Prabira Kumar Dash vs Managing Director
2025 Latest Caselaw 2260 Ori

Orissa High Court

Prabira Kumar Dash vs Managing Director on 9 January, 2025

              ORISSA HIGH COURT: CUTTACK

                   W.P.(C) No.3747 of 2023

In the matter of an Application under Articles 226 and 227
             of the Constitution of India, 1950

                           ***

Prabira Kumar Dash Aged about 43 years Son of Late Bhagirathi Dash At: Baunsia (Raghunathpur Sasan) P.O./P.S.: Sarankul District: Nayagarh. ... Petitioner.

-VERSUS-

1. Managing Director, Odisha Forest Development Corporation Ltd. (OFDC Ltd.) Bhubaneswar, Plot No.A/84 Kharavel Nagar, Unit-II Bhubaneswar, District: Khordha.

2. Divisional Manager, Odisha Forest Development Corporation Ltd. (OFDC Ltd.) Bhanjanagar (C) Division AT/PO: Bhanjanagar District: Ganjam.

3. State of Odisha represented through its Principal Secretary Forest and Environment Department Bhubaneswar, District: Khordha. ... Opposite Parties.

Counsel appeared for the parties:

For the Petitioner : M/s. Bijaya Kumar Parida-2, M.B. Swain, A.P. Sahoo and P. Sahoo, Advocates

For the Opposite Party : M/s. Bigyan Kumar Sharma, Nos.1 & 2 Sudeepta Kumar Singh, Jayesh Pradhan and Itishree Tripathy, Advocates

For the Opposite Party : Mr. Deba Ranjan Mohapatra, No.3 Additional Government Advocate

P R E S E N T:

HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

Date of Hearing : 07.11.2024 :: Date of Judgment : 09.01.2025

J UDGMENT

MURAHARI SRI RAMAN, J.--

Assailed in the writ petition is the Office Order No.2251/O.E.II(DY.SDM)/05/1995, dated 28.11.2022 passed by the Managing Director, Odisha Forest Development Corporation Limited-opposite party No.1 (Annexure-3), wherein and whereby the representation of the petitioner's mother for consideration of her son's appointment as per the Rehabilitation Assistance Scheme envisaged under the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990, was rejected purported to be have been in compliance of direction for consideration of representation as contained in the

Order dated 25.08.2022 passed in W.P.(C) No.8196 of 2011 by this Court.

1.1. Being dissatisfied with said Order in Annexure-3, the petitioner (Prabir Kumar Das, son of deceased employee) has approached this Court by way of filing the instant writ petition craving to invoke extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India, with the following prayer(s):

"It is therefore prayed that this Hon‟ble Court may graciously be pleased to admit this writ petition, call for the records, issue notice to the opp. Parties and on hearing issue writ of mandamus directing the opp. Parties more particularly opposite party No.1-Managing Director, Odisha Forest Development Corporation Ltd. (OFDC Ltd.), Bhubaneswar to given an appointment to the petitioner under Rehabilitation ground by setting aside/quashing the Order dated 24.11.2022 under Annexure-3.

And pass any other order/orders as would be deem fit and proper in the facts and circumstances of the case.

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

Case of the petitioner:

2. The case of the writ petitioner, in brief, is that his father-Bhagirathi Dash, Deputy Sub-Divisional Manager under the Odisha Forest Development

Corporation Limited ("OFDC", abbreviated) on regular basis, died in harness on 21.05.2004 (as reflected in Order dated 25.08.2004 passed in W.P.(C) No.8196 of 2014) leaving behind his wife (widow), three daughters and two sons (including the petitioner). It is asserted that none of the family members of the petitioner got employment under the Government and his father was the sole bread-winner of the family. After his death, financial stringency compelled him to approach the authority for compassionate appointment.

2.1. The mother of the petitioner (wife of the deceased employee) approached the Divisional Manager, OFDC, Bhanjanagar (C) Division for grant of family pension and also requested for providing an employment to her son (the petitioner) under the Rehabilitation Assistance Scheme as available under the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 ("RA Rules", for brevity) after obtaining the Death Certificate and Legal Heir Certificate.

