Pabitra Mohan Patelm Ganjam vs Registrar Of Co-Op.Societies, ...
2014 Latest Caselaw 203 Del

                             HIGH COURT OF ORISSA: CUTTACK
                                 W.P.(C) No.15824 of 2013

        In the matter of an application under Articles 226 and 227 of the
        Constitution of India.
                                       --------

Pabitra Mohan Palei, Son of late Gouranga Palei, At: Arunapur, P.O. Palur, P.S. Rambha, Dist: Ganjam ... Petitioner

-Versus-

Registrar of Co-operative Societies, Orissa, Bhubaneswar and another ... Opp. Parties

For Petitioner : Mr.Shakti Datta Tripathy

For Opp. Parties : Mr.Baidhar Sahoo & G.N.Sahu [for O.P. No.2]

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P R E S E N T:

THE HONOURABLE SHRI JUSTICE I. MAHANTY AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment : 10 .01.2014

B.N. Mahapatra, J. This writ petition has been filed for a direction to opposite

party No.2-Secretary, Berhampur Central Cooperative Bank Limited,

Berhampur to appoint the petitioner under the Rehabilitation Assistance

Scheme on account of death of his father and for a further direction to

opposite party No.1-Registrar, Cooperative Societies, Orissa,

Bhubaneswar to accord approval in respect of the said appointment.

2. Petitioner's case in a nut-shell is that the father of the

petitioner late Gouranga Palei died in harness due to heart attack on

03.07.2010. At the time of his death, petitioner's father was serving

under Opposite Party No.2 as a regular employee. After death of his

father, the petitioner made representation under Annexure-3 series to

opposite party Nos.1 and 2 for his appointment under the Rehabilitation

Assistance Scheme. Vide Letter No.5676/12-13 dated 17.01.2013

(Annexure-4), though opposite party No.2-Secretary has required

approval of opposite party No.1 for appointment of the petitioner along

with others under the Rehabilitation Assistance Scheme, no action has

yet been taken by opposite party No.1. Hence, the present writ petition.

3. Mr.Tripathy, learned counsel appearing on behalf of the

petitioner submitted that both the opposite parties have failed to exercise

their duties in proper perspective. Petitioner and his family members are

in bare need of financial assistance for their survival. For no valid

reason, the petitioner has been deprived of getting appointment under

the Rehabilitation Assistance Scheme formulated by opposite party No.1.

Mr.Tripathy further submitted that petitioner's case is covered by order

of this Court dated 22.04.2013 passed in W.P.(C) No.7653 of 2013

(Sibananda Jena Vs. the Registrar, Co-operative Societies, Orissa and

another). The petitioner in that case has got appointment under the

Rehabilitation Assistance Scheme. Therefore, it is submitted that in the

instant case the petitioner is entitled to be appointed under the

Rehabilitation Assistance Scheme (Annexure-1) formulated by opposite

party No.1.

4. Mr.Baidhar Sahoo, learned counsel appearing on behalf of

opposite party No.2 referring to the counter affidavit filed on behalf of

opposite party No.2 submitted that the father of the petitioner expired on

03.07.2010 while working against Grade VI+A category post in opposite

party-Bank. Petitioner has filed representations under Annexure-3 series

before opposite party Nos.1 and 2 under Rehabilitation Assistance

Scheme, which is after lapse of more than two years from the date of

death of his father. The Human Resource Policy for the Central

Cooperative Banks of Odisha incorporating the Staff Service Rules, 2011

(for short, "Rules, 2011") has been adopted by the opposite party-Bank.

