Orissa High Court

State Of Odisha vs Geetamani Soren @ Majhi on 13 January, 2025

       IN THE HIGH COURT OF ORISSA AT CUTTACK
                          W.A. No.777 of 2024

1.    State of Odisha, represented through its Addl. Secretary to
Govt., Department of Water Resources, Rajib Bhawan, Unit-V,
Bhubaneswar, Dist- Khurdha.

2.    The Collector & District Magistrate, Mayurbhanj, Baripada,
At/PO/PS- Baripada, Dist- Mayurbhanj.

3.    The      Engineer-in-Chief,      Water    Resources,   Odisha,
Bhubaneswar.

4.    The Chief Engineer & Basin Manager, Subarnarekha &
Budhabalanga     Basin,   Laxmiposi,   At/PO/PS-   Laxmiposi,   Dist-
Mayurbhanj.

5.    The Superintending Engineer, Subarnarekha Irrigation Circle,
Laxmiposi, At/PO/PS- Laxmiposi, Dist- Mayurbhanj.

6.    The Executive Engineer, Subarnarekha Irrigation Division
No.2, Deuli, At/PO/PS- Deuli, Dist- Mayurbhanj.

                                                        ...Appellants
                               -Versus-

Geetamani Soren @ Majhi, aged about 29 years, Daughter of Late
Parameswar Majhi @ Soren, resident of Village At/PO- Rajabasa, PS-
Baripada Sadar, Dist- Mayurbhanj, At present residing At- Village-
Janardanpur, Unit No.15, PS- Baripada Town, Dist- Mayurbhanj.

                                                       ...Respondent



W.A. No.777 of 2024                                      Page 1 of 12
 Advocates appeared in the case:
For the Appellants              :    Mr. Manoja Kumar Khuntia,
                                    Additional Government Advocate

For the Respondent              :    Mr. Bijaya Kumar Behera, Advocate


CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MISS JUSTICE SAVITRI RATHO


JUDGMENT

13.01.2025

Chakradhari Sharan Singh, CJ.

The State of Odisha, in the present intra-court appeal, has put to

challenge a judgment/order dated 31.10.2023 passed by a learned

Single Judge of this Court in W.P.(C) No.1665 of 2017 whereby, the

learned Single Judge has allowed the writ petition filed by the

petitioner (respondent herein) by setting aside an order whereby the

respondent's application for appointment under rehabilitation scheme

was rejected. After having set aside the said order of rejection, the

learned Single Judge has directed the appellants to process the

respondent's application for providing her employment under the

Orissa Civil Services (Rehabilitation Assistance) Rules, 1990 (in short

'the 1990 Rules'), based on the principles laid down by the Supreme

Court in case of Malaya Nanda Sethy v. State of Orissa, reported in

2022 SCC Online SC 684.

2. We have heard Mr. Manoja Kumar Khuntia, learned Additional

Government Advocate (AGA), appearing on behalf of the appellants

and Mr. Bijaya Kumar Behera, learned counsel appearing on behalf of

the respondent.

3. It would be apt to take note of at the outset certain basic facts

necessary for present adjudication.

4. The respondent is the daughter of late Parameswar Majhi who

died in harness on 28.09.2006 while working as a Junior

Stenographer-cum-Typist under appellant No.6. On the date of death

of her father, the respondent was a minor. The respondent, after

attaining the age of majority, applied for her appointment under the

Rehabilitation Assistance Scheme on 06.07.2013. She attached with

her application a medical certificate issued on 28.06.2013 to the effect

that her mother was physically and mentally not fit to be appointed on

compassionate ground. As the said application remained pending, the

respondent filed a writ petition giving rise to W.P.(C) No.21675 of

2016 which was disposed of with a direction to the appellants No.4

and 5 to pass appropriate orders.

5. Finally, by an order dated 18.01.2017, the respondent's

application was rejected, mainly on the ground that when the spouse

of the deceased Government employee was available, the claim of the

daughter (respondent) could not be entertained. It is not in dispute that

the respondent's mother, i.e., the widow of the deceased Government

servant had never applied for compassionate appointment under the

Rules.

6. It was the case of the respondent before the learned Single

Judge that because of her mother's illness and the fact that she was

physically unfit, she waited for her daughter to attain majority and

seek appointment under the Rehabilitation Assistance Scheme.