2.2. The petitioner made a representation before the Managing Director, OFDC, Bhubaneswar-opposite party No.1 on 10.12.2008. Since the opposite parties did not consider his application, the petitioner approached this Court by way of filing writ petition being W.P.(C) No.18487 of 2009, which was disposed of vide Order dated 23.12.2009 with a direction to the

opposite party No.1 to consider the application/ representation of the petitioner.

2.3. The opposite party No.1 in compliance of this Court's Order dated 23.12.2009 rejected the claim of the petitioner for appointment under Rehabilitation on 01.03.2011 with the following observation:

"*** The Hon‟ble High Court, Orissa vide its Order No.2 dated 23.12.2009 passed in W.P.(C) No.18487 of 2009 has been pleased to direct the opposite party No.1, Managing Director, OFDC Ltd., to consider the application of the petitioner Sri Pabitra Kumar Dash, said to have been filed by the petitioner in accordance with the Rules.

The fact of the case is that, Late Bhagirathi Dash, father of the petitioner was working in OFDC Ltd., as Dy. SDM, and he expired on 25.01.2004. Due to above reasons, the petitioner has filed the writ petition before the Hon‟ble High Court, Orissa for his employment under Rehabilitation Assistance Scheme in OFDC Ltd.

Further, the petitioner stated that he has filed an application on 10.12.2008 before the Managing Director, OFDC Ltd, Bhubaneswar to give him employment. But, it is ascertained that no such application has been received at Corporate Office, Bhubaneswar from the petitioner Sri Dash.

Further, Orissa Forest Development Corporation Ltd., is a Government of Orissa Undertaking. There are large numbers of employees working in this Organization and till date large number surplus staff/officers are continuing in this OFDC Ltd, as

a result of which there is no vacancy to appoint the persons in any category post in OFDC Ltd. Further Ban order for recruitment/appointment under Rehabilitation Scheme in Public Sector Undertaking has not yet been vacated by the Government of Orissa.

In view of the above and since the OFDC has huge surplus staff, the question of appointment to the petitioner in the Rehabilitation Assistance Scheme in Orissa Forest Development Corporation Ltd., does not arise. Hence, the grievance of the petitioner for appointment on Rehabilitation Scheme has got no merit for consideration and it is accordingly rejected."

2.4. Aggrieved by said Order dated 01.03.2011, the petitioner again knocked the doors of this Court by way of filing writ petition, giving rise to registration of W.P.(C) No.8196 of 2011 with the prayer for according an appointment under the RA Rules and set aside the said Order dated 01.03.2011. This Court disposed of the matter with the following observation vide Order dated 25.08.2022:

"***

7. On perusal of the rejection order, it is seen that Orissa Forest Development Corporation has taken specific stand that the application dated 10.12.2008, which was referred to in the earlier order of this Court, was never received at the end of Orissa Forest Development Corporation and it has also been stated that in view of the ban order for

recruitment of the appointment under the Rehabilitation Assistant Scheme in Public Sector undertaking imposed by the Government they are not in position to consider the grievance of the petitioner.

8. In the counter affidavit filed by the Opposite Party-

Orissa Forest Development Corporation, the stand taken in the impugned order has been reiterated regarding non-receipt of application dated 10.12.2008 and the ban order passed by the State Government for appointment under the Rehabilitation Assistant Scheme.

The stand of the Opposite Party-Orissa Forest Development Corporation in paragraph-21 of the counter is quoted hereunder for convenience of ready reference.

„That at present about 123 numbers of applications under Rehabilitation Assistant Scheme are still pending with the Corporation and until the State Government lifts the ban and unless the position of the Corporation improves and vacancies are available for giving fresh appointments there is no scope for considering the cases for appointment under Rehabilitation Assistant Scheme.‟

9. There is no reply filed on behalf of the petitioner to the specific stand of the Corporation regarding non-receipt of his application dated 10.12.2008, which was the basis of this Court to entertain his earlier Writ petition. But it is submitted that the Petitioner‟s mother had made an application on

03.09.2005 at Annexure-4 and it is submitted that

the Corporation has not responded to the application filed by the mother at Annexure-4 and the counter filed also does not advert to such pleadings in the Writ Petition.

