Subasini Kar And Another vs The Orissa Mining Corporation ... ...
2025 Latest Caselaw 4516 Ori

Orissa High Court

Subasini Kar And Another vs The Orissa Mining Corporation ... ... on 3 March, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
               W.P.(C) NO.21882 of 2014

   (In the matter of application under Articles 226 and
   227 of the Constitution of India).

   Subasini Kar and another            ...        Petitioners
                            -versus-

   The Orissa Mining Corporation ... Opposite Parties
   Limited, Bhubaneswar and
   another

   For Petitioners           : Mr. A. Mishra, Advocate

   For Opposite Parties      : Mr. P.K. Muduli, Advocate

       CORAM:
                    JUSTICE G. SATAPATHY

                    DATE OF HEARING :25.02.2025
                    DATE OF JUDGMENT:03.03.2025
G. Satapathy, J.

1. The petitioners by way of this writ petition

have invoked the jurisdiction of this Court under Articles

226 and 227 of the Constitution of India by praying to

quash the impugned order under Annexure-7 and to

direct the OPs to issue appropriate order of appointment

in favour of the petitioner No.2 upon consideration of the

application made by them under Orissa Civil Services

(Rehabilitation Assistance) Rules, 1990 (in short, "the

Rules").

By an order dated 22.03.2014 passed by the

Chairman-cum-MD, Odisha Mining Corporation Limited

(OMC) at Annexure-7 has refused to consider the

representation of the petitioners for appointment under

the Rehabilitation Assistance Scheme.

2. The facts in nutshell are that one Pramoda

Kumar Bahinipati, who was the deceased son of petitioner

No.1 and deceased brother of petitioner No.2 was

working as a Light Motor Vehicle driver in Barbil Region

under OMC having joined in the service on 19.05.1993

and while working as such, he died on 18.12.1997 in

harness due to an accident arising out of and in course of

his employment. Since late Pramod was then a bachelor

and the petitioners were being dependent on him, the

petitioner No.1 approached the OMC for engagement of

petitioner No.2 when he attained majority on 15.09.1998,

either in place of his deceased son or against any other

job in the Corporation, but due to inaction of OP-OMC,

the petitioners had filed OJC No.13439 of 2000 which was

disposed of on 19.04.2004 with a direction to OPNo.2-

MD, OMC to dispose of the application of the petitioners

strictly in consonance with law and rules governing the

field. However, the application of the petitioners was

rejected on three grounds; (i) for limitation, (ii) for

petitioner No.2 not coming within the meaning of family

in terms of Rules and (iii) lastly, for application not

coming under the category of deserving case. This led the

petitioner to once again approach this Court in W.P.(C)

No.1903 of 2005, which was disposed of by this Court on

24.01.2014 with an observation that in case the

petitioners files a fresh application along with all the

relevant documents before OPNo.2, the same shall be

considered sympathetically. Accordingly, the petitioners

moved an application before the authority-OPNo.2, but

OPNo.2 rejected the application of the petitioners on

22.03.2014 compelling the petitioners to approach this

Court again in the present writ petition. It needs to be

stated here that during pendency of the writ petition, the

petitioner No.1 died and her name deleted.

3. In the course of hearing of the writ petition,

Mr. Aditya Mishra, learned counsel for the petitioners by

referring to the rules has submitted that although the

petitioners were wholly dependent on the deceased,

who died in the harness while working in the course of

his employment under the OMC, but OPNo.2 is avoiding

to issue an order of appointment in favour of petitioner

No.2 on one or different pretext despite direction from

this Court, which led the petitioners to continue to

litigate for a job even after 28 years of the death of the

deceased. It is further submitted that the unmarried

brother of the deceased Government Servant, who was

wholly dependent on such Government Servant at the

time of death is coming within the meaning of family

members so as to get compassionate appointment, but

the authority ignoring such fact has refused to give

appointment to petitioner No.2. It is further submitted

by Mr. Mishra that after refusal of the representation of

the petitioners under Annexure-4, this Court has

entertained writ petition and, thereby, subsequent

entertainment of the representation of the petitioners

itself justify the condonation of delay of limitation for

applying for compassionate appointment after two

years, but the authority concerned has whimsically

passed the order refusing to issue appointment order

on the ground of limitation. Further, Mr. Mishra has

submitted that OPNo.2 by misinterpreting the Rules has

erroneously considered that the petitioners' case is not

coming under the deserving case and accordingly

refused to issue an appointment order and, therefore,

the petitioner No.2 being illegally deprived of his

legitimate claim is required to be compassionated by

way of issuing an order of appointment to him. While

praying to allow the writ petition by issuing an order of

appointment to petitioner No.2, Mr. Mishra has relied

upon the amended Rules.