Referring to Rule 8 of the Rules, 2011, it was submitted that the

petitioner has not applied for service within one year from the death of

his father. Therefore, his case cannot be considered in violation of

provision of Rule 8 of the Rules, 2011. Annexure-1 filed by the petitioner

is not applicable to his case. Opposite party No.2 has never assured the

petitioner for providing appointment as stated in paragraph 5 of the writ

petition. Though opposite party No.2 has issued letter No.5676 dated

17.01.2013 to opposite party No.1 no approval has yet been accorded by

the statutory authority. Petitioner's case is not covered by the decision of

this Court rendered in W.P.(C) No.7653 of 2013. In that case, petitioner-

Sibananda Jena had passed +2 with Diploma qualification and applied

for appointment in the opposite party Bank under the Rehabilitation

Assistance Scheme within one year from the date of death of his father.

He has also filed the Distress Certificate. Therefore, he has been

appointed against the post of a Peon.

The other reason given by opposite parties in not considering

the case of the petitioner for his appointment under the Rehabilitation

Assistance Scheme/Rules, 2011 is that the deceased-father of the

petitioner was working in a dying grade post. If ineligible candidates'

cases are considered for appointment under the Rehabilitation

Assistance Scheme, the direct recruitment will not be held, as a result,

suitable candidates will be debarred from joining the bank service which

would paralyze the actual functions of the bank.

5. On the rival contentions of the parties, the only question

that falls for consideration by this Court is whether on account of death

of father of the petitioner in harness his case can be considered for the

purpose of giving appointment to him in Group 'B' or Group 'C' post as

per his qualification under Staff Service Rules, 2011 even though he has

not made application for such appointment within one year from the date

of death of his father as required under Rule 8 of the Rules, 2011 and his

father was working in a dying grade post.

6. Undisputed facts relevant for our purpose are that

petitioner's father died on 03.07.2010 while working against Grade VI+A

category post in opposite party-Bank. Petitioner has filed representations

under Annexure-3 series before opposite party Nos.1 and 2 for

appointment under the Rehabilitation Assistance Scheme after more

than two years of the death of his father.

7. On this factual backdrop, we have to answer the above

question. One of the grounds on which petitioner's case has not been

considered by opposite parties for appointment under the Rules, 2011 is

that he made an application for appointment under the Rehabilitation

Assistance Scheme after more than two years from the date of death of

his father. It was emphatically argued that since the petitioner has not

made an application within one year of death of his father, he is not

entitled to such appointment under the said Rules, 2011.

8. Rule 8 of the Rules, 2011 deals with special provision for

appointment of Widow/son/unmarried daughter of deceased employee in

the service of the Bank. The said provision is extracted here-in-below:-

"8. SPECIAL PROVISION:

Appointment of Widow / Son / unmarried Daughter of deceased employee in the service of the Bank.

 In such appointments Widow / Son /unmarried Daughter of deceased employee cannot claim such appointments as a matter or right.

 The Bank may pay salary of 24 months in lieu of providing appointment of Widow / Son / unmarried Daughter of deceased employee.

 In case, the compensation package offered is not accepted, in such case the competent authority may consider appointment of Widow / Son / unmarried Daughter of deceased employee depending on necessity, qualification and availability of vacancy in Group - B or Group - C posts.

Provided that in case of appointment on rehabilitation /compassionate grounds, appointment will be given only in the Grade the deceased employee was holding subject to maximum of Banking Assistant and within a period of one year."

9. In the present case, admittedly after death of the father of the

petitioner, he was not intimated by the employer of his father about the

special provision incorporated under the Rules, 2011.

10. It is the bounden duty of a model employer to act

benevolently with all sincerity for welfare of the legal heirs of an employee

who died in harness. A model employer should not only intimate the legal

heir(s) of the deceased employee regarding the provisions/procedure for

getting various benefits, but also should send copy of the said

provision/procedure to enable the bereaved family member(s) to avail the

benefit under Rehabilitation Assistance Scheme in the event of death of

their father/mother. This attitude of the employer, no doubt, creates

ample hope and confidence in the minds of the employees for achieving

excellence in service. A model employer should not take advantage of the

ignorance of the legal heirs of any deceased employee in the matter of

getting any benefit under any Rehabilitation Assistance Scheme. An

employer should neither exploit its employees nor take advantage of any

helplessness and misery of the employees [See Sate of Haryana Vs.

