MALAYA NANDA SETHY versus STATE OF ORISSA AND OTHERS on 20 May 2022

[2022] 4 S.C.R. 707

MALAYA NANDA SETHY

v.

STATE OF ORISSA AND OTHERS

(Civil Appeal No. 4103 of 2022)

MAY 20, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Service Law: Compassionate Appointment – Claim of – Rulesapplicable, rules prevailing on the death of the Government servant,who died in harness or the subsequent scheme prevalent at the timeof consideration of the application – On facts, appellant appliedfor appointment as a Junior Clerk on compassionate ground underthe 1990 Rules – However, application kept pending forconsideration – Meanwhile, 1990 Rules replaced by 2020 Rules –Thereafter, the application was considered under the 2020 Rules –Writ petition by the appellant challenging the same– Dismissed bythe High Court – On appeal, held: Appellant fulfilled all theconditions for appointment on compassionate grounds under the1990 Rules – There was no fault and/or delay and/or negligenceon the part of the appellant at all – Delay was on the part ofdepartment/authorities throughout on one ground or the other –Appellant is deprived of seeking compassionate appointment whichhe was otherwise entitled to under the 1990 Rules, thus, cannot bedenied appointment under the 1990 Rules – Orissa Civil Service(Rehabilitation Assistance) Rules, 1990 – Odisha Civil Services(Rehabilitation Assistance) Rules, 2020.

Compassionate Appointment – Object and Purpose of – Held:Basis or policy of compassionate appointment is immediacy inrendering of financial assistance to the family of the deceasedemployee consequent upon his untimely death while in service –Thus, the authorities must consider and decide such applicationsfor compassionate appointment on grounds as per the policyprevalent, at the earliest, but not beyond a period of six monthsfrom the date of submission of such completed applications –Application are to be considered well in time and not in a tardy way– Consideration must be fair, reasonable and based on relevant

707

A

B

C

DE

F

G

H

Aconsideration – It cannot be rejected on the basis of frivolous andfor reasons extraneous to the facts of the case.

Allowing the appeal, the Court

HELD: 1.1 In the peculiar facts and circumstances of thecase, the appellant would be entitled for appointment onBcompassionate ground as per the Orissa Civil Service(Rehabilitation Assistance) Rules, 1990, which were applicableat the time when the deceased employee died and the appellantmade an application for appointment on the death of his father,i.e., in the year 2010. [Para 5][714-C-D]

C

1.2 It is not in dispute that the deceased employee died on2.1.2010 while in service. Immediately, in July 2010, the appellantapplied for appointment on compassionate ground as a JuniorClerk under the 1990 Rules. As per Rule 2(b) of the 1990 Rules,“Family Members” shall mean and include the members in orderDof preference, which include, (i) wife/husband (ii) sons.......Therefore, when the mother was unable to undertake agovernment job due to her medical condition, the appellant, beingthe son was entitled to apply for appointment on the death of hisfather. That the application of the appellant, though was forwardedin the year 2011, was kept pending consideration initially for aEperiod of five years. The same was attended to after a period offive years by the Additional Secretary. A fresh report regardingthe financial condition of the family of the deceased governmentservant was called for. Also the Medical Board examined themother of the appellant and furnished a report stating that sheFwas unfit for a government job. Though the appellant fulfilled allthe eligibility criteria and/or conditions for appointment oncompassionate grounds, he was not appointed as a Junior Clerkas per 1990 Rules. However, in the meantime, 1990 Rules cameto be replaced and the 2020 Rules came into force. [Para 6][714-E, F-H; 715-A, B, C-D]G

