Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:25:50 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.27929 of 2019 (An application under Article 226 and 227 of the Constitution of India) Madhusmita Hembram …. Petitioner(s) State of Odisha & Ors. -versus- … . Opposite Parties Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner(s) For Opposite Party(s) : : Mr. Prajit Kumar Pradhan, Adv. Mr. B.K. Sharma, Adv. (for O.P.3) CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-29.04.2024 DATE OF JUDGMENT: -25.06.2024 Dr. S.K. Panigrahi, J. 1. The Petitioner has filed this Writ Petition to quash the letter dated 25.11.2019, by which the claim of the Petitioner for giving compassionate appointment has been rejected. I. FACTUAL MATRIX OF THE CASE:
Facts
2. The brief facts of the case are as follows: (i) The father of the Petitioner late Banabihari Hembram was serving as an Assistant Accountant (Com.) in the office of the Executive Engineer, OLIC Division, Nawarangpur. While in service, the father of the Petitioner died Page 1 of 9 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:25:50 on 23.08.2018 leaving behind his widow named Dulimani Hembram, the present Petitioner and two minor daughter and son. After death of the Petitioner’s father, the family is in distress condition, as the mother of the Petitioner is in ailing condition. There is no other source of income of the family. (ii) The Petitioner had made an application before the authority in prescribed format on 20.05.2019 along with her educational qualification i.e. caste certificate, residential certificate, income certificate and no objection affidavit of her mother. However, the authority did not take any action by giving an appointment under Rehabilitation Assistance Scheme. Hence, the Petitioner is approached this Court. (iii) At the time of restructuring of the OLIC in the year 2002, the post held by the father of the Petitioner was not abolished. But, the post held by the
Legal Reasoning
which is pure discrimination as held by this Court in W.A. No. 199/2018 and also crystal clear from the order dated 17.11.2021 passed in the present Writ Petition by another coordinate Bench of this Court. (v) The Opposite Parties restrained to take the plea of negative equality because they have issued appointment order in favour of Sri Satpathy contrary to the order passed by the apex Court and it was within their Page 2 of 9 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:25:50 knowledge as they have filed the SLP(C). The mistake can’t be termed as bonafide mistake. (vi) The family members of zero category employees at the restructuring Plan were given appointment under Rehabilitation Assistance Scheme but not to the family members of the employee whose posts are not abolished. Hence, it is crystal clear that the Opposite Parties being gained over as they are adopting pick and choose method at the time of granting appointment under Rehabilitation Assistance Scheme without giving respect to the directions of the apex Court as well as this Court. (vii) Recently in the year 2023 the Opposite Parties have advertised to fill-up 16 nos. of Junior Clerk post and 20 nos. of Jr. Assistant post and given appointment to 11 nos. of Jr. Clerk post out of total vacancy of 12 and 18 nos. of Jr. Assistant post out 20 vacancies. Hence, there is vacancy against which the Petitioner can be appointed. II. SUMISSION OF OPPOSITE PARTY NO.3: 3. Per contra, learned counsel for the Opposite Party No.3 intently made the following submissions: (i) The father of the Petitioner named Banabihari Hembram while serving as Assistant Accountant in the office of Executive Engineer, Lift Irrigation Corporation, Nawarangpur died. (ii) The Petitioner made an application for appointment under the Rehabilitation Assistance Scheme. The Petitioner filed W.P(C) No.16066 of 2019 seeking a direction to take a decision on the representation of the Petitioner. On 25.11.2019, the claim of the Petitioner was rejected with financial assistance of Rs.1,50,000/- which was offered to the Petitioner. Page 3 of 9 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:25:50 The rejection of the claim of the Petitioner is on the basis of a direction dated 24.09.2009 by the State Government to the Corporation. In the said communication, it is specified that the wards of the Government Servant of OLIC will be considered for appointment under Rehabilitation Assistance Scheme as per existing rules in the vacant post of W.R Department. As regards Wards of the Corporation employees, it is proposed that Board of Director of OLIC will prepare one time financial assistance for self-employment in lieu of employment in OLIC. (iii) Accordingly, OLIC in its 165th meeting held on 21.06.2013 decided to provide financial assistance of Rs.1,50,000/- to the family members of each deceased Corporation employee. Since the father of the Petitioner died on 23.08.2018 and the Petitioner made an application for appointment under Rehabilitation Assistance Scheme on 20.05.2019. Hence, the Petitioner is entitled to financial assistance of Rs.1,50,000/- in lieu of employment. Accordingly, her claim was rejected and was offered a sum of Rs.1,50,000/- as per the Scheme. (iv) The Petitioner relied on appointment of Nirodh Kumar Satpathy, S/o- Sukdev Satpathy, Ex-Amin on 18.03.2020 in order to claim parity. Sukdev Satpathy, Ex-Amin, who was working under the Corporation retired voluntarily on 16.08.1996 on invalidation ground and his son Nirodh Kumar Satpathy applied for a job on 20.09.1996 under the Rehabilitation Assistance Scheme. The said Nirodh Kumar Satpathy had applied for appointment under the Rehabilitation Assistance Scheme much prior to Annexure-A/3 & B/3. Page 4 of 9 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:25:50 (v) Nirodh Kumar Satpathy had filed Writ Petition before this Court and this Court directed to consider the case of Nirodh Kumar Satpathy and accordingly vide communication dtd. 16.07.2019, the State Government directed the Opposite Party No.3 to locate any vacancy for appointment under Rehabilitation Assistance Scheme, as he had made an application in the year 1996 much prior to 12.08.2013 when the Scheme of financial assistance came into force. (vi) The Opposite Party No.3 had sought for views of the Department of Water Resources relating to the claim of the present