanctioned posts under the State Government out of which 1,31,518 posts were laying vacant. From the said report it is made clear that at the relevant point of time, in the Excise Department, there were 2,119 sanctioned posts out of which 1,843 were Group-C and 31 were Group-D posts. From W.P.(C) No.25636 of 2019 Page 4 of 24 amongst the sanctioned posts in Excise Department, 446 posts were laying vacant as on 31.03.2017, out of which 373 were Group-C and 6 were Group-D posts. The said information regarding vacancy was gathered by the Petitioner being provided in the Odisha Legislative Assembly on 11.09.2017 in response to one un-starred question bearing No.422. The case of the Petitioner is that in one hand, good number of posts are laying vacant and in the other hand, the family of Petitioner are passing their days in deep distress due to delay in providing appointment under the Rehabilitation Assistance Scheme, as for treatment of his deceased father, who was suffering from different serious ailments and for solemnizing the marriage of his elder sister, the family is in deep debt and has incurred huge loan. That apart, for survival of widow mother, major portion of the family pension amount is being spent for her treatment which is well known to the Opposite Parties. 5. It is further stand of the Petitioner that he is very much covered within the ambit of Rule-2(b) of Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 read with Rule-3 and being the son of the deceased employee, his case W.P.(C) No.25636 of 2019 Page 5 of 24 deserves to be considered favourably as the family is in deep distress as certified by the concerned district Collector. The rehabilitation assistance is conceived as a compassionate measure to save the family of the Government servant from immediate distress when the Government servant suddenly dies while in service. But unfortunately, despite availability of vacant posts under the Opposite Parties, the matter is unnecessarily lingering. 6. It has also been averred that in the meantime, as per the kind direction of this Court, so also Administrative Tribunal, several similarly situated applicants have been appointed under Rehabilitation Assistance Scheme in different posts. To demonstrate the same, some of the Judgments have been appended to the Writ Petition as Annexures-7 Series. It has further been averred that father of the Petitioner died while in service in the year 2011 and the Petitioner submitted the application for appointment under the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 within the time limit and from the communication as at Annexure-6, it is clear that in the year 2013 the competent authority processed and approved the application of the W.P.(C) No.25636 of 2019 Page 6 of 24 Petitioner for appointment in the post of Junior Clerk in terms of 1990 Rules and much after that the said Rule was amended in the year 2016. As per the settled position of law, the Petitioner is covered under the pre-amended rule as his father died prior to such amendment and his application for appointment under the Rehabilitation Assistance Scheme was also processed and approved in the year 2013 i.e. prior to such amendment. 7. Being noticed, the contesting Opposite Party No.3 has filed Counter Affidavit on 17.02.2020 admitting most of
Decision
the averments made in the Writ Petition. However, with regard to the vacancy position of Junior Clerk in Excise Department, it has been pleaded that it is learnt from letter dated 31.08.2019 of the Establishment Officer of Excise Directorate that, there were 11 posts of Junior Clerks vacant by the end of August, 2019. It is further averred in the Counter Affidavit that as per the report of the Excise Directorate, out of 21 applicants seeking appointment under Rehabilitation Assistance Scheme, the serial number of the Petitioner (in order of date of death of Government Employees) appears at Sl. No.12 in the eligible list of applicants. Though 11 posts of W.P.