Orissa High Court
Mahesh Chandra Mohanty vs State Of Odisha & Others on 19 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.17288 OF 2013
(An application under Article 226 of the Constitution of India)
Mahesh Chandra Mohanty ... Petitioner
-versus-
State of Odisha & others
... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.Achyutananda Routray,
Advocate
-versus-
For Opposite Parties
: Mr.S.N.Pattnaik,
Advocate
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
19.4.2023.
Sashikanta Mishra,J. The Petitioner in the present Writ Petition
seeks the following relief;
<In the circumstances, it is therefore,
prayed that your Lordship's would
graciously be pleased to issue Rule NISI
calling upon the Opp. Parties specially the
Opp.Parties No.1 and 2 to show cause as
to why the writ application shall not be
allowed and in case the Opp.Parites fall to
show cause or show insufficient cause
then to allow the Writ Application.
And to direct the Opp.Parties No.1
and 2 to approve the appointment of the
Petitioner since the date of his initial
appointment i.e. 12.6.1992 and to give all
service benefits to the Petitioner from
12.6.1992 onwards under Director
Payment Scheme.=
2. The Petitioner's case is that his father Jadunath
Mohanty, while working as Daftary in A.B. College,
Basudevpur died on 15th April, 1988. He being a
graduate at that time applied to the Governing Body of
the College for appointment under the Rehabilitation
Assistance Scheme, which was forwarded by the
Principal to the Director, Higher Education, Orissa for
consideration. By letter dated 6th July, 1988, the
Deputy Director returned the application to the
Principal with direction to place the matter before the
Governing Body for its consideration. The Governing
Body in its resolution dated 2nd January, 1989
appointed the Petitioner in the post of Store-keeper in
the Department of Zoology and such fact was
communicated to the Director, Higher Education vide
letter dated 6th June, 1992. Pursuant to the order of
appointment, the Petitioner joined as Store-keeper on
12th June, 1992. Since then he has been working as
such. By letter dated 10th September, 1992 the
Principal submitted proposal to the Director for
approval of the appointment of the Petitioner and to
include him under direct payment scheme. Reminders
were submitted on 16th January, 1993 and 15th
September, 1994. The Deputy Director requested the
Principal to submit certain documents for
consideration pursuant to which, the Principal
submitted the required documents vide letter
dtd.31.3.1995. The matter was kept pending for a long
time thereafter. The Petitioner therefore, approached
this Court in OJC No.1996/1997. By order dated 15 th
February, 2011, this Court disposed of the Writ
Petition directing the Director to consider the proposal
submitted by the Principal way back in the year 1993
as expeditiously as possible preferably, within a period
of two months from the date of communication of the
order. Since the order was not complied with, the
Petitioner filed a Contempt Petition bearing CONTC
No.1073/2011. In the mean time, the Secretary to
Government in Higher Education Department vide
letter dated 27th December, 2012, informed the
Director that the State Government has approved six
candidates for appointment under Rehabilitation
Assistance Scheme including the Petitioner in different
non-Government Aided Colleges. Pursuant to such
letter the Director asked the Principal vide letter dated
14th January, 2013 to appoint the Petitioner as a
Junior Clerk after observing the required formalities.
Accordingly, the Governing Body passed resolution on
16th January, 2013 to appoint the Petitioner as Junior
Clerk and he was appointed as such on the same date.
But by letter dated 14th February, 2013, the Principal
assigned the job of Store-Keeper of the Department of
Physics, Chemistry, Botany and Zoology to the
Petitioner. It is stated that the Petitioner was appointed
against a sanctioned post and the proposal for
approval of his appointment was kept pending with the
Director for years together. It is further stated that
giving fresh appointment to the Petitioner, 21 years
after he was appointed on Rehabilitation Assistance
Scheme is entirely unjustified. Hence, the Writ
Petition.
3. The case of the State (Opposite Party Nos.1 and 2)
is that the appointment of the Petitioner on 12th June,
1992 by the Governing Body was in violation of the
Rules and moreover it was not competent to appoint
any one without prior approval of the Government. It is
further stated that appointment under the
Rehabilitation Scheme is not a matter of right and in
any case the benefit of such Scheme was extended to
the families of teaching and non-teaching staff of the
Non-Government Aided Colleges of the State by the
Government in Higher Education Department Office
Memorandum dated 10th August, 2011. The
Petitioner's claim was therefore, considered under such
Office Memorandum and he was appointed being
sponsored by the Director in his letter dated 14 th
January, 2013. The petitioner cannot claim any benefit
under the Rehabilitation Assistance Scheme long after
the death of his father.
