Malaya Nanda Sethy v. State of Orissa and Others
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 26.10.2021 passed by the High Court of Orissa at Cuttack
in Writ Petition (Civil) No. 28023/2021, by which the High Court has
dismissed the said writ petition preferred by the appellant herein and has
refused to direct the State authorities to appoint the appellant here in –
original writ petitioner on compassionate ground, the original writ petitioner
has preferred the present appeal.
2. The facts leading to the present appeal in a nutshell a re as
under:
That the father of the appellant herein – original writ p etitioner
was working as an Assistant Sub-Inspector in the Excise De partment.
He passed away on 02.01.2010 while in service. On the death of his
father, the appellant applied for his appointment as a Ju nior Clerk on
compassionate ground under the Orissa Civil Service (Rehabi litation
Assistance) Rules, 1990 (hereinafter referred to as the “1990 Rules”) in
July, 2010. It was the case on behalf of the appellant that his mother was
unable to undertake a government job due to her medical condition. The
said application was sent to the office of the Excise Commissioner, Orissa,
Cuttack vide letter dated 3.8.2011. That thereafter the said appli cation
was forwarded to the Additional Secretary to the Government , Excise
Department on 21.09.2011. The said application was not attended to by
the Excise Department for a considerable period of five years. After a
period of five years, the Additional Secretary vide letter/communication
dated 9.9.2016 asked the Collector, Ganjam to furnish a fresh re port
regarding the financial condition of the family of the deceased government
servant. Simultaneously, a report was also called for from CDMO, Ganjam
to place the matter of the mother of the appellant befor e the Medical
Board for proper examination to ascertain whether her inability to perform
the government job continues. The CDMO, Ganjam constituted a Medical
Board and examined the mother of the appellant and furnished a report
to the Additional Secretary on 01.11.2016 stating that she was unfit for
government job. The CDMO, Ganjam furnished another report da ted
06.02.2017 to the same effect. It appears that thereafter a r eport from
MALAYA NANDA SETHY v. STATE OF ORISSA AND OTHERS
Tehsildar, Bellaguntha, which is the native place of the appellant, was
also called for to ascertain financial condition and the Tehsildar submitted
its report vide letter dated 28.10.2017 stating that the family income of
the appellant from all sources does not exceed ceiling of Rs.72,000/- per
annum.
2.1 Despite the above, the application of the appellant herein for
appointment on compassionate ground was kept pendin g under
consideration. However, before any further order appointing the appellant
on compassionate ground under the 1990 Rules came to be passed, the
1990 Rules came to be replaced by the new Rules, namely, Odisha Civil
Services (Rehabilitation Assistance) Rules, 2020 (hereinaft er referred
to as the “2020 Rules”), issued vide notification dated 17.02.2020. Under
the 2020 Rules, one family member of the deceased government servant
would be appointed on compassionate grounds to ‘Group D’ base level
post. Therefore, the application of the appellant was being s ent to the
Collector for taking necessary action under the 2020 Rules by the office
of the Excise Commissioner, Odisha, vide communicat ion dated
26.04.2021.
2.2 Feeling aggrieved and dissatisfied with the communication
dated 26.04.2021, by which the case of the appellant herein was directed
to be considered under the 2020 Rules, the appellant preferred the writ
petition before the High Court. Before the High Court, it was the specific
case on behalf of the appellant – original writ petitioner that the policy
prevalent at the time when the application for compassionat e ground
was made, shall be applicable and not the subsequent scheme prevalent
at the time of deciding the application. A number of decisions of this
Court were relied upon. However, by the impugned judgment and order
and relying upon and/or considering the decision of this Court in the case
of N.C. Santosh v. State of Karnataka (2020) 7 SCC 617 , the High
Court has dismissed the said writ petition by observing t hat the claim
should be considered as per the amended Rules that were preval ent at
the time of consideration of the application and not the Rules that were
prevalent on the death of the government servant.
2.3 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court dismissing the writ pe tition and
holding that the case of the appellant shall be governed by the 2020
Rules (subsequent scheme), the original writ petitioner has preferred
the present appeal.
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3. Learned counsel appearing on behalf of the respective parties
have relied upon number of decisions of this Court taking contrary view
on the applicability of the scheme and/or the relevant rules, namely,
whether the policy prevalent at the time of the death of t he deceased
employee or the policy prevalent at the time of considera tion of the
application.
3.1 Learned counsel appearing on behalf of the appellant has
heavily relied upon the decisions of this Court in the case s of Indian
Bank and others v. Promila and another (2020) 2 SCC 729 ; State
of Madhya Pradesh v. Amit Shrivas (2020) 10 SCC 496; decision
of this Court in the case of State of Madhya Prades h v. Ashish
Awasthi (Civil Appeal No. 6903/2021, decided on 18. 11.2021);
another decision of this Court in the case of The C hief General
Manager, Telecommunication, BSNL v. Vidya Prasad (Civi l Appeal
No. 6019/2021, decided on 28.09.2021); and the latest decisi on of
this Court in the case of The Secretary to Govt. De partment of
Education (Primary) and others v. Bheemesh alias Bheemappa, 2021
SCC OnLine SC 1264 , in support of his submission that the relevant
scheme and/or the rules prevalent at the time of death of the employee,
who died in harness, and/or at the time of submitting the application is
required to be considered and not the amended rules prevalent at the
time of consideration of the application.