(C) No.25636 of 2019 Page 7 of 24 Junior Clerks were reportedly vacant by the end of August, 2019 as per GAD-SC-Rules Notification No.23345/Gen dated 05.11.2016, a maximum number of 10% of the existing vacancy in a year shall be earmarked to be filled up by applicants under the Rehabilitation Assistance Scheme. Accordingly, out of existing vacancies of 11 posts of Junior Clerks, one post of Junior Clerk was to be filled up from amongst the applications seeking appointment under the Rehabilitation Assistance Scheme and serial number of the Petitioner being 12 in the list, his case shall be considered in due course. It has also been averred in the Counter Affidavit that though the application of the Petitioner for appointment under the Rehabilitation Assistance Scheme has already been approved by the Excise Commissioner, the appointment under rehabilitation assistance to different posts basically depends on arising of vacancy and the relevant law governing the policy of the Government on rehabilitation assistance. Basing on the said G.A. Notification, it has been made clear by the Excise Directorate that, out of the existing vacancies of 11 posts of Junior Clerks, only one post of Junior Clerk i.e. 10% of the available vacancy is to be considered on W.P.(C) No.25636 of 2019 Page 8 of 24 compassionate ground and since the name of the Petitioner finds place at Sl. No.12 in the list of eligible applicant, his case has not yet been considered as the appointment under the Rehabilitation Assistance Scheme is governed by Odisha Civil Service (Rehabilitation Assistance) Amendment Rules, 2016, and the appointment of the Petitioner virtually depends on the vacancy as has been decided in HAL Vs. Radhika Thirumalai, reported in JT 1996(9) SC 197 and HRTC Vs. Dinesh Kumar, reported in JT 1996 (5) SC 319. 8. It has also been averred in the Counter Affidavit that the prayer of the Petitioner to consider his case in accordance with the pre-amended Rules, 1990, as his father died prior to amendment of the said Rules, 1990, does not hold good on the pretext of reasonable delay. In keeping with the availability of vacancy and the list of eligible applicants in fray i.e. in order of date of death of the deceased employee, the claim made by the applicant may have serious legal implications. However, since the appointment under the Rehabilitation Assistance Scheme chiefly depends on the contemporaneous arising of vacancy and serial number of the W.P.(C) No.25636 of 2019 Page 9 of 24 Petitioner in the list of applicants, the Petitioner shall get his benefit as per his turn at the appropriate time. 9. In response to the Counter Affidavit by the contesting Opposite Party No.3, the Petitioner has filed Rejoinder Affidavit on 4th July, 2022. Apart from reiterating the facts pleaded in the Writ Petition, it has been pleaded that in view of the Judgments of the apex Court as well as this Court the issue as to whether the amended or the new Rule for appointment under the Rehabilitation Assistance Scheme in the State of Odisha is to be applied retrospectively or prospectively has been decided in several cases and in the case of Malaya Nanda Sethy Vs. State of Odisha and Others in Civil Appeal No.4103 of 2022 decided on 20.05.2022, the apex Court held that there was no fault and/or delay and/or negligence on the part of the appellant and he was fulfilling all the conditions for appointment on compassionate ground under the 1990 Rules and for no reasons, his application was kept pending and/or no order was passed on one ground or the other. Therefore, when there was no fault and/or delay on the part of the appellant and all through there was delay on the part of the department/authorities, the appellant should W.P.(C) No.25636 of 2019 Page 10 of 24 not be made to suffer. It has further been stated in the Rejoinder Affidavit that pursuant to the direction by the apex Court in Malaya Nanda Sethy (supra), in compliance of the said Judgment, the Excise Department of Government Odisha, vide Order dated 13.06.2022, instructed the authority concerned to give appointment to Malaya Nanda Sethy in the post of Junior Clerk within the time frame as stipulated by the apex Court, if he is otherwise found eligible. It is further stated in the Rejoinder Affidavit that the father of the Malaya Nanda Sethy and the present Petitioner, while continuing in service under Excise Department, died in the year 2010 & 2011 respectively. As the Petitioner is similarly situated, he deserves issuance of necessary direction to the State Government to take necessary steps to appoint him in Group-C post and treat him at par with Malaya Nanda Sethy as his application for appointment under the Rehabilitation Assistance Scheme has been approved by the Excise Commissioner way back in the year 2013 and he was assured that he will be appointed in the post of Junior Clerk as soon as vacancy arises in any part of the State. W.P.