4. Heard Mr. A.N.Routray, learned counsel for the
Petitioner, and Mr. S.N. Pattnaik, learned Addl.
Government Advocate for the State.
5. Mr. Routray forcefully argues that the claim of the
Petitioner is not for appointment under the
Rehabilitation Assistance Scheme inasmuch as he has
already been granted such benefit w.e.f. 12th June,
1992. His grievance is, the authorities could not have
given him a fresh appointment in the year 2013 after
he had already rendered 21 years of service as Store-
keeper being appointed under the Rehabilitation
Assistance Scheme. As regards the plea that the
benefit of Rehabilitation Assistance was extended to
the families of the teaching and non-teaching staff of
non-Government Aided Colleges by the Higher
Education Department Office Memorandum dated 10th
August, 2011, Mr. Routray has referred to the
resolution of the Government in G.A. Department
dated 14th October, 1998 as per which such benefit
was extended to the aforementioned staff w.e.f. 24th
September, 1990. Mr. Routray therefore, contends that
the authorities could not have given the Petitioner
fresh appointment but ought to have approved his
appointment w.e.f. 12.6.1992.
6. Mr. S.N.Pattnaik, on the other hand, has argued
that the so called initial appointment of the Petitioner
has no sanctity of law inasmuch as it was never
approved by the competent authority i.e. the Director
Higher Education Department. The application of the
Petitioner was initially forwarded by the Principal of
the Director by letter dated 14th May, 1988, but the
same was returned by the Deputy Director with
instructions to place the same before the Governing
Body of the College for consideration and to furnish its
opinion to the Directorate for further action. Again, by
letter dated 4th July, 1989, the Deputy Director
intimated that if the Governing Body of the College
appoints the Petitioner against an approved post then
a proposal may be sent to the Directorate with copy of
the Governing Body Resolution for approval. Therefore,
the Governing Body ought to have submitted a
proposal for approval but it went ahead to directly
appoint the Petitioner, which is contrary to law. Be
that as it may, the Government, taking a sympathetic
view accorded approval for appointment of the
Petitioner under the Rehabilitation Assistance Scheme
by order dated 27th December, 2012.
7. The facts of the case as laid in the pleadings are
not disputed. As it appears, the Petitioner's father died
in harness on 15th April, 1988. He submitted
application for consideration of his case under
Rehabilitation Assistance Scheme on 13th May, 1988.
Such application was forwarded to the Director for
consideration, but was returned by the Office of the
Director with request to place the same before the
Governing Body for consideration with further
instructions to furnish the opinion of the Governing
Body. The Governing Body in its resolution dated 2nd
January, 1989 resolved to appoint the Petitioner
subject to approval of the Director. The above fact was
communicated to the Director by letter dated 25th
April, 1989. The Office of the Director intimated that if
the appointment of the Petitioner is against an
approved post, then proposal may be sent to the
Directorate with copy of the Governing Body
Resolution. Accordingly, the Governing Body in its
Resolution dated 12th December, 1992 approved the
appointment of the Petitioner as Store-keeper. It
has been brought to the notice of this Court that in the
meantime, the incumbent of the post of Store-keeper
had expired, which created a vacancy, against which
the Petitioner was appointed. From the documents
enclosed to the connected Writ Petition filed by the
Petitioner, i.e. O.J.C.No.1996/1997, it appear that
after appointment of the Petitioner by order dated 10th
June, 1992 the Principal requested the Director for
approval thereof by his letters dated 10.9.1992,
29.10.1992, 16.1.1993, 11.2.1993, 26.3.1994 and
31.3.1995. No action was taken by the Directorate for
which the Petitioner had approached this Court in OJC
No.1996/1997. In the said Writ Petition also the
Government did not file any counter. The Writ Petition
was ultimately disposed of by order dated 15.2.2011
directing the Director to consider the proposal for
approval of appointment of the Petitioner pending with
him since 1993. Even then, the matter was kept
pending for more than two and half years and
ultimately, by order dated 14th January, 2013, the
Directed instructed the Principal to issue appointment
order in favour of the Petitioner as Junior Clerk.
Two things are apparent from the narration-
Firstly, no reason whatsoever has been cited by the
State for keeping the proposal for approval of the
appointment of the Petitioner pending for more than
two decades. Secondly, this Court having directed the
Director to consider approval of the appointment
already made, it was not open to the authorities to
direct his fresh appointment. It has been argued by
learned State counsel that this implies that the
proposal for approval was turned down. This argument
does not have any substance for the reason that if
such was the intention of the State then what
prompted it to confer the benefit of Rehabilitation
Assistance on the Petitioner and that too, 21 years
after the death of his father, If, according to the State
the earlier appointment was not in order, the same
could have been brought to the notice of the
Management of Institution promptly without keeping it
pending for so long. That apart, the very objective of
the Rehabilitation Assistance Scheme is to provide
immediate succor to the family of a deceased
Government Servant from distress. It is therefore, quite
fallacious and absurd to term the appointment of the
Petitioner made in 2013 as one under Rehabilitation
Assistance Scheme arising out of death of his father
way back in the year 1988.