3.1. On the other hand, Mr. P.K. Muduli,

learned counsel appearing for OPs has submitted that the

claim of the petitioners has to be considered in terms of

the Rule prevailing as on the date of death of the

deceased and at the time of death of the deceased on

18.12.1997, the petitioner No.2 was not coming within

the meaning of family members and, therefore, the claim

of the petitioner No.2 may be negated on that ground

since the amended Rules came w.e.f. 1st October, 1999.

Further, Mr. Muduli by relying upon the decision in State

of Madhya Pradesh and others Vrs. Ashish Awasthi

and others; (2022) 2 SCC 157 has submitted that the

Apex Court has clearly held that the claim for

compassionate appointment must be decided only on the

basis of relevant scheme prevalent on the date of demise

of the employee and subsequent scheme cannot be

looked into. It is also submitted by Mr. Muduli that the

claim for compassionate appointment may not be

entertained after a lapse of considerable period of time of

the death of the Government employee and to buttress

his submission, he has relied upon the judgment passed

by the Apex Court in State of West Bengal Vrs.

Debabrata Tiwari and others Etc. Etc.; 2023

LiveLaw (SC) 175.

4. A casual look to the rival claims of the

parties, it appears that the dispute with regard to

providing a compassionate appointment to petitioner

No.2 is to be considered on the relevant Rules and

Scheme. Hence, this Court considers it apposite to refer

to the principle under which the claim for a

compassionate appointment can be considered. In this

regard, the law laid down by the Apex Court in Ashish

Awasthi (supra) is quite clear and therein after

quoting the observation of Indian Bank and others

Vrs. Promila and another; (2020) 2 SCC 729 with

approval, which is stated to be reiterated in State of

Madhya Pradesh and others Vrs. Amit Shrivas;

(2020) 10 SCC 496, the Apex Court at paragraph-5 of

the judgment has observed that the Respondent shall

not be entitled for appointment on compassionate

grounds on the basis of the subsequent circular/policy

dated 31.08.2016.

5. In Promila (supra), the Apex Court has

observed that claim for compassionate appointment

must be decided only on the basis of relevant scheme

prevalent on date of demise of the employee and

subsequent scheme cannot be looked into. In

Debabrata Tiwari (supra), the Apex Court after

survey of a number of judgment governing field has

observed in paragraph-7.5 as under:-

"7.5. 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 Hakim Singh (Haryana State Electricity Board Vrs. 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."

6. In the present circumstance, when the

facts of the case are exposited, it undeniably appears

that the deceased brother of the petitioner No.2 had

died on 18.12.1997, but the Rules as existed as on that

date do not include the brother within the meaning of

"family members" so as to provide compassionate

appointment to him. True it is that the brother has

been included within the meaning of "family members"

in the amended Rules which came into force w.e.f 1st

October 1999. On the contrary, it appears from

Annexure-4 that the petitioner No.2 had applied for

appointment under the Rehabilitation Assistance

Scheme on 23.12.1999, which was more than two

years after the death of his brother as on 18.12.1997,

but Rule 9(b) of the un-amended Rules prescribe a

period of one year for making application for

appointment under compassionate appointment. It is

also not in dispute that the petitioner No.2 is admittedly

the brother of the deceased and his date of birth in

terms of his application is 14.07.1974 and the

petitioner has already attained the age of 50 years.