(C) No.25636 of 2019 Page 11 of 24 10. To substantiate his stands taken in the Writ Petition, so also Rejoinder Affidavit, learned Counsel for the Petitioner relied on the Judgment of the Apex Court in the case of Malaya Nanda Sethy Vs. State of Odisha and Others passed in Civil Appeal No.4103 of 2022 (Arising out of S.L.P. (Civil) No.936 of 2022) and State of Madhya Pradesh Vs. Ashish Awasthi in Civil Appeal No.6902 of 2021 decided on 18.11.2021. Order dated 05.11.2021 of this Court passed in W.P.(C) No.13459 of 2021 directing for compassionate appointment, which was confirmed in S.L.P(Civil) No.13459 of 2021 dismissed on 06.09.2021 being preferred against the said Order by the State Government. Learned Counsel for the Petitioner submitted that the Order passed by this Court being confirmed by the apex Court, Sri Subash Chandra Khatua has been appointed vide Order dated 21.05.2022 issued by the Chief Engineer & Basin Manager, Brahmani Basin, Samal Barrage Township and in similar cases, relying upon the Judgments of the apex Court, this Court disposed of umpteen number of Writ Petitions directing to provide the Petitioners with compassionate appointment in accordance with the Odisha Civil Service (Rehabilitation Assistance) W.P.(C) No.25636 of 2019 Page 12 of 24 Rules, 1990. He drew attention of the Court towards two recent Judgments of this Court annexed to the Rejoinder Affidavit as Annexure-13 to further substantiate the claim of the Petitioner. 11. Mr. Samal, learned Counsel for the contesting Opposite Party No.3 submitted that in view of the divergent views of the different Benches of the apex Court, the apex Court in the case of State Bank of India & others Vs. Sheo Shankar Tewari, reported in (2019) 5 SCC 600 has referred the matter to the larger Bench. 12. Admittedly, the father of the present Petitioner so also father of Malaya Nanda Sethy were working under the Excise Department. The father of Malaya Nanda Sethy died in the year 2010 (02.01.2010), whereas the father of present Petitioner died in the year 2011 (02.08.2011). Further, the approval for appointment under the 1990 Rules dated 26.06.2013, is much prior to coming into force of the Orissa Civil Service (Rehabilitation Assistance) Amendment Rules, 2016, and was duly communicated to the Petitioner. The said communication dated 26.06.2013 clearly indicates that his application was approved for appointing him under the W.P.(C) No.25636 of 2019 Page 13 of 24 Rehabilitation Assistance Rules, 1990 in the post of Junior Clerk in the Excise Department giving him an assurance that he will be given appointment as soon as vacancy arises in that category i.e. Junior Clerk, in any part of the State. Admittedly, after communication dated 26.06.2013, no further communication has been made to the Petitioner till date to the effect that till coming into force the Amended Rules, 2016 there was/were no vacancy(s) and since vacancy arose after coming into force the Amended Rules, 2016, his case will be considered as per the said Rules as has been stated for the first time in the Counter Affidavit. It is worthwhile to mention here that in the case of Malaya Nanda Sethy (supra), the apex Court held as follows. “7. 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 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 W.P.(C) No.25636 of 2019 Page 14 of 24 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 on the part of 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 deprived of seeking 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.” (emphasis supplied) That apart, the apex Court vide paragraph-9 of the said Judgment was being constrained to observe further as follows: W.P.(C) No.25636 of 2019 Page 15 of 24 “9. 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 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. We are constrained to direct as above as we have found that in several cases, applications for appointment on compassionate grounds are not attended in time and are kept pending for years together. As a result, the applicants in several cases have to approach the concerned High Courts seeking a writ of Mandamus for the consideration of their applications. Even after such a direction is issued, frivolous or vexatious reasons are given for rejecting the applications. Once again, the applicants have to challenge the order of rejection before the High Court which leads to pendency of litigation and passage of W.P.