(In The Matter Of An Application ... vs State Of Odisha &
2023 Latest Caselaw 13411 Ori

IN THE HIGH COURT OF ORISSA AT CUTTACK

                 W.P.(C) No.5214 of 2021
    (In the matter of an application under Articles 226 and
227 of the Constitution of India.)
 Biswajit Swain                    .....              Petitioner

                              -Versus-

 State of Odisha &                .....         Opposite Parties

 Advocate(s) appeared in this case:-

    For Petitioner        :       Mr. Biswajit Parida.

     For Opp. Parties     :       Mr. Saswat Das,
                                  Additional Govt. Advocate


                                 AND
                   W.P.(C) No.27752 of 2022
Achyut Kumar Bhoi                        ....              Petitioner
                              -versus-
State of Odisha & Others                 ....    Opposite Parties




Advocate(s) appeared in this case:-
For Petitioner            :     Mr. Ranjit Samal.

For Opp. Parties          :     Mr. Arnav Behera,
                                Additional Standing Counsel
                                //2//



     And a batch of similar other Writ Applications bearing
     W.P.(C) Nos.5215 of 2021, 24887 of 2022, 26424 of 2022,
     27645 of 2022, 27753 of 2022, 28233 of 2022, 28240 of
     2022, 28349 of 2022, 28482 of 2022, 28852 of 2022,
     28999 of 2022, 29987 of 2022, 30393 of 2022, 30531 of
     2022, 30596 of 2022, 30957 of 2022, 31007 of 2022 &
     31193 of 2022.

                               .........


     CORAM:
     JUSTICE A.K. MOHAPATRA

                         JUDGMENT

Date of hearing :19.10.2023 : Date of judgment : 31.10.2023

A.K. Mohapatra, J.

1. The above noted batch of writ applications have been filed

by the petitioners named in such writ applications calling in

question either the inaction of the Opposite Parties in the matter

of appointment of the petitioners under the Odisha Civil Service

(Rehabilitation Assistance) Rules, 1990 or rejection of the

prayer of the petitioners by considering such applications under

the O.C.S. (R.A.) Rules, 2020. A prayer has been made for a

direction to the Opposite Parties to appointment the petitioners

w.e.f. the date of their respective fathers in consonance with the //3//

above noted Rules, 1990 on compassionate ground. Other than

the issue involved in the batch of writ applications which are

almost identical, the factual background of the almost all the

writ applications, to be dealt with by this court in the following

common judgment, are also strikingly similar. The above noted

batch of writ applications involve an identical issue/ question as

to which Rules i.e. O.C.S. (R.A.) Rules, 1990, which was in

force at the time of death of the deceased Government

employee, or the new rules i.e. Odisha Civil Service

(Rehabilitation Assistance) Rules, 2020 would apply to the facts

of their cases as the common factual background in all above

noted cases is that the deceased Government employees had

died prior to the new Rules, 2020 came into force and the

applications were also made by the petitioners-legal heirs much

prior to the new Rules, 2020 were notified in the Gazette by the

Government of Odisha.

2. On perusal of the pleadings on behalf of the petitioners in

all such cases, this Court is of the considered view that a //4//

dichotomy exists in various judicial pronouncements with

regard to applicability of the rules so far appointments on

compassionate ground in the State of Odisha is concerned that

is whether the Odisha Civil Service (Rehabilitation Assistance)

Rules, 1990 shall apply to the legal heirs of the deceased

Government employee where the Government employee has

died prior to the (Rehabilitation Assistance) Rules, 2020 came

into force or there cases for appointment on compassionate

ground shall be governed under the old Rules of the year 1990

as amended by the Amendment Rules of 2016.

3. For the sake of convenience and brevity, the factual

backdrop of the writ applications mentioned at the top of this

judgment are being taken up for consideration and analysis by

this Court. It is, however, made clear that most of the cases in

the present batch of writ applications involve a similar question

of law for determination. The determination of the question of

law shall, more or the less, govern connected batch of cases

involving identical question of law.

//5//

FACTS OF W.P.(C) No.5214 of 2021

The factual matrix of the present case as it stands;

4. The petitioner's late father Ganesh Kumar Swain, who

was a regular Government employee as a driver under Opposite

Party No. 1, died in harness on 04.07.2018 leaving behind a

wife, one married daughter, one unmarried daughter, and a son

Biswajit Swain, i.e. the present petitioner. After the death of the

father of the petitioner, who was the sole bread earner of the

family, the petitioner with consent of other legal heirs, filed an

application for appointment under the Rehabilitation Assistance

Scheme under Rule 8(i)(a) of the Orissa Civil Services

Rehabilitation Assistance Rules, on 22.04.2019 before opposite

party No. 2. Along with the application, the petitioner also

submitted all other necessary documents. The service book of

the late father of the petitioner, along with Death Certificate and

Legal Heir Certificate Copies have been attached to the writ

petition by the petitioner. After receiving the application from

the petitioner, the same was duly verified and such application //6//

was referred to the Opposite Party No.3 to enquire and furnish a

distress certificate regarding the financial condition of the

petitioner's family.

5. The learned counsel for the petitioner further submits that,

despite the completion of all procedures for the appointment

under Rehabilitation Assistance Scheme, the appointing

authority did not pass the order for appointment. The learned

counsel for the petitioner alleges mala fide intention on behalf

of the appointing authority in light of the above mentioned

pendency regarding granting appointment under rehabilitation

assistance scheme.

6. Furthermore, the learned counsel for the petitioner,

submits that, while the above mentioned application was

pending, the Government amended some of the provisions of

the Orissa Civil Services (Rehabilitation Assistance) Rules,

2020 (herein after referred to as the '2020 Rules') vide

notification no. 5651 dated 17.02.2020. Learned counsel for the

petitioner submits that the opposite party no.2 following the //7//

above amendment, has rejected the application of the petitioner

for appointment under the 2020 Rules, vide letter No. 4011

dated 17.12.2020. It is this impugned rejection order which is

under challenge in the present writ application.

7. As to the grounds of rejection, the learned counsel for the

petitioner submits that the opposite party no.2 has rejected the

petitioner's application since he has complied with 35 points

out of the total 85 points in Form-D Part-1 under the 2020

Rules. However, the learned counsel submits that as per the

2016 Rules, which according to the learned counsel for the

petitioner is the Rule that is applicable in the case of the

petitioner, the petitioner has complied with all 35 points. He

further submits that under the 2020 Rules, the 2016 Rules are

not repealed rather there is addition of more points upto 85.

Therefore, the counsel for the petitioner submits that the

rejection is unsustainable in law.

8. Lastly, the learned counsel for the Petitioner submits that

the main grievance of the petitioner is that despite his late father //8//

being a government servant who died in harness and the

petitioner being a legal heir of his late father, he is entitled to be

appointed under the OCS RA Scheme, as is applicable to all

government servants. Moreover, the petitioner had rightly

submitted the application form on 22.04.2019 along with all

requisite documents as per the 2016 Rules.

9. Additionally, the learned counsel for the petitioner

submits that despite the petitioner submitting the application on

22.04.2019, which was submitted well before 17.02.2020 when

the 2020 Rules were made applicable, no appointment was

made before 17.02.2020. He further submitted that the

authorities have provided no reason as to why the appointment

could not be made before above-mentioned date i.e.

17.02.2020. The learned counsel for the petitioner, in light of

the above-mentioned submissions, alleges misconduct and

negligence on the part of opposite party No.2 and accordingly

prays for the impugned rejection order under Annexure-4 to be

set aside.