Further, the claim of the petitioner No.2 was also

refused by the authority on the ground that he is not

coming under the deserving case on the ground of his

father's employment in OMC, which is also not disputed

by the petitioners inasmuch as Annexure-4 clearly

discloses that the father of the petitioner No.2 was in

service under OMC till his superannuation on 30th June

2003 and was drawing a salary exceeding Rs.20,000/-

in a year since Rule 2(iii) of the Rules prescribes that

none of the family members of the employee who has

died or has suffered from permanent disability while in

service is already in the employment of Government/

Public or Private Sector or engaged in independent

business with an earning above Rs.20,000/- (Rupees

Twenty Thousand) a year. The claim of the petitioner

No.2 suffers not only from limitation, but also for not

coming within the meaning of family members in terms

of the Rule as on the date of death of the deceased on

18.12.1997.

7. In response to negate in the claim of the

petitioner No.2 on the ground of not coming under

deserving case, the petitioners in the writ petition have

only stated the following averments in paragraph-16:-

"16. Xxx Xxx Xxx Evidently, an exception has been taken to the service of Shri Brundaban Kar, the father of the deceased

under the Corporation and drawing a salary exceeding Rs.20,000/- in a year. In such respect, it is humbly submitted that if a deceased son could be employed by the Corporation, while his father is serving the said Corporation and could maintain his mother and his younger brother being wholly dependent on the said deceased, the 1990 Rules fully apply to such a case for giving Rehabilitation Assistance to the concerned family member, who is none else than the petitioner no. 2 as the dependant brother of the deceased. The opp. party no.2 apparently has gone astray in finding out some irrelevant grounds to deny the relief to the petitioners than to give them the expeditious and effectual relief as intended in the Orders dated 19.04.2004 and 24.01.2014 of this Hon'ble Court. As such, the said ground is also not available to be sustained in the eye of law."

The aforesaid averments do not satisfy the

criteria prescribed in Rule 2(iii) of the Rules.

8. The underlined object for the Rehabilitation

Assistance Scheme is to protect the family members of

the deceased from distress and crisis arising out of the

sudden loss of the bread earner and the hardship likely to

be faced by the family members on account of the sudden

stoppage of inflow of income to the family. The word

"Rehabilitation Assistance" used in the scheme is in the

context that the Assistance required to be provided under

the Rules to the family members of a Government

Servant, who dies or suffers any permanent disability

while in service and the very application of the scheme

for appointment to be made against Class-IV and Class-

III posts itself reveals beyond doubt that this is a social

measure for preventing the family members of the

deceased employee from suffering further financially and

that's why, Rule 8(b) of the Rules prescribes that

immediate after receipt of the application in prescribed

format, the appointing authority shall send a requisition

to the Collector of the district in which the family

ordinarily resides calling for a report as to whether the

family is in "Financial Distress". It cannot be disputed that

the object underlying the provision for grant of

compassionate employment is to enable the family

members of the deceased to overcome the sudden crisis

due to the death of the bread earner, which has left the

family in penury and without any means of livelihood and

such scheme is benevolent in nature and to be considered

purely on humanitarian consideration and, therefore,

compassionate appointment is not a source of

recruitment nor a vested right conferred on the family

members of the deceased, rather it is a social measure to

prevent the family members of the deceased from

destitution and vagrancy and, therefore, the application

for compassionate appointment should be decided

promptly. In the present case already, much water has

been flown in the meanwhile after death of the deceased

and in the meanwhile, around 27 years have elapsed, but

the petitioner No.2 is able to prosecute his litigation

before this Court and different authorities for time and

again, which itself shows that the petitioner No.2 is not

financially distressed or the family members are in

penury.

9. In the result, this Court on a conspectus of

materials placed on record together with the relevant

Rules finds the claim of the petitioner No.2 in negative

since as on the date of death of the employee he was not

coming within the meaning of family members nor was he

coming under the category of deserving case and,

thereby, the authority concerned has decided rightly

against the petitioner No.2 for granting any

compassionate appointment.

In the result, the writ petition merits no

consideration and is, accordingly, dismissed on contest,

but in the circumstance, there is no order as to costs.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 3rd day of March, 2025/Subhasmita

Signed by: KISHORE KUMAR SAHOO

Location: High Court of Orissa Date: 03-Mar-2025 18:49:36