Nishikanta Gandhi Union of India and others … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 28547 of 2019 Nishikanta Gandhi Union of India and others ….. Vs. ….. Petitioner Mr. D.K. Mohanty, Adv. Opposite Parties Mr. C. Pradhan, Sr. Panel Counsel, Central Government Order No. 10. CORAM:
Legal Reasoning
ACTING CHIEF JUSTICE DR. B.R. SARANGI MR. JUSTICE MURAHARI SRI RAMAN
Decision
ORDER 11.01.2024 This matter is taken up by hybrid mode. 2. Heard Mr. D.K. Mohanty, learned counsel appearing for the petitioner and Mr. C. Pradhan, learned Senior Panel Counsel, Central Government appearing for the opposite parties. 3. The petitioner has filed this writ petition challenging the order dated 27.12.2018 passed in O.A. No. 260/809/2012 under Annexure-4, by which the Central Administrative Tribunal, Cuttack Bench, Cuttack has dismissed Original Application filed by the petitioner by rejecting his claim to give higher post on compassionate ground. 4. Mr. D.K. Mohanty, learned counsel appearing for the petitioner contended that the petitioner has been appointed as GSDMD/MC on compassionate ground after death of his father. But he should have been appointed as GDSBPM, Raibani BO on compassionate ground, as he fulfills the eligibility criteria and his father had been working as GDSBPM, Raibania BO. It is further contended that similarly situated candidates offered the same posts, held by the deceased employee on compassionate ground, whereas the petitioner has been discriminated. It is contended that the tribunal has failed to understand the same and dismissed the Page 1 of 5 Original Application filed by the petitioner by order impugned. Therefore, the petitioner has approached this Court by filing the present writ petition. 5. Mr. C. Pradhan, learned Senior Panel Counsel, Central Government appearing for the opposite parties contended that once the petitioner accepted the appointment and joined in the post and discharged his duties and responsibilities, he cannot claim the higher post on compassionate ground, as because appointment on compassionate ground is an exception to the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. 6. Having heard learned counsel for the parties and after going through the records, this Court finds that the father of the petitioner, died on 10.12.2007, while working as GDSBPM, Raibania Branch Office under Hatigarh S.O. under Balasore Division. Thereafter, mother of the petitioner submitted representation to opposite party no.3 for extension of benefit under compassionate ground. Considering such representation, the Circle Relaxation Committee recommended the name of the petitioner on 14.12.2010 by selecting the petitioner for the post of GDSMC/MD, Makidia B.O., though the petitioner was eligible for the post of GDSBPM of Raibania BO, where the father of the petitioner was working. As such, similarly situated persons have been offered the same posts on compassionate ground, as has been held by the deceased employee, whereas the petitioner has been discriminated. Therefore, the petitioner made representation to the authority but the same has not been considered. However, the petitioner joined in the post of GDSMD/MC, Makidia Branch Office on 11.01.2011, which is 12 kms away from his native place i.e, Raibania as his family was in destitute condition. Thereafter, opposite party no.3 Page 2 of 5 issued a notification on 11.10.2012 for filling up of the posts of GDSBPM, Raibania B.O., which the petitioner claimed. Therefore, challenging the said notification the petitioner approached the tribunal by filing O.A. No. 260/809/2012 claiming that he should be adjusted against the said post on compassionate ground for which the advertisement was issued. The tribunal, vide order dated 27.12.2018 rejected the claim of the petitioner, which is the subject matter of challenge in this writ petition. On the basis of the admitted fact, as mentioned above, it is made clear that compassionate appointment cannot be claimed as a matter of right. But as it appears, as per the scheme of appointment, the petitioner has accepted such appointment and joined in the said post and as such he has discharged his duties and responsibilities. Therefore, he cannot turn around and claim that he should be given higher post and consideration has to be made by the authority. The conditions under which the compassionate appointment can be given are clearly laid down under the scheme and the issues relating to the rights of the beneficiaries of compassionate appointment are already settled in catena of decisions by this Court as well the apex Court. The apex Court in the case of Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138, with regard to right of the dependent of the deceased employee for a post commensurate with the post held by the deceased employee, held that it is obvious from the above observations that the High Court endorses the policy of the State Government to make compassionate appointment in posts equivalent to the posts held by the deceased employees and above classes III and IV. It is unnecessary to reiterate that these observations are contrary to law. If the dependent of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post Page 3 of 5 is not offered to cater to his status but to see the family sustains having passed through the economic calamity. 7. In State of Chhatisgarh v. Dhirjo Kumar Sengar, (2009) 13 SCC 600, the apex Court held as under:- “Appointment on compassionate ground is an exception to the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. Nobody can claim appointment by way of inheritance. In Steel Authority of India Ltd. v. Madhusudan Das and Ors, [2008 (15) SCALE 39], this Court held: in a "...This Court large number of decisions has held that the appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for in the rules. The criteria laid down therefor, viz., that the death of the sole bread earner of the family, must be established. It is meant to provide for a minimum relief. When such contentions are raised, the constitutional philosophy of equality behind making such a scheme be into consideration. Articles 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts which have on fallen compassionate ground offered to a dependant of a deceased employee is an exception is a to concession, not a right." the said rule. Appointment vacant. taken It 8. In view of the law laid down by the apex Court, the claim of the petitioner to give a particular post cannot be acceded to because compassionate appointment cannot be claimed as a matter right. As such, when the offer of appointment was made, the petitioner has already accepted the same and joined in the post and discharged his duties and responsibilities. Therefore, now he is precluded to claim to give a particular post. 9. In the above view of the matter, this Court does not find any error apparent on the face of the order dated 27.12.2018 passed by Page 4 of 5 the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 260/809/2012 under Annexure-4 so as to warrant interference with the same. 10. Accordingly, the writ petition merits no consideration and the same is hereby dismissed. (DR. B.R. SARANGI) ACTING CHIEF JUSTICE (M.S. RAMAN) JUDGE Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Reason: Authentication Location: HIGH COURT OF ORISSA Date: 12-Jan-2024 14:54:13 Page 5 of 5