(C) No.25636 of 2019 Page 16 of 24 time, leaving the family of the employee who died in harness in the lurch and in financial difficulty. Further, for reasons best known to the authorities and on irrelevant considerations, applications made for compassionate appointment are rejected. After several years or are not considered at all as in the instant case. If the object and purpose of appointment on compassionate grounds as envisaged under the relevant policies or the rules have to be achieved then it is just and necessary that such applications are considered well in time and not in a tardy way. We have come across cases where for nearly two decades the controversy regarding the application made for compassionate appointment is not resolved. This consequently leads to the frustration of the very policy of granting compassionate appointment on the death of the employee while in service. We have, therefore, directed that such applications must be considered at an earliest point of time. The consideration must be fair, reasonable and based on relevant consideration. The application cannot be rejected on the basis of frivolous and for reasons extraneous to the facts of the case. Then and then only the object and purpose of appointment on compassionate grounds can be achieved.” (emphasis supplied) W.P.(C) No.25636 of 2019 Page 17 of 24 13. Mr. Samal, learned Counsel for the contesting Opposite Party No.3, relying on the Judgment of the apex Court in the case of Malaya Nanda Sethy (supra), so also in the case of N.C. Santosh Vs. State of Karnataka & others, reported in (2020) 5 SCC 617 submitted that since the case of the Petitioner is under consideration for appointment under the Rehabilitation Assistance Scheme, as per the said decision of the apex Court, the case of the Petitioner is to be considered in terms of the amended Rules, 2020 as in the meantime, the said Rule, 2016 for appointment under Rehabilitation Assistance has further been amended. 14. Admittedly, the application of the Petitioner, on completion of all the formalities being processed, attained finality on communication being made to him on 26.06.2013, vide which the Petitioner was informed that his application is “approved” for the post of Junior Clerk in the Excise Department under the Rehabilitation Assistance Scheme and he will be given the said post as soon as vacancy arises in that category i.e. Junior Clerk, in any part of the State. It is not specific case of the contesting Opposite Party No.3 that after the said communication was made to the Petitioner till W.P.(C) No.25636 of 2019 Page 18 of 24 the amended Rules, 2016 came into force, there was no vacancy for which his case could not be considered before the said amended rules, 2016 came into force. Rather, without assigning any cogent reason, simply it has been stated in the Counter Affidavit that appointment of the Petitioner is governed under the OCS Amendment Rules, 2016, vide which, it was stipulated that only 10% of the available vacancy is to be considered for appointment on compassionate ground though prior to amended rules, 2016, there was no such provision/stipulation under 1990 Rules. Even if the said 1990 Rules was superseded by Orissa Civil Service (Rehabilitation Assistance) Amendment Rules, 2016 well before the said amendment the case of the petitioner was considered and he was communicated on 26.06.2013 as to his appointment under the Rehabilitation Assistance Rules, 1990. Contents of the said communication dated 26.06.2013 is extracted below: “To Sri Anil Padhi, At-Sidheswar Sahi, PO-Tulasipur P.S- Bidanasi, Dist. Cuttack With reference to your representation dated 27.09.2011 you are hereby informed that your application is approved for the post of W.P.(C) No.25636 of 2019 Page 19 of 24 Junior Clerk in Excise Department under Rehabilitation Assistance Scheme and that you will be given posting as soon as vacancy arises in that category i.e. Junior Clerk in any part of the State. Sd/- Excise Commissioner, Odisha Memo No.3163/Ex, dated 26.06.2013 Copy forwarded the Principal to to Government, Excise Department, information and for Secretary Odisha, Bhubaneswar necessary action. Sd/- Excise Commissioner, Odisha” (emphasis supplied) 15. Further, the case of the Petitioner is in a far better footing than the case of Malaya Nanda Sethy (supra). Though Malaya Nanda applied in the month of July, 2010, after the death of his father on 02.01.2010 for appointment on compassionate ground as Junior Clerk under 1990 Rules and the same was forwarded to the appropriate authority in the year 2011, but it was kept pending consideration initially for a period of five years and, thereafter, the Additional Secretary, vide communication dated 09.09.2016, asked the Collector, Ganjam to furnish fresh report regarding the financial condition of the family of the deceased government servant i.e. W.P.