Petitioners vs State Of Odisha And Others
2023 Latest Caselaw 13415 Ori

        HIGH COURT OF ORISSA: CUTTACK
                  W.P.(C) No.32836 of 2020,
                  W.P.(C) No.32837 of 2020
                             &
                  W.P.(C) No.24762 of 2021

In the matters of the applications under Articles 226 and 227 of the
Constitution of India.

                             -----------

Jyotiranjan Pradhan (In W.P.(C) No.32836 of 2020) Goutam Pradhan (In W.P.(C) No.32837 of 2020) Mahima Prasad Sahoo (In W.P.(C) No.24762 of 2021) ... Petitioners

- Versus -

State of Odisha and others (In all cases) ... Opposite parties

For Petitioner ... M/s. Gyana Ranjan Sethi & B.K. Pattanaik.

(In all cases)

For Opposite Parties ... Mr. Saswat Das, Additional Government Advocate (In all cases)

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

// 2 //

PRESENT:

THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA

Date of hearing : 19.10.2023 : Date of judgment : 31.10.2023

A.K. Mohapatra, J. All the above noted writ applications

involve adjudication of a common question of law as well

as interpretation of Rule-2(b) and Rul3-9(7) of the OCS

(RA) Rules, 1990. It is needless to mention here that the

above noted writ applications are based on identical set of

facts. Therefore, all the three matters are being taken up

together for hearing and the same is being disposed of by

the following common judgment.

W.P.(C) No.32836 of 2020

2. In the present writ petition, the father of the applicant,

namely, Brundaban Pradhan died in harness on 5.11.2013.

Thereafter, the present Petitioner submitted an application

for appointment on compassionate ground under the O.C.S.

(R.A.) Rule, 1990. While the application was pending, a

notice was issued to the mother of the Petitioner who // 3 //

submitted the medical certificate in support of her physical

inability to discharge official duty. On 2.2.2015, the

Medical Board declared the mother of the Petitioner as

unfit to perform official duties. Such report of the Medical

Board was forwarded by the C.D.M.O., Ganjam to the

authorities concerned. On 4.3.2015, the Petitioner was

asked to appear before the S.P., Ganjam for measurement

of his height. Accordingly, the Petitioner appeared on

7.3.2015. Thereafter, the application of the Petitioner was

forwarded to Opposite Party No.2 on 12.3.2015. In the

meantime, Home Department, Government of Odisha

issued letter to D.G. & I.G. of Police, Odisha to conduct the

qualifying test for the post of Junior Clerk. On 10.1.2016

such qualifying test was conducted wherein the Petitioner

had appeared and he was declared qualified for

appointment to the post of Junior Clerk.

// 4 //

3. The result of the qualifying test was placed before a

committee under the Chairmanship of Special Secretary to

G.A. Department. In the said meeting, the case of the

Petitioner was considered and rejected vide order dated

28.06.2016 under Annexre-5 Series. Such conduct of the

Opposite Parties compelled the Petitioner to approach the

Tribunal by filing O.A. No.236(C) of 2017. The learned

O.A.T. vide its order dated 10.01.2018 allowed the O.A.

and quashed the rejection order. Further, the Opposite Party

No.4 was directed to give appointment to the Petitioner

under O.C.S. (R.A.) Rules, 1990. The Opposite Party No.2

again on 25.03.2020 rejected the application of the

Petitioner for appointment on compassionate ground

despite specific order by the Tribunal to give such

appointment. Challenging the said rejection order, the

present writ petition has been filed.

// 5 //

W.P.(C) No.32837 of 2020

4. This writ petition has been filed by the legal heir of a

deceased Government employee for appointment on

compassionate ground. The father of the Petitioner, who

was working as A.S.I., died in harness on 6.7.2012 leaving

behind his wife, one son (Petitioner) and a married

daughter. The Petitioner being one of the legal heirs

submitted an application on 18.08.2012 under the O.C.S.

(R.A.) Rules, 1990. Like the previous case, the mother of

the Petitioner was issued with a letter to produce her

medical certificate in support of her physical inability to

discharge official duty. Accordingly, the mother of the

Petitioner appeared before the District Medical Board and

on due examination, the Medical Board has opined that she

is incapable/unfit to discharge official duty. A copy of such

report has been filed as Annexure-4 to the writ petition.