7. Rule-9(7) of the 1990 Rules provides that if at the time of death

of the Government servant, there is a ward who is a minor and who

alone is available in the family of the deceased Government servant

for employment, he/she shall apply for job under these rules on

attaining the age of eighteen years and in no case beyond three years

from the date of attaining the age of eighteen years.

8. It was the respondent's case in the writ proceeding that she

attained the age of eighteen years in 2012 and she applied for

compassionate appointment under the Rehabilitation Assistance

Scheme on 06.07.2013. It was further her case that the widow of the

deceased employee was suffering from chronic diseases and was so

physically and mentally unfit to get service under the Rehabilitation

Assistance Scheme.

9. Relying on the decisions of this Court in case of Ajit Kumar

Barik v. State of Orissa, reported in 2018 (II) OLR-10, Biswaranjan

Barik v. State of Orissa, reported in 2018 (II) OLR-795 and Bibhuti

Bhusan Patnaik v. State of Orissa, reported in 2018 (Supp.-II) OLR-

918, the learned Single Judge opined that because the widow of the

deceased employee who was to be given the first preference in the

matter of grant of appointment on compassionate ground was

physically unfit, the appellant's ought to have considered the case of

the respondent who was alone available in the family and was minor

at the time of death of the Government servant.

10. The learned Single Judge, in the impugned judgment, has noted

apparent delay in processing the respondent's application for

appointment on compassionate ground and, accordingly, referring to

the decision of the Supreme Court in case of Malaya Nanda Sethy

(supra), has directed the appellants to consider the respondent's case

for appointment on compassionate ground under the 1990 Rules. The

learned Single Judge has noted in the impugned judgment that if the

respondent's application was to be rejected on the ground of delay or

on the ground of availability of the spouse of the deceased

Government employee, her application ought to have been rejected

promptly. Further, there was a medical certificate made available to

the effect that the respondent's mother was suffering from chronic

disease, like Diabetes type-2, HTN and IHD and she was physically

and mentally unfit to work as an employee under the Rehabilitation

Assistance Scheme. The said medical certificate was never

disbelieved nor questioned by the authorities concerned, rather the

respondent's application was processed.

11. In such view of the matter, the grounds taken to deny the

respondent benefit of compassionate appointment under the

Rehabilitation Assistance Scheme was unsustainable, the learned

Single Judge held.

12. Assailing the impugned order of the learned Single Judge, Mr.

Manoja Kumar Khuntia, learned Additional Government Advocate

appearing on behalf of the appellants has submitted that the decision

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

not lay down a law on the point of appointment on compassionate

ground rather the order has been passed in the said case in the peculiar

facts and circumstances keeping the larger question open. He has

submitted that it cannot be said that no person was available in the

family of the deceased employee. The learned Single Judge has

incorrectly applied the provision under Rule-9(7) of the 1990 Rules as

it cannot be said that the respondent, alone available in the family of

the deceased, who was a minor and in which case she could have

applied on attaining the age of eighteen years. He has relied on the

Supreme Court's decision in case of State of West Bengal v.

Debabrata Tiwari, reported in 2023 SCC Online SC 219, paragraph

35 of which reads thus:

"35. Considering the second question referred to above, in the first instance, regarding whether applications for compassionate appointment could be considered after a delay of several years, we are of the view that, in a case where, for reasons of prolonged delay, either on the part of the applicant in claiming compassionate appointment or the authorities in deciding such claim, the sense of immediacy is diluted and lost. Further, the financial circumstances of the family of the deceased, may have changed, for the better, since the time of the death of the government employee. In such circumstances, Courts or other relevant authorities are to be guided by the fact that for such prolonged period of delay, the family of the deceased was able to sustain themselves, most probably by availing gainful employment from some other source. Granting compassionate appointment in such a case, as noted by this Court in Haryana State Electricity Board v. Hakim Singh, (1997) 8 SCC 85 would amount to treating a claim for compassionate appointment as though it were a matter of inheritance based on a line of succession which is contrary to the Constitution. Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government

employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee."