10. Taking note of the same notwithstanding the specific stand of the Corporation regarding non availability of vacancy, the ban order as referred to above and non-receipt of the application by the petitioner, the Court is of the considered opinion that in view of the stand of the Corporation extracted hereinabove in paragraph (paragraph-21) of the counter, interest of justice would be sub- served if the Corporation is called upon to consider the claim of the petitioner, if, there are any changing circumstances notwithstanding the rejection order at Annexure-6.

11. Since the matter relates to Rehabilitation Assistance, expeditious steps be taken preferably within a period of six months from the date of receipt/production of this order. Decision so taken be communicated to the petitioner at the address reflected in the W.P.(C).

12. With such observation, this writ petition stands disposed of."

2.5. Pursuant to said order of this Court, the Managing Director, OFDC-opposite party No.1 vide Office Order No.2251/O.E.II(DY.SDM)/05/1995, dated 25th November, 2022 considered the representation of the mother of the petitioner and rejected the prayer of the

petitioner for according appointment under the RA Rules. The said Order of rejection reads as follows:

"Whereas Sri Prabir Kumar Dash, Son of Late Bhagirathi Dash, Ex-Deputy Sub-Divisional Manager has filed a writ petition before the Hon‟ble High Court of Orissa in W.P.(C) No.8196 of 2011 with a Prayer give an appointment under Rehabilitation Assistance Scheme.

Whereas, the Hon‟ble High Court of Orissa after hearing finally disposed of the Writ petition on 25.08.2022 with the observation that interest of justice would be sub- served if the Corporation is called upon to consider the claim of the Petitioner, if there are any changing circumstances notwithstanding the Rejection Order issued by the Opposite Party under Office Order No.182 dated 01.03.2011 under Annexure-06.

Whereas the Petitioner has submitted the Xerox copy of Order on 17.09.2022 along with his Representation which was received on 20.09.2022.

Whereas the ban of Recruitment under Rehabilitation Assistance Scheme imposed by the State Government has not yet been lifted. Even more than 123 (one hundred twenty-three) numbers of Applications under Rehabilitation Assistance Scheme are still pending with the Corporation.

Whereas the Petitioner though deposed before the Hon‟ble Court about submission of Application dated 10.12.2008 but, no such Application was received by the Opposite Party which has already been explained while disposing his Application as per the previous

Order dated 23.12.2009 passed by this Hon‟ble Court in W.P.(C) No.18487 of 2009.

Whereas the Application dated 10.12.2008 enclosed as Annexure-05 of the Writ Petition has also been duly considered and rejected mainly on the ground of non- lifting of ban on appointment under Rehabilitation Assistance Scheme and non-availability of vacancy to accommodate more than 123 (One hundred twenty-three) Applicants applied for their compassionate appointment.

In view of the above facts, the Representation under Annexure-04 filed by the Petitioner‟s Mother has been duly considered and rejected which disposes the direction of the Hon‟ble High Court of Orissa."

2.6. Being dissatisfied with the Order dated 25.11.2022 passed copy of which is made available at Annexure-3 of the writ petition, the petitioner has approached this Court beseeching to invoke extraordinary jurisdiction under the provisions of Articles 226 and 227 of the Constitution of India.

Hearing:

3. As the pleadings are completed and the issue involved is for consideration to direct the opposite parties to accord appointment to the petitioner under the RA Rules, the matter is taken up for final hearing at the stage of admission on the consent of the counsel for the respective parties.

3.1. Heard Sri Bijaya Kumar Parida (2), learned Advocate for the petitioner, Sri Bigyan Kumar Sharma, learned Counsel for opposite party Nos.1 and 2 and Sri Deba Ranjan Mohapatra, learned Additional Government Advocate for the opposite party No.3.

3.2. Hearing being concluded, the matter was reserved for preparation and pronouncement of judgment.

Submissions and arguments:

4. Sri Bijaya Kumar Parida (2), learned Advocate, placing the factual details of the matter, urged that the Scheme of Rehabilitation appointment was introduced to save the distress family after the death of the employee-breadwinner. Nonetheless, the opposite party No.1 without following the provisions of the RA Rules in proper perspective rejected the prayer of the petitioner for appointment and thereby frustrated the objective of such rules.

4.1. He further vehemently contended that since there are large numbers of vacancies available, the authority concerned did not consider the appointment of the petitioner and rejected his claim by stating that there has been ban on recruitment under the RA Rules. Non-consideration of the plight of the petitioner on such ground being flimsy, the same deserves

intervention of this Court holding the impugned Order as contrary and illegal in the eye of law.