//9//

10. The learned Additional Government Advocate appearing

for the opposite parties, referring to the counter filed on behalf

of opposite parties No. 1 and 2 submits that, as per Notification

No. 5651/Gen., Dt. 17.02.2020, the petitioner has secured 35

points out of a total of 85 points in Form-D, Part-I under the

2020 Rules, whereas the qualifying point is 60, therefore

rightfully the application of the petitioner has been rejected as

per the new Rules, 2020 notified pursuant to the above-

mentioned notification.

11. Further, pointing to Point No. 6 clause 2(b), the learned

A.G.A. submits that, if the total points allotted to the petitioner

in part-I of the evaluation sheet is 44 or less, then the petitioner

shall be automatically ineligible for appointment. Therefore,

considering that the petitioner had only secured 35 points, his

application has been rightfully rejected. Finally, the learned

A.G.A. submits that, considering the above submissions the

writ petition by the petitioner is devoid of any merit and is

therefore liable to be dismissed.

//10//

12. Referring to the rejoinder affidavit, the learned counsel

for the petitioner submits that, the opposite parties in their

counter have admitted to the service of petitioner's late father

and his death in harness on 04.07.2018. Moreover, the learned

counsel for the petitioner contends that the opposite parties

have not properly explained the delay of four months from the

date of receiving the application on 22.04.2019 to the date of

intimating the Tahasildar for Distress Certificate on 19.08.2019

and delay in submission of the medical certificate in favour of

the wife of the deceased by the CDMO Jagatsinghpur on

11.12.2019.

It is also submitted that the opposite parties have not

provided a reason in the said counter as to why the matter of

appointment which started in 22.04.2019 could not be

completed on or before 17.02.2020 for which no irregularity

could be adduced to the petitioner.

13. Additionally it is also submitted that as per Form-D Part-1

the petitioner has secured 35 points out of 85 but the evaluation //11//

sheet in Form-D Part-1 was not declared before 2020 Rules

came into force, therefore such evaluation sheet is a nullity in

the eye of law.

FACTS OF W.P.(C) No.27752 of 2022

14. The factual matrix, as has been pleaded in the writ

petition, leading to filing the present writ application is that the

father of the petitioner namely Late Benudhar Bhoi was

working as an Agriculture Overseer in the Office of District

Agriculture Office, Padampur in the District of Bargarh and he

died in harness on 28.09.2015 leaving behind four dependants

including the present petitioner. In support of the aforesaid

facts, the learned counsel for the petitioner has annexed a copy

of the Service Book of the late father of the petitioner, Legal

Heir Certificate, and other relevant documents and papers for

consideration by this Court.

15. The present petitioner, who has the qualification of +2

Arts with a Diploma in Computer qualification, submitted an

application under the Odisha Civil Service (Rehabilitation //12//

Assistance) Rules, 1990 for his appointment on compassionate

grounds after the death of his father in harness. The mother of

the petitioner has been declared unfit to do any job by the

Medical Board. So far other dependents/family members of the

deceased Government employee are concerned, they have given

their affidavit stating therein that they have no objection in the

event any appointment is given to the petitioner on

compassionate grounds under the Rules, 1990. It is stated by

the learned counsel for the petitioner that the application for

appointment on compassionate ground was submitted by the

petitioner within the time stipulated. Upon receipt of the

application submitted by the application, on 04.05.2017 the

Deputy Director of Agriculture, Bargarh wrote a letter to the

Collector and District Magistrate Bargarh for issuance of a

Distress Certificate after due inquiry. However, the Collector-

cum-District Magistrate, Bargarh informed vide letter dated

19.05.2017 that there was no need to issue the same as per

notification dated 05.11.2016.

//13//

16. On 06.09.2017, the application submitted by the petitioner

for appointment on compassionate ground under the Rules,

1990 along with other supporting documents were forwarded to

the Opposite Party No.2 for due consideration. The learned

counsel for the petitioner has also attached photocopies of the

application, the Unfit Certificate of Petitioner's mother, other

relevant certificates, and the No Objection letter supported by

the affidavit of other family members to the writ application. It

is further contended by learned counsel for the petitioner that

although the application for appointment under the

Rehabilitation Assistance Scheme was submitted on 10.06.2016

to the competent authority to consider the case of the petitioner

for appointment on compassionate ground, the Opposite Parties

ignoring the said valid application under 1990 Rules, asked the

petitioner to resubmit the application under the new rules along

with supporting documents to consider his case for appointment

under the Odisha Civil Service (Rehabilitation Assistance)

Rules, 2016 and 2020, however, till date no decision has been

taken leaving the petitioner to run from pillar to post in search //14//

of a job on compassionate ground to support his family which

is otherwise in a financially distressful condition.

17. Learned counsel for the petitioner submits that in view of

the provisions contained in the Odisha Civil Service

(Rehabilitation Assistance) Rules, 1990 the petitioner is eligible

to be appointed in any of the Group "C" or Group "D" post

under the Government of Odisha befitting to his educational

qualification. He further submits that since the father of the

petitioner expired on 28.09.2015, the rule prevailing then, i.e.

the OCS (R.A.) Rules, 1990, would have application to the

facts of the present case. He further submits that although the

Rules 1990 was amended in the year 2016, such amendment

was notified vide Government notification dated 05.11.2016,

which is much after the death of the petitioner's father and after

the application for appointment on compassionate grounds was

submitted before the competent authority. He further contends

that the new rules, that is, OCS(R.A.) Rules, 2020 came into

force in the year 2020, which is much after the death of the //15//

father of the petitioner, therefore such rule shall have no

application to the facts of the petitioner's case.

18. In view of the aforesaid facts and circumstances, the

learned counsel for the petitioner emphatically submitted that

the case of the present petitioner for appointment on

compassionate grounds shall have to be considered only under

the OCS(R.A.) Rules, 1990 which was in force at the time of

the death of the petitioner's late father and when the application

for appointment under the R.A. rules was made to the

competent authority. He further contends that many persons had

applied along with the petitioner, and they have already been

given the appointment.

19. Learned counsel for the State on the other hand submits

that the case of the petitioner for appointment on compassionate

grounds is pending for consideration before the competent

authority. He further submits that the State Government has

prepared a year-wise list of candidates, in chronological order

of the date of death of the Government employee, and as and //16//

when vacancies arise, the cases of such candidates would be

considered and they will be given appointment befitting to their

educational qualification. Learned counsel for the State further

draws the attention of this Court to the fact that the O.C.S.

(R.A.) Rules,1990 has been repealed in the meantime and a new

set of rules has been enacted that is O.C.S. (R.A.) Rules, 2020.

The new Rules of 2020 provides that all new applications as

well as pending applications shall be considered under the new

rules of the year 2020. Therefore, the learned counsel for the

State submits that the case of the petitioner for appointment on

compassionate grounds can only be considered under the new

rules of the year 2020.

CONTENTIONS RAISED BY THE COUNSELS

20. In support of their contention, the learned counsel for the

State relied upon the judgment of the Hon'ble Supreme Court

in the case of N.C. Santosh vs. State of Karnataka ; reported

in (2020) 7 SCC 617. The learned counsel for the State submits

that in the above-noted case, the Hon'ble Supreme Court has //17//

held that the claim of a person seeking appointment under the

Rehabilitation Assistance Rules should be considered as per the

amended rules that were prevalent at the time of consideration

of the application and not the rules that were prevailing at the

time of the death of the Government servant. In such view of

the matter, the learned counsel for the State submits that the

case of the petitioner shall be considered only under O.C.S.

(R.A.) Rules, 2020 and no other rules shall have any application

to the facts of the case of the petitioner.

21. Learned counsel for the petitioner made an attempt to

repel the argument advanced by the learned counsel for the

State by relying upon the judgment of the Hon'ble Supreme

Court in the case of Indian Bank and Ors. Vs. Promila and

Another reported in 2020 (2 SCC 729), State of M.P. v. Amit

Shrivas reported in (2020) 10 SCC 496, State of M.P. v.

