Sri Akash Putel vs State Of Odisha
2023 Latest Caselaw 4561 Ori

                 ORISSA HIGH COURT: CUTTACK

                     W.P.(C) No. 1363 OF 2020

  In the matter of an application under Articles 226 and 227
              of the Constitution of India, 1950.

                           ---------------

Sri Akash Putel son of Late Gelha Kumar Putel Beherapalli, Balangir ... Petitioner

-VERSUS-

State of Odisha, represented through its Principal Secretary to Government, Department of Agriculture & Farmers' Empowerment Bhubaneswar and Others ... Opposite Parties

Counsel appeared for the parties:

For the Petitioner : M/s. Bhabani Shankar Rayaguru, K.C. Sahoo, P.R. Swain, P. Das, B.P. Pattanaik, D. Nayak, Advocates

For the Opposite Party : Mr. Amiya Kumar Mishra, Additional Government Advocate

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R. SARANGI AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

Date of Hearing: 24.04.2023 :: Date of Judgment: 27.04.2023

MURAHARI SRI RAMAN, J.-- Assailing the legality and propriety of Order dated 25.02.2019 passed in Original Application being No.1001 of 2017 by the learned Odisha Administrative Tribunal, Bhubaneswar, vide Annexure- 6, wherein by Letter No.AGR-SCFE-FE-0015-2016-- 16691/Ag., dated 05.10.2016 (Annexure-5) issued by the Under Secretary to Government, Government of Odisha in Department of Agriculture & Farmers' Empowerment communicating refusal of appointment of Sri Akash Putel, son of Late Gelha Kumar Putel, ex-peon in the Office of the Project Director, Watersheds-cum- Deputy Director, Soil Conservation, Balangir, under the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990 (for brevity referred to as "RA Rules"), has been affirmed, the petitioner has invoked extraordinary jurisdiction of this Court under Article 226/227 of the Constitution of India.

FACTS OF THE CASE:

2. The facts, as adumbrated by the petitioner, reveal that at the time of death of his father, namely Gelha Kumar Putel, working as peon in the Office of the Project Director, Watersheds-cum-Deputy Director, Soil Conservation, Balangir, on 03.07.2008, he was minor of around 12 years. Since Smt. Subagini Putel, wife of late Gelha Kumar Putel was around 44 years at that point of time, and suffering from different ailments, she

nominated the name of her son, present petitioner, for employment under the RA Rules on his attaining age of majority and accordingly, she made a request to the aforesaid Project Director on 16.03.2009.

2.1. On receipt of application dated 22.08.2013 submitted by the petitioner, the Commissioner-cum-Director of Watershed Mission, Odisha, Bhubaneswar suggesting condonation of delay in filing such application in terms of General Administration Department Notification No.16668/GA, dated 25th August, 2010, i.e., the Odisha Civil Service (Rehabilitation Assistance) Amendment Rules, 2010, recommended to the Additional Secretary to Government, Agriculture Department, Odisha, Bhubaneswar for according "administrative approval for appointment" against the vacant post of "Choukidar or any Class IV post".

2.2. On furnishing requisite documents like death certificate, certification of Medical Board declaring Smt. Subagini Putel unfit to undertake job as she suffered "Debilitating Rheumatoid Arthritis and Atypical Retinitis Pigmentosa in both the eyes with severe diminution of vision", affidavits, et. al. the case of the petitioner was considered and the Government negating his claim for employment stated vide Letter No.AGR-SCFE-FE-0015-2016-- 16691/Ag., dated 05.10.2016 thus:

"I am directed to invite a reference to your Letter No.1464/SC, dated 29.02.2016 on the subject note above and to say that after careful consideration of the proposal for appointment of Sri Akash Putel, son of Late Gelha Kumar Putel, Ex-Peon, office of the P.D., Watersheds, Bolangir (2nd legal heir) under R.A. Scheme, the Principal Secretary to Government Department of Agriculture & Farmers' Empowerment has been pleased to reject the same since it contravenes the provisions of Rule 2(b) read with Rule 9(7) of OCS (RA) Rules, 1990."

2.3. To ventilate grievance, the petitioner approached the learned Odisha Administrative Tribunal, Bhubaneswar by way of filing Original Application, which was registered bearing No.1001 of 2017, under Section 19 of the Administrative Tribunals Act, 1985. The learned Odisha Administrative Tribunal taking note of Rule 9(7) of the RA Rules, bearing in mind the fact that "compassionate appointment under the scheme are meant to provide immediate relief to family of the Government servant on account of sudden death of the sole bread earner" and the mother of the petitioner, Smt. Subagini Putel having chosen not to apply for appointment, rejected the Original Application by ascribing reason that "the application for appointment was made after five years of the death of the deceased Government servant".