5. Per contra, Sri Bigyan Kumar Sharma, learned counsel appearing for the OFDC relying on the counter affidavit filed on behalf of opposite party Nos.1 and 2 submitted that the State Government by way of Notification dated 08.04.1994 imposed ban on all types of appointments including employment under the RA Rules.

5.1. It is submitted that the RA Rules, 1990 is applicable only with respect to the Government employee. The father of the petitioner was not in Government service, but was working in a Corporation (OFDC) under the administrative control of the Department of Forest, Environment and Climate Change. Therefore, the authority concerned rightly considered and rejected the claim of the petitioner.

5.2. Opposing the averments and contents of the writ petition, Sri Bigyan Kumar Sharma, learned counsel for OFDC, therefore, urged that the writ petition deserves to be dismissed as time and again on the self- same cause the petitioner has been making attempts to question the rejection of claim for appointment under the Rehabilitation Assistance Scheme contemplated under the RA Rules.

5.3. He relied on Annexure-A/1 enclosed to the counter affidavit, which is reproduced for better comprehension:

"Government of Orissa Forest and Environment Department No.6F(B)-20/94.6370/F&E., Dated 08.04.1994

From

B.C. Patnaik, Principal Secretary to Government.

To

Sri S.K. Prasad, Managing Director, OFDC, Bhubaneswar.

Sub: Ban for recruitment including N.M.R. and enforcing economy measures in Public Sector Undertakings.

Sir,

In inviting a reference to the Public Enterprise Department Letter No.1300/PE dtd.12.06.1993 and No.1911 (35) dtd.08.07.1993 addressed to the Chief Executives of all Public Sector Undertaking (Copies enclosed) on the above subject, I am directed to say that it is evident from your Letter No.4866 dtd.21.02.1994 that a large number of persons have been appointed in OFDC Ltd. on regular, ad hoc and daily wage basis violating the Government circular referred to above.

It is also noticed therein that under rehabilitation scheme a number of persons have been appointed in OFDC Ltd. Rehabilitation Scheme presupposes that there is a vacancy. It does not mean that even though there is no vacancy, a family member of the deceased employee is to be appointed. Since the OFDC has huge surplus staff, no

appointment should be made under rehabilitation scheme henceforth.

It also appears from your above letter that a number of persons have been appointed on daily wages basis/ad hoc basis. Since a large number of regular staff are sitting idle and getting their salary without any work, it is not understood how daily wage staff have been entertained. Responsibility should be fixed on persons responsibility for such irregular appointment. As Corporation is facing serious financial difficulties and there is not enough work for regular staff, daily wage and ad hoc staff who have been appointed in violation of Government directives, should be phased out.

In no case daily wage staff/work charged staff are to be appointed in future as corporation has surplus staff. The Finance Department Circular No.17815 dated 12.04.1993 (copy enclosed) and Public Enterprise Department Letter No.1300 (53)/PE, dated12.05.1993 are to be followed strictly. Anybody who makes appointment on daily wage/ad hoc basis should be proceeded against. If any post is created or appointment is made in OFDC., the Managing Director, OFDC shall be held responsible personally.

Action taken in the matter is to be intimated to Government.

Yours faithfully, Sd/-

08.04.1994 Principal Secretary to Govt."

Discussions:

6. There is no dispute that the father of the petitioner died in harness in the year 2004. The present petitioner, son of the deceased employee, comes within the definition of the term "family members" as

enumerated in Rule 2(b) of the RA Rules, 19901. Though the submission of representation/application for consideration of appointment under the RA Rules, 1990 is disputed, in view of direction of this Court in W.P.(C) No. 8196 of 2011, vide Order dated 25.08.2022, the claim of the petitioner has been (re)consideration of his appointment as envisaged under the provisions contained in the RA Rules, 1990, as were in vogue at the relevant period with reference to "changing circumstances notwithstanding the rejection order" on earlier occasion by the authority concerned.