Ashish Awasthi reported in (2022) 2 SCC 157, Chief General

Manager, Telecommunication BSNL vs. Bidya Prasad

reported in AIR Online 2021 SC 906 and the Secretary to //18//

Government Department of Education (Primary) and

others vs. Bheemesh alias Bheemappa ; reported in AIR 2022

SC 402. Relying upon the above-noted judgment of the

Hon'ble Supreme Court, the learned counsel for the petitioner

advanced his argument in support of the contention that the

rules prevailing at the time of the death of the Government

employee, who died in harness, and the rules prevailing at the

time of submitting the application shall be applied to the claims

of the legal heirs of deceased Government employee while

seeking appointment on compassionate ground.

22. Considering the submission advanced by the learned

counsels appearing for the respective parties, this Court is of the

considered view that to resolve the aforesaid dichotomy, this

Court is required to examine the judgment relied upon by the

respective parties and accordingly come to a conclusion as to

which one of the rules shall be applicable to the facts of the

batch of writ applications filed by the legal heirs/dependents of //19//

deceased Government employees seeking for a direction for

appointment on compassionate ground.

23. Heard Sri Biswajit Parida, learned counsel appearing for

the petitioner in W.P.(C) No.5214 of 2021; and Sri Ranjit

Samal, learned counsel for the petitioner in W.P.(C) No.27752

of 2022; as well as Sri Saswat Das, learned Additional

Government Advocate; and Mr. Arnab Behera, Learned

Additional Standing Counsel for the state Opp. Parties. Perused

the pleadings from both sides as well as materials on record.

24. Before delving deeper into the aforesaid dichotomy

involved in the contentions raised by the counsel for the

respective parties, this Court would like to throw light on the

objection of the Opp. Parties in giving appointments to the

dependants/legal heirs of a Government employee who died in

harness. In Haryana State Electricity Board vs. Hakim Singh

reported in (1977) 8 SCC 85, the Hon'ble Supreme Court had

an occasion to explain the rationale behind having a set of rules //20//

relating to compassionate appointment. In the words of the

Hon'ble Supreme Court:

"The Rule of appointment to Public Service is that they should be on merits and through open invitation. It is the normal root through which one can get into a public employment. However, as every Rule can have exceptions, there are a few exceptions to the said Rules also which have been evolved to meet the certain contigrncy. As per one such exceptions relief is provided to the bereft family of the deceased employee by accommodating one of his dependents in a vacancy. The objection is to give succor to the family which has been suddenly plunged into penury due to the untimely death of its sole bread earner. This Court has observed time and again that the object providing such ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment".

25. The aforesaid observation of the Hon'ble Supreme Court

has been followed in many subsequent judgments of the

Hon'ble Supreme Court as well as High Courts. A similar view //21//

has also been taken in Director of Education vs. Puspendra

Kumar reported in AIR 1998 SC 2230; and Commissioner of

Public Instruction vs. K.R. Viswanath reported in (2005) 7

SCC 206. Similarly, in a judgment of the Hon'ble Supreme

Court in the case of State of Haryana and Anr. vs. Ankur

Gupta reported in (2003) 7 SCC 704, it has been held that the

compassionate appointment cannot be made de hors the

statutory policy. Further in the case of National Institute of

Technology vs. Niraj Kumar Singh reported in (2007) 2 SCC

481, the Hon'ble Supreme Court has held that the grant of

compassionate appointment would be illegal in the absence of

any scheme providing therefor. Moreover, such a scheme may

not be commensurate with the constitutional scheme of

equality.

26. Keeping in view the principles of law enunciated by the

Hon'ble Supreme Court, the Government of Odisha in the

exercise of powers conferred under Article 309 of the

Constitution of India, framed a set of Rules known as Odisha //22//

Civil Service (Rehabilitation Assistance) Rules, 1990 to

regulate the recruitment/appointment of dependents' / family

members of a Government employee who died in harness.

Thereafter all appointments on compassionate grounds in the

State of Odisha were being guided and governed under the

Rules,1990 till the same was amended in the year 2016.

Thereafter in the year 2020 the Rules, 1990 was completely

replaced by another set of new rules, known as Odisha Civil

Service (Rehabilitation Assistance) Rules, 2020.

27. Now coming to the applicability of the aforesaid rules,

which is the subject matter of dispute in the present case, this

Court is required to scrutinize various judgments delivered by

the Hon'ble Apex Court on the issue in hand.

28. In MGB Gramin Bank Vs. Chakrawarti Singh (2014)

13 SCC 583, the Hon'ble Supreme Court reiterated the law laid

down by it in Rajkumar's Case: (2010) 11 SCC 661 and held

that an appointment on compassionate grounds may not be

claimed as a matter of right nor does an applicant become //23//

entitled for an appointment automatically, rather it depends on

the eligibility of the applicant and the financial conditions of

the applicant's family, etc., that are to be considered in

accordance with the scheme. In case the scheme does not create

any legal right, a candidate cannot claim his case to be

considered as per the scheme existing on the date when the

cause of action, i.e. the death of the incumbent while holding

the post, had arisen. In the said judgment, while interpreting the

word "Vested Right", the Hon'ble Supreme Court has held that

Vested Right is a right independent of any contingency and it

cannot be taken away without the consent of the person

concerned and that the vested right can arise from a contract, a

statute or by operation of law in favour of a person.

29. On a careful consideration of the judgment delivered by

the Hon'ble Supreme Court in MGB Gramin Bank's case and

Rajkumar's case (supra), this Court is of the considered view

that the Hon'ble Supreme Court was dealing with a

scheme/policy decision providing appointment on

compassionate ground. Therefore, the Hon'ble Supreme Court //24//

has rightly arrived at the conclusion that the same does not

confer any vested right on any of the applicants. So far, the

present case is concerned, the Odisha Civil Service

(Rehabilitation Assistance Rule), 1990 as well as the new rules

of the year 2020 are rules framed by the State of Odisha under

proviso to Article 309 of the Constitution of India. Therefore,

the same has a legal sanctity and as such the right created under

the said Rule is an enforceable right, therefore, the aforesaid

two judgments could be distinguished on facts.

30. In Canara Bank and another Vs. M. Mahesh Kumar

reported in (2015) 7 SCC 412, the Hon'ble Supreme Court was

considering a case of compassionate appointment and the

question that cropped up before the Hon'ble Supreme Court

was whether the old scheme (1993) is applicable or the new

substituted scheme (2005) for ex gratia payment applies to the

facts of that case. Finally, it was held that a grant of family

pension or terminal benefit cannot be treated as a substitute for

providing employment assistance. Furthermore, a claim for

compassionate appointment under a scheme of a particular year //25//

cannot be decided based on a subsequent scheme that came into

force much after the claim was made. On a pleading of the said

judgment, it is clear that the Hon'ble Supreme Court in the said

case has clearly observed that the scheme which was in force

when the claim was made shall be applicable to the claimants

for compassionate appointment.

31. In State Bank of India Vs. Jashpal Brar: reported in

(2007) 9 SCC 571, the Hon'ble Supreme Court in clear and

unambiguous terms has arrived at a conclusion that the claim of

appointment on compassionate grounds should be decided

within the parameters of the scheme prevailing at the time when

an application for compassionate appointment was submitted

and not under any subsequent scheme/Rules. Finally, the

Hon'ble Apex Court had held that the High Court erred in

considering the scheme prevailing in the year 2005 while

deciding the application of the deceased Government

Employee's widow filed in the year 2000 and interfered with

the decision of the competent authority.