2.4. Under such circumstances, the petitioner was constrained to move this Court by way of filing present writ petition under Article 226/227 of the Constitution

of India to quash Order dated 25.02.2019 of the Odisha Administrative Tribunal as also Order of refusal communicated vide Letter dated 05.10.2016 of the Under Secretary to Government and prayed for writ of mandamus to the opposite parties to appoint him under the RA Rules.

ARGUMENTS ADVANCED BY COUNSEL FOR THE RESPECTIVE PARTIES:

3. Sri Bhabani Shankar Rayaguru, learned counsel for the petitioner submitted that the petitioner, being son of deceased employee died in harness while in Government service, falls within the scope of definition of the term "family members" enumerated in Rule 2(b) and thereby he was eligible for applying in terms of provisions in Rule 8 read with Rule 9(7) of the RA Rules. In the presence of clear language of Rule 9(7), on attaining majority, as his mother being not fit for taking up job, the petitioner has applied for appointment which was duly recommended by the Commissioner-cum-Director, Watershed Mission to the Government for according administrative approval. Instead of approving such recommendation, on flimsy ground, the Government should not have refused employment to the petitioner who was to look after his ailing mother and grandmother. The approach of the learned Odisha Administrative Tribunal was pedantic while acceding to the stand of the Government. It ought to have applied its judicious mind by appreciating the

fact that the petitioner was minor at the time of death of his father and he, having attained majority on 05.05.2013, applied for compassionate appointment by duly filled-in application in Form Annexure-A appended to Rule 1(a) of the RA Rules on 22.08.2013. Hence, there was no delay in approaching the authority as stipulated under Rule 9(7) which fact was considered by the Commissioner-cum-Director of Watershed Mission, who suggested for condonation of the delay. For the sake of argument but not conceding that though there was no delay in making application for consideration of compassionate appointment as per sub-rule (7) of Rule 9, said Commissioner was correct in his suggestion to condone the delay on the underlying principle contained in substituted sub-rule (11) of Rule 9 by virtue of the Odisha Civil Service (Rehabilitation Assistance) Amendment Rules, 2010.

3.1. It has been strenuously argued by Sri Bhabani Shankar Rayaguru, learned Advocate for the petitioner that though the Letter dated 05.10.2016, whereby the Government communicated decision of refusal of employment to the petitioner, does not speak of delay in filing application for appointment under the RA Rules, 1990, the learned Odisha Administrative Tribunal apparently committed error in touching such aspect. The following lines from the Order dated 25.02.2019 of the

Odisha Administrative Tribunal were placed by the learned counsel for the petitioner:

"*** Compassionate appointment under the scheme are meant to provide immediate relief to family of the Government servant on account of sudden death of the sole bread earner. In this case, the application for appointment was made after five years of the death of the deceased Government servant."

3.2. Sri Bhabani Shankar Rayaguru, therefore, submitted that the learned Tribunal has misread the provisions of Rule 9(7) and further submitted that benevolent legislation is required to be construed liberally. The learned Tribunal should have shown pragmatic approach by holding that within reasonable period and that too within the period specified under Rule 9(7) of the RA Rules, the petitioner made application for compassionate appointment.

3.3. Advancing further, Sri Rayaguru, urged that there has been misinterpretation of the word "alone" employed in Rule 9(7) inasmuch as Smt. Subagini Putel, mother of the petitioner, who was not fit for undertaking job due to her ailments, made a representation on 16.03.2009 (vide Annexure-B/1 to the counter to the rejoinder filed on behalf of the opposite party Nos.1 to 3) wherein she had requested the authority concerned to await consideration of appointment for rendering "rehabilitation assistance" on her son attaining 18 years

of age. The learned counsel for the petitioner submitted that the learned Tribunal failed to consider the fact that the father of the petitioner at the time of death left behind his mother (Uma Putel), his wife (Subagini Putel) and his son (the petitioner) and the petitioner was only the "lone" person. Thus, the Order dated 25.02.2019 of the Odisha Administrative Tribunal suffers serious infirmity which warrants this Court to show indulgence in the matter.

3.4. Taking cognizance of certification of the Medical Board, the Tribunal could not have brushed aside lightly the fact of incapacity of the mother of the petitioner to take up the job.

3.5. The learned counsel for the petitioner has placed reliance on the following decisions:

i. Malaya Nanda Sethy Vrs. State of Odisha, AIR SC 2836 = 2022 SCC OnLine SC 684;

ii. Smt. Subhadra Vrs. Ministry of Coal and Another, AIR 2018 SC 783;

iii. Chandan Kumar Mania Vrs. State of Odisha and Another, 2014 (II) OLR 233;

iv. Bibhuti Bhusan Patnaik Vrs. State of Odisha, W.P.(C) No.9036 of 2016, vide Judgment dated 05.07.2017.