4. However, on the other hand, learned counsel appearing on behalf
of the respondents – State has heavily relied upon a three Judge Bench
decision of this Court in the case of N.C. Santosh (supra). It is submitted
that in the case of N.C. Santosh (supra) , a three Judge Bench of this
Court, after taking into consideration the entire case law, has held that
the claim should be considered as per the amended Rules tha t were
prevalent at the time of consideration of the application and not the Rules
that were prevalent at the time of death of the governmen t servant.
4.1 Learned counsel appearing on behalf of the respondents has
further submitted that even in the amended rules 2020, it is specifically
provided that the amended 2020 Rules shall be applicable with respect
to all pending applications. It is submitted that in that view of the matter,
the claim of the appellant for appointment on compassionate grounds is
required to be considered as per the amended 2020 Rules and not as per
the earlier 1990 Rules.
MALAYA NANDA SETHY v. STATE OF ORISSA AND OTHERS
[M. R. SHAH, J.]
4.2 Learned counsel appearing on behalf of the appellant has
pointed out that in the case of Bheemesh alia Bheemappa (supra) ,
which is a recent decision, this Court had an occasion to consider the
decision in the case of N.C. Santosh (supra) .
5. We have heard the learned counsel for the respective par ties
at length.
We have noted that there is a conflict of view, as to whether the
scheme/rules in force on the date of death of the government serv ant
would apply or the scheme/rules in force on the date of consideration of
the application on compassionate grounds would apply. There are divergent
views and the conflict of opinion in different decisions of t his Court.
However, keeping the said question aside, for the r easons stated
hereinbelow, we are of the opinion that in the pecul iar facts and
circumstances of the case, the appellant herein shall be entitled for
appointment on compassionate ground as per the 1990 rules, which were
applicable at the time when the deceased employee died and the appellant
herein made an application for appointment on the death of his f ather,
i.e., in the year 2010.
6. From the chronology of dates and events, mention ed
hereinabove, it is not in dispute that the deceased employe e died on
2.1.2010 while in service. Immediately, in July 2010, the appellant applied
for appointment on compassionate ground as a Junior Clerk under the
1990 Rules. It was the specific case of the appellant that his mother was
unable to take a government job due to her medical condition and therefore
he, being a son applied for appointment on compassionate ground under
the 1990 Rules. At this stage, it is required to be noted that under the
1990 Rules, there was no provision that when the wife of the deceased
is alive, the son cannot make an application for ap pointment on
compassionate grounds. As per Rule 2(b) of the 1990 Rules, “F amily
Members” shall mean and include the members in order of preference,
which include, (i) wife/husband (ii) sons……. Therefore, when the mother
was unable to undertake a government job due to her medical condition,
the appellant, being the son was entitled to apply for appointment on the
death of his father. That the application of the appellant, though was
forwarded in the year 2011, was kept pending consideration initially for
a period of five years. The same was attended to after a pe riod of five
years by the Additional Secretary. The Additional Se cretary vide
communication dated 9.9.2016 asked the Collector, Ganjam to furnish a
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fresh report regarding the financial condition of the family of the deceased
government servant. Simultaneously, a report was also called for from
the CDMO, Ganjam to refer the mother of the appellant befor e the
Medical Board for proper examination to ascertain whether her inability
to perform a government job continues. The Medical Board examined
the mother of the appellant and furnished a report on 01.11.2016 stating
that she was unfit for a government job. The CDMO, Cuttack a lso
furnished another report dated 6.2.2017 to the same effect. The matt er
does not end there. A report from Tehsildar, Bellaguntha which was the
native place of the appellant was also called for to ascertain the financial
condition of the family of the deceased. The Tehsildar, Bell aguntha
submitted its report vide communication dated 28.10.2017 stating that
the family income of the appellant from all sources does not exceed
ceiling of Rs.72,000/- per annum. Despite the above and though the
appellant fulfilled all the eligibility criteria and/or conditions for appointment
on compassionate grounds, he was not appointed as a Junior Cl erk as
per 1990 Rules. However, in the meantime, 1990 Rules came to be
replaced and the 2020 Rules came into force.
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 appella nt 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 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
MALAYA NANDA SETHY v. STATE OF ORISSA AND OTHERS
[M. R. SHAH, J.]
the opinion that the appellant herein shall not be denied appoint ment
under the 1990 Rules.
8. In view of the above discussion and for the reasons state d
above, the impugned judgment and order passed by the High Court is
hereby quashed and set aside. The respondents are directed to consider
the case of the appellant for appointment on compassionate grounds
under the 1990 Rules as per his original application made in July, 2010
and if he is otherwise found eligible to appoint him on the post of Junior
Clerk. The aforesaid exercise shall be completed within a period of four
weeks from today. However, it is observed that the ap pellant shall be
entitled to all the benefits from the date of his appointme nt only. The
present appeal is accordingly allowed. However, in t he facts and
circumstances of the case, there shall be no order as to cos ts.
9. Before parting with the present order, we are constrained to
observe that considering the object and purpose of appointm ent 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 imm ediacy 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 C ourt which
leads to pendency of litigation and passage of 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 irrelev ant
considerations, applications made for compassionate appointm ent are
rejected. After several years or are not considered at all as in the instant
case.
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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, therefo re,
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.
Nidhi Jain Appeal allowed.
(Assisted by : Shashwat Jain, LCRA)
MALAYA NANDA SETHY v. STATE OF ORISSA AND OTHERS
[M. R. SHAH, J.]