Petitioner vide communication dated 17.01.2020. (vii) The State Government vide communication dated 13.10.2020 clearly directed the Corporation regarding the financial assistance of Rs.1,50,000/- in lieu of appointment under the Rehabilitation Assistance Scheme. (viii) Further, it is directed that until a decision of Board of Directors with the approval of the Government, the present practice will continue. In other words the financial assistance of Rs.1,50,000/- will be provided to the next kin of the deceased employee in lieu of appointment. (ix) Further, the Petitioner had claimed parity, as Ashok Kumar Sen has been given appointment. The said Ashok Kumar Sen was appointed on 07.07.2000 under the Rehabilitation Assistance Scheme. Therefore, Nirodh Kumar Satpathy and Ashok Kumar Sen had applied for appointment under the Rehabilitation Assistance Scheme on 20.09.1996 in the year 2000. Both of them had applied for appointment under the New Rehabilitation Assistance Scheme i.e. Annexure-A/3 had come into force. Page 5 of 9 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:25:50 These two communications introduced the one time financial assistance in lieu of Government job under Rehabilitation Assistance Scheme. Therefore, the Petitioner is entitled to financial assistance of Rs.1,50,000/- and cannot claim appointment as a matter of right under the Rehabilitation Assistance Scheme. Hence, this Writ Petition is devoid of any merit and liable to be dismissed. III. COURT’S ANALYSIS AND REASONS: 4. In its 165th meeting on June 21, 2013, the Odisha Lift Irrigation Corporation (OLIC) decided to provide financial assistance of Rs.1,50,000/- to the family members of each deceased employees of the Corporation. As the Petitioner’s father passed away on August 23, 2018, and the Petitioner subsequently applied for an appointment under the Rehabilitation Assistance Scheme on May 20, 2019, she is eligible for the financial assistance of Rs. 1,50,000/- in lieu of employment. Consequently, her application for appointment was rejected, and she was offered the financial assistance as stipulated by the Scheme instead of job. 5. The Petitioner drew a parallel with the case of Nirodh Kumar Satpathy, the son of Sukdev Satpathy, an Ex-Amin, who was appointed on March 18, 2020. Sukdev Satpathy, who worked under the Corporation, retired voluntarily on invalidation grounds on August 16, 1996. His son, Nirodh Kumar Satpathy, applied for a job under the Rehabilitation Assistance Scheme on September 20, 1996, which was significantly earlier than the introduction of Annexures-A/3 and B/3. 6. Nirodh Kumar Satpathy had filed a Writ Petition before the Court, which directed the relevant authorities to consider his case. In response, the Page 6 of 9 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:25:50 State Government issued a communication dated July 16, 2019, instructing Opposite Party No. 3 to identify any available vacancies for an appointment under the Rehabilitation Assistance Scheme. This directive was based on the fact that Nirodh Kumar Satpathy had applied in 1996, long before the financial assistance scheme was implemented on August 12, 2013. 7. The Petitioner also cited the case of Ashok Kumar Sen to support her claim. Ashok Kumar Sen was appointed under the Rehabilitation Assistance Scheme on July 7, 2000. Both Nirodh Kumar Satpathy and Ashok Kumar Sen had applied for appointments under the Rehabilitation Assistance Scheme on September 20, 1996, and in the year 2000, respectively. Their applications were submitted before the implementation of the financial assistance scheme introduced by Annexure-A/3. 8. These two cases illustrate that the applicants applied for appointments under the Rehabilitation Assistance Scheme before the new policy offering one-time financial assistance in lieu of a government job was introduced. Therefore, the Petitioner is entitled to the financial assistance of Rs.1,50,000/- as per the current policy and cannot claim an appointment as a matter of right under the Rehabilitation Assistance Scheme. 9. The decision to grant financial assistance instead of an appointment is consistent with the guidelines established by the Corporation. The Corporation’s practice of providing financial assistance of Rs. 1,50,000/- to the next of the kin of the deceased employees, in lieu of a job, will Page 7 of 9 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Jul-2024 17:25:50 continue unless the Board of Directors, with the Government’s approval, decides otherwise. 10. Additionally, in a similar case in MGB Gramin Bank v. Chakrawarti Singh1, the Supreme Court has held that an appointment on compassionate grounds may not be claimed as a matter of right nor does an applicant become entitled to an appointment automatically, rather it depends on the eligibility of the applicant and the financial conditions of the applicant’s family, etc., that are to be considered in accordance with the scheme. In case the scheme does not create any legal right, a candidate cannot claim his case to be considered as per the scheme existing on the date when the cause of action, i.e. the death of the incumbent while holding the post, had arisen. In the said judgment, while interpreting the word "Vested Right", the Supreme Court has held that Vested Right is a right independent of any contingency and it cannot be taken away without the consent of the person concerned and that the vested right can arise from a contract, a statute or by operation of law in favour of a person. 11. Furthermore, in Canara Bank and another v. M. Mahesh Kumar2, the Supreme Court while considering a case of compassionate appointment and the question that cropped up before the Supreme Court was whether the old scheme (1993) is applicable or the new substituted scheme (2005) for ex gratia payment applies to the facts of that case. Finally, it was held that a grant of family pension or terminal benefit cannot be treated as a
Arguments
father of the Sri N.K.Satpathy was abolished. (iv) The father of the Petitioner died while he was in service. But, the father of Sri Satpathy was declared invalidated so as to facilitate his son to get the service benefits. Irrespective of their date of application, said Sri N. K. Satpathy and Sri A. K. Sen were given appointment while the Financial Scheme is in force and during pendency of the present Writ Petition