Orissa High Court

Afr Dayasagar Nayak vs State Of Odisha And Another on 18 October, 2023

               N THE HIGH COURT OF ORISSA AT CUTTACK


                          W.P.(C). No. 29161 of 2023

       (An application under Article 226 & 227 of the Constitution of
       India)
                                  ---------------

AFR    Dayasagar Nayak                              ...... Petitioner

                             -Versus-

       State of Odisha and another        ....      Opposite Parties

       Advocate(s) appeared in this case:-
       _______________________________________________________

         For Petitioner      :     M/S. G.Sahu,
                                   P.Sahu, Advocates.
          For Opp. Parties :       Mr. S.Das
                                   Additional Government Advocate
                                   for the State.
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                                 JUDGMENT

18th October, 2023

SASHIKANTA MISHRA, J.

The petitioner has filed this writ petition being aggrieved

by order dated 23.03.2022 (signed on 17.03.2022) passed by

Chief District Veterinary Officer, Sambalpur (opposite party

No. 2) in holding him ineligible for appointment under the

Rehabilitation Assistance Scheme.

2. The facts of the case are that the petitioner's

father was working as Veterinary Trainer (VT) under Sub-

divisional Veterinary Officer, Kuchinda (opposite Party No. 3)

and died in harness on 03.11.2014. He left behind his widow,

a daughter and a son (petitioner). A family being plunged in

financial distress upon death of its only earning member, the

widow wanted to apply for appointment under the

Rehabilitation Assistance Scheme but in a Medical Board

conducted by the CDMO, Sambalpur on 04.03.2015, she was

declared unfit to join in Government Job as she was suffering

from DM and HTN with CKD. The petitioner therefore,

applied before the Opposite Party No. 3 for appointment

under the Rehabilitation Assistance Scheme which was

forwarded to the Director of Animal Husbandry and

Veterinary Services (Opposite Party No.1) on 11.03.2015. Be

it noted that the petitioner's mother and sister also submitted

affidavit stating that they had no objection to the

appointment of the petitioner under Rehabilitation Assistance

Scheme. On 30.12.2017, the Opposite Party No. 3 issued a

letter to Opposite Party No. 2 forwarding the relevant

documents of the petitioners. Again on 28.08.2018, Opposite

Party No. 3 resubmitted the documents to Opposite Party No.

2. On 06.11.2018, Opposite Party No. 2 called upon Opposite

Party No. 3 to submit certain documents for finalisation of

the matter. Pursuant to such letter, Opposite Party No. 3

resubmitted the entire documents to Opposite Party No. 2

along with letter dated 26.02.2019. On 12.06.2020, the

Opposite Party No. 2 wrote to the petitioner asking him to

resubmit his application along with necessary documents.

The petitioner submitted the necessary documents by letter

dated 07.01.2021. Ultimately by order dated 23.03.2022, the

Opposite Party No. 2 rejected the application of the petitioner

by holding that he had not secured the required points for

being eligible for such appointment. Said order is enclosed as

Annexure-13 to the writ petition and is impugned.

3. Heard Mr. G. Sahu, learned counsel for the

petitioner and Mr. S. Das, learned Additional Government

Advocate for the State.

4. Mr. Sahu would argue that the Opposite Party

authorities are guilty of gross delay in considering the

application of the petitioner and in the process frustrated the

chance of the petitioner for being appointed under the

OCS(Rehabilitation Assistance) Rules, 1990. Mr. Sahu,

further argues that the petitioner cannot be blamed for the

delay. If his application had been considered promptly at the

relevant time, he would have secured a Class-III post in view

of the qualification possessed by him. However, the

authorities despite being guilty of gross delay and latches

have denied the benefit to him by considering his case under

the OCS(Rehabilitation Assistance) Rules, 2020. Mr. Sahu

has cited the decision of the Supreme Court in the case of

Malayananda Sethy vs. State of Odisha & Others reported

in (2022)2 OLR 1 (SC) in support of his contentions.

5. Per contra, Mr. Das, learned State counsel submits

that delay cannot be a ground to ignore the prevailing rule

since it is specifically laid down in the new Rules that all

existing applications are to be considered under the said

Rules. The petitioner's application could not therefore, have

been considered under the old Rules. Moreover, the petitioner

himself caused delay in submitting the required documents.

Mr. Das also argues that the object of appointment under the

Rehabilitation Assistance Scheme is to prevent a distressed

family from immediate distress. In the instant case, however,

the immediate distress is no longer in existence in view of the

lapse of so many years since death of the Government

Servant.

6. The facts of the case are not disputed inasmuch as

the petitioner's father died on 03.11.2014 and his mother

was declared unfit for Government Job. The petitioner

applied before expiry of one year from the death of his father.

It appears from the documents enclosed to the writ

application that there was several correspondence between

Opposite Party No. 3 and Opposite Party No. 2 in this regard

whereby the application and relevant documents relating to

the petitioners have been submitted on multiple occasions.

The application appears to have caught the attention of the

Opposite Party No. 1 only in June, 2020. There is no

explanation whatsoever as to why the application was kept

pending for more than 5 years and taken up for

consideration at a time when the new Rules had come into

force. This Court is reminded of the oft quoted principle that

'delay defeats justice'. This is a case, where the family of

deceased Government servant, which was obviously thrown

to the distress because of his premature death did not receive

the required succour from the Government as contemplated

as under the OCS (Rehabilitation Assistance) Rules, 1990.

Thus, by sitting over the application for no justified reason,

for as long as 5 years, the authorities have simply turned a

deaf ear to the repeated entrities of the family. Though, it has

been argued that delay has robbed the case of its immediacy,

this Court is not impressed particularly when the delay is on

account of the authorities themselves and the petitioner is

not to be blamed. In almost a similar case, the Supreme

Court in Malayananda Sethy (supra) held as follows:

14. 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 appellant 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 the opinion that the appellant herein shall not be denied appointment under the 1990 Rules.

15. In view of the above discussion and for the reasons stated 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 appellant shall be entitled to all the benefits from the date of his appointment only. The present appeal is accordingly allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.

16. Before parting with the present order, we are constrained to observe that considering the object and purpose of appointment 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 immediacy 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."

7. Having regard to the peculiar facts and

circumstances, this Court finds that the principle

underlying the judgment rendered in Malayananda

Sethy (supra) would be squarely applicable to the

present case.

8. For the foregoing reasons therefore, the writ

petition is allowed. The impugned order under Annexure-

13 is hereby quashed. The opposite party authorities are

directed to reconsider the application of the petitioner for

appointment under the Rehabilitation Assistance Scheme

as per the 1990 Rules. Since the Government servant died

way back in the year 2014, the authorities shall do well to