The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OA) No.3681 of 2013 Smt. Gayatri Naik …. Petitioner Mr. N. Rath, Advocate State of Odisha and Others -versus- …. Opposite Parties Mr. M.K. Balabantaray, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 27.06.2023 Order No. 02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2.
Legal Reasoning
Heard Mr. N. Rath, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Government Advocate for the State-Opposite Parties. 3. The Petitioner has filed the present Writ Petition challenging the communication dated 20.12.2013 so issued by the Opposite Party No.1 under Annexure-6. 4. It is contended by the learned counsel appearing for the Petitioner that on the death of his father on 09.01.2009, the Petitioner being the unmarried daughter of the deceased employee, made her application for appointment under the provisions of Rehabilitation Assistance Scheme on 09.04.2009. // 2 // 4.1. It is further contended that even though the application was made just after the death of the deceased employee, but the matter was kept pending and after due consideration, the Petitioner was issued with the order of appointment vide Office Order dated 25.09.2013 under Annexure-4. Vide the said order, the Petitioner was appointed as a Junior Clerk and in terms of the said order, the Petitioner also joined in the establishment of Opposite Party No.4. On her joining, the Petitioner was also paid with her salary as reflected in Annexure-5. But subsequently, without issuing any notice and without affording any opportunity of hearing, the impugned order at Annexure-6 was passed by dispensing with her service on the ground that the Petitioner has not disclosed about her marriage and being a married daughter, she is not eligible to get the benefit of appointment under the Rehabilitation Assistance Scheme. 4.2. It is contended that since the Petitioner by the time, made the application for her appointment on 09.04.2009 was unmarried and was eligible as per the provisions contained under the OCS (RA) Rules, 1990 and in consideration of the same she was duly appointed vide order under Annexure-4, the services of the Petitioner should not have been dispensed with on the ground indicated in Annexure-6. 4.3. Learned counsel for the Petitioner also contended that during pendency of the matter though the Petitioner Page 2 of 8 // 3 // got married on 12.06.2011, but since at the time of her making the application she was unmarried, she was eligible and entitled to get the benefit of Rehabilitation Appointment. 4.4. In support of the aforesaid submission, Mr. Rath, learned counsel for the Petitioner relied on the decision of this Court passed in the case of Basanti Nayak vs. State of Orissa and Others decided on 27.10.2022. This Court in Paragraphs-10, 11 and 12 of the said judgment has held as follows:- “10. In Umesh Kumar Nagpal v. State of Haryana,1 the Supreme Court held that the object of compassionate appointment is to help the family tied over the crisis that befalls them on the circumstance, so that the family will not be put to jeopardy by being driven to impecuniosities and condemned by penury. It is for this reason the emphasis on appointment on compassionate grounds is immediacy of appointment. This principle has been laid down in various judgments of the apex Court and, as such, the compassionate appointment is by now too well settled that it is not a matter of right and not an alternate source of recruitment. 11. In the case of C.B. Muthamma v. Union of India2, the Supreme Court in the context of Indian Foreign Service (Conduct and Discipline), Rules, 1961, which prohibits appointment of married woman to such service, held in paragraphs-6 and 7 as follows: “At the first blush this rule is in defiance of Article 16. If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman’s thralldom. Freedom is indivisible, so is justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-à-vis. half of India’s humanity viz. our women, is a sad reflection on the distance between Constitution in the book and law in action. And if the executive as the surrogate of Parliament, makes rules in the teeth of Part III especially when high political office, even diplomatic assignment has been filled by women, the inference of diehard allergy to gender parity is inevitable. We do not mean to universalize or dogmatise that men and women are equal in all occupations and all situations and do not exclude the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps to pragmatise where the need Page 3 of 8 // 4 // of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern.” Similar view has also been taken by the Bombay High Court in Ranjana Murlidhar Anerao v.State of Maharashtra3. In the case of Kshirabadi Bala Behera v. Orissa 12. Administrative Tribunal4, this Court observed that: therefore, the criteria “The Apex Court in number of cases repeatedly emphasized the need of compassionate appointment to the dependent of the deceased Government servant without any loss of time. The whole object of granting compassionate appointment to enable the dependent(s) of deceased's family to earn bread and butter for the family and to come out from financial crisis, who suffers on account of unexpected and untimely death of deceased/Government to grant compassionate servant appointment should be ‘dependency’ rather than ‘marriage’. In a given case, a ‘married’ daughter might be deserted wife, might have been abandoned wife, fully dependent upon her father, she might have been married to an indigent husband so that both the married daughter and son-in-law could have been dependent of the bread