While the matter was pending, the Government directed the // 6 //

D.G. & I.G. of Police, Odisha to conduct a qualifying test.

Accordingly, a qualifying test was held on 10.01.2016

wherein the Petitioner appeared and was selected for

appointment under the O.C.S. (R.A.) Rules as his name

appears against Serial No.1 of the select list. Thereafter, the

result was placed before the committee constituted for the

purpose under the Chairmanship of the Special Secretary to

G.A. Department. The said committee rejected the case of

the Petitioner on the ground that the spouse of the deceased

Government employee is alive and available for

consideration vide order dated 03.10.2016 under Annexure-

7 to the writ petition. Challenging the aforesaid order, the

Petitioner approached the Odisha Administrative Tribunal,

Cuttack Bench, Cuttack by filing O.A. No.3816(C) of 2016.

The said O.A. was allowed vide order dated 20.11.2017 and

the impugned order of rejection was quashed by the

Tribunal with a further direction to Opposite Party No.4 to // 7 //

give appointment to the applicant under the O.C.S. (R.A.)

Rules, 1990. Since the order of the Tribunal was not

implemented by the Opposite Parties, the Petitioner had

earlier approached this Court by filing W.P.(C) No.6818 of

2020 which was disposed of vide order dated 25.02.2020

by directing the Opposite Party No.4 to implement the

order passed by the O.A.T. as has been referred to

hereinabove. Finally, the Opposite Party No.4 vide order

dated 25.03.2020 rejected the claim of the Petitioner

ignoring the order passed by the O.A.T. Such rejection

order has been annexed to the writ petition as Annexure-9.

W.P.(C) No.24762 of 2021

5. The present writ petition has been filed challenging

the impugned rejection order dated 25.3.2020 thereby

rejecting the Petitioner's prayer for appointment under OCS

(RA) Rules, 1990.

// 8 //

6. The factual matrix in brief is that the father of the

Petitioner, who was working as a Senior Clerk in the office

of the Opposite Party No.4, died in harness on 5.1.2006

leaving behind his wife and two sons. At the time of the

death of the deceased Government employee the present

Petitioner was aged about 14 years. On attaining the age of

majority, the Petitioner applied for appointment under the

O.C.S. (R.A.) Rules, 1990 in July, 2010.

7. The application for appointment on compassionate

ground filed by the Petitioner was kept pending for an

unreasonably long time. Thereafter, a letter was issued to

the mother of the Petitioner to furnish her medical

certificate in support of her health status that she is unfit to

discharge official duties. The mother of the Petitioner

appeared before the District Medical Board on 23.8.2014.

After due examination, the Medical Board opined that she

is incapable/unfit to discharge official duties. A copy of the // 9 //

report dated 8.9.2014 under Annexure-4 to the writ petition

was forwarded to the competent authority. As is the case in

the previous two writ petitions, the Home Department,

Government of Odisha directed D.G. & I.G. of Police,

Odisha, Cuttack to conduct a qualifying test for the post of

Junior Clerk. Accordingly, the Petitioner appeared in the

qualifying test held on 10.01.2016. Thereafter, the

Petitioner was declared qualified and the result of the

qualifying test was placed before a committee presides over

by the Special Secretary to G.A. Department. Such

committee has rejected the Petitioner's claim mechanically

on the ground that the mother of the Petitioner is alive and

she has not made the application as per provisions of

O.C.S. (R.A.) Rules, 1990.

8. Thereafter, the Petitioner approached the Tribunal by

challenging the decision of the Opposite Parties in rejecting

his claim for appointment on compassionate ground. The // 10 //

Tribunal after hearing the parties vide order dated

10.11.2017 allowed the O.A. thereby quashing the

impugned rejection order dated 28.6.2016 under Annexure-

6 series and further directed the Opposite Party No.4 to

give appointment to the Petitioner under OCS (RA) Rules,

1990. Although the State-Respondents filed a review

petition before the O.A.T., such review bearing R.P.

No.07(C)/2018 was dismissed on 19.3.2018.