1.3 There was no fault and/or delay and/or negligence onthe part of the appellant at all. He was fulfilling all the conditionsfor appointment on compassionate grounds under the 1990 Rules.For no reason, his application was kept pending and/or no orderwas passed on one ground or the other. Therefore, when there H

was no fault and/or delay on the part of the appellant and allthroughout there was a delay on the part of the department/authorities, the appellant should not be made to suffer. Notappointing the appellant under the 1990 Rules would be giving apremium to the delay and/or inaction on the part of thedepartment/authorities. There was an absolute callousness onthe part of the department/authorities. The facts are conspicuousand manifest the grave delay in entertaining the applicationsubmitted by the appellant in seeking employment which isindisputably attributable to the department/authorities. In fact,the appellant has been deprived of seeking compassionateappointment, which he was otherwise entitled to under the 1990Rules. The appellant has become a victim of the delay and/orinaction on the part of the department/authorities which may bedeliberate 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, the appellant wouldnot be denied appointment under the 1990 Rules. The judgmentand order passed by the High Court is quashed and set aside.The respondents are directed to consider the case of the appellantfor compassionate appointment under the 1990 Rules as per hisoriginal application made in 2010 and if he is otherwise foundeligible to appoint him as Junior Clerk. [Paras 7 and 8][715-D-H; 716-A-C]

2.1 The object and purpose of appointment oncompassionate grounds, i.e., a family of a deceased employeemay be placed in a position of financial hardship upon the untimelydeath of the employee while in service and the basis or policy isimmediacy in rendering of financial assistance to the family of thedeceased consequent upon his untimely death, the authoritiesmust consider and decide such applications for appointment oncompassionate grounds as per the policy prevalent, at the earliest,but not beyond a period of six months from the date of submissionof such completed applications. [Para 9][716-D-E]

2.2 If the object and purpose of appointment oncompassionate grounds as envisaged under the relevant policies AB

C

D

E

F

G

Aor the rules have to be achieved then it is just and necessary thatsuch applications are considered well in time and not in a tardyway. There are cases of nearly two decades, wherein thecontroversy regarding the application made for compassionateappointment is not resolved. This consequently leads to thefrustration of the very policy of granting compassionateBappointment on the death of the employee while in service.Therefore, it is directed that such applications must be consideredat an earliest point of time. The consideration must be fair,reasonable and based on relevant consideration. The applicationcannot be rejected on the basis of frivolous and for reasonsCextraneous to the facts of the case. [Para 9][717-A-C]

N. C. Santosh v. State of Karnataka (2020) 7 SCC 617: [2020] 3 SCR 1177; Indian Bank and others v. Promilaand Another (2020) 2 SCC 729 : [2020] 1 SCR 408;State of Madhya Pradesh v. Amit Shrivas (2020) 10 SCCD496; State of Madhya Pradesh v. Ashish Awasthi CivilAppeal No. 6903/2021 decided on 18.11.2021; TheChief General Manager, Telecommunication, BSNL v.Vidya Prasad Civil Appeal No. 6019/2021 decided on28.09.2021; The Secretary to Govt. Department ofEEducation (Primary) and Others v. Bheemesh aliasBheemappa 2021 SCC OnLine SC 1264 – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4103Gof 2022.

From the Judgment and Order dated 26.10.2021 of the High Courtof Judicature at Orissa in Writ Petition (C) No. 28023 of 2021.

Bharat Sangal, Sr. Adv., Nagarkatti Kartik Uday, Ms. BabitaKushwaha, Advs. for the Appellant.H

Shubhranshu Padhi, Ashish Yadav, Rakshit Jain, Vishal Banshal,Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 26.10.2021 passed by the High Court of Orissa at Cuttackin Writ Petition (Civil) No. 28023/2021, by which the High Court hasdismissed the said writ petition preferred by the appellant herein and hasrefused to direct the State authorities to appoint the appellant herein –original writ petitioner on compassionate ground, the original writ petitionerhas preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are asunder:

