Applications under Articles 226 & 227 of Constitution of India. Satyabhama Biswal .… v. State of Odisha and another
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 30579 of 2023 Applications under Articles 226 & 227 of Constitution of India. Satyabhama Biswal .…… Petitioner --------------- - Versus - State of Odisha and another ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioners : M/s. B.C. Panda, S. Mishra, J. N. Panda & A. Tripathy, Advocates For Opp. Parties : Mr. Saswat Das, Addl. Government Advocate _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 18th October, 2023 SASHIKANTA MISHRA, J. The petitioner has filed this writ application with the following prayer; “It is therefore prayed that, this Hon’ble Court may graciously be pleased to admit this writ petition, issue notice to the Opposite Parties and after hearing the counsels for the parties be pleased to set aside the order dated 23.08.2023 vide Memo No. 2357 under Annexure-1 passed by the Opp.Party No.2, the Collector, Puri in the interest of Justice. And further be pleased to direct the Opposite Party No.2 to give her appointment in view of the Page 1 of 12 judgment dtd. 15.09.2022 passed in W.P.(C) No. 14945 of 2015 (Khirabdhi Bala Behera). And or pass any other order/orders, direction/directions as deem fit and proper in the facts and circumstances of the case.” 2.
Legal Reasoning
The facts of the case are that the petitioner is the son of one Michhu Biswal, who was serving as a peon in the office of the Collector, Puri (opposite party No.2). After serving for 32 years and 6 months said Michhu Biswal died on 17.06.2016 in harness. He left behind his widow and two married daughters, Satyabhama (petitioner) and Tilotama as his legal heirs. After his death, the petitioner being the elder daughter submitted an application on 07.03.2017 before the Collector for appointment under the Rehabilitation Assistance Scheme. At that time, the widow of the deceased Government Servant had crossed the age of 50 years and was also suffering from various ailments and therefore, not in a position to take up government service. The younger daughter, Tilotama having married, was residing outside Odisha. The widow was residing with Satyabhama, who was taking all care of her. The widow submitted a no objection certificate in the form on an affidavit sworn before the Notary Public, Puri regarding appointment of the petitioner. The Page 2 of 12 application of the petitioner was not considered for a long time and on 08.03.2018, on an application being submitted under the RTI Act by the petitioner’s husband, the Deputy Collector, Puri informed that she is not eligible for appointment as she does not come within the definition of ‘family members’ of the deceased. The petitioner challenged such rejection of her application before the erstwhile Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1308 (C) of 2018, which was transferred to this Court and registered as W.P.(C) No. 1308 of 2018. The said writ petition
Decision
was disposed of vide order dated 15.09.2022 in terms of the judgment passed by a Division Bench of this Court in Kshirabadhi Bala Behera vs. Orissa Administrative Tribunal and others (W.P.(C) No. 14945 of 2015 decided on 24.08.2022). The petitioner submitted a representation along with the order of this Court to the opposite party No.2 on 11.11.2022 but the same was rejected by opposite party No.2 on the ground that her case is not similar to the case of Kshirabadhi Bala Behera (supra) as she had already married prior to death of her father. The petitioner challenged such rejection of her representation before this Court in W.P.(C) Page 3 of 12 No. 3452 of 2023. By order dated 11.01.2023, this Court held that the relevant provision of the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 ( in short ‘1990 Rules’) having been declared ultra vires by this Court, the Collector could not have rejected the representation by referring to the said provision. The order of rejection was thus, quashed and the matter was remanded to the Collector to consider the representation afresh keeping in view the judgment in Kshirabadhi Bala Behera (supra). Accordingly, the petitioner again approached the Collector on 20.03.2023. Since the representation was not considered, the petitioner filed a contempt application being CONTC No. 4789 of 2023, which was disposed of on 28.07.2023 with a direction to comply with the order within two months. Again, by order dated 23.08.2023, the Collector rejected the application of the petitioner on the ground that para-2(b) of the 1990 Rules does not envisage rehabilitation assistance of a married daughter and that the case of Kshirabadhi Bala Behera (supra) has no application to the case at hand. The order of the Collector as above is enclosed as Annexure-1 to the writ petition and is impugned. Page 4 of 12 3. In view of the undisputed facts of the case no counter affidavit was filed by the opposite parties but learned State Counsel preferred to make oral and written submissions. 4. Heard M. B.C. Panda, learned counsel for the petitioner and Mr. S. Das, learned Addl. Government advocate for the State. 5. Mr. Panda would argue that the Collector has no authority to interpret the judgment passed by this Court especially when the direction is clear and unambiguous. Moreover, the relevant provision having been declared ultra vires, the Collector could not have relied upon the same to reject the application of the petitioner. It is well settled that there can be no distinction between a married and unmarried daughter for rehabilitation appointment. The decision of the Collector cannot therefore, be sustained in the eye of law. 6. Per contra, Mr. S. Das would argue that the sole purpose of compassionate appointment is to help the family of a deceased government servant in distress following the untimely death of the earning member to tide over the crisis. Page 5 of 12 As such, it is necessary that the applicant for compassionate appointment must be shown to be dependent on the earnings of the deceased government servant. Unless the dependency of the applicant on the earnings of the deceased government servant is proved, he/she cannot be held entitled to compassionate appointment. Mr. Das has relied upon some case laws of the Supreme Court, which will be discussed at the appropriate place. 7. As already stated, the facts involved are not disputed. Perusal of the impugned order reveals that the application of the petitioner was rejected on two grounds- (i) her case is not similar to the case of Kshirabadhi Bala Behera (supra) as she had already married before the death of the deceased government servant, whereas Kshirabadhi Bala Behera (supra) had married after submitting application for appointment; and (ii) the provision under para-2(b) of the 1990 Rules does not envisage the appointment of a married daughter under Rehabilitation Assistance Scheme. 