//26//

32. In State Bank of India and another Vs. Rajkumar

reported in (2010) 11 SCC 661, while dealing with a case of

compassionate appointment, the Hon'ble Supreme Court was

called upon to decided the effect of an abolished/modified

scheme and the validity of pending application under a previous

scheme which was subsequently abolished/modified. While

deciding the said case by holding that the claim on

compassionate appointment is traceable only to specific scheme

framed by the employer and therefore, there exists no right,

whatsoever, outside such scheme. Further, it was held that

appointment under the scheme can be made only if the scheme

is in force and not after the same is abolished/withdrawn.

33. It was also observed in the above noted judgment of the

Hon'ble Supreme Court of India that there can be no immediate

or automatic appointment merely on an application and that

where an earlier scheme is abolished and a new scheme is

introduced specifically providing that all pending applications

will be considered only in terms of the new scheme, then the

new scheme alone shall apply and further went on to conclude //27//

that the applicant is not entitled to be considered for

compassionate appointment as per his application under the old

scheme. It is worthwhile to mention here that the judgment

delivered in Jashpal Brar's Case (supra) was cited before the

Hon'ble Supreme Court by the claimant appellant, however the

same was distinguished from the observation made in Jashpal

Brar's Case (supra), which was made in the context of

rejecting the widow's request for additional payment under the

2005 scheme and therefore, the Hon'ble Supreme Court

allowed the petitioner's appeal and dismissed the claim of the

widow for additional benefit under the new scheme and as such

the ratio laid down in Jashpal Brar's Case (supra) has been

distinguished by the Supreme Court in the present case.

34. In State Bank of India and others Vs. Sheo Shankar

Tiwari reported in (2009) 5 SCC 600, the Hon'ble Supreme

Court of India was considering a case of compassionate

appointment specifically involving the issue as to whether the

old scheme for compassionate appointment vis-à-vis the new

substituted scheme for ex gratia payment is applicable to the //28//

facts of the respondent-claimant's case. Taking note of the

conflicting views by two different two-judge benches of the

Hon'ble Supreme Court of India regarding the applicability of

the governing scheme, the matter was referred to a larger

Bench. However, it was submitted at bar that the larger bench is

yet to adjudicate the issue and render a final decision on the

matter.

35. In Indian Bank and others Vs. Promila and another

reported in (2020) 2 SCC 729, a two-Judge Bench of the

Hon'ble Supreme Court while considering the appointment of

the claimant respondent under the compassionate appointment

scheme was required to adjudicate the issue with regard to the

applicability of the prevalent scheme vis-à-vis subsequent

scheme. After a detailed analysis of facts, the Hon'ble Supreme

Court has concluded that the claim of compassionate

appointment must be decided only on the basis of the relevant

scheme prevalent on the date of demise of the Government

employee in harness and that the subsequent schemes cannot be

looked into. Further, it was held that in a policy/scheme for //29//

compassionate appointment, the Courts cannot substitute a

scheme or add or subtract therefrom in the exercise of the

power of judicial review. On the basis of the law laid down by

this judgment, several judgments have been rendered by this

Court as well as other High Courts in cases involving

compassionate appointment by taking into consideration that

the relevant scheme prevalent on the date of the demise of the

Government employee in harness, the claim of the

dependents'/family members of such deceased Government

employees are to be considered.

36. In N C Santosh Vs. State of Karnataka and others

reported in (2020) 7 SCC 617, a three-Judge Bench of the

Hon'ble Supreme Court while deciding a case of appointment

under the compassionate appointment scheme while reiterating

the position of law that to fill up all vacancies in Government

employment, equal opportunity should be provided to all

aspirants as mandated under Article 14 and 16 of the

Constitution. However, compassionate appointment is an

exception to the aforesaid general rule whereby the dependents //30//

of the deceased Govt. employee are made eligible by virtue of

policy subject to fulfillment of norms laid down under the

policy. Finally, the Hon'ble Supreme Court came to a

conclusion that the norms prevailing on the date of

consideration of the application would be the basis for

considering a claim for compassionate appointment.

37. In the above reported case, the applicant-claimant was a

minor at the time of death of a Government employee, and on

attaining 18 years of age, the dependent-applicant applied for

the job which was beyond the stipulated period of one year.

Therefore, the question arose whether the rule prevalent at the

time of the death of the Government employee or the rule in

force at the time of consideration of the application of the

defendant is to be applied. Further, the relevant rule had been

amended in the meanwhile when the application was under

consideration. In the facts and circumstances of the said case,

the Hon'ble Supreme Court has categorically held that the rule

prevalent at the time of consideration of the application would //31//

be the basis for considering the claim of the dependent family

member for compassionate appointment.

38. The judgment of the Hon'ble Supreme Court in N C

Santosh's case (supra) can also be distinguished on facts as the

defendant was a minor and was not eligible to be considered for

appointment under the compassionate appointment scheme at

the time of the death of the Government employee. However,

subsequently, on attaining majority he submitted his application

and by then the relevant rules were amended. Therefore, the

right if any accrued only after the dependent family member

attained the age of majority. As such, the facts of N C

Santosh's case (supra) are different from the facts of the

present case, and accordingly the same can be distinguished.

Further, while delivering the judgment in N C Santosh's Case

(supra), the Hon'ble Supreme Court has taken note of the fact

that there exists conflicting judgments/ views with regard to the

applicability of the rules for appointment on compassionate

grounds and accordingly the said issue has been referred to a //32//

larger bench of the Supreme Court of India which is pending

for final adjudication.

39. In State of Madhya Pradesh and others Vs. Amit

Shrivas reported in (2020) 10 SCC 496, the question that came

up for adjudication by the Hon'ble Supreme Court was the

payment of higher compensation to the family members of

deceased Government employee under the subsequent rules.

The three Judge Bench of the Hon'ble Supreme Court while

considering the case referred to the judgment in Indian Bank's

case (supra) and finally came to the conclusion that they are

unable to grant any relief to the respondents as they are

constrained by the legal position.

40. On scrutiny of the facts of that case, it is revealed that

under the circular dated 29.09.2014 the dependent family

member was paid a sum on compassionate ground of

Rs.1,00,000/-. Although the said grant of Rs.1,00,000/- was

subsequently enhanced to Rs.2,00,000/- by another circular

dated 31.08.2016. However, finally the Supreme Court in

exercise of their power under Article 142 of the Constitution of //33//

India and to do complete justice between the parties enhanced

the amount of compensation from Rs.1,00,000/- to

Rs.2,00,000/-. On a plain reading of the judgment in Amit

Shrivas's case (supra), it appears that the three Judge Bench

has affirmed the ratio laid down in Indian Bank's Case supra.

41. In State of Madhya Pradesh Vs. Ashish Awasthi

reported in (2022) 2 SCC 157, the Hon'ble Supreme Court of

India was dealing with a case of compassionate appointment,

wherein the father of the applicant died on 8.10.2015 while he

was working as a work-charged employee. The question arose

as to whether the applicant, who is not entitled to employment,

would get compensation under the circular of the year 2014 or

2016 i.e. a subsequent circular enhancing the compensation

amount. The Hon'ble Supreme Court referring to the judgment

in Indian Bank's case (supra) and Amit Shriva's case (supra)

finally held that the policy/circular prevalent at the time of the

death of the Government employee shall apply and accordingly

benefits under such scheme/policy/circular be given to the

applicant. Although the Hon'ble Supreme Court did not disturb //34//

the appointment of the applicant under the subsequent circular

pursuant to the direction of the High Court.

42. In the case of The Secretary to Govt., Department of

Education (primary) & others Vs. Bheemesh alias

Bheemappa reported in AIR 2022 SC 402, it has once again

been reiterated that the relevant Scheme and/or the Rules

prevalent at the time of time of the death of the Government

employee, who died in harness, and/or at the time of submitting

the application is required to be considered and not the

amended Rules prevalent at the time of consideration of the

application.