9. For implementation of the Tribunal's order, the

Petitioner had earlier approached this Court after abolition

of the Tribunal by filing W.P.(C) No.19881 of 2018. A

coordinate Bench of this Court vide order dated 24.1.2019

disposed of the writ petition by directing the Opposite

Parties to consider the case of the Petitioner for

appointment on compassionate ground. Since the order of

the Tribunal as well this Court was not being implemented,

the Petitioner again approached this Court by filing // 11 //

W.P.(C) No.2709 of 2020. The said writ petition was also

disposed of on 28.1.2020 thereby directing the Opposite

Parties to implement the order of the Tribunal within a

stipulated period of time. Since the order of this Court was

not being implemented, the Petitioner filed CONTC

No.1594 of 2020 and a review petition bearing Review

Petition No.267 of 2020 filed by the Opposite Parties.

While the matter stood thus, the Opposite Parties have

rejected the prayer of the Petitioner for appointment on

compassionate ground vide letter dated 25.03.2020 under

Annexure-12 to the writ petition completely ignoring the

order passed by the Tribunal dated 10.11.2017 in O.A.

No.3814(C) of 2016. Being aggrieved by such order of the

Opposite Parties, the Petitioner has approached this Court

by filing the present writ petition.

10. At the outset, this Court would like to observe that on

a careful analysis of the factual background of all the above // 12 //

noted three writ petitions, it appears that the factual

background of all three cases are almost identical.

Moreover, the grounds of rejection of their claim for

appointment under the O.C.S. (R.A.) Rules, 1990 are also

identical. In all the aforesaid three writ petitions the

Opposite Parties have rejected the claim of the Petitioners

for appointment on compassionate grounds by referring to

Rule-2(b) and Rule-9(7) of the O.C.S. (R.A.) Rules, 1990.

Therefore, this Court is required to adjudicate a common

question of law in the background of a similar factual

scenario and is also required to interpret the identical

provisions of the O.C.S. (R.A.) Rules, 1990.

11. Learned counsel appearing for the Petitioners in all

the above noted three writ petitions submitted before this

Court that the applications submitted by the Petitioners,

who are legal heirs and sons of the deceased Government

employees respectively. It was also contended that all three // 13 //

applications have been rejected basing upon a common

ground, i.e., while the spouse of the deceased Government

employee is alive, the applications submitted by the

Petitioners are not entertainable.

12. In course of their argument, learned counsel appearing

for the Petitioners submitted that no doubt Rule-2(b) of the

O.C.S. (R.A.) Rules, 1990 defines the family member. For

better appreciation, the aforesaid Rule-2(b) has been quoted

herein below:-

"2(b) - "Family Members" shall mean and include the following members in order of preference-

i) Wife/husband

ii) Sons or step sons or sons legally adopted through a registered deed;

iii) Unmarried daughters and unmarried step daughters;

iv) Widowed daughter or daughter-in-law residing permanently with the affected family;

v) Unmarried or widowed sister permanently residing with the affected family;

// 14 //

vi) Brother of unmarried Government servant who was wholly dependent on such Government servant at the time of death."

13. By referring to the aforesaid provisions, learned

counsel appearing for the Petitioners submitted that both

wife/husband and son/unmarried daughters are kept under

the definition of family members as defined under Rule-

2(b) of the Rules, 1990. It was also contended that the said

rule provides that in order of preference the persons named

in the said rule are to be considered for appointment on

compassionate ground. They further contended that the said

rule nowhere prescribes that the surviving spouse has to

produce a medical certificate showing his/her

incapacity/unfitness to discharge the official duties. As

such, it was submitted that production of a medical

certificate showing unfitness is not the mandate of the rules.

14. Similarly, learned counsel appearing for the

Petitioners also referred to Rule-9(7) of the O.C.S. (R.A.)

Rules, 1990 which provides that if at the time of the death // 15 //

of Government servant there is a ward and who is minor

and alone, he/she shall apply for a job on compassionate

ground on attaining the age of 18 years and in no case

beyond three years from the date of attaining the age of 18

years.

15. In view of the provisions contained in Rule-2(b) and

Rule-9(7) of the Rules, 1990, learned counsel appearing for

the Petitioners emphatically contended before this Court

that as per the definition of family members' preference

will be first given to the wife/husband and then sons,

unmarried daughters. Such order of preference does not

preclude the son from making an application if the mother

is still alive. Learned counsel appearing for the Petitioners

in the aforesaid context referred to the report submitted by

the District Medical Board with regard to

incapacity/unfitness of the mother to discharge the official

duties. Therefore, the authorities are under a legal // 16 //

obligation to take up and consider the cases of the

Petitioners who are next in the order of preference.