4. Refuting the contentions and arguments of the learned counsel for the petitioner and supporting the decision taken by the learned Odisha Administrative Tribunal affirming the denial of employment to the petitioner in terms of Rule 2(b) read with Rule 9(7) of the RA Rules, Sri Amiya Kumar Mishra, learned Additional Government Advocate vehemently submitted that the Medical Board certification about the health condition of the mother of the petitioner, namely Subagini Putel, rightly was not taken into consideration as the same was obtained and furnished by the petitioner much after making application for appointment on rehabilitation. Since, the mother of the petitioner comes as first category person in the order of preference enumerated under clause (b) of Rule 2, i.e., the definition of the term "family members", the petitioner was not considered to be "alone" for making application as contemplated under Rule 9(7) of the RA Rules.

4.1. As held in very many cases that compassionate appointment is not matter of right and such an appointment is made looking to the financial constraints of the family to have livelihood on account of sudden death of bread winner of the family, recent being State of West Bengal Vrs. Debabrata Tiwari & Others, 2023 LiveLaw SC 175 = 2023 SCC OnLine SC 219, the learned Additional Government Advocate Sri Amiya Kumar

Mishra contended that the object of RA Rules would be frustrated if person like the petitioner is given opportunity of employment after attaining majority. In the present case, immediacy of financial assistance being absent and there has been wide gap of five years between the date of death of Gelha Kumar Putel on 03.07.2008 and making application by the petitioner on 22.08.2013, the application for appointment under the RA Rules has been rejected with justification and the Order of the learned Tribunal affirming the decision of the Government cannot be found fault with.

4.2. Sri Mishra forcefully argued that the Commissioner-cum-

Director of Watershed Mission having recommended the case of the petitioner for appointment in the post of "Choukidar or any Class IV post", vide Letter No.5M(VI)15/2015-- 1464/SC, dated 29.02.2016, the same was attended to within reasonable period by the Government and by Letter No.AGR-SCFE-FE-0015- 2016-- 16691, dated 05.10.2016 the Under Secretary to Government communicated the decision taken thereon. Therefore, in view of legal position settled in State of West Bengal Vrs. Debabrata Tiwari, 2023 LiveLaw (SC) 175, there is little scope for the petitioner to contend that delay was attributable to the Government.

4.3. Sri Amiya Kumar Mishra, learned Additional Government Advocate referring to paragraph 3 of

counter to the rejoinder filed on behalf of the opposite party Nos.1 to 3 sworn to by the Joint Director, Soil Conservation (Level-II) submitted that "in between 2009 to 2014 Smt. Subagini Putel did not remind or physically appear before the Office of the Project Director, Watersheds, Bolangir as well as Director, Soil Conservation & Watershed Development, Odisha, Bhubaneswar in order to redress her grievance". In such view of the matter, the prayer(s) of the petitioner to accord approval to the recommendation as made in Letter dated 29.02.2016 by the Commissioner-cum- Director of Watershed Mission is liable to be rejected.

ANALYSIS AND DISCUSSIONS IN CONSIDERATION OF RIVAL

CONTENTIONS AND ARGUMENTS:

5. Before proceeding to decide the case in hand, it may be apt to refer to following relevant provisions contained in the RA Rules, 1990:

"2. Definition.--

In these rules, unless the context otherwise requires,--

(a) 'Deserving Case' means a case where the appointing authority is satisfied, after making such enquiry as may be necessary:

(i) that the death of the employee has adversely affected his family financially because the family has no other alternative mode of livelihood;

(ii) that there is existence of distress condition in the family after death of the employee;

(iii) that none of the family members of the employee who has died while in service is already in the employment of Government/Public or Private Sector or engaged in independent business with an earning capable of tide over the distress condition of the family arising out of the sudden death of the employee; and

(iv) that the family does not have adequate income from the immovable properties to earn its livelihood.

Explanation-I.--

The income of any earning member will be taken into account for the purpose of assessing the annual gross income of the family if his separation from the family has not been established by registered partition deed made prior to the death of the Government employee.

Explanation-II.--

The total annual family income from all sources excluding Family Pension and Temporary Increase must not exceed Rs.72,000 (Rupees seventy-two thousand) for a family to be in a 'distress condition'.

(b) '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 daughter;

(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 dependent on such Government servant at the time of death.