43. While the above-discussed legal position was holding the

field, the learned counsel for the petitioner cited a judgment of

the Hon'ble Supreme Court in Malaya Nanda Sethy Vs. State

of Odisha and others reported in AIR 2022 SC 2836 : 2022

(11) OLR (SC) 1 in support of his contention that the rule

prevalent at the time of death of the deceased employee shall be

applicable to the claim made by the dependents/family

members of the deceased Government Employee who died in //35//

harness. On a perusal of the judgment delivered by the Hon'ble

Supreme Court in Malaya Nanda Sethy's case (supra), this

court observed that the issue involved in the said case was

pertaining to a claim by a dependent-claimant under the

compassionate appointment Orissa Rules, 1990. Further, the

said judgment, rendered by a two-Judge Bench, has taken note

of several other judgments rendered by the Hon'ble Supreme

Court on the issue of compassionate appointment.

44. In Malaya Nanda Sethy's case (supra), Hon'ble Apex

Court took note of the judgment in N. C. Santosh's case

(supra) which has been heavily relied upon by the learned

counsel for the State to impress upon this Court that the Rules,

2020 is the only Rule now in force and the same is required to

be followed in the case of the petitioner and similarly placed

other persons. Further, in Malaya Nanda Sethy's case (supra)

the applicability of Odisha Civil Service (Rehabilitation

Assistance) Rules, 1990 as well as Odisha Civil Service

(Rehabilitation Assistance) Rules, 2020 was directly involved.

On a careful scrutiny of the facts of the aforesaid case, it //36//

appears that the deceased Government employee, who is the

father of the appellant-claimant, while working as an Assistant

Sub-Inspector of Police in the Government Department died in

harness on 02.01.2010. Thereafter, the appellant submitted his

application for appointment as a Junior Clerk on compassionate

grounds under the OCS (R.A) Rules, 1990 in July 2010.

45. However, the said application was not considered by the

Competent Authority for a considerable period of time. The

Competent Authority, from time to time, deferred the

consideration of the appellant's application for want of

compliance with some of the requirements under the rules and

as a result, final adjudication of the matter was delayed.

Thereafter, the O.C.S. (R.A.) Rules, 1990 was replaced by a

new set of Rules namely, O.C.S. (R.A.) Rules, 2020 vide

notification dated 17.02.2020, which provides that the family

member of a deceased Government servant could be appointed

on compassionate grounds against Group-D level post.

46. Thereafter, the application of the appellant was remanded

to the authority for fresh consideration under the 2020 Rules.

//37//

The appellant preferred a writ petition before this court by

taking a specific stand that the rule prevalent at the time when

the application for compassionate appointment was made shall

be applicable and not the subsequent rules that were in force at

the time of consideration of the application for compassionate

appointment. This court after considering the contentions raised

by the parties and by relying upon the judgment of the Hon'ble

Supreme Court in N C Santosh's case (supra) dismissed the

writ petition by holding that the claim should be considered

under the new Rules that is the Rules, 2020.

47. Finally, feeling aggrieved and dissatisfied with the

judgment of this Court, the appellant approached the Hon'ble

Supreme Court of India by filing Civil Appeal No.4103 of 2022

arising out of SLP (Civil No.) 936/2020. On a careful perusal of

the judgment delivered by the Supreme Court in Malaya

Nanda Sethy's Case, this court observed that the issue

involved in the present case was directly and substantially in

issue before the Hon'ble Supreme Court in Malaya Nanda

Sethy's Case. Furthermore, in Paragraph 3 of the judgment the //38//

issue has been crystallized by the Supreme Court, and in

Paragraph 3.1 several judgments of the Hon'ble Supreme Court

have been referred to including the judgment in N C Santosh's

case (supra) in Paragraph 5 of the judgment. The Hon'ble

Supreme Court has taken note of the issue involved in the

following manner;

"5. We have heard the learned counsel for the respective parties at length.

We have noted that there is a conflict of view, as to whether the scheme/rules in force on the date of death of the government servant would apply or the scheme/rules in force on the date of consideration of the application on compassionate grounds would apply. There are divergent views and the conflict of opinion in different decisions of this Court. However, keeping the said question aside, for the reasons stated hereinbelow we are of the opinion that in the peculiar facts and circumstances of the case, the appellant herein shall be entitled for appointment on compassionate ground as per the 1990 rules, which were applicable at the time when the deceased employee died and the appellant herein //39//

made an application for appointment on the death of his father, i.e., in the year 2010.

7. 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 //40//

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.

8. 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 //41//

facts and circumstances of the case, there shall be nor order as to costs."

48. It is also noteworthy to mention about a latest judgment of

the Hon'ble Supreme Court of India in the case of State of

West Bengal vs. Debabrata Tiwari, 2023 SCC OnLine SC

219. The main issue raised in the appeal was whether the state

of West Bengal had a policy regulating the appointment on

compassionate grounds of relatives of employees of the

Burdwan Municipality who had died in harness. Compassionate

appointment is not a way of employment. To ensure that the

children of the deceased employee are not left without a means

of subsistence, the State or public sector organization must

implement such a charitable plan. Since it is not a vested right,

compassionate work cannot be requested or given after the

crisis has passed.

49. In the above noted judgment, the Hon'ble Supreme Court

further observed that the main factor that should influence the

choice made by the authorities, in this case, is the financial

situation of the deceased person's family at the point of the //42//

deceased person's passing. The family in need should be

rescued right away with that sympathetic meeting. The court

observed that if there is a considerable delay in deciding a claim

for compassionate appointment, the sense of immediacy is lost

and the authorities must take into account the fact that the

dependents were able to sustain themselves during the period of

delay. The court cautioned that granting compassionate

appointment in such cases would be contrary to the principles

of the constitution as it would be akin to treating the claim as a

matter of inheritance based on a line of succession. The court

stated that although the application was submitted in 2006, the

qualified applicants had not followed up on the issue for almost

ten years. The applicants would no longer be eligible for relief

under Article 226 due to their prolonged delay in contacting the

High Court, the court observed.

50. A Division Bench of this Court in Suchitra Bal v. State

of Orissa, W.P.(C) No.2081 of 2021, was called upon to

adjudicate a challenge to Rule-6(9) of the Odisha Civil Services //43//

(Rehabilitation Assistance) Rules, 2020. The Hon'ble Division

Bench of this Court referring to a catena of decisions of the

Apex Court, observes that, compassionate appointment is not

an alternative to the normal course of appointment and there is

no inherent right to seek compassionate appointment.

Moreover, regarding the objective of compassionate

appointment, the Hon'ble Division Bench has observed that

the objective of rehabilitation appointment or assistance is only

to provide solace to the family of the deceased employee/

worker in difficult times. Therefore, the date when the

employee passed away is of paramount importance. Further

citing a catena of judgements of the apex court, the Hon'ble

Division Bench observes that the norms, prevailing on the date

of consideration of the applications should be the basis for

consideration of the claim for the rehabilitation appointment or

the compassionate appointment.

//44//

51. Finally, the Hon'ble division bench has held that the

application of the petitioners shall be considered under the

Odisha Civil Services (Rehabilitation Assistance) Rules, 1990

in as much as on scrutiny, it is found that all the applications

were filed before 17.02.2020 and the delay in considering the

applications in time is entirely attributable to the opposite

parties.

