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:
W.P.(C) No.3747 of 2023 Page 1 of 33
For the Petitioner : M/s. Bijaya Kumar Parida-2,
M.B. Swain, A.P. Sahoo and
P. Sahoo, AdvocatesFor the Opposite Party : M/s. Bigyan Kumar Sharma,
Nos.1 & 2 Sudeepta Kumar Singh,
Jayesh Pradhan and
Itishree Tripathy, AdvocatesFor the Opposite Party : Mr. Deba Ranjan Mohapatra,
No.3 Additional Government AdvocateP R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMANDate 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 theW.P.(C) No.3747 of 2023 Page 2 of 33
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 DevelopmentW.P.(C) No.3747 of 2023 Page 3 of 33
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
W.P.(C) No.3747 of 2023 Page 4 of 33
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
W.P.(C) No.3747 of 2023 Page 5 of 33
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
W.P.(C) No.3747 of 2023 Page 6 of 33
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
W.P.(C) No.3747 of 2023 Page 7 of 33
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
W.P.(C) No.3747 of 2023 Page 8 of 33
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 previousW.P.(C) No.3747 of 2023 Page 9 of 33
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.
W.P.(C) No.3747 of 2023 Page 10 of 33
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
W.P.(C) No.3747 of 2023 Page 11 of 33
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.
W.P.(C) No.3747 of 2023 Page 12 of 33
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 08.04.1994From
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, noW.P.(C) No.3747 of 2023 Page 13 of 33
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
W.P.(C) No.3747 of 2023 Page 14 of 33
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.”
W.P.(C) No.3747 of 2023 Page 15 of 33
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.
W.P.(C) No.3747 of 2023 Page 16 of 33
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
W.P.(C) No.3747 of 2023 Page 17 of 33
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
W.P.(C) No.3747 of 2023 Page 18 of 33
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.W.P.(C) No.3747 of 2023 Page 19 of 33
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
W.P.(C) No.3747 of 2023 Page 20 of 33
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
W.P.(C) No.3747 of 2023 Page 21 of 33
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
W.P.(C) No.3747 of 2023 Page 22 of 33
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
W.P.(C) No.3747 of 2023 Page 23 of 33
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
W.P.(C) No.3747 of 2023 Page 24 of 33
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
W.P.(C) No.3747 of 2023 Page 25 of 33
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
W.P.(C) No.3747 of 2023 Page 26 of 33
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
W.P.(C) No.3747 of 2023 Page 27 of 33
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
W.P.(C) No.3747 of 2023 Page 28 of 33
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.
W.P.(C) No.3747 of 2023 Page 29 of 33
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.
***
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
W.P.(C) No.3747 of 2023 Page 30 of 33
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. TheW.P.(C) No.3747 of 2023 Page 31 of 33
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.
***
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.
W.P.(C) No.3747 of 2023 Page 32 of 33
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
Signature Not Verified
Digitally Signed
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
W.P.(C) No.3747 of 2023 Page 33 of 33