Milan Kumar Patro vs State Of Odisha And Others

Sashikanta Mishra, J

The petitioner has filed this writ application with the following prayer;

“Under the above circumstance, it is therefore humbly prayed that this Hon’ble Court may be graciously pleased to issue a writ in the nature of writ of mandamus or any other appropriate writ, direction or order by quashing the letter dated 09.07.2021 passed by the opposite party no.2 under Annexure-6 to the writ petition.

And this Hon'ble Court be further pleased to direct the opposite parties, more particularly the opposite parties 2 and 3 to issue appointment order to the petitioner under the Rehabilitation Assistance Scheme, as per the rule that was in force at the time of death of the deceased government employee, i.e. Odisha Civil Service (Rehabilitation Assistance) Rules, 1990, as amended in the year 2016, befitting to his educational qualification in terms of the ratio decided in the case of Malaya Nanda Sethi (supra) within a stipulated period.

And this Hon'ble Court be pleased to pass any further order/ orders, direction/ directions as this Hon'ble Court deems fit and proper in the facts and circumstances of the case.

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

The facts of the case are that the petitioner’s father late Basudev Patro was working as a Literate Peon in the office of Sub-Collector, Bhanjanagar (Opp.Party No. 3) having been appointed on 16.02.1989. He died in harness on 15.03.2019 leaving behind his wife and only son, the petitioner, as his only legal heirs. The family was plunged into serious crisis because of death of the only earning member. The petitioner having a degree in Civil Engineering applied for appointment under the Rehabilitation Assistance Scheme of the Government to the Opp. Party No. 3 on 18.11.2019. Said application was forwarded by Opp. Party No. 3 to the Collector, Ganjam vide letter dated 02.12.2019 for necessary action. Pursuant to such communication the Addl. District Magistrate, Ganjam asked the Tahasildar, Bhanjanagar on 03.01.2020 to submit the information in the prescribed format. Subsequently, the Deputy Collector (Estt.), Ganjam informed the Opp.Party No. 3 by letter dated 09.07.2021 that he is returning the application of the petitioner on the ground that he does not come under the purview of Rule 6(2)/(d) of the Odisha Civil Service (Rehabilitation Assistance) Rules, 2020 (in short “2020 Rules”) and to dispose of the application accordingly. The said letter, enclosed as Annexure-6 is impugned.

Heard Mr. D.N. Rath, learned counsel for the petitioner and Mr. Saswat Das, learned Addl. Government Advocate for the State.

It is forcefully argued by Mr. Rath that the petitioner cannot be blamed for the delay caused by the authorities in dealing with his application. He had applied well within the stipulated period along with all necessary documents and therefore, his application ought to have been considered in terms of the prevailing Rules. But by delaying the processing of the application and in ultimately rejecting his application citing provisions of the new Rules, the authorities must be held to have acted in an illegal and unjust manner. Mr. Rath had relied upon the decision of the Apex Court in the case of Malaya Nanda Sethy v. State of Orissa, reported in 2022 SCC OnLine SC 684 to buttress his contentions as above.

Mr. Saswat Das, on the other hand argues that the petitioner‟s application was dealt with within a reasonable time and it cannot be said that there was inordinate delay in doing so. He further argues that the ratio of Malaya Nanda Sethy (supra) does not apply to the facts of the case inasmuch as in Malaya Nanda Sethy the application for rehabilitation was kept pending for more than three years and it is under such circumstances that the Apex Court made the observations in question. Mr Das would further argue that as per Rule 6(9) of the 2020 Rules, all pending applications as on the date of coming into force of the said Rules shall be dealt with as per its provisions. Said provision has not been invalidated by the Apex Court in Malaya Nanda Sethy.

The facts of the case are not disputed inasmuch as the petitioner’s father having died in harness, he applied for appointment under the Rehabilitation Assistance Scheme on 18.11.2019. At that time the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990 (in short “1990 Rules”) as amended in 2016 was in force. The 2020 Rules came into effect from 1st February 2020. By such time, the petitioner‟s application was pending. Rule 6(9) of the said Rules provides that all applications seeking rehabilitation appointment pending as on the date of coming into force of the new Rules shall be dealt with as per its provisions. So, ordinarily, the petitioner‟s application being considered and rejected in terms of the 2020 Rules cannot be treated as illegal in any manner. But then, it must be considered that the application was meant for rehabilitation appointment, which is an exception to the normal mode of appointment, and is intended to provide succor to a family of a deceased Govt. servant which has fallen into distress because of his untimely death. So, by its very nature, it is imperative that an application for rehabilitation appointment is considered with all promptitude and diligence as otherwise the very purpose of framing the Rules would stand frustrated. The Govt. cannot do both – frame a Rule intending to give immediate benefit to the family of a deceased Govt. servant and yet, deal with such applications at its own sweet will.

Coming to the argument advanced on behalf of the State that the application of the petitioner was considered within a reasonable time, this Court wanted the State Counsel to come up with an answer as to what would be construed as a reasonable time since the 2020 Rules does not prescribe any period by which applications are to be considered. There was no answer to this. The Apex Court, in Malaya Nanda Sethy has observed that ordinarily six months could be treated as a reasonable time for consideration of an application by the authorities for rehabilitation. The observation of the Apex Court is quoted hereunder:

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.

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.

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.”

The facts of the case may now be tested against the above principle. As already stated, the petitioner submitted his application on 18.11.2019 but the same was kept pending till as long as 09.07.2021 on which date it was rejected. There is nothing on record nor it is the case of the Opposite party authorities that the period of more than one and half years (20 months) that the application remained with them was because of the petitioner either not furnishing the required documents or any other compliance. This delay, which is more than thrice the period considered “reasonable” by the Apex Court in Malaya Nanda Sethy has gone entirely unexplained.

Mr Das has made a last-ditch attempt by submitting that delay, caused for whatever reason, has nullified the immediacy of the need of appointment. Again, this Court is not impressed. Because, this argument would be valid if the delay is at the end of the applicant. Obviously, the State having itself caused the delay, cannot be permitted to rake up the issue of absence of immediacy, more so when that itself is not a ground cited in the impugned order of rejection.

Thus, from a conspectus of the analysis and discussion made above, this Court is of the considered view that notwithstanding the provision under Rule 6(9) of the 2020 Rules, the petitioner‟s application ought to have been considered under the 1990 Rules. To reiterate, had his application been considered promptly or in any case within six months of its submission, the aforesaid provision could have been applied but in view of what has been discussed in detail before, this Court is constrained to hold that rejection of his application by applying the 2020 Rules is unconscionable in law and therefore, warrants interference.

In the result, the writ application is allowed. The impugned order under Annexure-6 is hereby quashed. The Opp. Party authorities are directed to consider the application of the petitioner afresh under the 1990 Rules and if found eligible as per its provisions, to give him appointment in any suitable post under the Govt. Necessary order in this respect shall be passed within a period of three months from the date of production of certified copy of this order by the petitioner.

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