52. Additionally, regarding the applications in which the

petitioners have sought the rehabilitation assistance/

appointment against a direct payment/GIA Rules at the

Government aided educational institution, the applicability of

the rehabilitation scheme in those institutions shall be

separately determined by the opposite parties on the basis of the

policy of the Government as discussed by the Hon'ble court

and if it is found that the Odisha Civil Services (Rehabilitation

Assistance) Rules, 1990 was applicable on the date of death of

the deceased employee, the petitioner shall be considered for

rehabilitation assistance/appointment. Consequently, the //45//

opposite parties were directed to consider the applications of

the petitioners under the Odisha Civil Services (Rehabilitation

Assistance) Rules, 1990 read with the relevant policy extending

such scheme to the Government aided educational institutions

at the relevant time of the death of the deceased employee for

the purpose of the rehabilitation assistance/appointment

53. Now, let us examine the issue(s) involved in the present

writ applications as well as a batch of other similar writ

applications from a legal and Constitutional validity point of

view. Both, the O.C.S. (Rehabilitation Assistance) Rules, 1990

as well as the O.C.S. (Rehabilitation Assistance) Rules, 2020

are Rules made under the proviso to Article 309 of the

Constitution of India by the State of Odisha for compassionate

appointment of the family members of a deceased Government

employee died in harness. The Rules of the year 1990 came into

force w.e.f. 24.09.1990 and the Rules of the year 2020, which

superseded 1990 Rules, came into force w.e.f. 17.02.2020.

Therefore, there is no doubt that the family members of the //46//

Government employee who died in harness after 17.02.2020 are

to be governed by the 2020 Rules for compassionate

appointment. Rule 6 Sub-rule 9 of the 2020 Rules provides that

all applications for compassionate appointment pending as of

the date on which the new set of rules came into force shall be

governed by the Rules, 2020.

54. On a comparison of the two Rules as demonstrated by the

learned counsel for the petitioners, it appears that the Rules,

1990 is less cumbersome and more beneficial to the family

members of the deceased Government employee. However, it is

seen from the record that many applications filed prior to

17.02.2020 were kept pending for reasons best known to the

authorities. In some cases, the applications for appointment on

compassionate ground were kept pending for more than a

decade. Furthermore, the applications received were scrutinized

and a list of applicants was prepared by the appointing

authority/agencies. Out of the list so prepared, appointments

were being made from time to time by various competent //47//

authorities. In some cases, it was found that some of the persons

named on the list were given appointments, however, some

were not so lucky. As has been stated here in above, some

applications were kept pending for years together although

those candidates were eligible for appointment under the

scheme/Rules. Their applications were not rejected. When the

new Rule, 2020 came into force, the authorities asked such

applicants, whose applications are pending as on that date, to

apply afresh under the provisions of the new Rules.

55. As has been already stated, both Rules were framed in

exercise of power conferred under the proviso to Article 309 of

the Constitution of India by the State of Odisha. It is too well

known that the recruitment, and service conditions of a person

under the State/Union to the public service/post are regulated

by the appropriate legislature/parliament. The power to regulate

by bringing appropriate legislation is left to the appropriate

legislature under List II Entry 41 for the State and List I Entry

70 for the Union under the Constitution of India. The power of //48//

appointment belonging to the Executive shall be governed and

guided by the appropriate legislation in that regard. The power

conferred by Article 309 of the Constitution of India is subject

to other provisions of the Constitution of India as has been

reflected in the opening words of Article 309. Therefore, it is

needless to state here that the law/rules framed under Article

309 if contravenes any of the provisions of the Constitution of

India including the provisions of Part III i.e. Fundamental

Rights guaranteed under Articles 14, 16, 19, 21, such law/rules

shall be void.

56. In the case of Rules of 1990 and 2020, the same were

framed under the proviso to Article 309 of the Constitution by

the Governor of Odisha. Although laying down the conditions

of service is primarily a duty bestowed upon the

legislatures/parliament, the proviso to Article 309 carves out an

exception where the President of India or the Governor of the

State, as the case may be, may notify an appropriate rule to

regulate the recruitment/service conditions of Government //49//

servants. Such a provision is a transitional provision conferring

power upon the executive to frame rules having the force of law

and the same shall remain in force till the legislatures legislate

on the subject matter as has been decided by the Hon'ble

Supreme Court of India in A.K. Krishna Vs. State of

Karnataka reported in AIR 1998 SC 1050.

57. Furthermore, a benefit that has accrued under the existing

rules cannot be taken away by an amendment with retrospective

effect and no statutory rule or administrative order can whittle

down or destroy any right, which has become crystallized and

no rule can be framed under this proviso, which affects or

impairs the vested rights as has been held in the case of R.S.

Ajara Vs. State of Gujurat reported in (1997) 3 SCC 641 and

in Chairman Railway Board Vs. C.R. Rangadhamaiah

reported in (1997) 6 SCC 623. It has also been held by the

Hon'ble Supreme Court of India in State of Karnataka Vs.

Ameerbi reported in (2007) 11 SCC 681 that the rules framed

under the proviso to Article 309 of the Constitution of India are //50//

not attracted in the case of appointees under a scheme which is

not of a permanent nature, although the employees might have

continued for a long time.

57.A. Rule-6 of the O.C.S. (R.A.) Rules, 2020 provides for the

mode of appointment under the new Rules. Sub-rule(1) deals

with the form of the application. Sub-rule(2) deals with marks

to be awarded on evaluation. Similarly, sub-rule(3) provides for

appointment against any vacant Group-'D' post. Sub-rule(5)

provides what in the event the applicant does not join, he/she

shall forfeit his/her claim under the said Rules and what he/she

shall not be provided with any choice. Sub-rule(6) provides that

the applications are to be considered in order of date of death of

the deceased employee. Sub-rules(7) & (8) deals with process

of evaluation. In the present batch of writ petitions, we are

concerned with sub-rule(9) of Rule-6, which is quoted herein

below:-

"6. Mode of Appointment:-

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

//51//

(9) All pending cases as on the date of publication of these rules in the Odisha Gazette shall be dealt in accordance with the provision of these rules."

The above quoted sub-rule(9) of Rule-6 of the 2020 Rules

mandates that all pending applications for compassionate

appointment for whatever reasons shall now be considered

under the Rules, 2020 w.e.f. 17.02.2020. All applications

involved in the present batch of writ petitions having been

considered under the new Rules, 2020 and the same having

been rejected under the 2020 Rules, although the Government

employees in these writ petitions having died much prior to the

date 17.02.2020, the Petitioners have approached this Court by

filing the present batch of writ petitions. This Court observes

that the validity of Rule-6(9) is required to be tested with the

parameters prescribed in Article-14 and 16 of the Constitution

of India to effectively adjudicate all the pending writ petitions.

58. The Rules framed under Article 309 of the Constitution of

India may be struck down only on the grounds that may

invalidate a legislative measure. That is when the rules so //52//

framed infringes upon the provisions contained in Article 14

and 16 of the Constitution of India and not because the Court

considers the same to be unreasonable or that it has been

enacted with an improper motive. Needless to say here that the

constitutional mandate in Article 14 includes non-arbitrariness.

Therefore, this Court can only interfere and declare the

provisions contained in Rule 6 Sub Rule 9 of the 2020 Rules as

void, only if the provision violates Article 14 of the

Constitution of India.

59. Even assuming that the Rules in question are policy

decisions of the Government or a scheme by the State to

provide benefit to the distressed family members of the

Government employees who have died in harness, this Court

would not get jurisdiction to interfere with the same unless this

Court holds that the same is violative of Article 14 of the

Constitution of India. The Govt. has full freedom to change any

policy decision and the Court shall not interfere with the same

unless such administrative policy/ scheme violates some of the //53//

provisions of the Constitution like Article 14, which requires

that, even the administrative authority must act fairly and treat

its employees equally as has been laid down by the Hon'ble

Supreme Court of India in the case of Distt. Registrar v. M.B.

Koyakutty reported in AIR 1979 SC 1060 and S.L. Sachdev

v. Union of India, reported in AIR 1981 SC 411.

