Milan Kumar Patro vs State Of Odisha And Others
2023 Latest Caselaw 12942 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK
                      W.P.(C) No. 19335 of 2023

      Applications under Articles 226 & 227 of Constitution of
      India.
                                   ---------------
      Milan Kumar Patro                              .......     Petitioner

                            - Versus -

      State of Odisha and others                     .......   Opp. Parties
      Advocate(s) appeared in this case:-
      _________________________________________________________
        For Petitioner      : M/s. D.N. Rath & A.K. Saa,
                            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;

"Under the above circumstance, it is therefore humbly prayed that this Hon'ble Court may be graciously pleased to issue a writ in the nature of writ of mandamus or any other appropriate writ, direction or order by quashing the letter dated 09.07.2021 passed by the opposite party no.2 under Annexure-6 to the writ petition.

And this Hon'ble Court be further pleased to direct the opposite parties, more particularly the opposite parties 2 and 3 to issue appointment order to the petitioner under the Rehabilitation Assistance Scheme, as per the rule that was in force at the time of death of the deceased government employee, i.e. Odisha Civil Service (Rehabilitation Assistance) Rules, 1990, as amended in the year 2016, befitting to his educational qualification in terms of the ratio decided in the case of Malaya Nanda Sethi (supra) within a stipulated period.

And this Hon'ble Court be pleased to pass any further order/ orders, direction/ directions as this Hon'ble Court deems fit and proper in the facts and circumstances of the case.

And for this act of kindness, as in duty bound, the petitioner shall ever pray."

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

father late Basudev Patro was working as a Literate Peon in

the office of Sub-Collector, Bhanjanagar (Opp.Party No. 3)

having been appointed on 16.02.1989. He died in harness

on 15.03.2019 leaving behind his wife and only son, the

petitioner, as his only legal heirs. The family was plunged

into serious crisis because of death of the only earning

member. The petitioner having a degree in Civil

Engineering applied for appointment under the

Rehabilitation Assistance Scheme of the Government to the

Opp. Party No. 3 on 18.11.2019. Said application was

forwarded by Opp. Party No. 3 to the Collector, Ganjam

vide letter dated 02.12.2019 for necessary action.

Pursuant to such communication the Addl. District

Magistrate, Ganjam asked the Tahasildar, Bhanjanagar on

03.01.2020 to submit the information in the prescribed

format. Subsequently, the Deputy Collector (Estt.), Ganjam

informed the Opp.Party No. 3 by letter dated 09.07.2021

that he is returning the application of the petitioner on the

ground that he does not come under the purview of Rule

6(2)/(d) of the Odisha Civil Service (Rehabilitation

Assistance) Rules, 2020 (in short "2020 Rules") and to

dispose of the application accordingly. The said letter,

enclosed as Annexure-6 is impugned.

3. Heard Mr. D.N. Rath, learned counsel for the

petitioner and Mr. Saswat Das, learned Addl. Government

Advocate for the State.

4. It is forcefully argued by Mr. Rath that the

petitioner cannot be blamed for the delay caused by the

authorities in dealing with his application. He had applied

well within the stipulated period along with all necessary

documents and therefore, his application ought to have

been considered in terms of the prevailing Rules. But by

delaying the processing of the application and in ultimately

rejecting his application citing provisions of the new Rules,

the authorities must be held to have acted in an illegal and

unjust manner. Mr. Rath had relied upon the decision of

the Apex Court in the case of Malaya Nanda Sethy v.

State of Orissa, reported in 2022 SCC OnLine SC 684 to

buttress his contentions as above.

5. Mr. Saswat Das, on the other hand argues that

the petitioner‟s application was dealt with within a

reasonable time and it cannot be said that there was

inordinate delay in doing so. He further argues that the

ratio of Malaya Nanda Sethy (supra) does not apply to

the facts of the case inasmuch as in Malaya Nanda Sethy

the application for rehabilitation was kept pending for more

than three years and it is under such circumstances that

the Apex Court made the observations in question. Mr Das

would further argue that as per Rule 6(9) of the 2020

Rules, all pending applications as on the date of coming

into force of the said Rules shall be dealt with as per its

provisions. Said provision has not been invalidated by the

Apex Court in Malaya Nanda Sethy.