Piara Singh, (1992) 4 SCC 118].

11. The apex Court in Balbir Kaur & Anr. Vs. Steel Authority

of India Ltd. & Ors., JT 2000 (6) SC 281, while dealing with a matter

relating to family benefit scheme and compassionate appointment in the

case of an employee of Steel Authority of India who died in harness

observed as under:-

"The employer being Steel Authority of India, admittedly an authority within the meaning of Article 12 has thus an obligation to act in terms of the avowed objective of social and economic justice as enshrined in the Constitution but has the authority in the facts of the matters under consideration acted like a model and an ideal employer - It is in this factual backdrop, the issue needs an answer as to whether we have been able to obtain the benefit of constitutional philosophy of social and economic justice or not. Have the lofty ideals which the founding fathers placed before us any effect in our daily life- the answer cannot however but be in the negative - what happens to the constitutional philosophy as is available in the Constitution itself, which we ourselves have so fondly conferred on to ourselves. The socialistic pattern of society as envisaged in the Constitution has to be attributed its full meaning: A person dies while taking the wife to a hospital and the cry of the lady for bare subsistence would go unheeded on a certain technicality. The bread earner is no longer available and prayer for compassionate appointment would be denied, as "it is likely to open a Pandora's Box" - This is the resultant effect of our entry into the new millennium. Can the law courts be a mute spectator in the matter of denial of such a relief to the horrendous sufferings of an employee's family by reason of the death of the bread-earner."

12. Needless to say that in the matter of compassionate

appointment for which specific Schemes are there, technicalities cannot

have preference over substantive justice.

13. The other reason given by the opposite parties for not

considering the case of the petitioner for his appointment under the

Rehabilitation Assistance Scheme/Rules, 2011 is that the father of the

petitioner was working against Grade VI+A category post. As per order

No.XX-7/2001(Pt.II)-6929/Bank-10/Date 13.06.2003 (Annexure-A/2)

and order No.3381 dated 20.02.2003, the Grade-VI+A in the service of

Central Co-operative Banks shall be dying grade and no further

appointment/recruitment shall be made to the said grade. Mr. Sahoo

submitted that since the post of deceased-father of the petitioner was

dying grade which means the post abolishes itself after retirement or

death and no vacancy is created after retirement or death of Grade VI+A

category employee of Bank, appointment of legal heirs of the deceased

employee of Grade VI+A category under the Rehabilitation Assistance

Scheme does not arise.

14. The above contention of opposite parties is misconceived.

Appointment under the Rehabilitation Assistance Scheme/Rules, 2011 is

linked to the person and not to the post. If an employee dies in harness,

appointment may be given to his widow/son/unmarried daughter in

Group 'B' or Group 'C' post. Therefore, the stand taken by opposite

parties that since post in which father of the petitioner was working was

abolished after his death, for which the case of the petitioner cannot be

considered for his appointment under the Rehabilitation Assistance

Scheme/Rules, 2011 is not sustainable in law.

15. In view of the above, we direct opposite party No.2-Secretary

of the Berhampur Central Cooperative Bank Limited to consider the case

of the petitioner for appointment under the Rehabilitation Assistance

Scheme/Staff Service Rules, 2011 irrespective of the fact that he filed the

application for appointment on account of death of his father in harness

after expiry of one year and his deceased father was working in a dying

grade post. If the petitioner is found otherwise suitable to any post in the

Bank under the Scheme/Rules in vogue, he may be given such

appointment. The entire exercise shall be completed within a period of

two months from the date of production of certified copy of this judgment

before opposite party No.2-Secretary, Berhampur Central Cooperative

Bank Limited.

16. In the result, the writ petition is allowed with aforesaid

observations and directions but without any order as to costs.

................................

B.N.Mahapatra,J.

I.Mahanty, J.           I agree.


                                                  ..............................
                                                    I.Mahanty,J.



Orissa High Court, Cuttack
The 10th January, 2014/ss/ssd/skj