winner whose death left them to extreme financial hardship. There might be many other probabilities in which married daughter might be fully dependent upon the income of her father so that the death of the father to leave her and rest of the family members in extreme financial hardship. Therefore, the yardstick for extending the benefit of compassionate appointment should be dependency of the deceased Government Servant and their marital status of dependent should not be impediment for his/her consideration on compassionate ground to wipeout leaves from the eyes of the suffering family on account of loss of earning member in the family. A daughter after her marriage doesn't cease to be daughter of the father or mother and obliged to maintain their parents and daughter cannot be allowed to escape its responsibility on the ground that she is now married, therefore, such a policy of the State Government disqualifying, a ‘married’ daughter and excluding her from consideration apart from being arbitrary and discriminating is retrograde step of State Government as welfare State, on which stamp of approval cannot be made by this Court.” the dependents on 4.5. It is accordingly contended that in view of the decision so cited (supra) and the grounds taken in the writ petition, the impugned order at Annexure-6 is not sustainable in the eye of law and liable for interference by this Court. Page 4 of 8 // 5 // 5. Mr. Balabantaray, learned Addl. Government Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Opposite Parties. While justifying the order at Annexure-6, Mr. Balabantaray, learned A.G.A contended that even though on consideration of the application so submitted by the Petitioner, she was appointed vide order under Annexure-4, but while making her application, since the Petitioner had suppressed the material facts and his brother submitted a false affidavit, the Petitioner is not eligible and entitled for her continuance in terms of the order at Annexure-4. 5.1. It is also contended that the factum of marriage of the Petitioner on 12.06.2011 since was never disputed and by the time the Petitioner was appointed she was already married, on coming to know about the said fact and after giving due opportunity to the petitioner, her services was dispensed with vide order at Annexure-6. 5.2. It is accordingly contended that since by the time the Petitioner was appointed vide order at Annexure-4 she is already married since 12.06.2011, on the date of appointment, the Petitioner was not eligible to get the benefit of Rehabilitation appointment. 6. To the aforesaid submission of Mr. Balabantaray, Mr. Rath, learned counsel for the Petitioner contended that the ground raised in the counter affidavit with regard to suppression of fact and submission of false affidavit Page 5 of 8 // 6 // since are not the ground indicated in the impugned order under Annexure-6, the same cannot be taken note of, in view of the decision of the Hon’ble Apex Court in the case of Mohinder Singh Gill & Another vs. The Chief Election Commissioner, New Delhi & Others reported in A.I.R 1978 SC-851. It is contented that since by the time Petitioner made his application, she was otherwise eligible, in view of the decision as cited (supra), the impugned order at Annexure-6 is liable for interference of this Court. 7. Having heard learned counsel for the Parties and taking into account the materials available on record, this Court finds that on the death of her father on 09.01.2009, the Petitioner made the application on 09.04.2009. By the time she made the application, the Petitioner being the unmarried daughter of the deceased employee was eligible and entitled to make such application. Therefore, since the Petitioner was eligible to make such an application and in consideration of that she was provided with the appointment vide order at Annexure-4, as per the considered view of this Court, her services should not have been dispensed with on the ground indicated in Annexure-6. The other grounds taken in the counter so filed by the Opposite Parties in support of the impugned order cannot be accepted in view of the decision of the Hon’ble Apex Court in the case of Mohinder Singh Gill & Another vs. The Chief Election Commissioner, New Delhi & Others reported in Page 6 of 8 // 7 // A.I.R 1978 SC-851. Hon’ble Apex Court in Para-8 has held as follows:- “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16 (at p.18): "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." Orders are not like old wine becoming better as they grow older: A Caveat”. 7. Since on the date of making the application, the Petitioner was otherwise eligible and in consideration of that the Petitioner was provided with the appointment vide order at Annexure-4, her services should not have been dispensed with vide order at Annexure-6 on the ground indicated therein. Therefore, in view of such material irregularity and placing reliance on the decision of this Court as cited (supra) in the case of Basanti Nayak, this Court is inclined to quash the order at Annexure-6. While quashing the same, this Court directs Opposite Party No.2 to reinstate the Petitioner in her service with service continuity but on notional basis. Page 7 of 8 // 8 // Such an exercise shall be undertaken and completed with passing of an appropriate order by the Opposite Party No.1 within a period of two (2) months from the date of receipt of this order. 8. With the aforesaid observations and directions, the
Decision
Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Designation: Senior Stenographer Reason: .. Location: HIGH COURT OF ORISSA, CUTTACK Date: 07-Jul-2023 15:42:45 Page 8 of 8