6.1. It is the categorical stance of the opposite party Nos.1 and 2 that there is no trace of Application dated 10.12.2008 being submitted by the petitioner. Without going into controversy whether the petitioner had made the application or not, even if it is assumed that the same was submitted, there cannot be any denial

1. Rule 2(b) defining the term "family members" stands thus:

"In these Rules, unless the context otherwise requires:

(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 daughter;

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

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

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

that the same was furnished in the year 2008 (as the copy of such application was furnished to this Court on affidavit vide Annexure-5 of W.P.(C) No.8196 of 2011). It is, thus, apparent that though the death of the father of the petitioner occurred in the year 2004 the application was made beyond the period of one year. It is envisaged under Rule 9(6) of the RA Rules that "Application for appointment under these rules shall be considered if it is received within one year from the date of death of the Government servant". There is no explanation forthcoming from the side of the petitioner.

6.2. It is further ground of the OFDC that more than 123 applications for employment under the RA Rules have been pending consideration and the ban is still to be lifted. The OFDC has rejected the request of the petitioner for appointing him inter alia on the following grounds:

i. The ban on appointment under the RA Rules has not been lifted;

ii. At present there is no vacancy;

iii. There being more than 123 applications pending consideration before the OFDC, there is no scope for the Corporation to accommodate the petitioner.

iv. Surplus staff position would not justify according appointment of the petitioner.

7. With the above backdrop, this Court takes note of Rule 4 of the RA Rules, which reads thus:

"4. Objective of the Scheme.--

The rehabilitation assistance is conceived as a compassionate measure of saving the family of a Government servant from immediate distress when the Government servant suddenly dies while in service. The concept is based on the premises that in case of sudden death his family would not face starvation. The scheme has a direct relationship with the economic condition of the family of the Government servant. Appointment of the family member of the Government servant under these rules shall be subject to the provisions contained in Rule 9 and cannot be claimed as a matter of right."

7.1. It has been held in Union of India Vrs. Amrita Sinha, (2021) 9 SCR 602, that,

"Compassionate appointment is not a matter of right, but is to enable the family to tide over an immediate crisis which may result from the death of the employee. If the policy of the Government envisages that the family pension would be paid for a ten years after which it would have to be modified, it cannot be said that by taking into account the present pensionary payment, the authorities have considered an extraneous circumstance. The same criterion is applied

even handedly to all applicants seeking compassionate appointment."

7.2. In Indian Bank Vrs. Promila, (2020) 1 SCR 408 it has been observed that,

"2. It is trite to emphasise, based on numerous judicial pronouncements of this Court, that compassionate appointment is not an alternative to the normal course of appointment, and that there is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family in difficult times and, thus, the relevancy is at that stage of time when the employee passes away. An aspect examined by this judgment is as to whether a claim for compassionate employment under a scheme of a particular year could be decided based on a subsequent scheme that came into force much after the claim. The answer to this has been emphatically in the negative. It has also been observed that the grant of family pension and payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The crucial aspect is to turn to the scheme itself to consider as to what are the provisions made in the scheme for such compassionate appointment.

***

17. We have to keep in mind the basic principles applicable to the cases of compassionate employment, i.e., succour being provided at the stage of unfortunate demise, coupled with

compassionate employment not being an alternate method of public employment. If these factors are kept in mind, it would be noticed that the respondents had the wherewithal at the relevant stage of time, as per the norms, to deal with the unfortunate situation which they were faced with. Thus, looked under any Schemes, the respondents cannot claim benefit, though, as clarified aforesaid, it is only the relevant Scheme prevalent on the date of demise of the employee, which could have been considered to be applicable, in view of the judgment of this Court in Canara Bank & Anr. Vrs. M. Mahesh Kumar (2015) 7 SCC 412 = (2015) 9 SCR 724. It is not for the Courts to substitute a Scheme or add or subtract from the terms thereof in judicial review, as has been recently emphasized by this Court in State of Himachal Pradesh & Anr. Vrs. Parkash Chand, (2019) 4 SCC 285.

18. We may have sympathy with the respondents about the predicament they faced on the demise of Shri Jagdish Raj, but then sympathy alone cannot give remedy to the respondents, more so when the relevant benefits available to the respondents have been granted by the appellant-Bank and when respondent No.1, herself, was in employment having monthly income above the benchmark."

7.3. It is observed in Central Bank of India Vrs. Nitin, 2022 LiveLaw (SC) 690 that:

"As held by this Court in State Bank of India Vrs. Raj Kumar reported in (2010) 11 SCC 661 cited by Mr.

