Satyabhama Biswal vs State Of Odisha And Another
2023 Latest Caselaw 12939 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                          W.P.(C) No. 30579 of 2023

      Applications under Articles 226 & 227 of Constitution of
      India.
                                     ---------------
      Satyabhama Biswal                                .......     Petitioner

                                      - Versus -

      State of Odisha and another                      .......   Opp. Parties
      Advocate(s) appeared in this case:-
      _________________________________________________________
        For Petitioners      : M/s. B.C. Panda, S. Mishra, J. N. Panda
                              & A. Tripathy, Advocates

         For Opp. Parties : Mr. Saswat Das,
                            Addl. Government Advocate
      _________________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA

                               JUDGMENT

th 18 October, 2023

SASHIKANTA MISHRA, J.

The petitioner has filed this writ application with the

following prayer;

"It is therefore prayed that, this Hon'ble Court may graciously be pleased to admit this writ petition, issue notice to the Opposite Parties and after hearing the counsels for the parties be pleased to set aside the order dated 23.08.2023 vide Memo No. 2357 under Annexure-1 passed by the Opp.Party No.2, the Collector, Puri in the interest of Justice.

And further be pleased to direct the Opposite Party No.2 to give her appointment in view of the

judgment dtd. 15.09.2022 passed in W.P.(C) No. 14945 of 2015 (Khirabdhi Bala Behera).

And or pass any other order/orders, direction/directions as deem fit and proper in the facts and circumstances of the case."

2. The facts of the case are that the petitioner is the son

of one Michhu Biswal, who was serving as a peon in the office

of the Collector, Puri (opposite party No.2). After serving for

32 years and 6 months said Michhu Biswal died on

17.06.2016 in harness. He left behind his widow and two

married daughters, Satyabhama (petitioner) and Tilotama as

his legal heirs. After his death, the petitioner being the elder

daughter submitted an application on 07.03.2017 before the

Collector for appointment under the Rehabilitation

Assistance Scheme. At that time, the widow of the deceased

Government Servant had crossed the age of 50 years and was

also suffering from various ailments and therefore, not in a

position to take up government service. The younger

daughter, Tilotama having married, was residing outside

Odisha. The widow was residing with Satyabhama, who was

taking all care of her. The widow submitted a no objection

certificate in the form on an affidavit sworn before the Notary

Public, Puri regarding appointment of the petitioner. The

application of the petitioner was not considered for a long

time and on 08.03.2018, on an application being submitted

under the RTI Act by the petitioner's husband, the Deputy

Collector, Puri informed that she is not eligible for

appointment as she does not come within the definition of

'family members' of the deceased. The petitioner challenged

such rejection of her application before the erstwhile Odisha

Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.

1308 (C) of 2018, which was transferred to this Court and

registered as W.P.(C) No. 1308 of 2018. The said writ petition

was disposed of vide order dated 15.09.2022 in terms of the

judgment passed by a Division Bench of this Court in

Kshirabadhi Bala Behera vs. Orissa Administrative

Tribunal and others (W.P.(C) No. 14945 of 2015 decided on

24.08.2022). The petitioner submitted a representation along

with the order of this Court to the opposite party No.2 on

11.11.2022 but the same was rejected by opposite party No.2

on the ground that her case is not similar to the case of

Kshirabadhi Bala Behera (supra) as she had already married

prior to death of her father. The petitioner challenged such

rejection of her representation before this Court in W.P.(C)

No. 3452 of 2023. By order dated 11.01.2023, this Court held

that the relevant provision of the Orissa Civil Service

(Rehabilitation Assistance) Rules, 1990 ( in short '1990

Rules') having been declared ultra vires by this Court, the

Collector could not have rejected the representation by

referring to the said provision. The order of rejection was

thus, quashed and the matter was remanded to the Collector

to consider the representation afresh keeping in view the

judgment in Kshirabadhi Bala Behera (supra). Accordingly,

the petitioner again approached the Collector on 20.03.2023.

Since the representation was not considered, the petitioner

filed a contempt application being CONTC No. 4789 of 2023,

which was disposed of on 28.07.2023 with a direction to

comply with the order within two months. Again, by order

dated 23.08.2023, the Collector rejected the application of

the petitioner on the ground that para-2(b) of the 1990 Rules

does not envisage rehabilitation assistance of a married

daughter and that the case of Kshirabadhi Bala Behera

(supra) has no application to the case at hand. The order of

the Collector as above is enclosed as Annexure-1 to the writ

petition and is impugned.

3. In view of the undisputed facts of the case no

counter affidavit was filed by the opposite parties but learned

State Counsel preferred to make oral and written

submissions.

4. Heard M. B.C. Panda, learned counsel for the

petitioner and Mr. S. Das, learned Addl. Government

advocate for the State.

5. Mr. Panda would argue that the Collector has no

authority to interpret the judgment passed by this Court

especially when the direction is clear and unambiguous.

Moreover, the relevant provision having been declared ultra

vires, the Collector could not have relied upon the same to

reject the application of the petitioner. It is well settled that

there can be no distinction between a married and unmarried

daughter for rehabilitation appointment. The decision of the

Collector cannot therefore, be sustained in the eye of law.

6. Per contra, Mr. S. Das would argue that the sole

purpose of compassionate appointment is to help the family

of a deceased government servant in distress following the

untimely death of the earning member to tide over the crisis.

As such, it is necessary that the applicant for compassionate

appointment must be shown to be dependent on the earnings

of the deceased government servant. Unless the dependency

of the applicant on the earnings of the deceased government

servant is proved, he/she cannot be held entitled to

compassionate appointment. Mr. Das has relied upon some

case laws of the Supreme Court, which will be discussed at

the appropriate place.

