Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4103 OF 2022
(Arising out of S.L.P.(Civil) No. 936/2022)
Malaya Nanda Sethy …Appellant
Versus
State of Orissa and others …Respondents
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 26.10.2021 passed by the High Court of Orissa at
Cuttack in Writ Petition (Civil) No. 28023/2021, by which the High Court
has dismissed the said writ petition preferred by the appellant herein and
has refused to direct the State authorities to appoint the appellant herein
– original writ petitioner on compassionate ground, the original writ
petitioner has preferred the present appeal.
2. The facts leading to the present appeal in a nutshell are as under:
That the father of the appellant herein – original writ petitioner was
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2022.05.23
16:07:25 IST
Reason:
working as an Assistant Sub-Inspector in the Excise Department. He
passed away on 02.01.2010 while in service. On the death of his father,
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the appellant applied for his appointment as a Junior Clerk on
compassionate ground under the Orissa Civil Service (Rehabilitation
Assistance) Rules, 1990 (hereinafter referred to as the “1990 Rules”) in
July, 2010. It was the case on behalf of the appellant that his mother was
unable to undertake a government job due to her medical condition. The
said application was sent to the office of the Excise Commissioner,
Orissa, Cuttack vide letter dated 3.8.2011. That thereafter the said
application was forwarded to the Additional Secretary to the
Government, Excise Department on 21.09.2011. The said application
was not attended to by the Excise Department for a considerable period
of five years. After a period of five years, the Additional Secretary vide
letter/communication dated 9.9.2016 asked the Collector, Ganjam to
furnish a fresh report regarding the financial condition of the family of the
deceased government servant. Simultaneously, a report was also called
for from CDMO, Ganjam to place the matter of the mother of the
appellant before the Medical Board for proper examination to ascertain
whether her inability to perform the government job continues. The
CDMO, Ganjam constituted a Medical Board and examined the mother
of the appellant and furnished a report to the Additional Secretary on
01.11.2016 stating that she was unfit for government job. The CDMO,
Ganjam furnished another report dated 06.02.2017 to the same effect. It
appears that thereafter a report from Tehsildar, Bellaguntha, which is the
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native place of the appellant, was also called for to ascertain financial
condition and the Tehsildar submitted its report vide letter dated
28.10.2017 stating that the family income of the appellant from all
sources does not exceed ceiling of Rs.72,000/- per annum.
2.1 Despite the above, the application of the appellant herein for
appointment on compassionate ground was kept pending under
consideration. However, before any further order appointing the
appellant on compassionate ground under the 1990 Rules came to be
passed, the 1990 Rules came to be replaced by the new Rules, namely,
Odisha Civil Services (Rehabilitation Assistance) Rules, 2020
(hereinafter referred to as the “2020 Rules”), issued vide notification
dated 17.02.2020. Under the 2020 Rules, one family member of the
deceased government servant would be appointed on compassionate
grounds to ‘Group D’ base level post. Therefore, the application of the
appellant was being sent to the Collector for taking necessary action
under the 2020 Rules by the office of the Excise Commissioner, Odisha,
vide communication dated 26.04.2021.
2.2 Feeling aggrieved and dissatisfied with the communication dated
26.04.2021, by which the case of the appellant herein was directed to be
considered under the 2020 Rules, the appellant preferred the writ
petition before the High Court. Before the High Court, it was the specific
case on behalf of the appellant – original writ petitioner that the policy
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prevalent at the time when the application for compassionate ground
was made, shall be applicable and not the subsequent scheme
prevalent at the time of deciding the application. A number of decisions
of this Court were relied upon. However, by the impugned judgment and
order and relying upon and/or considering the decision of this Court in
the case of N.C. Santosh v. State of Karnataka (2020) 7 SCC 617 , the
High Court has dismissed the said writ petition by observing that the
claim should be considered as per the amended Rules that were
prevalent at the time of consideration of the application and not the
Rules that were prevalent on the death of the government servant.
2.3 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court dismissing the writ petition and
holding that the case of the appellant shall be governed by the 2020
Rules (subsequent scheme), the original writ petitioner has preferred the
present appeal.
3. Learned counsel appearing on behalf of the respective parties
have relied upon number of decisions of this Court taking contrary view
on the applicability of the scheme and/or the relevant rules, namely,
whether the policy prevalent at the time of the death of the deceased
employee or the policy prevalent at the time of consideration of the
application.
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3.1 Learned counsel appearing on behalf of the appellant has heavily
relied upon the decisions of this Court in the cases of Indian Bank and
others v. Promila and another (2020) 2 SCC 729; State of Madhya
Pradesh v. Amit Shrivas (2020) 10 SCC 496; decision of this Court in the
case of State of Madhya Pradesh v. Ashish Awasthi (Civil Appeal No.
6903/2021, decided on 18.11.2021); another decision of this Court in the
case of The Chief General Manager, Telecommunication, BSNL v. Vidya
Prasad (Civil Appeal No. 6019/2021, decided on 28.09.2021); and the
latest decision of this Court in the case of The Secretary to Govt.
Department of Education (Primary) and others v. Bheemesh alias
Bheemappa, 2021 SCC OnLine SC 1264 , in support of his submission
that the relevant scheme and/or the rules prevalent at the time of death
of the employee, who died in harness, and/or at the time of submitting
the application is required to be considered and not the amended rules
prevalent at the time of consideration of the application.