Debal Kumar Banerji, learned senior counsel appearing on behalf of the appellant-Bank, the claim for compassionate appointment is traceable only to the Scheme framed by the employer for such employment, and there is no right whatsoever outside such scheme. There could be no automatic appointment merely on application. The respondent-writ petitioner did not have any special claim or special right to employment as dependent family member of the retired employee."

7.4. Apposite it is to take note of the following observation rendered in Steel Authority of India Ltd. Vrs. Gouri Devi, (2021) 11 SCR 37:

"5.2 As held by this Court in the case of Punjab State Power Corporation Limited and Ors. Vrs. Nirval Singh, (2019) 6 SCC 774 delay in pursuing claim/approaching court would militate against claim for compassionate appointment as very objective of providing immediate amelioration to family would stand extinguished. Before this Court, there was a delay of 07 years in approaching the Court and this Court observed and held that on the ground of delay itself, the heir/dependent of the deceased employee shall not be entitled to the appointment on compassionate ground.

5.3 In the case of State of J&K and Ors. Vs. Sajad Ahmed Mir (2006) 5 SCC 766, this Court had occasion to consider the delay and laches in case of appointment on compassionate ground. By dismissing the claim for appointment on compassionate ground, which was made after a

period of four and a half years of death of the deceased employee, it was held that appointment on compassionate ground is an exception to general rule that appointment to public office should be made on the basis of competitive merits. It is further observed that once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution."

7.5. It may be pertinent to have regard to the observation contained in State Bank of India Vrs. Somvir Singh, (2007) 4 SCC 778 that,

"7. Article 16(1) of the Constitution of India guarantees to all its citizens equality of opportunity in matters relating to employment or appointment to any office under the State. Article 16(2) protects citizens against discrimination in respect of any employment or office under the State on grounds only of religion, race, caste, sex and descent. It is so well settled and needs no restatement at our end that appointment on compassionate grounds is an exception carved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. Such appointments are required to be made on the basis of open invitation of

applications and merit. Dependants of employees died in harness do not have any special or additional claim to public services other than the one conferred, if any, by the employer.

13. In our considered opinion, the High Court itself could not have undertaken any exercise to decide as to what would be the reasonable income which would be sufficient for the family for its survival and whether it had been left in penury or without any means of livelihood. The only question the High Court could have adverted itself to is whether the decision-making process rejecting the claim of the respondent for compassionate appointment is vitiated? Whether the order is not in conformity with the scheme framed by the appellant Bank? It is not even urged that the order passed by the competent authority is not in accordance with the scheme. It is well settled that the hardship of the dependant does not entitle one to compassionate appointment dehors the scheme or the statutory provisions as the case may be. The income of the family from all sources is required to be taken into consideration according to the scheme which the High Court altogether ignored while remitting the matter for fresh consideration by the appellant Bank. It is not a case where the dependants of the deceased employee are left "without any means of livelihood" and unable to make both ends meet. The High Court ought not to have disturbed the finding and the conclusion arrived at by the appellant Bank that the respondent was not living

hand-to-mouth. As observed by this Court in G.M. (D&PB) Vrs. Kunti Tiwary, (2004) 7 SCC 271 the High Court cannot dilute the criterion of penury to one of "not very well-to-do". The view taken by the Division Bench of the High Court may amount to varying the existing scheme framed by the appellant Bank. Such a course is impermissible in law."

7.6. In the case of Umesh Kumar Nagpal Vrs. State of Haryana, (1994) 4 SCC 138, it was impressed that as a rule, appointments in public services should be made strictly on basis of open invitation of applications and merit. The appointment on compassionate ground was an exception to the aforesaid rule taking into consideration the fact of the death of the employee while in service and leaving his family without any means of livelihood. In such cases, the object is to enable the family to tide over sudden crisis. However, such appointments on compassionate grounds have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. It has been laid down that,

"It is obvious from the above observations that the High Court endorses the policy of the State Government to make compassionate appointment in posts equivalent to the posts held by the deceased employees and above Class III and IV. It is unnecessary to reiterate that these observations are contrary to law. If the dependant of

the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity."