That the father of the appellant herein – original writ petitionerwas working as an Assistant Sub-Inspector in the Excise Department.He passed away on 02.01.2010 while in service. On the death of hisfather, the appellant applied for his appointment as a Junior Clerk oncompassionate ground under the Orissa Civil Service (RehabilitationAssistance) Rules, 1990 (hereinafter referred to as the “1990 Rules”) inJuly, 2010. It was the case on behalf of the appellant that his mother wasunable to undertake a government job due to her medical condition. Thesaid application was sent to the office of the Excise Commissioner, Orissa,Cuttack vide letter dated 3.8.2011. That thereafter the said applicationwas forwarded to the Additional Secretary to the Government, ExciseDepartment on 21.09.2011. The said application was not attended to bythe Excise Department for a considerable period of five years. After aperiod of five years, the Additional Secretary vide letter/communicationdated 9.9.2016 asked the Collector, Ganjam to furnish a fresh reportregarding the financial condition of the family of the deceased governmentservant. Simultaneously, a report was also called for from CDMO, Ganjamto place the matter of the mother of the appellant before the MedicalBoard for proper examination to ascertain whether her inability to performthe government job continues. The CDMO, Ganjam constituted a MedicalBoard and examined the mother of the appellant and furnished a reportto the Additional Secretary on 01.11.2016 stating that she was unfit forgovernment job. The CDMO, Ganjam furnished another report dated06.02.2017 to the same effect. It appears that thereafter a report from A

BC

D

E

F

G

H

ATehsildar, Bellaguntha, which is the native place of the appellant, wasalso called for to ascertain financial condition and the Tehsildar submittedits report vide letter dated 28.10.2017 stating that the family income ofthe appellant from all sources does not exceed ceiling of Rs.72,000/- perannum.

B2.1 Despite the above, the application of the appellant herein forappointment on compassionate ground was kept pending underconsideration. However, before any further order appointing the appellanton compassionate ground under the 1990 Rules came to be passed, the1990 Rules came to be replaced by the new Rules, namely, Odisha CivilServices (Rehabilitation Assistance) Rules, 2020 (hereinafter referredCto as the “2020 Rules”), issued vide notification dated 17.02.2020. Underthe 2020 Rules, one family member of the deceased government servantwould be appointed on compassionate grounds to ‘Group D’ base levelpost. Therefore, the application of the appellant was being sent to theCollector for taking necessary action under the 2020 Rules by the officeDof the Excise Commissioner, Odisha, vide communication dated26.04.2021.

2.2 Feeling aggrieved and dissatisfied with the communicationdated 26.04.2021, by which the case of the appellant herein was directedto be considered under the 2020 Rules, the appellant preferred the writEpetition before the High Court. Before the High Court, it was the specificcase on behalf of the appellant – original writ petitioner that the policyprevalent at the time when the application for compassionate groundwas made, shall be applicable and not the subsequent scheme prevalentat the time of deciding the application. A number of decisions of thisCourt were relied upon. However, by the impugned judgment and orderFand relying upon and/or considering the decision of this Court in the caseof N.C. Santosh v. State of Karnataka (2020) 7 SCC 617, the HighCourt has dismissed the said writ petition by observing that the claimshould be considered as per the amended Rules that were prevalent atthe time of consideration of the application and not the Rules that wereGprevalent on the death of the government servant.

2.3 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court dismissing the writ petition andholding that the case of the appellant shall be governed by the 2020Rules (subsequent scheme), the original writ petitioner has preferredHthe present appeal.

3. Learned counsel appearing on behalf of the respective partieshave relied upon number of decisions of this Court taking contrary viewon the applicability of the scheme and/or the relevant rules, namely,whether the policy prevalent at the time of the death of the deceasedemployee or the policy prevalent at the time of consideration of theapplication.

3.1 Learned counsel appearing on behalf of the appellant hasheavily relied upon the decisions of this Court in the cases of IndianBank and others v. Promila and another (2020) 2 SCC 729; Stateof Madhya Pradesh v. Amit Shrivas (2020) 10 SCC 496; decisionof this Court in the case of State of Madhya Pradesh v. AshishAwasthi (Civil Appeal No. 6903/2021, decided on 18.11.2021);another decision of this Court in the case of The Chief GeneralManager, Telecommunication, BSNL v. Vidya Prasad (Civil AppealNo. 6019/2021, decided on 28.09.2021); and the latest decision ofthis Court in the case of The Secretary to Govt. Department ofEducation (Primary) and others v. Bheemesh alias Bheemappa, 2021SCC OnLine SC 1264, in support of his submission that the relevantscheme 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 isrequired to be considered and not the amended rules prevalent at thetime of consideration of the application.