Accordingly, on the basis of their performance in the

qualifying test, the Petitioners should have been given

appointment to the post befitting to their qualification. They

further contended that the conduct of the Opposite Parties

in rejecting the claim of the Petitioners for appointment

under the Rules, 1990 on the ground that the spouse of the

deceased Government employee who happens to be the

mother of the present Petitioners are still alive is not legally

sustainable as the same is not the mandate of the rule

referred to hereinabove.

16. In course of his argument, learned counsel appearing

for the Petitioners referred to the judgment of this Court in

Ajit Kumar Barik v. State of Orissa and others, reported in

2018 (II) OLR- 10 (BD). In Ajit Kumar Barik's case

(supra), the Division Bench of this Court while examining // 17 //

the claim of the son while the spouse of the deceased

Government employee was alive had an occasion to

interpret the Rule-2(b) and Rule-9(7) of the Rules, 1990.

On a careful analysis of the factual background as well as

the legal position, the Division Bench has arrived at a

conclusion that the first preference is to be given to the

wife/husband of the deceased employee, then the sons and

the unmarried daughters. It was also observed by the

Division Bench that nowhere it has been stated that in case

a family member in order of preference in the hierarchy is

unfit, a medical certificate is required to be furnished to that

effect, otherwise his/her claim shall not be considered for

appointment under the Rules, 1990. Accordingly, the order

passed by the Tribunal in the said judgment was set aside

by the Division Bench of this Court and, further, the

Opposite Parties were directed to issue appointment letters

to the claimants within a period of two months.

// 18 //

17. The order passed by the Division Bench setting aside

the order passed by the O.A.T. was assailed before the

Hon'ble Supreme Court by the State-Opposite Parties by

filing Special Leave Petition (Civil) Diary

No(s).35835/2018. The Hon'ble Supreme Court vide order

dated 26.10.2018 after condoning the delay in filing the

SLP, dismissed the SLP thereby upholding the validity of

the judgment delivered by the Division Bench of this Court.

18. Similarly, in the case of Subash Chandra Khatua v.

State of Odisha & Others (W.P.(C) No.22678 of 2020),

another Division Bench of this Court vide its judgment

dated 5.11.2020 was pleased to set aside the impugned

rejection order passed by the Odisha Administrative

Tribunal in O.A. No.2740 of 2016. On a perusal of the said

order, this Court observed that the subsequent Division

Bench by relying upon the judgment of Ajit Kumar Barik's

case (supra) has allowed the writ petition and, accordingly, // 19 //

direction has been given to the Opposite Parties in that case

to issue appointment order in favour of the Petitioner. The

order passed by the Division Bench in Subash Chandra

Khatua's case (supra) was assailed before the Hon'ble

Supreme Court by filing Special Leave to Appeal (C)

No(s).13459/2021. The Hon'ble Supreme Court vide order

dated 06.09.2021 dismissed the appeal of the State-

Opposite Parties and thereby affirmed the judgment of the

Division Bench of this Court.

19. Learned counsel for the Petitioners also referred to the

order passed by another Division Bench of this Court in

State of Odisha & others v. Biranchi Nayak (W.P.(C)

No.33872 of 2020, disposed of on 28.10.2021). On perusal

of the order dated 28.10.2021 passed in the said writ

petition, this Court observed that the State-Opposite Parties

had approached this Court by challenging the order of the

Tribunal passed in O.A. No.1295 of 2017 wherein the // 20 //

Tribunal while quashing the impugned orders directed the

Government to appoint the applicant before the Tribunal

under Rehabilitation Assistance Scheme within three

months. In that case, the Division Bench of this Court while

interpreting the Rule-2(b) read with

Rule-9(7) of the OCS (RA) Rules, 1990 has categorically

held that the application for appointment on compassionate

ground by the legal heirs even where the spouse of the

deceased Government employee is alive is maintainable

and entertainable. While disposing of the said writ petition,

the Division Bench had reminded the State of its welfare

duties towards the citizens who are in difficulty due to the

sudden demise of their beloved family members who was a

Government employee. In the said case, the applicant's son

had submitted affidavits by other legal heirs/family

members in support of the claim of the Petitioner. It is

stated by the learned counsel for the Petitioners that the // 21 //

order passed in the above noted writ petitions directing the

Opposite Parties to give appointment to the Petitioners has

already been implemented in the meantime.