(c) & (d) ***

(e) 'Rehabilitation Assistance' means the assistance provided under these rules to a member of the family of Government servant who died while in service;

3. Applicability.--

The assistance shall be applicable to a member of the family of the Government servant who dies while in service.

9. Condition of service.--

(1) to (5) ***

(6) Application for appointment under these rules shall be considered if it is received within one year from the date of death of the Government servant.

(7) If at the time of death of the Government servant, there is ward who is minor and who alone is available in the family of the deceased Government servant for employment, he/she shall apply for job under these rules on attaining the age of eighteen years and in no case beyond three years from the date of attaining the age of eighteen years.

***

(11) Notwithstanding the period of limitation prescribed in sub-rule (6), the delay in submission of application for appointment under these rules may be condoned by Government in concerned Administrative Department in deserving cases by an order to the effect that the applicant had sufficient cause for not submitting the application within such period."

6. It is understood from bare reading of aforesaid provisions that as per Rule 3, the "rehabilitation assistance", as defined in Rule 2(e) of the RA Rules, is applicable to "a member" of the family of the Government servant who dies while in service. It is of significance to notice the article "a" before the expression "member of the family". Definition of "family member" in Rule 2(b) envisages "son" as "a member of the family".

6.1. It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and words by words. See Bhavnagar University Vrs. Palitana Sugar Mill Pvt. Ltd., (2003) 2 SCC 111. Indefinite article "a" before the words "member of the family" in the definition of "rehabilitation assistance" contained in Rule 2(e) and Rule 3 of the RA Rules is relevant. The word 'a' has varying meanings and uses. 'A' means 'one' or 'any', but less emphatically than either. It may mean 'one' where only one is intended, or it may mean any one of a great number. It is placed before nouns of the singular number, denoting an

individual object or quality individualized. The meaning depends on the context. : Black's Law Dictionary. 'A' is the first letter of English alphabet denoting the primary vowel sound. It is used before singular nouns beginning with consonants. 'A' may mean one of several things. : Gujarat University Vrs. Krishna Raghunath Mudholkar, (1963) Supp 1 SCR 112. Stated in Shri Ishar Alloy Steels Limited Vrs. Jayaswals Neco Limited, (2001) 3 SCC 609 that the word 'a' or 'an' has an indefinite effect and a generalizing force. It determines what particular thing is meant; i.e., what particular thing one is to assume to be meant. The words 'a bank' is indicator of the intention of Legislature and refers to an indirect (indefinite) article.

6.2. Going through the provisions of the RA Rules framed by the Governor of Odisha to "regulate recruitment to the State Civil Services and posts as a measure of rehabilitation assistance" "in exercise of powers conferred by the proviso to Article 309 of the Constitution of India", it is but clearly understood that in the order of preference "son" comes in the second order after "wife" of the deceased Government employee who died in harness. From minute scrutiny of Rule 9, it is manifest that application for consideration of appointment under the RA Rules can be entertained "on attaining the age of eighteen years" and such application can be filed within "three years from the date of attaining

the age of eighteen years". It is stipulation under sub- rule (7) of Rule 9 that "at the time of death of the Government servant, there is ward who is minor" and he "alone is available in the family of the deceased Government servant for employment". The word "alone" and "a member of the family" read harmoniously would lead to only one interpretation that if person mentioned as first preference foregoes choice of employment on compassionate considerations due to inability/ incapacity, there is no restriction in consideration of second person in the order of preference as per Rule 2(b) of RA Rules.

6.3. It is manifest from record that the petitioner is entitled to apply for the job. The petitioner was, at the time of death of his father, Gelha Kumar Putel, on 03.07.2008, at the age of 12 years being born on 05.05.1995, which is revealed from "Transfer Certificate" issued by the Headmaster, Panchayat High School, Puintala, Balangir. Whereas on the date of death, the age of mother of Gelha Kumar Putel was about 69 years, the age of his wife was around 44 years. It is the case of the petitioner that his mother, Smt. Subagini Putel, was suffering from different ailments, which fact is corroborated by the certification of the Medical Board which was furnished to the authority concerned. Vide Letter 16.03.2009, Subagini Putel addressing the Project Director informed

that the employment of her minor son was to be considered under the RA Rules on his attaining majority. As the petitioner was the "alone" ward available in the family of the deceased Government servant for employment, the rejection of the application submitted by the petitioner is not in consonance with the appropriate intent of the policy embedded in the RA Rules.

7. Before proceeding to delve into the matter on merits in connection with compassionate appointment, it is pertinent to refer to following dicta of the Hon'ble Supreme Court of India in the case of Steel Authority of India Limited Vrs. Madhusudan Das, (2008) 15 SCC 560 which is quoted hereunder:

"This Court in a 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 taken 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 fallen vacant. Appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said rule. It is a concession, not a right. [See SBI Vrs. Anju Jain, (2008) 8 SCC 475 @ paragraph 33]."