8. The second ground as above is taken up for consideration at the outset. In the case of Kshirabadhi Bala Page 6 of 12 Behera (supra) a Division Bench of this Court examined the entitlement of a married daughter in light of the provision to ultimately hold that the word ‘unmarried’ occurring in Rule- 2(b) of the 1990 Rules is arbitrary and violative of the Constitutional guarantees envisaged under Articles 14, 15 and 16 of the Constitution of India. Accordingly, it was struck down as ultra vires. In the judgment so passed, the Division Bench after referring to several judgments of the Apex Court as well as other High Courts of the country held that a married daughter cannot be excluded from compassionate appointment. It is stated at the bar that the judgment rendered in Kshirabadhi Bala Behera (supra) has not been challenged in the higher forum and has attained finality. It is trite law that when a superior Court like High Court or Supreme Court passes a judgment, the same is binding on all other authorities and functionaries and that it is no longer open to them to take any contrary view thereto. Since a Division Bench of this Court has already declared the word ‘unmarried’ occurring in para-2(b) of the 1990 Rules, ultra vires the Constitution, the Collector has no power or authority to reinterpret the same in any manner whatsoever. Page 7 of 12 Perusal of the impugned order would suggest as if the Collector was sitting in appeal over the order passed by this Court, directing him to consider representation in light of the judgment passed by the Division Bench. So after examining the matter, the Collector could have determined the judgment in Division Bench applicable to the present facts or not. The Collector has however, gone a step further to again interpret the provision under Para 2(b) of the 1990 Rules, which had already been interpreted by the Division Bench. Obviously, the Collector cannot take a contrary view than the High Court on any particular issue. In such view of the matter, the ground of rejection as above is unsustainable in the eye of law. 9. As regards the first ground that the case of Kshirabadhi Bala Behera (supra) is not similar to that of the petitioner, this Court finds the reasoning adopted by the Collector is fallacious because even in Kshirabadhi Bala Behera (supra), by the time she was held eligible for appointment she had already married. So merely because she was unmarried at the time of submission of application, Page 8 of 12 cannot change her status to an unmarried daughter when she was actually given appointment. In so far as the petitioner is concerned, she was admittedly married even before the death of the deceased government servant. So by the time she is given appointment, her status would not undergo any change, which would be identical to the status of Kshirabadhi Bala Behera at the time the latter was actually appointed. This Court thus finds that both the grounds cited by the Collector to reject the application of the petitioner unsustainable in the eye of law. 10. Mr. Das has additionally argued that even assuming that a married daughter can seek compassionate appointment she has to further prove her dependency. According to Mr. Das, since the petitioner was married even before the death of the deceased Government servant, she cannot be treated as a dependant for the purpose of compassionate appointment. This Court is unable to accept the contention as above for two reasons, - firstly, such a ground was never taken by the competent authority (Collector) in the impugned order and hence it is Page 9 of 12 impermissible to take the same at this stage. Secondly, even assuming that the question of dependency can be raised in the instant case, it is seen that the petitioner has specifically pleaded that even after her marriage she is residing in her matrimonial home and more importantly, is taking care of her widowed mother. It is a very significant averment that has not been rebutted in any manner whatsoever. In other words, there is no finding that the petitioner was not dependant on her deceased father despite her marriage. The argument of Mr. Das must therefore, fail. As to the decisions cited by Mr. Das, this Court finds both the cases not applicable to the facts of the present case inasmuch as in Director of Treasuries in Karnataka vs. V. Somyashree, reported in (2021) 12 SCC 20, the question for consideration before the Court was whether a divorced daughter could be included within the meaning of unmarried daughter as occurring in the relevant rules. Such is not the case at hand. 11. In the case of State of Maharashtra & another Vs. Ms. Madhuri Maruti Vidhate (Since after marriage Smt. Madhuri Santosh Koli), reported in 2022 (4) SCT 29 : 2022 Page 10 of 12 LiveLaw(SC) 820 the Government servant died in harness and his widow was appointed on compassionate ground. She too died in harness. Her elder daughter sought appointment under compassionate appointment, which was rejected on the ground that she is a married daughter. Seven years thereafter, the younger married daughter submitted an application. It is on the above peculiar facts that the Apex Court held that compassionate appointment would not be given as the applicant could not be said to be dependent on the deceased employee, i.e. her mother as also on the ground that number of years have passed from the death of the deceased employee. In the instant case, however, the Division Bench of this Court has already struck down the relevant provision in the Rules so as to include a married daughter within the meaning of family members of the deceased government servant. 12. Thus, from a conspectus of the analysis of facts and law as discussed above, this Court is of the considered view that the impugned order under Annexure-1 cannot be sustained in the eye of law and hence, warrants interference. Page 11 of 12 13. Resultantly, the writ petition is allowed. The impugned order under Annexure-1 is hereby quashed. The opposite party No.1 is directed to issue necessary order of appointment in favour of the petitioner, if she is otherwise found eligible as per the provisions of the 1990 Rules within a period of two months from the date of submission of certified copy of this order. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 18th October, 2023/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Oct-2023 20:25:48 Page 12 of 12