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Judgment
S. N. Prasad, J.
1.This writ petition under Article 226 and 227 of the Constitution of India has been filed for quashing the order dtd.15.1.2007 under Annexure5 with a
prayer to direct the opposite parties to appoint the petitioner or her son under Rehabilitation Assistance Scheme within reasonable time.
The brief fact of the case of the petitioner is that her husband was working as helper in Athagarh Rural Electricity Society Limited which is a
society under the control of Orissa State Electricity Board. Thereafter it was taken over by the GRIDCO but while working, he died on 20.03.1994,
after his death an application has been made under the rehabilitation assistant scheme, to provide appointment but when it was pending, the petitioner
has filed writ petition being O.J.C. No.6008 of 1995 which was disposed of vide order dated 06.09.2006 by directing the authority to take decision, in
terms thereof decision has been taken on 15.01.2017 whereby and where under the claim of the petitioner has been rejected on the ground that on the
day when the other employees have been absorbed under the Orissa State Electricity Board and thereafter in CESCO, her husband was not in the
service, as such OSEB Service Rehabilitation Assistant Scheme, 1992 and GRIDCO Rehabilitation Assistance Scheme 1997 are not applicable.
The petition being aggrieved with the same is before this court on the ground that the dependent of the deceased cannot be deprived mainly on
account of the fact that before absorption, her husband was died, moreover, he submits that on the date when the husband of the petitioner has died,
the Orissa State Electricity Board was functioning, as such it was the liability of the Orissa State Electricity Board to appoint and even if the OSEB
has been reformed, then also the successor establishment is liable to carry out the liability of the OSEB, as such they are duty bound to provide
appointment to the petitioner.
Opposite parties have appeared after being noticed by this court. The opposite party no.1 â€" CESU has filed counter affidavit through Executive
Engineer, Athagarh Electrical Division wherein the claim of the petitioner has been disputed on the ground that the Management of the Society was
superseded by the Orissa Gazette No.24644 dtd.26.12.1992 and 24656 dtd.26.12.1992 with effect from the month of January, 1993 and the said
society was under the Management of OSEB, but the service rules of the society was still in vogue, the petitioner’s husband met with an accident
and subsequently died on 20.3.1994 and thereafter she has made an application for getting appoint under rehabilitation assistance scheme and when it
was not considered this Court has directed to consider it, in view thereof he has filed representation before the Orissa Power Transmission
Corporation Ltd. (OPTCL) but the Corporation, after consideration has rejected it vide order dtd.25.01.2007 on the ground that on the day when the
services of other employees of the society were absorbed, the late husband of the petitioner was not on roll, as such the OSEB Service (Rehabilitation
Assistance) Regulation, 1992 and GRIDCO (Rehabilitation Assistance) Regulation 1997 are not applicable. It has been contended that OSEB Service
(Rehabilitation Assistance) Regulation 1992 was repealed on 29.03.1996 and thereafter in view of the Orissa Electricity Reforms (Transfer of Assets,
Liabilities, roperties, Proceedings and Personnel of GRIDCO to Distribution Companies) Rules, 1998, hereinafter referred as rule 1998, the different
personnel working in GRIDCO were transferred to different companies, the Board of Directors of GRIDCO in their 57th meeting held on 21st May,
2001 decided that any death case beyond the said date shall be dealt by the Rehabilitation Trust of the respective distribution companies and since the
petitioner is not coming under the purview of CESCO, Rehabilitation Assistance Regulation, her case is not required to be considered.
Opposite Party - Orissa Power Transmission Corporation Ltd. also appeared and filed a detailed counter affidavit wherein it has been stated that
the deceased- husband of the petitioner working under the Athagarh Rural Electricity Cooperative Societies Limited (in short society) with effect from
11.03.1996 and the Deputy Registrar, Cooperative Societies, Cuttack, in exercising of power conferred under section 72(1) of the Orissa Co-operative
Societies Act 1962, read with Order No. 3201 dated 05.02.1992 of the Government of Orissa in Corporation Department, has wound up the Athagarh
Rural Electricity Cooperative Society Limited, vide office order No.1482 dated 11.03.1996 as also a liquidator of the society has been appointed hence
any person having any claim against the society the liquidator is to be approached as per Rule 86 of the Orissa Cooperative Societies Rules, 1965. It
has been stated that the deceased husband of the petitioner was not on roll of absorption of the service of the other members of the society and before
its absorption, he has died, as such the appointment of the petitioner on compassionate ground is not to be considered. It has been stated that before
Opposite Party No.2 there is no provision or scheme to give employment under the Rehabilitation Assistance Scheme.
Learned counsel appearing for the petitioner, in response, has submitted that on the date of his death State Electricity Board was in existence and
due to subsequent change in the position of the establishment the petitioner cannot made to suffer rather the liability is said to be shifted to the
transferee unit, as such the transferee unit is liable to provide appointment to the petitioner.