8. The decision of the Hon'ble Supreme Court of India rendered in the case of State of West Bengal Vrs. Debebrata Tiwari, 2023 LilveLaw (SC) 175, as relied on by the learned Additional Government Advocate, in unequivocal words laid down that:

"In fine, the present appeals succeed on two counts: first, there was no policy existing to govern compassionate appointment to posts under local authorities in the State of West Bengal and hence, in the absence of such a policy, compassionate appointment cannot be granted; second, assuming that there was such a policy, it would be of no redeeming purpose to direct that the applications for appointment on compassionate ground be considered and decided several years after they are filed."

8.1. In the instant case, both the conditions are absent. As regards first condition, it is not argued nor could be argued that there was "no policy". As stipulated in Rule 9(7) of the RA Rules, the application for consideration of employment of a member of the family of the Government servant who died in harness could be made within three years from the date of attaining the age of 18 years. In the present case, the petitioner, one of the members of the family, on attaining age of 18 years on 05.05.2013, made application in Form Annexure-A appended to the RA Rules on 22.08.2013. Since there is no delay attributable to the petitioner, it cannot be said that the application for consideration of appointment in the vacant post of "Chokidar" or in the alternative, any other post in Class IV suffers from delay and laches so

as to disentitle the petitioner to claim for consideration of compassionate appointment in view of Debabrata Tiwari (supra). Therefore, the case law relied upon by the learned Additional Government Advocate supports the instant petitioner on facts.

9. In the case of Malaya Nanda Sethy Vrs. State of Odisha, AIR SC 2836 = 2022 SCC OnLine SC 684, it has been observed that where the application for appointment under the RA Rules is not considered within six months, the same renders the object and purpose of the rules otiose. Taking into account Rule 2(b) of the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990, It is clearly stated therein by the Hon'ble Apex Court that "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". Sri Amiya Kumar Mishra, learned Additional Government Advocate repelling the contention of Sri Bhabani Shankar Rayaguru, learned Advocate for the petitioner would submit that no evidence was laid by Smt. Subagini Putel, the mother of the petitioner with regard to ill- health.

9.1. In this connection, apposite here to refer to following observation of this Court in the case of Sanjay Kumar Roula Vrs. Registrar of Cooperative Societies, Odisha,

Bhubaneswar and Another, W.P.(C) No.15825 of 2013, vide Judgment dated 10.01.2014:

"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 available to them 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."

9.2. To the similar effect is the case of Pabitra Mohan Palei Vrs. Registrar of Cooperative Societies, Odisha, Bhubaneswar and Another, 2014 SCC OnLine Ori 15 = 118 (2014) CLT 254 = 2014 (I) OLR 777.

9.3. In the instant case, counter-affidavit to the rejoinder sworn to by the Joint Director, Soil Conservation (Level- II), Office of the Directorate of Soil Conservation &

Watershed Development, Odisha, Krishi Bhawan, Bhubaneswar has come to be filed on 26.10.2022, enclosing therewith Annexure-B/1, i.e., Letter of Smt. Subagini Putel addressed to Project Director, District Watershed Mission, Balangir, submitted on 16.03.2009, whereby the mother of the petitioner requested the authority concerned for consideration of compassionate appointment of her son on attaining age of majority. On specific query by this Court to the learned Additional Government Advocate, it is stated that no further communication was made to Smt. Subagini Putel thereafter in connection with said letter. Rather it is the stance of the Government at paragraph 3 of said counter-affidavit that,

"In between 2009 to 2014 Smt. Subagini Putel did not remind or physically appear before the Office of the Project Director, Watersheds, Bolangir as well as Director, Soil Conservation & Watershed Development, Odisha, Bhubaneswar in order to redress her grievance. But cunningly when his son attended the age of majority i.e. 18 years, she applied for consideration of the case of her son Sri Akash Putel under RA Scheme."

9.4. Such an attitude of the Government is not only contrary to what has been stated in Sanjay Kumar Roula (supra) but also in sharp contrast to the recommendation of Commissioner-cum-Director of Watershed Mission, Odisha, Bhubaneswar vide Letter No.5M(VI)15/2015-- 1464, dated 29.02.2016 wherein it has been stated thus:

"*** Further, it is to intimate that after death of the husband of Smt. Subagini Putel on dated 03.07.2008, she submitted an application on 16.03.2009 to consider appointment of her son Sri Akash Putel after becoming major instead of her under RA Scheme. After becoming major, Sri Akash Putel, son of Late Gelha Kumar Putel, Ex Peon has submitted an application on 22.08.2013 for appointment under RA Scheme. Delay in more than 5 years for submission of application has been made by the applicant Sri Akash Putel. As per OCS (RA) Amendment Rule 2010 issued vide GA Department Notification No.16668/GA, dated 25.08.2010 the same may be condoned in this case.

