Afr Purnima Bindhani vs State Of Odisha & Others
2023 Latest Caselaw 11667 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                       W.P.(C) No. 17472 of 2023

        An application under Articles 226 & 227 of Constitution of
                                  India.
                                     ---------------
AFR    Purnima Bindhani                          ......         Petitioner

                                      - Versus -

       State of Odisha & Others                .......        Opp. Parties
       Advocate(s) appeared in this case:-
       _________________________________________________________
         For Petitioner     :         Mr. S.B. Jena, S. Behera, A. Swain,
                                      & S.P. Jena, Advocates.

          For Opp. Parties :     Mr. Iswar Mohanty
                                 Addl. Standing Counsel.
       _________________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                                     JUDGMENT

th 26 September, 2023

SASHIKANTA MISHRA, J.

The petitioner is aggrieved by rejection of her

claim for appointment under Rehabilitation Assistance

Scheme by the Chief Engineer & Basin Manager,

Subarnarekha & Budhabalanga Basin, Mayurbhanj by order

dated 06.09.2022.

2. The case of the petitioner is that her husband,

Gobardhan Bindhani was working as Watchman in the

office of the Superintending Engineer, Subarnarekha

Irrigation Division No.1 at Jharpokharia in the district of

Mayurbhanj. He died in harness on 02.07.2016 due to

illness leaving behind his widow (petitioner), two sons and

his old mother. The family being suddenly faced with

financial crisis because of death of the only earning

member, the petitioner submitted an application to the

opposite party No.4 for consideration of her case for

appointment under the Rehabilitation Assistance Scheme.

The matter was kept pending for long time. The Executive

Engineer of the Division called upon the petitioner to

resubmit the application with all documents which she

submitted on 13.03.2019. By letter dated 18.04.2019, the

Executive Engineer forwarded the application of the

petitioner along with the connected documents to the

Superintending Engineer. Again no action was taken till

04.07.2022, on which date the case of the petitioner was

considered as per the Odisha Civil Services (Rehabilitation

Assistance) Rules, 2020 (in short '2020 Rules') and was

rejected on the ground that she had scored less than 44

points in Part-1. The decision of the committee was

communicated to the petitioner through the Superintending

Engineer by letter dated 06.09.2022, copy enclosed as

Annexure-6, which is impugned in the present application.

On such facts, the petitioner has approached this Court

seeking the following relief:

"Under the abovementioned facts and circumstances of the case, this Hon'ble Court may graciously be pleased to quash the Evaluation Committee Meeting held on 4.7.2022 and Copy of Letter No.5107 dated 6.9.2022 under Annexure-5 and 6 respectively.

And further be pleased to direct the Opp.Party No.1 to consider the case of the petitioner as per Rehabilitation Assistance Rule, 1990 and appoint the Petitioner in any Group-D post.

Or pass any other order/orders as this Hon'ble Court may deem think fit and proper."

3. Despite sufficient opportunities, no counter

affidavit was filed on behalf of the opposite party authorities,

for which the matter was heard on the basis of the available

pleadings.

4. Heard Mr. S.B. Jena, learned counsel for the

petitioner and Mr. Iswar Mohanty, learned Addl. Standing

Counsel for the State.

5. It is argued by Mr. Jena that the petitioner having

submitted application soon after the death of her husband

in the year 2016 and again resubmitted such application

being called upon in the year 2019, her case should have

been considered as per the provisions of the Odisha Civil

Services (Rehabilitation Assistance) Rules, 1990 (in short

'1990 Rules'). The authorities by applying the provisions of

the 2020 Rules have committed an illegality since they are

themselves guilty of sitting over the application of the

petitioner for so long. To fortify his contention, Mr. Jena has

cited the decision of the Supreme Court in the case of

Malaya Nanda Sethy v. State of Orissa, reported in 2022

SCC OnLine SC 684.

6. Per contra, Mr. I. Mohanty, learned State Counsel

argues that there is no evidence of the petitioner having

submitted application for compassionate appointment prior

to 13.03.2019. As per Rule 6(9) of the 2020 Rules, all

pending applications are to be considered under the new

Rules. The petitioner's application was considered, but she

could not secure the required points on evaluation and

therefore, the same was rightly rejected. Mr. Mohanty

further submits that in the absence of proof of any

application having been submitted prior to 13.03.2019, it

cannot be said that there was any undue delay on the part

of the authorities to process the application.

7. There is no dispute that the husband of the

petitioner died in harness on 02.07.2016. A legal heir

certificate appears to have been issued by the concerned

authority on 30.11.2016. There is no proof of any

application having been submitted by the petitioner shortly

after the death of her husband. In Paragraph-4 of the writ

application, it is simply stated that the petitioner had

submitted an application to the opposite party No.4 for

appointment under the Rehabilitation Assistance Scheme

but no date of submission of such application mentioned. It

is further stated that the authorities again asked her to

submit an application, which she complied. In the above

circumstances, the letter dated 18.04.2019 of the Executive

Engineer in forwarding the application along with

documents of the petitioner assumes significance. The letter

itself is quoted below for immediate reference;

OFFICE OF THE EXECUTIVE ENGINEER SUBARNAREKHA IRRIGATION DIVISION NO.1, JHARPOKHARIA.

Dated.

Letter No To.

The Superintending Engineer, Subarnarekha Irrigation Circle, Laxmiposi.

Sub:-

Resubmission of Application for appointment under the Rehabilitation Assistant Scheme of Smt. Purnima Bindhani wife of late Gabardhan Bindhani of this Division.

Ref:- Your Letter No- 7019/WE dtd.13.12.18.