Heard the learned counsel parties and perused the documents available on record. This Court after going through the case record thinks it proper to
state some relevant facts regarding the constitution of the bodies. The Orissa State Electricity Board was functioning but the Orissa Electricity
Reform Act, 1995 has been enacted, by virtue of it OSEB ceased to function w.e.f. 1.4.1996. Under the said Reform Act, the State Government, in
exercise of the power conferred under it took over all the assets and business from the erstwhile OSEB and subsequently transferred the assets and
business so far as it relates to the transmission and distribution to the GRID corporation of Orissa Ltd. with some specific liability. As per the
provisions of the Electricity Reform Act, the GRID Corporation of Orissa Ltd. is only liable to take the personnel those are on the roll of the erstwhile
OSEB as on 1.4.1996. Subsequently Orissa Electricity Reforms (Transfer of Assets, Liabilities, Properties, Proceedings and Personnel of GRIDCO to
Distribution Companies) Rules, 1998 has been enacted upon by which the business of distribution and retail supply of electricity of the Central
Electricity distribution zone has been transferred and vested with M/s.CESCO with effect from 26.11.1998. One Society in the name of Athagarh
Rural Electrical Cooperative Society was in existence which was registered under the Orissa Cooperative Societies Act, 1962 but the same has been
wound up with effect from 11.3.1996. The State Government, in exercise of power conferred U/s.4 of the Indian Electricity Act, cancelled the licence
of supply and distribution of electricity granted to the society and vested the work of maintaining the supply of electricity and distribution of energy of
that area to the erstwhile Orissa State Electricity Board vide notification No.2639 dtd.16.2.1996 and transferred the employees only in 167 numbers,
those who are on the roll of the Society as on that date, without any liability. It is also relevant to mention here that the State of Orissa has come out
with a provision of Civil Services Rehabilitation Assistant Rules, 1990 in order to provide appointment to the dependents of the bereaved family whose
bread earner if died in harness, there is provision under rule 11 to adopt the said provision by the public sector undertakings or the corporation. The
Orissa State Electricity Board has adopted the same in pursuance to the provision of Rule 11 in the name of OSEB (Rehabilitation Assistance)
Regulation 1992 but the same was repealed by virtue of OSEB service (Rehabilitation Assistance Repealing) Regulation, 1996 with effect from
29.3.1996. The GRIDCO has also formulated the policy known as GRIDCO (Rehabilitation Assistance) Regulation 1997 to provide financial
assistance in lieu of employment with the provision that pending applications shall be considered under the new regulation. The CESU, which is now
looking after the affairs where the licence and supply of electricity was vested with the Atagarh Rural Electrification Society, has been created by
virtue of Orissa Electricity Reforms (Transfer of Assets, Liabilities, Properties, Proceedings and Personnel of GRIDCO to Distribution Companies)
Rules, 1998 conferring power upon it to function as the distribution company within the area vested to function. Likewise, the OPTCL was created by
virtue of the Orissa Electricity Reform (Transfer of Transmission related activities of GRIDCO) Rules 2005 by which the business of transmission
and bulk supply of electricity has been transferred and vested with the said corporation and consequent upon such transfer, assets, liabilities and
personnel of GRIDCO relating to transmission and bulk supply of electricity has been transferred to OPTCL.Now it is to be seen on the basis of the
factual aspects as discussed above, as to whether the petitioner is entitled to get an appointment on compassionate ground under the provision of
rehabilitation assistance scheme?
It is not in dispute that the husband of the petitioner was working under the Athagarh Rural Electrification Cooperative Society and has died on 20th
March, 1994, at the time of death, the Orissa State Electricity Board was functioning. It is not in dispute that the AREC is under the registered
cooperative Societies registered under the provision of Orissa Cooperative Societies Act, 1962, the main business was vested upon it to supply energy
in that area. The Orissa State Electricity Board ceased to function with effect from 1.4.1996 by virtue of the enactment of the Orissa Electricity
Reform Act. The GRIDCO has came into being, simultaneously different distribution companies have come, one of it was CESCO which has came
into being on 26.11.1998 taking accountability and responsibility of supply. The power to supply vested upon the AERC has also been ceased by the
State Government by exercising power conferred U/s.4 of the Indian Electricity Act, w.e.f. 16.2.1996 with a decision to take over the services of 167
numbers employees who are roll of the Society on that date. Admittedly, prior to that the husband of the petitioner has died, i.e. on 20th March, 1994.