8. Be that at it may.
9. Much argument has been made as regards the
applicability of the Rehabilitation Assistance Scheme
embodied in the Orissa Civil Services (Rehabilitation
Assistance) Rules, 1990 to the non-Government Aided
Educational Institutions. The fact that the Petitioner's
father died in harness on 15th April, 1988 whereupon
he submitted application for appointment under
Rehabilitation Assistance Scheme is not disputed. As
has already been narrated in the preceding
paragraphs, his application was kept pending in view
of the correspondence between the Principal of the
College and the Office of the Director. In the
meantime, the post of Store-Keeper, which is an
approved post, having fallen vacant because of death of
the incumbent, the Petitioner was appointed by order
dated 12th June, 1992. Thus, as on the date of the
appointment of the Petitioner, the 1990 Rules had
come into force. Further, as per Resolution dated 14th
October, 1998 of the Government in G.A. Department,
the 1990 Rules were made applicable to the families of
the teaching and non-teaching staff of Aided
Educational Institutions w.e.f. 24th September, 1990.
It has also been argued that the appointment of the
Petitioner was not as per the Rules. In this context,
Rule 5 of the 1990 Rules would be profitable, which
reads as follows:-
<Rule-5.Appointment to be made in
deserving cases.
In deserving cases, a member of the
family of a Government Servant who is
permanently incapacitated or who dies
while in ser ice may be appointed to any
Class-III or Class-IV post by the
appointing authority of that Government
Servant provided he or she possess the
required minimum educational
qualification prescribed for the post
without following the procedure
prescribed for recruitment to the post
either by statutory rules framed under
the proviso to Article-309 of the
Constitution of India or otherwise
irrespective of the fact that recruitment
is made by notification of vacancies to
the employment exchange or thorough
recruitment examination under relevant
cadre rules.=
10. Since appointment under the Rehabilitation
Assistance Scheme is meant to be an exception to the
normal mode of recruitment, the above quoted Rule
specifically confers power on the authority to make
such appointment without following the prescribed
procedure for recruitment. It is not disputed that the
Petitioner was duly qualified and was appointed
against an approved post. The only thing wanting was,
approval of such appointment by the Director post
facto. In this also, no blame can be attributed to the
Management of the College inasmuch as, several
letters and reminders, as referred to hereinbefore were
issued, but no action was taken thereon. After keeping
the matter in limbo for long as 21 years, the State took
a U-turn to question the sanctity of the appointment
made by the Governing Body and instead directed
issuance of a fresh appointment order purporting to be
under the Rehabilitation Assistance Scheme.
11. Mr. Pattnaik, learned State counsel, has also
relied upon an Office Memorandum dated 10th August,
2011 of the Department of Higher Education to
contend that the non-Government Aided Colleges are
governed by the same and therefore, the 1990 Rules
would be applicable only from the date of such Office
Memorandum. This argument can be considered only
to be rejected because there is nothing in the said
Office Memorandum to show that the same would be
applicable retrospectively, that is to say for
appointments already made under the Rehabilitation
Assistance Scheme. In any case, this Court finds that
the G.A. Department Resolution dated 14th October,
1998 is very clear as regards applicability of the 1990
Rules to such Institutions w.e.f. 24th September, 1990.
12. From a conspectus of the analysis of the facts,
law and the contentions raised, this Court is of the
considered view that the Petitioner could not have been
freshly appointed w.e.f. 16th December, 2013
completely ignoring thereby his services rendered from
12th June, 1992 onwards. The authorities by their
conduct in keeping the proposal pending for as long as
20 years, despite repeated reminders, must be deemed
to have approved the appointment of the Petitioner.
More so as no objection thereto was ever raised even
though such fact was well within the knowledge of the
Director. The State is therefore, estopped from
questioning the validity of the appointment of the
Petitioner from such date.
13. For the foregoing reasons therefore, the Writ
Petition is allowed. The impugned order under
Annexures-3,4 and 6 are hereby set aside. The
Opposite Party-authorities are directed to approve the
appointment of the Petitioner w.e.f. 12th June, 1992
and to confer all admissible service benefits to him
from such date as early as possible, preferably within
two months.
..................................
Sashikanta Mishra,
Judge
Ashok Kumar Behera