20. A joint counter affidavit has been filed on behalf of

the Opposite Parties No.1 and 4. In the said counter

affidavit, the Opposite Parties apart from challenging the

maintainability of the writ petition have also taken a stand

that initially the Petitioner did not submit the medical

unfitness certificate of his mother. Thereafter the same was

submitted later on 04.02.2015 which was issued much after

the date of application. The said counter affidavit reveals

that the Opposite Parties have taken a stand that since the

medical certificate was issued after the application was

submitted by the Petitioner, the same does not satisfy the

requirement that the mother of the Petitioner was medically

unfit to discharge the official duties and that the same is an

afterthought. It has also been contended in the counter // 22 //

affidavit that the procedure adopted by the Petitioner is an

attempt to circumvent the regular procedure of giving

appointment to the aspirants after selecting them through a

regular selection procedure.

21. In the present case, an attempt has been made to enter

into Government service without facing the open

competition. Such conduct on the part of the Petitioner

violates the Rule-2(b) read with Rule-9(7) of the Rules,

1990.

22. In the counter affidavit, in para-10 it has been

categorically stated that the Petitioner participated in the

qualifying test wherein he was declared to have qualified in

the test. Thereafter, all the relevant documents were sent to

the Government for necessary verification. However, the

committee which was scrutinizing the applications has

rejected the claim of the Petitioner. This Court on a careful

reading of the counter affidavit found that no ground // 23 //

whatsoever has been indicated for rejection of the

Petitioner's claim by such committee. On the contrary, in

the counter affidavit a stand has been taken by referring to

the Rule-2(b) and Rule-9(7) of the O.C.S. (R.A.) Rules to

the effect that in order of preference, as provided in Rule-

2(b), the case of the mother is to be considered first. It is

only when the person who stands first in the priority list is

found unsuitable, the question of considering the next

person in the priority order comes into picture. In the

instance case, the Petitioner submitted his application

without any justification as to why his mother is not

eligible for appointment as per the order of preference

contained in Rule-2(b) of the Rules, 1990.

23. It was also contended that the Medical Certificate

which was supplied subsequently is of no use as the same

was submitted after submission of the application under the

OCS (RA) Rules, 1990. Therefore, the Opposite Parties // 24 //

have justified their conduct in rejecting the application of

the Petitioner. In the counter affidavit, the Opposite Parties

have also taken a stand that the judgment of this Court in

Ajit Kumar Barik's case (supra) is not applicable to the

facts of the present case as the factual background of both

the cases are different. The distinction cited in the counter

with regard to non-applicability of Ajit Kumar Barik's case

(supra) is that the mother of the said Ajit Kumar Barik

submitted application for appointment and later on she was

found medically unfit for the job. Thereafter, the son

applied for appointment under the O.C.S. (R.A.) Rules. So

far the present case is concerned, the Petitioner applied

directly when the mother is still alive that too without the

medical unfitness certificate of the mother. On such

grounds, the Opposite Parties have taken a stand that the

writ petition is devoid of merit. Accordingly, the same

should be dismissed.

// 25 //

24. Having heard learned counsels appearing for the

respective parties and on a careful examination of the

background facts as well as the materials on record and on

a careful analysis of the pleadings of the respective parties,

this Court observed that the only question that falls for

adjudication in the present batch of writ applications is as to

whether the case of the son could be considered for

appointment under the O.C.S. (R.A.) Rules, 1990 even

when the mother/husband of the Government deceased

employee is still alive?