In view of the above, Government may be pleased to consider this case and accord administrative approval for appointment under Rehabilitation Assistance Scheme against the vacant post of Choukidar or any Class IV post."

9.5. This Court finds that the approach of the petitioner was in conformity with the statutory requirement, rather it is unfortunate that the authority concerned has blown hot and cold in the same breath. The stand of the Joint Director in the counter dated 26.10.2022, is, therefore, deprecated. Thus, this Court is constrained to observe that the action of the authorities is not above reproach.

9.6. The learned Odisha Administrative Tribunal appears to have ignored to glance at Rule 8 of the RA Rules which deals with "Mode of appointment". Clause (d) of sub-rule (1) thereof, envisages "the appointing authority, upon receipt of the report, shall consider the same and in case of favourable report, appoint the applicant in a suitable

available vacancy under his control". The contents of Letter No.5M(VI)15/2015-- 1464, dated 29.02.2016 clearly shows that there was vacancy in the post of "Choukidar" and there was positive report in favour of the petitioner with suggestion for approval of the competent authority in the Government "for appointment under Rehabilitation Assistance Scheme".

10. This Court would wish to consider the fact that Smt. Subagini Putel, the mother of the petitioner, being declared by the Medical Board as medically unfit to undertake job, there is no prohibition for the petitioner, son of the Government servant died in harness, to apply for consideration of "rehabilitation assistance", though he fell in second in order of preference as enumerated in Rule 2(b) of the RA Rules. This Court, while taking notice of State of Haryana Vrs. Ankur Gupta, (2003) 7 SCC 704 = AIR 2003 SC 3797 that the compassionate appointment cannot be made de hors any statutory policy, recognized existence of statutory policy to extend benefit of "rehabilitation assistance" as per Rule 2(e) read with Rule 3 of the RA Rules to the "son" who appears at the second in the order of preference in Rule 2(b) ibid., vide Judgment dated 05.07.2017 in W.P.(C) 9036 of 2016 : Bibhuti Bhusan Patnaik Vrs. State of Odisha and Others, reported at 2017 (II) ILR-CUT 896.

The observation of this Court in the said reported case runs as follows:

"11. In the instant case, the husband 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 Annexure-15 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.

12. 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 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."

10.1. In an identical fact-situation, dismissing writ petition, being W.P.(C) No. 4239 of 2018 : State of Odisha Vrs. Kartika Bhoi, vide Order dated 25.04.2018, this Court was pleased to make the following observation:

"In view of the above, it does not mean that in case the person who is coming under 1st preference and was medically declared unfit for such appointment or is found not suitable, then automatically the other members in the order of preference will be extinguished from the zone of consideration.

Rule 2(b) of 1990 Rules does not debar the family member placed in the 2nd preference to get the appointment in case the member placed in the 1st preference is unfit medically. The Tribunal has quashed the rejection order as it was illegal and arbitrary one and held that the ground of rejection to the effect that it contravenes Rule 2(b) of the 1990 Rules is not at all sustainable. In view of such finding of the Tribunal, we are not inclined to interfere with the same, since there is no error apparent on the face of it."

10.2. To the similar effect is the case of State of Odisha & Others Vrs. Biranchi Nayak, W.P.(C) No. 33872 of 2020, wherein vide Order dated 28.10.2021, this Court taking cognizance of definition of "Family Members" contained in Rule 2(b) of the RA Rules, observed as follows:

"8. Having heard learned Additional Government Advocate and Mr. P.K. Mishra, learned counsel appearing for Opp. Party, we fail to understand in what way, the order of the learned Tribunal has come to prejudice a welfare State, which should look after the well-being of all sundry. Here, there is clear intention on the part of the other family members,

namely, mother, brothers and sister of Opp. Party for compassionate appointment of Opposite Party in place of his deceased father. They must have expressed such intention on the trust, faith and belief that the Opposite Party, being appointed in place of his deceased father, shall revive the family from destitution."

