Allowed

State of Odisha v. Manmathnath Das

Orissa HC4 Jul 2017WP(C)/19668/2016

Case brief

AI extract

What is this about?

This court allowed a writ petition filed by the School & Mass Education Department challenging the Odisha Administrative Tribunal's order directing compassionate appointment. The court held that the adoption deed, executed eleven years after the employee's death, did not prove valid adoption required for rehabilitation benefits, setting aside the impugned order.

What did the court decide?

The impugned order dated 29.9.2014 passed by the Tribunal in O.A. No. 1836(C) of 2005 is set aside in the exercise of jurisdiction under Article 227 of the Constitution.

Heard leaned Standing Counsel for the School & Mass Education Department appearing for the pet itioners and Mr.Routray, learned Senior Counsel appearing for opposite party No.1. On consent of the parties the matter was heard finally and disposed of at the stage of admission.

Petitioners-State functionaries have filed this writ petition assailing the or der dated 29.9.2014 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O. A. No. 1836(C) of 2005 directing them to appoint the opposite party No.1-applicant under Rehab ilitation Assistance Scheme by providing compassionate appointment against a substantive vacan t post commensurate to his qualification within a period of three months.

The learned Standing Counsel for the School & Mass Education Department submit ted that the Tribunal while passed the impugned order not taken into consideration the clarifi cation made by the State Government under G.A. Department Notification dated 24.10.1996 regard ing the adoption deed executed and registered after the date of death or invalid retirement of any employee, as well as Clause, 7 of the Orissa Civil Service (Rehabilitation Assistance) Ru les, 1990 (hereinafter referred to as Rules, 1990) from its proper perspective as such the imp ugned order need be interfered with.

The fact narrated in the writ petition is that Jagannath Das while working as Headpandit in Ratamati Primary School he breathed his last on 27.1.1992 leaving behind his wif e. After his death, the widow adopted the applicant. She intended to have her son avail the be nefit of Rehabilitation Assistance Scheme when he became a major. When the applicant became ma jor made an application before the competent authority in the year 2003 for appointment under Rehabilitation Assistance Scheme with all the relevant documents such as death certificate, le gal heir certificate as well as affidavit and no objection certificate of mother. As no action has been taken by the authority the applicant again submitted a representation on 23.7.2003 f or consideration of his case under Rehabilitation Assistance Scheme. Thereafter applicant file d O.A. No. 1836 of 2005 before the Tribunal with a prayer to direct the petitioners-respondent s to issue appointment order in his favour as against a substantive post commensurate to his e ducational qualification with immediate effect under Rehabilitation Assistance Scheme. The Tri bunal after hearing the parties passed the impugned order with the aforesaid observation.

On perusal of the impugned order it appears that the Tribunal has considered t he relaxation clause of the rule. It stipulate that if the operation of all or any provisions of rules causes undue hardship in any particular case and in case the State Government is sati sfied it can relax the provisions to such

extent as it may consider necessary for dealing with the case in a just and equitable manner. A copy of the registered deed annexed as Annexure-A to the counter affidavit filed before the Tribunal. The said document is a deed of acknowledgement of adoption of the applicant by the w idow. The copies of the documents filed as Annexure-2 series to the writ application. Whether such document is to be accepted as acknowledgement of adoption in absence of date of adoption in the said deed as held by Tribunal ?

On perusal of the said registered deed of acknowledgement as well as no object ion certificate provided by the widow and the Service Book of the deceased employee it reveals that the deceased employee joined in Government service in the year 1961. The death certifica te reveals that he died on 27.1.1992. After the death of the employee his widow executed the a cknowledgement deed of adoption wherein she has reflected her age as 42 and the age of adopted son is 9 years. However the matriculation certificate of the applicant, a copy of which is an nexed also reveals that his date of birth is 21.1.1984. As such he was aged about 8 years at t he time of registration of the said deed. Further in the no objection certificate furnished th e age of the adoptive mother was reflected as 70 years. If the age as reflected in the registe red deed is to be accepted then she should be at best 53 years and not more than that at the t ime of filing the affidavit of no objection certificate which was executed on 16.10.2003. Clause, 7 of the aforesaid Rules stipulates that at the time of death if only minor alone is available in the family of

However in the present case the minor alone was not available in the family ra ther the widow was available for employment at the time of death. The family survive from 1992 to 2003 i.e. 11 years from the date of death of the Government servant. The discrepancy discu ssed hereinabove clearly reveals that the opposite party No.1 has not put forth a specific cas e to the satisfaction of the Government to relax the provision such extent which may consider necessary for dealing with the matter in just and equitable manner as it causes undue hardship .

The object of rehabilitation assistance is to enable the family to get over th e financial crisis which it faces at the time of death of the sole breadwinner. It cannot be c laimed and offered whatever the lapse of time and after the crisis is over. Engagement under t he said rule is an exception to general rule. Appointment to public office should be made on t he basis of competitive merits. Once it is proved that in spite of the death of the breadwinne r 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 Ar ticle 14 of the Constitution as held by the Apex Court in the case of State of Jammu & Kashmir and others Vs. Sajad Ahmed Mir reported in (2006) 5 SCC 766. The Apex Court also in the case of M/s. Eastern

Coalfields Limited, Vrs. Anil Badyakar and others reported in AIR 2009 SC 2534 held that compa ssionate appointment is not a vested right which can be exercised at any time in future. The c ompassionate employment cannot be claimed and offered long after death of employee in harness.

In view of the discussions made hereinabove the deed of acknowledgement cannot be treated as document acknowledging the valid adoption of the applicant as such the finding of the Tribunal is an error apparent on the face of the impugned order. Accordingly, we set as ide the impugned order dated 29.9.2014 passed by the Tribunal in O.A. No. 1836(C) of 2005 in e xercising the jurisdiction under Article 227 of the Constitution of India. Accordingly the writ petition is allowed.

State of Odisha v. Manmathnath Das

Case brief

What is this about?

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State of Odisha v. Manmathnath Das

Case brief

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What did the court decide?

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