6. The facts of the case are not disputed inasmuch

as the petitioner‟s father having died in harness, he applied

for appointment under the Rehabilitation Assistance

Scheme on 18.11.2019. At that time the Odisha Civil

Service (Rehabilitation Assistance) Rules, 1990 (in short

„1990 Rules‟) as amended in 2016 was in force. The 2020

Rules came into effect from 1st February 2020. By such

time, the petitioner‟s application was pending. Rule 6(9) of

the said Rules provides that all applications seeking

rehabilitation appointment pending as on the date of

coming into force of the new Rules shall be dealt with as

per its provisions. So, ordinarily, the petitioner‟s

application being considered and rejected in terms of the

2020 Rules cannot be treated as illegal in any manner. But

then, it must be considered that the application was meant

for rehabilitation appointment, which is an exception to the

normal mode of appointment, and is intended to provide

succor to a family of a deceased Govt. servant which has

fallen into distress because of his untimely death. So, by its

very nature, it is imperative that an application for

rehabilitation appointment is considered with all

promptitude and diligence as otherwise the very purpose of

framing the Rules would stand frustrated. The Govt.

cannot do both - frame a Rule intending to give immediate

benefit to the family of a deceased Govt. servant and yet,

deal with such applications at its own sweet will.

7. Coming to the argument advanced on behalf of

the State that the application of the petitioner was

considered within a reasonable time, this Court wanted the

State Counsel to come up with an answer as to what would

be construed as a reasonable time since the 2020 Rules

does not prescribe any period by which applications are to

be considered. There was no answer to this. The Apex

Court, in Malaya Nanda Sethy has observed that

ordinarily six months could be treated as a reasonable time

for consideration of an application by the authorities for

rehabilitation. The observation of the Apex Court is quoted

hereunder:

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."

8. The facts of the case may now be tested against

the above principle. As already stated, the petitioner

submitted his application on 18.11.2019 but the same was

kept pending till as long as 09.07.2021 on which date it

was rejected. There is nothing on record nor it is the case

of the Opposite party authorities that the period of more

than one and half years (20 months) that the application

remained with them was because of the petitioner either

not furnishing the required documents or any other

compliance. This delay, which is more than thrice the

period considered „reasonable‟ by the Apex Court in

Malaya Nanda Sethy has gone entirely unexplained.

9. Mr Das has made a last-ditch attempt by

submitting that delay, caused for whatever reason, has

nullified the immediacy of the need of appointment. Again,

this Court is not impressed. Because, this argument would

be valid if the delay is at the end of the applicant.

Obviously, the State having itself caused the delay, cannot

be permitted to rake up the issue of absence of immediacy,

more so when that itself is not a ground cited in the

impugned order of rejection.

10. Thus, from a conspectus of the analysis and

discussion made above, this Court is of the considered view

that notwithstanding the provision under Rule 6(9) of the

2020 Rules, the petitioner‟s application ought to have been

considered under the 1990 Rules. To reiterate, had his

application been considered promptly or in any case within

six months of its submission, the aforesaid provision could

have been applied but in view of what has been discussed

in detail before, this Court is constrained to hold that

rejection of his application by applying the 2020 Rules is

unconscionable in law and therefore, warrants interference.

11. In the result, the writ application is allowed. The

impugned order under Annexure-6 is hereby quashed. The

Opp. Party authorities are directed to consider the

application of the petitioner afresh under the 1990 Rules

and if found eligible as per its provisions, to give him

appointment in any suitable post under the Govt.

Necessary order in this respect shall be passed within a

period of three months from the date of production of

certified copy of this order by the petitioner.

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

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