Sir, In inviting a kind reference to the letter & subject cited above, it is to intimate that late Gabardhan Bindhani, Ex- watchman of this office expired on dt,02.07.16 while in service

As such the application with connected documents of Smt.Purnima Bindhani, wife of late, Gabardhan Bindhani for appointment under Rehabilitation Assistant Scheme which has been received from her by register post Vide No-RO776460465IN, Dtd.13.03.19. is resubmitted herewith for favour of information and necessary action

Encl:- Application Form -3 set

(i) See Rule - 6 no.

(ii) Part VII 6 nos.

(iii) Annexure-6 nos

(iv) Legal Heir Certificate -3 nos

(v) Death Certificate- 3 nos

(vi) Qualification Certificate- 3 nos.

(vii) Income Certificate- 3 nos

(viii) Resident Certificate- 3 nos.

                                      Yours faithfully,

                                 Executive Engineer,
                  S.I. Division No. 1, Jharpokharia
Memo No. 735              Date-18-04-19

Copy submitted to the Chief Engineer and Basin Manager S & B Basin, Laxmiposi for information and necessary action.

                                 Executive Engineer
Memo No.-                 Date

Copy to the Sub Divisional Officer, S.I. Sub Division No- IIL,Jharpokharia for information with reference to his Lr No-511/WE dtd.29.09.18 Executive Engineer [ Emphasis supplied]

8. The highlighted portions mentioned under the

subject as well as body of the letter clearly show that the

application was resubmitted and not submitted for the first

time. Therefore, notwithstanding absence of any evidence of

submission of an application by the petitioner at an earlier

point of time, the letter dated 18.04.2019 is sufficient to

draw an inference that the same was resubmission of

application. Even otherwise, it does not stand to reason as

to why the petitioner would remain quite till 2019 when she

had already obtained the death certificate of her husband

and a legal heir certificate in the year 2016 itself, shortly

after death of her husband. If such is the case, it can be

easily inferred that the petitioner's claim for appointment

under the Rehabilitation Assistance Scheme was kept

pending at the end of opposite party authorities for at least

three years, i.e., from 2016 to 2019. Even accepting for a

moment that she had submitted the application on

18.03.2019 also, there is no reason as to why the same was

kept pending till as late as 04.07.2022 for evaluation but

only to be rejected and communicated to the petitioner by

letter dated 06.09.2022. It is apparent that the matter was

dealt with in the most callous manner by the concerned

authorities.

9. It is trite that appointment under the

Rehabilitation Assistance Scheme is intended to save a

family from distress caused by the death of the earning

member. Of course, learned State Counsel has argued that

delay nullifies the immediacy involved but then if such delay

is attributable to the authorities, in the present case high

level government functionaries, the principle would have no

application. This very issue was addressed by the Apex

Court in the case of Malaya Nanda Sethy (supra) in the

following words:

14. Thus, from the aforesaid, it can be seen that there was no fault and/or delay and/or negligence on the part of the appellant at all. He was fulfilling all the conditions for appointment on compassionate grounds under the 1990 Rules. For no reason, his application was kept pending and/or no order was passed on one ground or the other. Therefore, when there was no fault and/or delay on the part of the appellant and all throughout there was a delay on the part of the department/authorities, the appellant should not be made to suffer. Not appointing the appellant under the 1990 Rules would be giving a premium to the delay and/or inaction on the part of the department/authorities. There was an absolute callousness on the part of the department/authorities. The facts are conspicuous and manifest the grave delay in entertaining the application submitted by the appellant in seeking employment which is indisputably attributable to the department/authorities. In fact, the appellant

has been deprived of seeking compassionate appointment, which he was otherwise entitled to under the 1990 Rules. The appellant has become a victim of the delay and/or inaction on the part of the department/authorities which may be deliberate or for reasons best known to the authorities concerned. Therefore, in the peculiar facts and circumstances of the case, keeping the larger question open and aside, as observed hereinabove, we are of the opinion that the appellant herein shall not be denied appointment under the 1990 Rules.

15. In view of the above discussion and for the reasons stated above, the impugned judgment and order passed by the High Court is hereby quashed and set aside. The respondents are directed to consider the case of the appellant for appointment on compassionate grounds under the 1990 Rules as per his original application made in July, 2010 and if he is otherwise found eligible to appoint him on the post of Junior Clerk. The aforesaid exercise shall be completed within a period of four weeks from today. However, it is observed that the appellant shall be entitled to all the benefits from the date of his appointment only. The present appeal is accordingly allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.

16. Before parting with the present order, we are constrained to observe that considering the object and purpose of appointment on compassionate grounds, i.e., a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service and the basis or policy is immediacy in rendering of financial assistance to the family of the deceased consequent upon his untimely death, the authorities must consider and decide such applications for appointment on compassionate grounds as per the policy prevalent, at the earliest, but not beyond a period of six months from the date of submission of such completed applications."

10. Having regard to the peculiar facts and

circumstances, this Court finds that the principle

underlying the judgment rendered in Malaya Nanda Sethy

(supra) would be squarely applicable to the present case.

11. For the foregoing reasons therefore, the writ

petition is allowed. The impugned order under Annexure-6

is hereby quashed. The opposite party authorities are

directed to reconsider the application of the petitioner for

appointment under the Rehabilitation Assistance Scheme as

per the 1990 Rules. Since the Government servant died way

back in the year 2016, the authorities shall do well to

dispose of the application of the petitioner as early as

possible, preferably within a period of four weeks from the

date of production of certified copy of this order by the

petitioner.

................................. Sashikanta Mishra, Judge Orissa High Court, Cuttack.

The 26th September, 2023/ A.K. Rana, P.A.

Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 26-Sep-2023 14:20:23