4. However, on the other hand, learned counsel appearing on behalfof the respondents – State has heavily relied upon a three Judge Benchdecision of this Court in the case of N.C. Santosh (supra). It is submittedthat in the case of N.C. Santosh (supra), a three Judge Bench of thisCourt, after taking into consideration the entire case law, has held thatthe claim should be considered as per the amended Rules that wereprevalent at the time of consideration of the application and not the Rulesthat were prevalent at the time of death of the government servant.

4.1 Learned counsel appearing on behalf of the respondents hasfurther submitted that even in the amended rules 2020, it is specificallyprovided that the amended 2020 Rules shall be applicable with respectto all pending applications. It is submitted that in that view of the matter,the claim of the appellant for appointment on compassionate grounds isrequired to be considered as per the amended 2020 Rules and not as perthe earlier 1990 Rules.

A

B

C

D

E

F

G

H

4.2 Learned counsel appearing on behalf of the appellant haspointed out that in the case of Bheemesh alia Bheemappa (supra),which is a recent decision, this Court had an occasion to consider thedecision in the case of N.C. Santosh (supra).

A

5. We have heard the learned counsel for the respective partiesBat length.

We have noted that there is a conflict of view, as to whether thescheme/rules in force on the date of death of the government servantwould apply or the scheme/rules in force on the date of consideration ofthe application on compassionate grounds would apply. There are divergentCviews and the conflict of opinion in different decisions of this Court.However, keeping the said question aside, for the reasons statedhereinbelow, we are of the opinion that in the peculiar facts andcircumstances of the case, the appellant herein shall be entitled forappointment on compassionate ground as per the 1990 rules, which wereapplicable at the time when the deceased employee died and the appellantDherein 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, mentionedhereinabove, it is not in dispute that the deceased employee died on2.1.2010 while in service. Immediately, in July 2010, the appellant appliedEfor appointment on compassionate ground as a Junior Clerk under the1990 Rules. It was the specific case of the appellant that his mother wasunable to take a government job due to her medical condition and thereforehe, being a son applied for appointment on compassionate ground underthe 1990 Rules. At this stage, it is required to be noted that under theF1990 Rules, there was no provision that when the wife of the deceasedis alive, the son cannot make an application for appointment oncompassionate grounds. As per Rule 2(b) of the 1990 Rules, “FamilyMembers” shall mean and include the members in order of preference,which include, (i) wife/husband (ii) sons……. Therefore, when the motherwas unable to undertake a government job due to her medical condition,Gthe appellant, being the son was entitled to apply for appointment on thedeath of his father. That the application of the appellant, though wasforwarded in the year 2011, was kept pending consideration initially fora period of five years. The same was attended to after a period of fiveyears by the Additional Secretary. The Additional Secretary videHcommunication dated 9.9.2016 asked the Collector, Ganjam to furnish a fresh report regarding the financial condition of the family of the deceasedgovernment servant. Simultaneously, a report was also called for fromthe CDMO, Ganjam to refer the mother of the appellant before theMedical Board for proper examination to ascertain whether her inabilityto perform a government job continues. The Medical Board examinedthe mother of the appellant and furnished a report on 01.11.2016 statingthat she was unfit for a government job. The CDMO, Cuttack alsofurnished another report dated 6.2.2017 to the same effect. The matterdoes not end there. A report from Tehsildar, Bellaguntha which was thenative place of the appellant was also called for to ascertain the financialcondition of the family of the deceased. The Tehsildar, Bellagunthasubmitted its report vide communication dated 28.10.2017 stating thatthe family income of the appellant from all sources does not exceedceiling of Rs.72,000/- per annum. Despite the above and though theappellant fulfilled all the eligibility criteria and/or conditions for appointmenton compassionate grounds, he was not appointed as a Junior Clerk asper 1990 Rules. However, in the meantime, 1990 Rules came to bereplaced and the 2020 Rules came into force.