7. As already stated, the facts involved are not

disputed. Perusal of the impugned order reveals that the

application of the petitioner was rejected on two grounds- (i)

her case is not similar to the case of Kshirabadhi Bala

Behera (supra) as she had already married before the death

of the deceased government servant, whereas Kshirabadhi

Bala Behera (supra) had married after submitting application

for appointment; and (ii) the provision under para-2(b) of the

1990 Rules does not envisage the appointment of a married

daughter under Rehabilitation Assistance Scheme.

8. The second ground as above is taken up for

consideration at the outset. In the case of Kshirabadhi Bala

Behera (supra) a Division Bench of this Court examined the

entitlement of a married daughter in light of the provision to

ultimately hold that the word 'unmarried' occurring in Rule-

2(b) of the 1990 Rules is arbitrary and violative of the

Constitutional guarantees envisaged under Articles 14, 15

and 16 of the Constitution of India. Accordingly, it was

struck down as ultra vires. In the judgment so passed, the

Division Bench after referring to several judgments of the

Apex Court as well as other High Courts of the country held

that a married daughter cannot be excluded from

compassionate appointment. It is stated at the bar that the

judgment rendered in Kshirabadhi Bala Behera (supra) has

not been challenged in the higher forum and has attained

finality. It is trite law that when a superior Court like High

Court or Supreme Court passes a judgment, the same is

binding on all other authorities and functionaries and that it

is no longer open to them to take any contrary view thereto.

Since a Division Bench of this Court has already declared the

word 'unmarried' occurring in para-2(b) of the 1990 Rules,

ultra vires the Constitution, the Collector has no power or

authority to reinterpret the same in any manner whatsoever.

Perusal of the impugned order would suggest as if the

Collector was sitting in appeal over the order passed by this

Court, directing him to consider representation in light of the

judgment passed by the Division Bench. So after examining

the matter, the Collector could have determined the judgment

in Division Bench applicable to the present facts or not. The

Collector has however, gone a step further to again interpret

the provision under Para 2(b) of the 1990 Rules, which had

already been interpreted by the Division Bench. Obviously,

the Collector cannot take a contrary view than the High

Court on any particular issue. In such view of the matter, the

ground of rejection as above is unsustainable in the eye of

law.

9. As regards the first ground that the case of

Kshirabadhi Bala Behera (supra) is not similar to that of the

petitioner, this Court finds the reasoning adopted by the

Collector is fallacious because even in Kshirabadhi Bala

Behera (supra), by the time she was held eligible for

appointment she had already married. So merely because she

was unmarried at the time of submission of application,

cannot change her status to an unmarried daughter when

she was actually given appointment. In so far as the

petitioner is concerned, she was admittedly married even

before the death of the deceased government servant. So by

the time she is given appointment, her status would not

undergo any change, which would be identical to the status

of Kshirabadhi Bala Behera at the time the latter was

actually appointed. This Court thus finds that both the

grounds cited by the Collector to reject the application of the

petitioner unsustainable in the eye of law.

10. Mr. Das has additionally argued that even assuming

that a married daughter can seek compassionate

appointment she has to further prove her dependency.

According to Mr. Das, since the petitioner was married even

before the death of the deceased Government servant, she

cannot be treated as a dependant for the purpose of

compassionate appointment. This Court is unable to accept

the contention as above for two reasons, - firstly, such a

ground was never taken by the competent authority

(Collector) in the impugned order and hence it is

impermissible to take the same at this stage. Secondly, even

assuming that the question of dependency can be raised in

the instant case, it is seen that the petitioner has specifically

pleaded that even after her marriage she is residing in her

matrimonial home and more importantly, is taking care of

her widowed mother. It is a very significant averment that

has not been rebutted in any manner whatsoever. In other

words, there is no finding that the petitioner was not

dependant on her deceased father despite her marriage. The

argument of Mr. Das must therefore, fail. As to the decisions

cited by Mr. Das, this Court finds both the cases not

applicable to the facts of the present case inasmuch as in

Director of Treasuries in Karnataka vs. V. Somyashree,

reported in (2021) 12 SCC 20, the question for consideration

before the Court was whether a divorced daughter could be

included within the meaning of unmarried daughter as

occurring in the relevant rules. Such is not the case at hand.

11. In the case of State of Maharashtra & another Vs.

Ms. Madhuri Maruti Vidhate (Since after marriage Smt.

Madhuri Santosh Koli), reported in 2022 (4) SCT 29 : 2022

LiveLaw(SC) 820 the Government servant died in harness

and his widow was appointed on compassionate ground. She

too died in harness. Her elder daughter sought appointment

under compassionate appointment, which was rejected on

the ground that she is a married daughter. Seven years

thereafter, the younger married daughter submitted an

application. It is on the above peculiar facts that the Apex

Court held that compassionate appointment would not be

given as the applicant could not be said to be dependent on

the deceased employee, i.e. her mother as also on the ground

that number of years have passed from the death of the

deceased employee. In the instant case, however, the Division

Bench of this Court has already struck down the relevant

provision in the Rules so as to include a married daughter

within the meaning of family members of the deceased

government servant.

12. Thus, from a conspectus of the analysis of facts and

law as discussed above, this Court is of the considered view

that the impugned order under Annexure-1 cannot be

sustained in the eye of law and hence, warrants interference.

13. Resultantly, the writ petition is allowed. The

impugned order under Annexure-1 is hereby quashed. The

opposite party No.1 is directed to issue necessary order of

appointment in favour of the petitioner, if she is otherwise

found eligible as per the provisions of the 1990 Rules within

a period of two months from the date of submission of

certified copy of this order.

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

Sashikanta Mishra, Judge Orissa High Court, Cuttack.

The 18th October, 2023/ A.K. Rana, P.A.

Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication

Date: 18-Oct-2023 20:25:48