25. In reply to the aforesaid question, this Court at the

outset would like to refer to the provisions contained in

Rule-2(b) of the OCS (RA) Rules, 1990. On a perusal of

Rule-2(b) of the 1990 Rules which has also been quoted

herein above clearly reveals that the same defines the

family members. Such definition also mandates that the

legal heirs who have been named in Rule-2(b) are to be // 26 //

treated in a preferential order. Therefore, there is no quarrel

with regard to the proposition that while considering the

application for appointment on compassionate ground, the

Opposite Parties are duty bound to consider the case of the

wife/husband first before taking of the claim of other legal

heirs. However, this Court is also of the considered view

that the same does not debar consideration of the next

person in the preferential order in the event when it is

known to the person in the second position that the first

person is unfit/incapable of performing official duties.

However, such application by a person who comes after the

wife/husband has to be accompanied by reasons and

documents in support of such reason. Such view of this

Court is supported by the judgments referred to

hereinabove particularly in the case of Ajit Kumar Barik's

case (supra).

// 27 //

26. In the instant case, after the applications were

submitted by the Petitioners', letters were issued to their

mothers. The mothers of the Petitioners were directed to

appear before the District Medical Board. They were also

examined by the District Medical Board. Thereafter, reports

were prepared by the District Medical Board showing

incapacity/unfitness of the mothers of the Petitioners in the

respective writ petitions and the same were forwarded to

the competent authority before the final decision was taken

in the matter. It is needless to emphasize here that such

medical examination was conducted only on the direction

of the Opposite Parties. It is also not disputed by the

Opposite Parties that the Petitioners were made to appear in

a qualifying test and in such qualifying test they were found

qualified for such appointment under the O.C.S. (R.A.)

Rules, 1990. While this was the position, the matter was

placed before the scrutiny committee. The scrutiny // 28 //

committee, as it appears, has rejected the applications of the

Petitioners arbitrarily and illegally without taking note of

the background facts and without considering the

provisions of the relevant rules.

27. This Court further observed that after rejection of the

application for compassionate appointment, the Petitioners

initially approach the Tribunal by filing O.A. The Tribunal

after hearing the counsels appearing for the respective

parties was pleased to quash the impugned rejection order

and directed the Opposite Parties to give appointment to the

Petitioners. However, such order of the Tribunal was not

carried out by the Opposite Parties. On the contrary, the

Home Department, Government of Odisha again rejected

the application of the Petitioners with utter disregard to the

order passed by the Tribunal. Being aggrieved by such

rejection order of the Government, the Petitioners have // 29 //

approached this Court by filing the above noted writ

petitions.

28. On a careful analysis of the factual background as

well as the position of law, this Court is of the considered

view that by the time the application of the Petitioners was

being considered, the medical certificates were available

before the authorities for consideration. Such medical

certificates were issued by the District Medical Board on

the direction to the Opposite Parties. Therefore, the

Opposite Parties are estopped to take a ground that such

certificates were not filed along with the RA applications.

Moreover, by applying the law laid down by this Court in

Ajit Kumar Barik's case (supra) which was eventually

affirmed by Hon'ble Apex Court, this Court is of the

considered view that the conduct of the Opposite Parties in

rejecting the claim of the Petitioners for appointment under

the OCS (RA) Rules, 1990 is highly illegal and arbitrary.

// 30 //

Furthermore, in view of the judgment in Malaya Nanda

Sethy v. State of Orissa and others, reported in 2022(II)

OLR(SC)-1, the Opposite Parties cannot take a stand that

the applications of the Petitioners cannot be considered

under the O.C.S. (R.A.) Rules, 1990 as is revealed from the

facts of the case that the death of the deceased employee

occurred much prior to the new rules of the year 2020 came

into force. In addition to that the applications of the

Petitioners were considered and rejected under the 1990

Rules on a wrong notion and by misinterpreting the

Rule-2(b) of the Rules, 1990.

29. In view of the aforesaid analysis, this Court has no

hesitation in coming to a conclusion that the conduct of the

Opposite Parties are highly illegal, arbitrary and

discriminatory. Accordingly, the impugned rejection orders

are liable to be set aside and the same is hereby set aside.

The Opposite Parties are further directed to give // 31 //

appointment to the Petitioners in all above noted three writ

petition under the O.C.S. (R.A.) Rules, 1990 as directed by

the Tribunal and from the time as directed by the Tribunal

against any available vacancy within a period of two

months from the date of communication of a copy of this

judgment.

30. With the aforesaid observations and directions, all the

writ petitions are allowed. However, there shall be no order

as to cost.

(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 17:44:23