7. Thus, from the aforesaid, it can be seen that there was no faultand/or delay and/or negligence on the part of the appellant at all. Hewas fulfilling all the conditions for appointment on compassionate groundsunder the 1990 Rules. For no reason, his application was kept pendingand/or no order was passed on one ground or the other. Therefore, whenthere was no fault and/or delay on the part of the appellant and allthroughout there was a delay on the part of the department/authorities,the appellant should not be made to suffer. Not appointing the appellantunder the 1990 Rules would be giving a premium to the delay and/orinaction on the part of the department/authorities. There was an absolutecallousness on the part of the department/authorities. The facts areconspicuous and manifest the grave delay in entertaining the applicationsubmitted by the appellant in seeking employment which is indisputablyattributable to the department/authorities. In fact, the appellant has beendeprived of seeking compassionate appointment, which he was otherwiseentitled to under the 1990 Rules. The appellant has become a victim ofthe delay and/or inaction on the part of the department/authorities whichmay be deliberate or for reasons best known to the authorities concerned.Therefore, in the peculiar facts and circumstances of the case, keepingthe larger question open and aside, as observed hereinabove, we are of AB

C

D

E

F

G

H

Athe opinion that the appellant herein shall not be denied appointmentunder the 1990 Rules.

8. In view of the above discussion and for the reasons statedabove, the impugned judgment and order passed by the High Court ishereby quashed and set aside. The respondents are directed to considerBthe case of the appellant for appointment on compassionate groundsunder the 1990 Rules as per his original application made in July, 2010and if he is otherwise found eligible to appoint him on the post of JuniorClerk. The aforesaid exercise shall be completed within a period of fourweeks from today. However, it is observed that the appellant shall beentitled to all the benefits from the date of his appointment only. TheCpresent appeal is accordingly allowed. However, in the facts andcircumstances of the case, there shall be no order as to costs.

9. Before parting with the present order, we are constrained toobserve that considering the object and purpose of appointment oncompassionate grounds, i.e., a family of a deceased employee may beDplaced in a position of financial hardship upon the untimely death of theemployee while in service and the basis or policy is immediacy inrendering of financial assistance to the family of the deceased consequentupon his untimely death, the authorities must consider and decide suchapplications for appointment on compassionate grounds as per the policyEprevalent, at the earliest, but not beyond a period of six months from thedate of submission of such completed applications.

We are constrained to direct as above as we have found that inseveral cases, applications for appointment on compassionate groundsare not attended in time and are kept pending for years together. As aFresult, the applicants in several cases have to approach the concernedHigh Courts seeking a writ of Mandamus for the consideration of theirapplications. Even after such a direction is issued, frivolous or vexatiousreasons are given for rejecting the applications. Once again, the applicantshave to challenge the order of rejection before the High Court whichleads to pendency of litigation and passage of time, leaving the family ofGthe employee who died in harness in the lurch and in financial difficulty.Further, for reasons best known to the authorities and on irrelevantconsiderations, applications made for compassionate appointment arerejected. After several years or are not considered at all as in the instantcase.

H

H

If the object and purpose of appointment on compassionate groundsas envisaged under the relevant policies or the rules have to be achievedthen it is just and necessary that such applications are considered well intime and not in a tardy way. We have come across cases where fornearly two decades the controversy regarding the application made forcompassionate appointment is not resolved. This consequently leads tothe frustration of the very policy of granting compassionate appointmenton the death of the employee while in service. We have, therefore,directed that such applications must be considered at an earliest point oftime. The consideration must be fair, reasonable and based on relevantconsideration. The application cannot be rejected on the basis of frivolousand for reasons extraneous to the facts of the case. Then and then onlythe object and purpose of appointment on compassionate grounds canbe achieved.

Nidhi Jain(Assisted by : Shashwat Jain, LCRA)

Appeal allowed.

A

B

C

D

E

F

G

H