(C) No.25636 of 2019 Page 20 of 24 the father of Malaya Nanda Sethy. Simultaneously, a report was called for from the CDMO, Ganjam to place the mother of Malaya Nanda Sethy before the Medical Board for proper examination, to ascertain whether her inability to perform government job continues. The Medical Board examined the mother of Malaya Nanda and furnished a report on 01.11.2016 stating that she was unfit for a government job and to the said effect, the CDMO, Cuttack also furnished another report dated 06.02.2017. Thereafter, a report from Tahasildar, Bellaguntha, which was the native place of Malaya Nanda, was also called for to ascertain the financial condition of the family of the deceased. The Tahasildar, Bellaguntha submitted his report vide communication dated 28.10.2017 indicating therein that family income of the Malaya Nanda from all sources does not exceed ceiling of Rs.72,000/- per annum. Despite the said communication and though Malaya Nanda fulfilled all the eligibility criteria and condition for appointment on compassionate ground, he was not appointed as Junior Clerk as per 1990 Rules and in the meantime, 1990 Rules came to be replaced and 2020 Rules came into force and the application of Malaya Nanda was W.P.(C) No.25636 of 2019 Page 21 of 24 being sent to the Collector for taking necessary action under the 2020 Rules by the Office of the Excise Commissioner, Odisha vide communication dated 26.04.2021. Being aggrieved and dissatisfied with the said communication dated 26.04.2021, by which the case of Malaya Nanda was directed to be consider under the 2020 Rules, he preferred Writ Petition before this Court and vide Order dated 26.10.2021, W.P.(C) No.28023 of 2021 was dismissed, which was ultimately set aside by the apex Court in Civil Appeal No.4103 of 2022 at the instance of Malaya Nanda Sethy. 16. Admittedly, the application of the Petitioner for appointment in terms of 1990 Rules was promptly processed and a communication was also made to the said effect on 26.06.2013 in terms of 1990 Rules, as detailed above, after following due procedure as was followed in case of Malaya Nanda Sethy. Hence, in the peculiar facts and circumstances, keeping the said question open and aside that, as to whether the Scheme/Rules in force on the date of death of the Government servant to apply or the Scheme/Rules in force on the date of consideration of the petition for appointment on compassionate ground to apply, for the reasons stated above, W.P.(C) No.25636 of 2019 Page 22 of 24 this Court is of the opinion that the Petitioner herein shall be entitled for appointment under compassionate ground as per the 1990 Rules which were applicable at the time when the father of the Petitioner died and he made an application for appointment on the death of his father in the year 2011. That apart, well before coming into force the amended Rules, 2016, the application of the Petitioner for appointment under the 1990 Rules was processed and he was communicated vide order dated 26.06.2013 that he will be appointed in the post of Junior Clerk in Excise Department under Rehabilitation Assistance Scheme and he will be given posting as soon as vacancy arises in that category of Junior Clerk in any part of the Sate. 17. In view of the facts detailed, so also for the reasons stated above and the settled position of law, the Opposite parties are directed to consider the case of the Petitioner for appointment on compassionate grounds under the 1990 Rules as per his original application made in the year 2011 and if he is otherwise found eligible, to appoint him in the post of Junior Clerk as was communicated to him vide letter dated 26.06.2013. It is further directed that the aforesaid W.P.(C) No.25636 of 2019 Page 23 of 24 exercise shall be completed within a period of four weeks from the date of communication of the certified copy of this Judgment. 18. Accordingly, the Writ Petition is disposed of. No Order as to costs. …….….…………………… S.K. MISHRA, J. Odisha High Court, Cuttack The 3rd March, 2023/Prasant W.P.(C) No.25636 of 2019 Page 24 of 24