10.3. In Ajit Kumar Barik Vrs. State of Odisha, 2018 (II) OLR 10, this Court allowed writ petition by taking into consideration the subsequent development of health condition of the wife of the deceased employee who died while working, observed as follows:

"7. Of course the first preference is to be given (to) wife/husband of the deceased employee then son and unmarried daughter. However, nowhere it was stated that in the case a family member in order of preference in the hierarchy is unfit and a medical certificate furnished to that effect, claim shall not be considered for engagement of the other eligible members in case of distress condition of the family. Therefore, the finding given by the Tribunal in the impugned order that she is not prepared to accept Group-D post and offered it to her son in ignoring the material on records is not sustainable.

8. Rule 9(7) of the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990 referred to a ward who is minor at the time of death of a Government servant. The case of the applicant is not covered under the said provision. In the present case, due to delay and laches on the part of the Collector to issue distress certificate after 13 years from the date of when the Registrar, Odisha Administrative Tribunal vide his letter dated 26.12.2002 forwarded the application for enquiry into the distress condition of the family as required under Rule 8(1)(b) of the Rules. The

appointment letter was issued in favour of widow of the deceased employee in the year 2016. However, she was not fit to discharge the duties which was not disputed by the parties. As such the impugned order is an error apparent on the record. Accordingly, we set aside the impugned order dated 17.11.2017 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.375(C) of 2016 and direct the opposite party No.2 to issue appointment order in favour of the petitioner within a period of two months from today."

10.4. Aforesaid Judgment in Ajit Kumar Barik, was carried to the Hon'ble Supreme Court in S.L.P.(C) Diary No(s).35835/2018 by the Government of Odisha, which came to be disposed of vide Order dated 26.10.2018:

"Delay condoned.

We find no reason to entertain this special leave petition, which is, accordingly, dismissed.

Pending application (s), if any, shall stand disposed of."

10.5. Subscribing to the reasoning as assigned on earlier occasions, it is, hence, felt necessary to issue writ of certiorari by quashing the impugned Order dated 25.02.2019 of the learned Odisha Administrative Tribunal, Bhubaneswar.

11. This Court in the case of Prem Sagar Naik Vrs. State of Odisha, W.P.(C) No. 18981 of 2016, vide Judgment dated 21.08.2017 reported at 2017 (II) ILR-CUT 826, while considering whether second son could be considered for

employment under the RA Rules in terms of Rule 2(b), held as follows:

"A plain reading of the aforesaid provision reveals that Rehabilitation Assistance to the family members, who are eligible for appointment under Rehabilitation Assistance Scheme, should be provided in order of preference as indicated above. Thus, a plain reading of the provisions means that a person who is entitled to any appointment under the Rehabilitation Assistance Scheme, the authority has to see if the spouse of the deceased employee is alive and intends to avail the benefit under the Rehabilitation Assistance Scheme. If he/she is ineligible for over age, ailment or cannot be given appointment under the Rehabilitation Assistance Scheme, as per the scheme, the second preference will be given to the sons. The Rules do not provide that a younger son should not be treated in a preferential manner and the elder son should be given appointment. There is no provision in the said Rules that while considering the second category of persons, the elder son should be given appointment and the younger son cannot be appointed. However, the State government has devised an expression namely "transferable right" and has taken a stand that since the spouse of the deceased is alive, elder son is living there, right cannot be transferred in favour of the petitioner. The decision taken by the opposite parties 1 and 2 is illegal and contrary to the basic scheme of the aforesaid Rules."

11.1. Taking cue from aforesaid Judgment of this Court, the contention of the learned Additional Government Advocate that the Government was competent to reject the representation of the mother of the petitioner requesting the authority to consider the case for compassionate appointment on the petitioner attaining age of majority in terms of Rule 9(7) of the RA Rules is

rejected and as a consequence, it is, therefore, held that the case of the petitioner has not been considered by the authority vide Annexure-5 in proper perspective. In such view of the matter, the impugned Order of the learned Odisha Administrative Tribunal vide Annexure-6 sustaining such decision of the Government cannot be countenanced in law.

DECISION AND CONCLUSION:

12. For the discussions made above and the reasons stated supra, taking note of governing principles of compassionate appointment laid down in N.C. Santhosh Vrs. State of Karnataka, (2020) 7 SCC 617 and State of H.P. Vrs. Shashi Kumar, (2019) 3 SCC 653 to the effect that "appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule", the present petitioner, son of deceased Government employee, is found eligible by virtue of the policy for compassionate appointment vide Rule 9(7) of the RA Rules, 1990, and fulfils the norms held out in the State's policy which is framed in exercise of powers conferred by proviso to Article 309 of the Constitution of India. Thus, the petitioner can demand consideration of his application as per the extant rules.