7.7. In the case of State of Haryana Vrs. Naresh Kumar Bali, (1994) 4 SCC 448, on an appeal filed by State of Haryana, a 3-Judges Bench of the Hon'ble Supreme Court of India deprecated the directions given by the High Court to appoint the respondent of the said case against a post of an Inspector and it was observed that the High Court should have merely directed consideration of the claim of the said respondent in accordance with rules. In fact, this Court in the earlier round of litigation, being W.P.(C) No.8196 of 2011, vide Order dated 25.08.2022 did the same for consideration of the plight of the petitioner. Nevertheless, the OFDC considered the grievance of the petitioner and rejected citing justification.

7.8. In State of Haryana Vrs. Rani Devi, (1996) Supp.3 SCR 560 it has been observed as follows:

"It need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the ground that he was a dependent on the deceased employee. Strictly this claim cannot be upheld on the touch stone of Articles 14 or 16 of the Constitution. But this Court has upheld this claim as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has

served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16."

With reference to Umesh Kumar Nagpal (supra) the Hon'ble Court stated thus:

"It was also impressed that appointments on compassionate ground cannot be made after lapse of reasonable period which must be specified in the rules because the right to such employment is not a vested right which can be exercised at any time in future."

7.9. Necessary implication of aforesaid decisions would lead to indicate that if the family survives the financial stringency over the years and no longer faces an acute financial crisis, the rationale for compassionate appointment becomes invalid. Compassionate appointments are governed by specific Government policies, which often prescribe time limits for applications. These time limits are to ensure fairness and efficiency.

7.10. Based on the above principles, it may be pertinent to have regard inter alia to the following aspects while considering the grievance in the present nature of case:

i. If the family of the deceased employee (Bhagirathi Dash) has survived for several years (since 2004, i.e., year of death of employee) without

compassionate appointment, it is presumed that the immediate financial crisis has been addressed. Hence, there is no justification for granting such an appointment after a prolonged delay.

ii. The ban on employment at the time of the death, though unfortunate, does not entitle the family to compassionate appointment indefinitely. Such an appointment must be made within a reasonable period to serve its intended purpose.

iii. Financial stringency prevailing at the time of the employee's death cannot serve as a perpetual basis for a claim if the family has sustained itself over time.

iv. In case of this nature of giving employment as a measure of rehabilitation assistance, emphasis must be on the time-bound nature of such assistance and the importance of adhering to Government policies and principles of equity in public employment.

Conclusion:

8. As is emanated from the factual matrix narrated herein above, it is not in dispute that though the death of the father of the petitioner occurred way back in the

year 2004, the application, as affirmed by the petitioner to have submitted in the year 2008 (as per affidavit sworn to in the writ petition vide Annexure-5 of W.P.(C) No.8196 of 2011) by the petitioner (though the opposite parties have stated not to have received), there has been delay on the part of the petitioner in approaching the authority-opposite parties.

8.1. The conspectus of decisions of the Hon'ble Supreme Court of India as referred to supra would lead to demonstrate that:

i. there could be no automatic appointment merely on application;

ii. compassionate appointment is not an alternative to the normal course of appointment;

iii. there is no inherent/vested right to seek compassionate appointment;

iv. it is not being an alternate method of public employment, if the family could manage to survive for several years without such assistance, the very justification for compassionate appointment ceases to exist;

v. immediate succour is provided at the stage of unfortunate demise coupled with compassionate employment and, thus, it is basically a way out

for the family which is financially in difficulties on account of the death of the bread earner; in other words, the purpose of compassionate appointment is to alleviate the immediate financial crisis caused by the employee's death;

vi. delay in approaching the Court would disentitle the heir/dependent of the deceased employee ("family member", as defined in the RA Rules) to the appointment on compassionate ground;

vii. once it is proved that despite of the death of the breadwinner, the family survived and substantial period is over, there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution;

viii. it is not an avenue for a regular employment as such, but it is, in fact, an exception to the provisions under Article 16 of the Constitution.

8.2. In the present case since the death of the employee, i.e., father of the petitioner substantial period of 20 years have been elapsed and the family of the petitioner has survived. There is no material placed on record to suggest that financial difficulties have been ongoing. Matter would have been different had it been demonstrated with evidence that due to bureaucratic

hurdles or policy restrictions (such as, ban on employment notwithstanding provisions contained in the Rules), the family in distress would not be expected that the "family members" could have survived without adequate support or income. Under such circumstances, it is inept to exercise power conferred under Article 226/227 of the Constitution of India.