13. Mr. Khuntia submits that if the respondent's mother was

physically unfit to seek appointment on compassionate ground after

sudden demise of her husband, she could have expressed her inability

to seek such appointment. The respondent has based her claim on a

medical certificate obtained 7 years after the death of the deceased

employee to the effect that the widow of the deceased employee was

suffering from certain diseases and therefore, unfit to claim

appointment on compassionate basis. It has also been argued that the

facts of Malaya Nanda Sethy (supra) are substantially different from

the facts of the present case. In the present case, the application for

compassionate appointment was filed in the year 2013.

14. Learned counsel appearing on behalf of the respondent, on the

other hand, has argued that as in the case of Malaya Nanda Sethy

(supra), the respondent was diligently pursuing her matter and soon

after she attained the age of eighteen years, she filed the application

for appointment on compassionate basis rightly in terms of Rule-9(7)

of the 1990 Rules. He contends that the learned Single Judge has

rightly set aside the order rejecting the respondent's claim for

appointment on compassionate basis by the impugned order and has

directed consideration of the respondent's case for appointment on

compassionate ground following the law laid down by this Court and

the Supreme Court in various cases.

15. We have carefully perused the pleadings and materials on

record and we have given our thoughtful consideration to the rival

submissions advanced on behalf of the parties.

16. Certain dates are crucial for determination of present case and

needs to be taken note of at the outset. The respondent's father died on

28.09.2006. The widow of the deceased employee was eligible for

appointment under the 1990 Rules. Rule-9(3) of the 1990 Rules reads

thus:

"3. Where a widow of the deceased Government servant is appointed on compassionate ground against a Group D post, she is not required to satisfy the educational qualification prescribed for the said post, provided the duties attached to the post can be satisfactorily performed without having the requisite educational qualification."

17. Evidently thus, the widow of the deceased employee was not

required to satisfy the educational qualification. Despite availability of

the widow of the deceased employee with eligibility, no application

was made seeking appointment on compassionate ground.

18. We are of the considered view that in order to attract Rule-9(7)

of the 1990 Rules, it has to be established that the ward of the

deceased Government servant was minor at the time of death of the

Government servant and he/she was alone available in the family of

the deceased. Physically incapacity of the respondent's mother was

required to be determined as on the date of death of the Government

servant not on the date when the respondent filed the application for

appointment on compassionate ground. The fact remains that she did

not claim such appointment soon after the death of the deceased and

she waited for the respondent to attain majority.

19. Further, in the case of Debabrata Tiwari (supra), the Supreme

Court, after having noticed all important Supreme Court's decisions

on the point of grant of appointment on compassionate basis, has held

in paragraphs 45 and 46 as under:

"45. In the present case, the applications for compassionate appointment were made by the Respondents-Writ Petitioners in the year 2005-2006. Admittedly, the first concrete step taken by the Chairman of the Burdwan Municipality was in the year 2013, when the said authority forwarded a list of candidates to be approved by the Director of Local Bodies, Burdwan Municipality. The Respondents-Writ Petitioners knocked on the doors of the High Court of Calcutta only in the year 2015, i.e., after a lapse of nearly ten years from the date of making the application for compassionate appointment. The Respondents-Writ Petitioners were not

prudent enough to approach the Courts sooner, claiming that no concrete step had been taken by the Appellant- State in furtherance of the application by seeking a Writ in the nature of Mandamus.

46. The sense of immediacy in the matter of compassionate appointment has been lost in the present case. This is attributable to the authorities of the Appellant-State as well as the Respondents-Writ Petitioners. Now, entertaining a claim which was made in 2005-2006, in the year 2023, would be of no avail, because admittedly, the Respondents-Writ Petitioners have been able to eke out a living even though they did not successfully get appointed to the services of the Municipality on compassionate grounds. Hence, we think that this is therefore not fit cases to direct that the claim of the Respondents-Writ Petitioners for appointments on compassionate grounds, be considered or entertained."

(Emphasis added)

20. The decision of the Supreme Court in case of Malaya Nanda

Sethy (supra) is clearly distinguishable on facts inasmuch as in the

said case the son of the deceased employee had applied for the

Government job soon after the death, as the widow was unable to

undertake the Government job due to her medical condition. Distinct

from the said case, in the present case, the respondent filed an

application for appointment on compassionate basis seven years after

the death of the deceased Government employee with a plea that the

widow was unfit for doing any job. The respondent has not been able

establish a case that on the date of death of the deceased employee,

her mother was unfit for doing any job, even if her subsequent