12.1. It can, thus, be deduced that the petitioner on attaining age of majority on 05.05.2013, sought for consideration of his application for compassionate appointment having filed the same within the period stipulated under Rule 9(7) of the RA Rules and he, being second in the order of preference as per Rule 2(b), was not prohibited/restricted in demanding consideration of such application. The application filed for consideration of compassionate appointment by the petitioner was not hit by limitation. Any other interpretation of Rule 9(7) of the RA Rules would render such provision unworkable, stale and otiose.

13. The learned Odisha Administrative Tribunal rejected the Original Application on the following grounds:

i. the petitioner was not the "alone" ward available at the time of death of the deceased Government employee;

ii. the rehabilitation assistance being meant for providing immediate succour to the bereaved family on account of sudden death of the bread earner, the application dated 22.08.2013 was submitted beyond five years from the date of death, i.e., 03.07.2008.

13.1. On conspectus of discussions in the foregoing paragraphs, it is to hold that both the cited reasons

cannot be countenanced inasmuch as Smt. Subagini Putel, the mother of the petitioner, being declared medically unfit to undertake job, he was the "alone" ward available in the family for employment as per Rule 9(7) and applied for consideration of his employment on compassion in terms of Rule 3 read with Rule 2(b) of the RA Rules. As held in Chandan Kumar Mania Vrs. State of Odisha, 2014 (II) OLR 233 that "it is not proper on the part of the State Government to simply throw away the application of the petitioner on technical ground", this Court is of the considered view that there was no foundational fact for the Odisha Administrative Tribunal to say that the application submitted by the petitioner was liable to be rejected on the ground of delay.

14. To sum up, it can be culled out that it is well-settled, in a catena of decisions that the scheme of compassionate appointment is to tide over the financial constraint of the family and that the person seeking for employment assistance should make an application to the competent authority within reasonable period from the date of death of the employee, subject to satisfying the eligibility criteria, for the post to which he seeks for. Reference may be had to Steel Authority of India Limited Vrs. Madhusudan Das, (2008) 15 SCC 560. The objective of the scheme for rehabilitation assistance as mentioned above can be traced out in Rule 3 read with Rule 4 of

the RA Rules. However, in RA Rules by virtue of Rule 9(7), the eligibility of the son, who was minor at the time of death of his father, to make application for consideration of rehabilitation assistance has been deferred till he attains age of eighteen years subject to rider that such application is to be filed not "beyond three years from the date of attaining the age of eighteen years."

15. Having held that the reasons assigned by the Odisha Administrative Tribunal being contrary to the policy of the Government as envisaged under the RA Rules in respect of compassionate appointment on account of death of Government employee in harness, there is no option but to consider the prayer of the counsel for the petitioner in the light of the decision of this Court in the case of Chandan Kumar Mania Vrs. State of Odisha, 2014 (II) OLR 233. It is not in dispute that the particulars required to be submitted by the petitioner contained in Rule 8 have been complied with and there is favourable report with availability of vacancy. This Court is satisfied that the case of the petitioner has not been considered in proper perspective neither by the competent authority in the Government nor by the Odisha Administrative Tribunal, Bhubaneswar.

ORDER AND DIRECTION:

16. As a consequence of above observation, in exercise of power under Article 226/227 of the Constitution of India, this Court is inclined to issue writ by setting aside the Order dated 25.02.2019 passed by the Odisha Administrative Tribunal, Bhubaneswar in Original Application No. 1001 of 2017 (Annexure-6) and quashing the Order of rejection of application for consideration of appointment under the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990, as communicated to the petitioner vide Letter bearing No.AGR-SCFE-FE-0015-2016-- 16691/Ag., dated 05.10.2016 (Annexure-5). Accordingly, the Order dated 25.02.2019 (Annexure-6) is set aside and the Order of rejection of application of the petitioner communicated vide Letter dated 05.10.2016 (Annexure-5) is quashed.

17. As a sequel to the above observation, the writ petition succeeds and the opposite party No.1, viz., Principal Secretary to Government of Odisha in the Department of Agriculture & Farmers' Empowerment, is directed to reconsider the application of the petitioner for compassionate appointment in consonance with the provisions of the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990, within a period of three months from the date of communication of this Judgment, taking into account favourable recommendation made by the Commissioner-cum-Director, Watershed Mission,

Odisha, Bhubaneswar, (opposite party No.2) and keeping in mind avowed objective and purpose of the RA Rules with reference to the decisions referred to above.

18. The writ petition stands disposed of with the aforesaid observation and direction, but, in the circumstances, with no order as to costs.

                                               (MURAHARI SRI RAMAN)
                                                     JUDGE


DR. B.R. SARANGI, J.                I agree.

                                                 (DR. B.R. SARANGI)
                                                       JUDGE


        Orissa High Court, Cuttack
        The 27th April, 2023, Laxmikant/MRS