The contention raised by the petitioner that if her husband has died but his death was during the subsistence period of the Orissa State Electricity
Board, as such her case is to be considered by the transferee unit, this cannot be disputed and there is no dispute on this that if liability is upon an
establishment which is being closed, the same will be transferred to the transferee unit, but here the question is of providing appointment on
compassionate ground under the rehabilitation scheme applicable to the petitioner, as the petitioner claims. It is not in dispute that appointment on
compassionate ground can only be given if provided under the statute or a scheme, otherwise not, in this regard reference may be made to the
Judgment of Hon’ble Apex Court rendered in the case of Life Insurance Corporation of India Vrs. Asha Ramchandra Ambekar (Mrs) and
another, reported in (1994) 2 SCC 718 wherein it has been laid down that courts cannot order appointment on compassionate grounds de hors the
provisions of statutory regulations and instructions. As narrated herein above, before the Electricity Reform Act, 1995 the Orissa Electricity Board has
enacted the Rehabilitation Assistance Scheme 1992 in terms of the provision of rule 11 of the Civil Service Rehabilitation Assistance Scheme 1990 of
the State of Orissa but that has been repealed w.e.f. 23.9.1996 by enactment of OSEB Services (Rehabilitation Assistance) Repealing Regulation
1996, as such, the contention raised by the petitioner that the Orissa State Electricity Board is liable to appoint since before enactment of the Orissa
Reforms Act, the husband of the petitioner has died and on the date of death the provision of Regulation 1992 was applicable, but since it has been
repealed w.e.f. 23.09.1996, as such, there is no question of issuing direction in this regard upon the transferee unit. Moreover even the transferee unit
has formulated their own policy by virtue of enactment of a scheme, i.e. by GRIDCO which is known as GRIDCO (Rehabilitation Assistance)
Regulation, 1997 but there is no provision to provide appointment on compassionate ground rather only provision to provide financial assistance in lieu
of appointment, likewise under the OPTCL also there is no provision to provide appointment on compassionate ground rather only to provide financial
assistance. Thus, in absence of any provision under the scheme to provide appointment on compassionate ground with the transferring unit, i.e. either
the GRIDCO or the CESCO, no direction can be issued by this Court sitting under Article 226 of the Constitution of India to provide appointment on
compassionate ground since it is settled that the appointment on compassionate ground is not a legal vested right rather it is only by way of compassion
subject to provision in the scheme, reference in this regard may be made to the judgment rendered by Hon’ble Apex Court in the case of Union of
India and another â€"vs- Shashank Goswami and another, reported in (2012) 11 SCC 307 wherein it has been held at paragraphs 9, 10 and 13 as
follows:-
 “9. There can be no quarrel to the settled legal proposition that the claim for appointment on compassionate ground is based on the premises that
the applicant was dependent on the deceased employee. Strictly, such a claim cannot be upheld on the touchstone of Article 14 or 16 of the
Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such
employee who has served the State and 10 dies while in service. Appointment on compassionate ground cannot be claimed as a matter of right.
 10. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on
compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of
the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get
over sudden financial crisis and not to confer a status on the family. Thus, applicant cannot claim appointment in a particular class/group of post.
Appointments on compassionate ground 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.
In Mumtaz YunusMulani (Smt.) v. State of Maharashtra & Ors., (2008) 11 SCC 384, this Court examined the scope of employment on
compassionate ground in a similar scheme making the dependant of an employee ineligible for the post in case the family receives terminal/ retiral
benefits above the sealing limit and held that the judgment in Govind Prakash (supra) had been decided without considering earlier judgments which
were binding on the Bench. The Court further held that that the appointment has to be made considering the terms of the scheme and in case the
scheme lays down a criterion that if the family of the deceased employee gets a particular amount as retiral/terminal benefits, dependent of the
deceased employee would not be eligible for employment on compassionate grounds.â€
Learned counsel for the petitioner has submitted that the ground which is being agitated by the opposite parties is not being reflected in the
impugned order, as such the same may not be entertained, since according to him, the ground is only that on the date of absorption 167 numbers of
employees of AREC has been absorbed, accepting this argument of the petitioner, even no relief can be extended to the petitioner in absence of any
provision to provide appointment on compassionate ground as discussed above, as such even the order dtd.25.1.2007 would be quashed, there cannot
be any direction by this court to provide appointment on compassionate ground in absence of any provision in the scheme to provide the same and it is
settled that no order can be passed if the result is known and this court cannot issue direction sitting under Article 226 of the constitution of India to
provide appointment on compassionate ground even in absence of any provision of scheme otherwise it will amounts to transgressing the jurisdiction
conferred to this court under Article 226 of the Constitution of India. Accordingly the writ petition fails and it is dismissed.
The fact is not in dispute that the husband of the petitioner has died in the year 1994 while working under ARECS. It has been informed by the
learned counsels for the opposite parties that the Society under which the husband of the petitioner was working has now wound up and the liquidator
who happens to be the Executive Engineer (Electrical) Athagarh, as such in this pretext, if the petitioner so wishes, she may raise her grievance
before the liquidator for financial assistance which shall be taken into consideration by it in accordance with law. Accordingly the writ petition stands
disposed of.