4. However, on the other hand, learned counsel appearing on behalf
of the respondents – State has heavily relied upon a three Judge Bench
decision of this Court in the case of N.C. Santosh (supra) . It is submitted
that in the case of N.C. Santosh (supra) , a three Judge Bench of this
Court, after taking into consideration the entire case law, has held that
the claim should be considered as per the amended Rules that were
prevalent at the time of consideration of the application and not the
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Rules that were prevalent at the time of death of the government
servant.
4.1 Learned counsel appearing on behalf of the respondents has
further submitted that even in the amended rules 2020, it is specifically
provided that the amended 2020 Rules shall be applicable with respect
to all pending applications. It is submitted that in that view of the matter,
the claim of the appellant for appointment on compassionate grounds is
required to be considered as per the amended 2020 Rules and not as
per the earlier 1990 Rules.
4.2 Learned counsel appearing on behalf of the appellant has pointed
out that in the case of Bheemesh alia Bheemappa (supra) , which is a
recent decision, this Court had an occasion to consider the decision in
the case of N.C. Santosh (supra) .
5. We have heard the learned counsel for the respective parties at
length.
We have noted that there is a conflict of view, as to whether the
scheme/rules in force on the date of death of the government servant
would apply or the scheme/rules in force on the date of consideration of
the application on compassionate grounds would apply. There are
divergent views and the conflict of opinion in different decisions of this
Court. However, keeping the said question aside, for the reasons stated
hereinbelow, we are of the opinion that in the peculiar facts and
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circumstances of the case, the appellant herein shall be entitled for
appointment on compassionate ground as per the 1990 rules, which
were applicable at the time when the deceased employee died and the
appellant herein made an application for appointment on the death of his
father, i.e., in the year 2010.
6. From the chronology of dates and events, mentioned hereinabove,
it is not in dispute that the deceased employee died on 2.1.2010 while in
service. Immediately, in July 2010, the appellant applied for appointment
on compassionate ground as a Junior Clerk under the 1990 Rules. It
was the specific case of the appellant that his mother was unable to take
a government job due to her medical condition and therefore he, being a
son applied for appointment on compassionate ground under the 1990
Rules. At this stage, it is required to be noted that under the 1990 Rules,
there was no provision that when the wife of the deceased is alive, the
son cannot make an application for appointment on compassionate
grounds. As per Rule 2(b) of the 1990 Rules, “Family Members” shall
mean and include the members in order of preference, which include, (i)
wife/husband (ii) sons……. Therefore, when the mother was unable to
undertake a government job due to her medical condition, the appellant,
being the son was entitled to apply for appointment on the death of his
father. That the application of the appellant, though was forwarded in
the year 2011, was kept pending consideration initially for a period of five
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years. The same was attended to after a period of five years by the
Additional Secretary. The Additional Secretary vide communication
dated 9.9.2016 asked the Collector, Ganjam to furnish a fresh report
regarding the financial condition of the family of the deceased
government servant. Simultaneously, a report was also called for from
the CDMO, Ganjam to refer the mother of the appellant before the
Medical Board for proper examination to ascertain whether her inability
to perform a government job continues. The Medical Board examined
the mother of the appellant and furnished a report on 01.11.2016 stating
that she was unfit for a government job. The CDMO, Cuttack also
furnished another report dated 6.2.2017 to the same effect. The matter
does not end there. A report from Tehsildar, Bellaguntha which was the
native place of the appellant was also called for to ascertain the financial
condition of the family of the deceased. The Tehsildar, Bellaguntha
submitted its report vide communication dated 28.10.2017 stating that
the family income of the appellant from all sources does not exceed
ceiling of Rs.72,000/- per annum. Despite the above and though the
appellant fulfilled all the eligibility criteria and/or conditions for
appointment on compassionate grounds, he was not appointed as a
Junior Clerk as per 1990 Rules. However, in the meantime, 1990 Rules
came to be replaced and the 2020 Rules came into force.
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7. 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
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the opinion that the appellant herein shall not be denied appointment
under the 1990 Rules.
8. 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.
9. 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
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per the policy prevalent, at the earliest, but not beyond a period of six
months from the date of submission of such completed applications.
We are constrained to direct as above as we have found that in
several cases, applications for appointment on compassionate grounds
are not attended in time and are kept pending for years together. As a
result, the applicants in several cases have to approach the concerned
High Courts seeking a writ of Mandamus for the consideration of their
applications. Even after such a direction is issued, frivolous or vexatious
reasons are given for rejecting the applications. Once again, the
applicants have to challenge the order of rejection before the High Court
which leads to pendency of litigation and passage of time, leaving the
family of the employee who died in harness in the lurch and in financial
difficulty. Further, for reasons best known to the authorities and on
irrelevant considerations, applications made for compassionate
appointment are rejected. After several years or are not considered at all
as in the instant case.
If the object and purpose of appointment on compassionate
grounds as envisaged under the relevant policies or the rules have to be
achieved then it is just and necessary that such applications are
considered well in time and not in a tardy way. We have come across
cases where for nearly two decades the controversy regarding the
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application made for compassionate appointment is not resolved. This
consequently leads to the frustration of the very policy of granting
compassionate appointment on the death of the employee while in
service. We have, therefore, directed that such applications must be
considered at an earliest point of time. The consideration must be fair,
reasonable and based on relevant consideration. The application cannot
be rejected on the basis of frivolous and for reasons extraneous to the
facts of the case. Then and then only the object and purpose of
appointment on compassionate grounds can be achieved.
…………………………………….J.
[M.R. SHAH]
NEW DELHI; …………………………………….J.
MAY 20, 2022. [B.V. NAGARATHNA]
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