Orissa High Court
Bapi Das vs State Of Odisha on 16 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.C(OA) NO.2898 OF 2018
Bapi Das .... Petitioner
-versus-
State of Odisha .... Opp. Party
COROM:
JUSTICE BIRAJA PRASANNA SATAPATHY
Order ORDER
No 16.11.2022
2. 1. This matter is taken up through Hybrid Mode.
2. The petitioner, who is the son of the deceased
employee, has filed this writ petition assailing the
communication dated 05.02.2016 & 09.03.2018
issued by the Under Secretary to Government in
Finance Department to the Director of a Treasury-
Opp. Party No.2 rejecting his application for
appointment under Rehabilitation Assistance
Scheme.
3. The father of the petitioner, Lokonath Kumar
Das, who was working as Accountant under the
Finance Department, Government of Odisha in the
office of Sub-Treasury Officer, R. Udayagiri died
prematurely on 21.12.2013. After obtaining death
certificate on 07.01.2014 and legal heir certificate
on 30.03.2014, son of the deceased employee
applied for compassionate appointment under the
OCS (Rehabilitation Assistance) Rules, 1990 vide
application dated 13.11.2014 before the Opp. party
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No.2. Subsequently, the opposite party no.2
forwarded his application to opposite party no.1 for
consideration.
4. Mr. R.K. Bisoi, learned counsel for the
petitioner stated that as the mother of the
petitioner faced ailments with regard to spinal
problem and was medically declared unfit for the
nature of employment sought by her under the
rehabilitation assistance scheme, in spite of she
being the next candidate suitable for employment,
the claim of the petitioner should not have been
rejected by resorting to Rule 2(b) of the OCS (RA)
Rules, 1990.
5. Mr. A.P. Das, learned Standing Counsel
appearing for opposite parties nos.1 to 2 relying
upon counter affidavit stated that in view of the
provisions contained in Rule-2(b) of the OSC (RA)
Rules, 1990, the first priority for appointment is to
be given to the wife of the deceased and thereafter
the son. Since the widow is alive, the son is not
eligible for compassionate appointment. Therefore,
the action of the authority is justified in rejecting
the application of the petitioner for compassionate
appointment.
6. Heard learned counsel for the parties and
perused the records. Pleadings have been
exchanged between the parties, the writ petition is
Page 2 of 8
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being disposed of at the stage of admission with
the consent of learned counsel for the parties.
7. There is nothing before this Court to
dispute that the petitioner is the son of the
deceased employee Lokanath Kumar Das, who died
prematurely, while working as Accountant, on
21.12.2013
. As there was full compliance of the
provisions of OCS (Rehabilitation Assistance)
Rules, 1990, meaning thereby after complying all
the requirements, the application submitted by the
petitioner was recommended for verification by the
competent authority.
8. In Haryana State Electricity Board v.
Hakim Singh, (1997) 8 SCC 85, the apex Court
explained the rationale of the rule relating to
compassionate appointment in following words:
"The rule of appointments to public service is that
they should be on merits and through open
invitation. It is the normal route through which one
can get into a public employment. However, as
every rule can have exceptions, there are a few
exceptions to the said rule also which have been
evolved to meet certain contingencies. As per one
such exception relief is provided to the bereaved
family of a deceased employee by accommodating
one of his dependants in a vacancy. The object is to
give succor to the family which has been suddenly
plunged into penury due to the untimely death of
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its sole breadwinner. This Court has observed time
and again that the object of providing such
ameliorating relief should not be taken as opening
an alternative mode of recruitment to public
employment.
Similar view has also been taken in Director of
Education v. Pushpendra Kumar, AIR 1998 SC
2230, and Commissioner of Public Instructions v.
K.R. Vishwanath, (2005) 7 SCC 206.
9. In State of Haryana v. Ankur Gupta,
(2003) 7 SCC 704:AIR 2003 SC3797, the apex
Court held that the compassionate appointments
cannot be made dehors any statutory policy.
10. In National Institute of Technology v.
Niraj Kumar Singh, (2007) 2 SCC481:AIR 2007
SC1155, the apex Court held that the grant of
compassionate appointment would be illegal in the
absence of any scheme providing therefor. Such
scheme must be commensurate with the
constitutional scheme of equality.
11. In exercise of powers conferred by the
proviso to Article 309 of the constitution of India,
the Government of Odisha have made the following
rules to regulate recruitment to the State services
and posts as a measure of rehabilitation
assistance, i.e., the Odisha Civil Service
(Rehabilitation Assistance) Rules, 1990.
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Rule-2(b) of the aforesaid Rules, reads as follows:
"Family Members" shall mean and include the
following members in order of preference-
(i) Wife/Husband
(ii) Sons or step sons or sons legally adopted
through a registered
deed;
(iii) Unmarried daughters and unmarried
step daughters;
(iv) [Widowed daughter or daughter-in-law
residing permanently
with the affected family.]
(v) Unmarried or widowed sister
permanently residing with the
affected family;
(vi) Brother of unmarried Government
servant who was wholly
dependant on such Government servant at the
time of death." The above named family members
thus are eligible to receive compassionate
appointment as has been indicated elaborately in
the above rules. Sub-Clause (ii) of Clause (b) of
Rule-2 states that family members includes sons or
step sons or sons legally adopted through a
registered deed. Sub-Clause (i) of Clause(b) of Rule-
2 states that first preference is to be given to
wife/husband.
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12. In the instant case, the Father having
been died, his wife to be given preference for
compassionate appointment. Since she
relinquished her claim because of her illness,
recourse should have taken by the authority to
Clause (ii) of Sub-Clause-(b) of Rule-2, i.e., second
preference category to which the petitioner, who is
the son of the deceased and his case should have
been considered for such appointment. For that, all
endeavours had been made by the State
Government, particularly, the very same authority
by calling upon the petitioner to produce the
relevant documents and also no objection
certificate from other legal heirs of the deceased
employee. The same having been furnished, on
subsequent stage instead of considering for giving
appointment to the petitioner, the very same
authority passed the order impugned in
Annexures-6 & 7 stating that the claim of the
petitioner cannot be considered in view of the
provisions contained in Rule-2(b) of the OCS (RA)
Rules, 1990.
13. On perusal of the provisions contained in
Rule 2(b) of the OCS (RA) Rules, it appears that the
son is the second priority for consideration of
compassionate appointment. If the widow has
relinquished her claim, the case of the petitioner
has to be taken into consideration. As such, the
authority has accepted the request and required
certain documents in that regard. The petitioner
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filed the required documents. At a belated stage,
the authority could not have rejected the
application of the petitioner for compassionate
appointment stating that it is hit by Rule-2(b) of
the OCS (RA) Rules, 1990.
14. In that view of the matter, this Court is of
the considered view that the order dated 5.2.2016
& 9.3.2018 in Annexure- 6 & 7 passed by the
authority is without application of mind and the
same is liable to be quashed. Accordingly, the order
dated 5.2.2016 & 9.3.2018 are quashed and the
matter is remitted back to the authority concerned
for reconsideration of the case of the petitioner for
appointment on compassionate ground as per the
provisions contained in OCS(RA) Rules, 1990 as
expeditiously as possible, preferably within two
months from the date of receipt of copy of this
judgment.
15. With the above observation and direction,
the writ petition is disposed of. No order as to cost.
(Biraja Prasanna Satapathy)
Judge
Sangita
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