60. Thus, where the Rules/Policy/Scheme violates the

provisions of Article 14 of the Constitution, the Court would be

perfectly justified in interfering with the Rules/Policy/Scheme

and may pass suitable directions as to how fairness or equality

of treatment could be achieved. Further, a change of policy is

also controlled by the doctrine of promissory estoppel,

however, in the context of the present case this Court would not

like to go into that aspect of the matter and shall confine itself

to violation of Article 14 of the Constitution of India.

61. Now, reverting back to the issue of violation of Article 14

of the Constitution of India, this court need not reiterate the

guiding principles under Article 14 of the Constitution of India.

//54//

So far appointments on compassionate grounds in the State of

Odisha are concerned, in a large number of cases that have

reached this Court it was observed that the authorities have

slept over the matter for a long time. In some of the cases it was

also observed that the applications have been pending for more

than a decade. In some cases, it was found that while giving

appointment under the scheme to a selected few, other

applications were not even attended to for years together and

finally they were asked to submit a fresh application under the

new rules of the year 2020. The new rules, as discussed above,

is a cumbersome one and less beneficial to the family members

of the deceased Government employee. Under the old Rules of

the year 1990, the authorities used to prepare a year-wise list of

applicants and appointments were being made out of the said

list. In many cases it was observed that appointments were

being made by adopting the pick-and-choose method, thereby

compelling this Court to intervene in the matter repeatedly.

Although the mandate of the amendment Rules, 2016 was to

consider the applications in the order of date of death of the //55//

deceased Government employee, however, the same was not

followed scrupulously and diligently. Thus, the aforesaid

conduct of the authorities definitely indicates that the families

of the deceased Government employees were not treated

equally and the competent authorities have acted in an arbitrary

manner.

62. It is now a well-settled principle of law that Article 14

applies to cases of appointment, by whatever mode, to public

employment and Government jobs. Therefore, the conduct of

the authorities in compelling the family members of the

deceased Government employees to apply afresh after an

inordinate delay, solely attributable to the appointing

authorities, that too under the new rules of 2020, while already

giving appointments to family members of some of the

deceased Government employees irrespective of the date of

death of such employee, in the considered view of this Court, is

in violation of Article 14 of the Constitution of India.

Furthermore, any rule compelling them to do so would not //56//

stand the scrutiny of law under Article 14 of the Constitution of

India. Therefore, rule 6 sub-rule 9 of the 2020 Rules would not

pass the test of judicial scrutiny upon the same being tested

with the touchstone of Article 14 in the factual background of

the present cases and similar other cases pending for

adjudication before this Court. The discrimination in the present

case i.e. the family members of some of the employees who

have been given appointment under the old Rules, 1990 in

comparison to the ones who have been asked to apply afresh

under the new Rules, 2020, although their predecessors have

died prior to 2020 Rules came into force, is an actual one and

not abstract or theoretical.

63. No doubt the appointment means an actual appointment by

posting the person concerned to a particular post lying vacant,

whereas, recruitment means the process preceding such

appointment. This Court also observed that in certain cases the

recruitment year is the same, however, out of the common list //57//

appointments were given to some and in some cases the

authorities slept over the matters for years. Therefore, the

principle of equality demands that both sets of employees

should have been treated similarly. However, the authorities by

asking some of the leftover candidates to apply again under the

new rules and by compelling them to undergo the recruitment

process again as provided under the 2020 Rules, have created

two different classes of employees under the same category

without having any specific object or purpose to achieve

thereby. This is clearly hit by Article 14 of the Constitution of

India and any rule in that regard is ultra-vires the principles

enshrined in Article of the Constitution of India. Therefore, the

rule 6 sub rule 9 of the Rules, 2020 is unconstitutional being hit

by Article 14 and 16 of the Constitution of India and as such the

same is unsustainable in law. In the factual background of the

present batch of writ applications, the incorporation of rule 6

sub-rule 9 of the Rules, 2020 may not withstand the test of

judicial scrutiny under Article 226 of the Constitution of India.

//58//

64. It was also contended by the learned counsel for the

Petitioners that the Rules, 1990 was amended by 2016

amendment rules which was notified on 5.11.2016. By virtue of

rule 4 of the amending rules, 2016, the existing Rule 5 of the

1990 Rules was amended to the extent that a quota of 10% was

fixed for the first time. It says "Provided that a maximum of

10% of the total vacancies in a year shall be earmarked to be

filled up by applicants under Rehabilitation Assistance

Scheme." However, the aforesaid quota of up to 10% of the

total vacancies arising in a year was never adhered to by the

authorities thereby violating the provisions of the Rules itself.

No data whatsoever was produced before this Court with regard

to the utilization of the aforesaid quota. Upon a careful

consideration of the said plea, this Court is of the considered

view that such contention raised by the learned counsel has

force in it.

65. Finally, this court would like to test the state action or a

policy decision of the State Authorities with the touchstone of //59//

Article 14 of the Constitution of India. In National Highway

Authority of India Vs. Madhukar Kumar (Civil Appeal

No.11141 of 2018 decided on 23.09.2021, the Hon'ble

Supreme Court of India has held that in India, every State

action must be fair, failing which, it will fall foul of the

mandate of Article 14 of the Constitution of India. Similarly, in

Ajay Hasia Vs. Khalid Mujib Sehravardi reported in AIR

1981 SC 487, the Hon'ble Supreme Court of India has held that

Article 14 of the Constitution of India strikes at arbitrariness

because an action that is arbitrary, must necessarily involve

negation of equality. Whenever, therefore, there is arbitrariness

in State action, whether it be legislature or of the executive,

Article 14 immediately springs into action and strikes down

such action. Similar view has also been taken in E.P.Royappa

Vs. State of T.N. reported in AIR 1974 SC 555 and Maneka

Gandhi Vs. Union of India reported in AIR 1978 SC 597.

66. The word "arbitrariness" has been defined in a judgment of

the Hon'ble Apex Court in Sharma Transport Vs. Govt. of //60//

A.P. reported in (2002) 2 SCC 188. The Hon'ble Supreme

Court has defined arbitrariness by observing that a party has to

satisfy that action was not reasonable and was manifestly

arbitrary. The expression "arbitrarily" means, act done in an

unreasonable manner, as fixed or done capriciously or at

pleasure without adequately determining the principle, not

founded in the nature of things, non-rational, not done or acting

according to reason or judgment, depending on the will alone.

In Bombay Dyeing & Mfg. Co.Ltd Vs. Bombay

Environmental Action Group reported in (2006) 3 SCC 434,

the Hon'ble Supreme Court, in para 205 of the judgment, has

held that arbitrariness on the part of the legislature so as to

make the legislation violative of Article 14 of the Constitution

should ordinarily be manifest arbitrariness.

67. In Bidhannagar (Salt Lake) Welfare Assn. Vs. Central

Valuation Board reported in AIR 2007 SC 2276 and in Grand

Kakatiya Sheraton Hotel and Towers Employees and

workers union Vs. Srinivasa Resorts Ltd. reported in (2009) //61//

5 SCC 342, the Apex Court has observed that a law cannot be

declared ultra vires on the ground of hardship but can be done

so on the ground of total unreasonableness. The legislation can

be questioned as arbitrary and ultra vires under Article 14.

However, to declare an Act ultra vires under Article 14, the

Court must be satisfied in respect of substantive

unreasonableness in the statute itself.

68. In A.P. Dairy Development Corpn. Federation Vs. B.

Narasimha Reddy reported in (2011) 9 SCC 286, the

Hon'ble Supreme Court has held that it is a settled legal

proposition that Article 14 of the Constitution of India strikes at

the arbitrariness because an action that is arbitrary, must

necessarily involve negation of equality. This doctrine of

arbitrariness is not restricted only to executive action, but also

applies to the legislature. Thus a party has to satisfy that the

action was reasonable, not done in unreasonably or capriciously

or at the pleasure without adequate determining principle,

rational and has been done according to reason or judgment, //62//

and certainly doesn't depend on the will alone. However, the

action of the legislature, violative of Article 14 of the

Constitution, should ordinarily be manifestly arbitrary. There

must be case of substantive unreasonableness in the Statute

itself for declaring the Act ultra vires Article 14 of the

Constitution of India.