9. This Court by Order dated 25.08.2022 in W.P.(C) No.8196 of 2014 taking note of non-availability of vacancy, ban order of the Government and non-receipt of application dated 10.08.2008, directed the opposite party-OFDC to consider the claim of the petitioner with rider that "if there are any changing circumstances".

9.1. It has specifically been stated in the impugned Order dated 28.11.2022 (Annexure-3) that "the ban on recruitment under Rehabilitation Assistance Scheme imposed by the State Government has not yet been lifted" and more than 123 applications under RA Rules are pending consideration. No vacancy is available as of now for the petitioner to be accommodated along with such huge numbers of applications which are pending consideration.

9.2. The reconsideration of the representation for compassionate appointment cannot obliterate the effect of the initial delay in moving the opposite parties. This direction to dispose of the representation could serve no purpose to the cause of justice. The petitioner-litigant is back again before this Court. By the time, this Court issued its direction on 25.08.2022 on earlier round of litigation, nearly 18 years had elapsed since the date of the death of the employee. There is no material on record to suggest that the financial stringency still persists.

9.3. Therefore, at this stage no writ of mandamus is warranted to be issued. Noteworthy here to quote from LIC Vrs. Asha Ramchhandra Ambekar, (1994) 2 SCC 718:

"8. Where the Corporation has acted bona fide and declined to appoint the second respondent, that exercise of power cannot be interfered with. Shortly put, the Corporation cannot be directed by means of a mandamus to do something which is per se illegal.

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10. Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot

confer benediction impelled by sympathetic consideration. No doubt Shakespeare said in "Merchant of Venice":

„The quality of mercy is not strain‟d; It droppeth, as the gentle rain from heaven Upon the place beneath it is twice bless‟d; It blesseth him that gives, and him that takes;‟

These words will not apply to all situations. Yielding to instinct will tend to ignore the cold logic of law. It should be remembered that „law is the embodiment of all Wisdom‟. Justice according to law is a principle as old as the hills. The courts are to administer law as they find it, however, inconvenient it may be.

11. At this juncture we may usefully refer to Martin Burn Ltd. Vrs. Corporation of Calcutta, AIR 1966 SC 529, 535 = (1966) 1 SCR 543. At page 535 of the Report the following observations are found:

„A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not.‟

The courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, it should never be done. In the very case itself, there are regulations and instructions which we have extracted above. The

court below has not even examined whether a case falls within the scope of these statutory provisions. Clause 2 of sub-clause (iii) of Instructions makes it clear that relaxation could be given only when none of the members of the family is gainfully employed. Clause 4 of the circular dated January 20, 1987 interdicts such an appointment on compassionate grounds. The appellant Corporation being a statutory Corporation is bound by the Life Insurance Corporation Act as well as the Statutory Regulations and Instructions. They cannot be put aside and compassionate appointment be ordered.

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13. It is true that there may be pitiable situations but on that score, the statutory provisions cannot be put aside."

9.4. The recourse to the opposite parties in the year 2008 suffered from a delay in the first instance. This staleness of the claim took away the very basis of providing compassionate appointment. Furthermore, taking into consideration the reasons ascribed in Order dated 28.11.2022 of the OFDC passed in order to comply with the direction contained in Order dated 25.08.2022 passed in W.P.(C) No.8196 of 2011 does lead the claim of the petitioner liable to be rejected and ought to be rejected.

10. This Court finds no mitigating circumstance to show indulgence in the Order dated 28.11.2022 of the Managing Director, OFDC (Annexure-3). Hence, the writ petition is, accordingly, dismissed.

11. For all the aforesaid reasons and having regard to legal position as discussed in the decisions referred to supra, the Writ petition, being devoid of merit, stands dismissed, but in the circumstances there shall be no order as to costs.

(MURAHARI SRI RAMAN) JUDGE

High Court of Orissa, Cuttack Signed by: LAXMIKANT The 9th January, 2025//Aswini/Laxmikant/Suchitra MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa,Cuttack Date: 09-Jan-2025 15:35:31