69. In E.P. Royappa's case (supra), which is a Constitution

Bench judgment of the Supreme Court of India, Justice

Bhagawati in a concurring judgment observed as follows;

"The basic principle which, therefore, informs both Article 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalizing principle? It is a founding faith, to use the words of Bose, J., "a way of life", and it must not be subjected to a narrow and pedantic and lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be 'cribbed', cabined //63//

and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the Rule of Law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 , and if it affects any matter relating to public employment, it is also violative of Article

16. Article 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."

70. Let us now proceed to analyze the validity of a policy

decision, the unreasonableness / arbitrariness of such decision

and to what extent the same can be reviewed by this Court in

exercise of its writ jurisdiction under Article 226 and 227 of the

Constitution of India. In Krishnan Kakkanth Vs. Govt. of

Kerala reported in (1997) 9 SCC 495, the Hon'ble Supreme

Court of India in para 36 of the judgment has observed as

follows;

//64//

"36. To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the been taken. It is equally immaterial if it can be demonstrated policy decision of the State Govt. It is immaterial whether a better or more comprehensive policy decision could have been taken. It is equally material if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, courts should avoid "embarking on uncharted ocean of public policy"."

In the context of public policy in public employment two

more judgments are relevant for the purpose are (i) S.Nagaraj

Vs. State of Karnataka reported in (1993) Supp. 4 SCC 595 //65//

and (ii) Shrilekha Vidyarthi (Kumari) Vs. State of U.P.

reported in (1991) 1 SCC 212.

71. In the present batch of writ applications, the predecessor

in interest of the applicants die in harness much prior to the new

Rule, 2020 came into force. Although they had submitted their

respective applications in time, however, the authorities have

failed to consider their cases for appointment under O.C.S.

(R.A.) Rules, 1990 (as amended in the year 2016 wherever, the

same is applicable). This court further observed that it is a

matter of record that while not considering the case of the

Petitioners, the authorities have considered and appointed

persons who had applied along with the petitioner or

subsequent to the petitioner. No reasonable explanation is

coming forth from the side of Government-Opp. Parties as to

why some persons were shown favour by appointing them and

the petitioners and many others were not appointed. Moreover,

it has also not been satisfactorily explained as to why the

petitioners have been asked apply under the Rules, 2020 which //66//

is unfavourable to them except the provision contained in rule 6

sub-rule 9 of the Rules, 2020. The Opp. Parties have thus failed

to come up with an intelligible differentia so far the class of the

present petitioners are concerned in contrast to the persons who

have been appointed under a more favourable Rule, 1990. Such

conduct on the part of the Opp. Parties either rejecting the

petitioners application or asking some of them to apply afresh

under the new Rule, 2020, which is admittedly less favourable,

is definitely discriminatory and arbitrary.

72. It would be profitable to refer to the words of S.R.Das, J, in

State of W.B. Vs. Anwar Ali Sarkar reported in 1952 SCR

284, which speaks that a classification is reasonable when the

same satisfies the twin test of (i) the classification must be

based on an intelligible differentia which distinguishes persons

or things that are grouped, from others left out of the group; and

(ii) The differentia must have a rational relationship to the

object sought to be achieved by the statute. Das, J. further

observed that there must be some yardstick to differentiate the

class included and the others excluded from the group. The //67//

differentia used for the classification in the scheme is the total

extent of landholding by every individual. Therefore, there is a

yardstick used for constituting the class for the purpose of the

scheme. By applying the aforesaid test to the facts of the

present batch of cases, this court found that there exists no

intelligible differentia between the two groups i.e. the ones who

have been appointed under the old Rules, 1990 and the ones

(the Petitioners) whose cases were kept pending and by

operation of Rule 6(9) of the New Rules, 2020, there cases have

been taken out of the purview of the old rules, 1990 which was

more favourable and there was a certainty of getting the job on

compassionate ground. The background facts in both classes of

persons remains the same i.e. they are children or dependents of

deceased Government employee who dies in harness. Since the

petitioners stand in a similar footing with the persons who have

been given appointment giving them preference over and above

the petitioner, their cases deserve to be considered under the old

Rules, 1990 i.e. the Rule that was in force at the time of the

death of the Government employee.

//68//

73. In view of the aforesaid analysis of facts as well as the

legal position and on a careful scrutiny of the materials on

record the conclusion is irresistible and the same has been

stated here in below;

CONCLUSION :

74.1. The Scheme for compassionate appointment is a policy

decision of the Government, as such the same doesn't confer an

absolute right in favour of the claimant to claim appointment as

a matter of right.

74.2. Even a policy decision like every State action has to be in

conformity with Article 14 and 16 of the Constitution of India.

In the event it is found that the same is discriminatory or

arbitrary, this Court in exercise of its writ jurisdiction can

always declare such scheme/ Rules/Legislation to be ultra vires

the Constitution of India.

74.3. In the present batch of cases the provision in the shape of

Rule 6 (9) of the Rules, 2020 is held to be ultra vires Article 14

and 16 of the Constitution of India as the same creates a class

within the class with any intelligible differentia/ //69//

reasonableness. Accordingly, Rule 6 (9) is hereby declared ultra

vires of Article 14 and 16 of the Constitution of India.

74.4. The Opp. Parties are directed to consider the cases of the

Petitioner under the O.C.S. (R.A.) Rules, 1990 without insisting

on filing of a fresh application under the OCS (R.A.) Rules,

2020. All pending cases are directed to be considered under the

old rules of the year 1990 as amended upto the year 2016

(wherever such amendment is applicable).

74.5. Applications filed for appointment on compassionate

ground after 17.02.2020 are to be considered under the new

rules of the year 2020.

74.6. The State Government is further directed to revisit the

O.C.S. (R.A.) Rules, 2020 and consider to provide monetary

compensation either in lieu of appointment or any other suitable

alternative keeping in view the broader object of the Rules to

immediately provide assistance to the dependents of the

Government employee who died in harness.

74.7. While considering the applications for appointment on

compassionate ground the State Government and its //70//

instrumentalities shall consider the immediacy of such

appointment as observed by the Hon'ble Supreme Court in the

case of Debabrata Tiwari (Supra).

74.8. The appointing authorities are further directed to give

appointment as per the provisions of the relevant Rules in force

and they shall also ensure that the application filed before them

shall be taken up on first come first serve basis without

disturbing the order in which applications have been accepted.

No pick and choose method should be adopted while

considering the applications for appointment on compassionate

ground.

74.9. All applications received shall be disposed of in a time

bound manner. Where the applications are incomplete and as

such the same cannot be considered by the authorities, such fact

as well as the defect found out by the authorities be

immediately intimated to the concerned applicant within four

weeks from the date of receipt of such application by Regd.

Post. Further opportunity be given to the applicant to rectify the //71//

mistake within four weeks from the date of receipt of the

communication with regard to the defect by the authorities.

74.10. Absolute transparency be maintained while giving

appointment to the dependents of the deceased Government

employee and the details starting from the receipt of the

application to issuance of appointment letter/ rejection letter be

notified to the public.

75. With the aforesaid observations / directions, all the writ

applications are allowed by this common judgement, however

in the facts and circumstances without any costs.

( A.K. Mohapatra ) Judge

Orissa High Court, Cuttack The 31st October, 2023/D. Aech, Secretary

Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC CUTTACK Date: 01-Nov-2023 18:51:47