Allowed

Bhabani S.Pandit v. Regr.,Co-Op.Societie

Orissa HC9 Jan 2018WP(C)/1544/2003

Case brief

AI extract

What is this about?

This writ petition challenged the removal of employees appointed under a Rehabilitation Assistance Scheme based on a circular restricting posts. The High Court held that compassionate appointment serves a humanitarian purpose distinct from regular recruitment and cannot be equated with posts filled after a certain date. Consequently, the court quashed the removal order allowing the petitioners to

What did the court decide?

The letter dated 01.02.2003 directing removal of petitioners is quashed. Petitioners are allowed to continue in service with all consequential benefits.

Bhabani S.Pandit Vs Regr.,Co-Op.Societie — Pension and Retirement Benefits | Orissa HC (2018)

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HIGH COURT OF ORISSA : CUTTACK

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W.P.(C) No. 1544 of 2003

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In the matter of an application under Articles 226 and 227 of the Constitution of India.

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----------Bhabani Shankar Pandit AFR and others .....… Petitioners Versus Registrar of Co-operative Societies, Orissa and others ......... Opp. Parties For petitioners : M/s. N.C. Mishra and S.K. Behera, Advocates For opp. parties : Mr. Prasanta Kumar Panda [O.Ps. No. 2 & 3] Mr. D.K. Pani, Addl. Standing Counsel [O.P. No.1] ---------------

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PRESENT

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THE HON’BLE DR. JUSTICE B.R. SARANGI

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-------------------------------------------------------------------------------- Date of hearing : 05.01.2018 : Date of Judgment: 09.01.2018

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DR. B.R. SARANGI, J. The petitioners were appointed as Peon, Junior Assistant and Night Watcher on 06.04.1994, 25.10.1995

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and 26.03.1997 respectively in the establishment of Orissa State

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Co-operative Agricultural and Rural Development Bank Limited (in short “CARD Bank”) against existing vacancies under the Rehabilitation Assistance Scheme and are discharging their duties sincerely without any disturbances. The appointment of petitioner no.2 was regularized by the authority, vide order dated 12.01.1995. When petitioners no.1 and 3 were awaiting for their regularization, in the meantime the Registrar of Co-operative Societies, Orissa, Bhubaneswar-opposite party no.1 issued a circular on 24.03.1998 indicating therein that due to economic measures, it is necessary to prevent from giving any fresh appointment and employees appointed after 01.01.1990 should be removed and CARD Banks are advised to implement the same forthwith. On 31.08.2001, the Secretary of CARD Bank, Berhampur, due to dearth of staff, intimated to the General Manager, CARD Bank, Berhampur that in comparison to staff position as on 01.01.1990 there is 25% less staff working and, therefore, in the event of implementation of the circular of dated 24.03.1998, it will cause dislocation to the day to day to management of the bank. Further, the proceeding of Management of Berhampur CARD Bank held on 04.06.2002, which was communicated vide letter dated 08.06.2002, indicates that removal of employees would add fuel to the discontentment

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and further their removal will have pressure on the financial position of the Bank and sought for clarification from the opposite parties. However, in respect of a similar employee, who had approached this Court by filing OJC No. 2212 of 199, this Court passed an interim order on 18.02.1999 stating inter alia that in case the petitioner therein is continuing in the existing post as asserted, he shall not be removed without leave of the Court. In spite of such interim order passed by this Court in respect of similarly situated employees, the General Manager, CARD Bank, Berhampur issued a letter dated 01.02.2003 to the Secretary, Berhampur, CARD Bank advising him to take steps for removal of services of the petitioners along with other persons those who have been appointed after 01.01.1990. But, while issuing such direction, the General Manager, CARD Bank lost sight of the fact that the petitioners have been appointed under Rehabilitation Assistance Scheme applicable to them. Hence, the petitioners have filed the instant writ petition challenging the circular dated 24.03.1998 in Annexure-3 issued by Registrar, Cooperative Societies, Orissa, Bhubaneswar and consequential letter dated 01.02.2003 in Annexure-6 issued by General Manager, CARD Bank, Berhampur addressed to the Secretary,

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CARD Bank, Berhampur directing removal of petitioners from service.

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Mr. N.C. Mishra, learned counsel for the petitioners urged with vehemence that the petitioners have been appointed under the Rehabilitation Assistance Scheme. The circular issued by the Registrar, Cooperative Society dated 24.03.1998 in Annexure-3 may not apply to them because they stand altogether on a different footing than that of the employees those who have been appointed after 01.01.1990. Further, it is contended that in view of such circular any direction given by the Secretary for removal of petitioners from services, who have been appointed after 01.01.1990 including the rehabilitation assistance appointees, is an outcome of non-application of mind and amounts to frustrating the purpose of giving compassionate appointment, therefore, the same should be quashed.

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Mr. D.K. Pani, learned Addl. Standing Counsel

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appearing for opposite party no.1 has contended that by following austerity measure, the circular has been issued by the Registrar of the CARD Bank and as such, the Registrar has got the authority to issue such a circular for smooth management of the Bank.

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This Court issued notice on 31.03.2003 and passed an interim order that the petitioners will not be removed from service under CARD Bank Ltd. On receipt of notice, Mr. P.K. Panda, learned counsel had entered appearance for opposite parties no. 2 and 3 on 16.10.2003, but did no choose to file any counter affidavit, though in the meantime 14 years have elapsed. When the matter was listed on 24.11.2017, none appeared for the opposite parties. Therefore, to afford an opportunity to the opposite parties, the matter was directed to be listed after two weeks. When the matter listed on 05.01.2018, none appeared for opposite parties no. 2 and 3-Bank, nor any counter affidavit has been filed on behalf of the said opposite parties, Therefore, applying the principle of doctrine of non-traverse, on the basis of the pleadings available on record, this matter is being disposed of at this stage as it is an old case of the year 2003.

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On the basis of the facts pleaded and materials available on record, there is no dispute that the petitioners were appointed under Rehabilitation Assistance Scheme under compassionate ground. Once the petitioners have been given compassionate appointment, they cannot be equated with the persons those who have been appointed otherwise. The basis of

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compassionate appointment has been considered by the apex Court in various decisions and reasons for such compassionate appointment is well established under various pronouncements of the apex Court.

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6. In Haryana State Electricity Board v. Hakim

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Singh , (1997) 8 SCC 85, the apex Court explained the rationale of the rule relating to compassionate appointment, which is reproduced below:

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“The rule of appointments to public service is that they should be on merits and through open invitation. It is the normal route through which one can get into a public employment. However, as every rule can have exceptions, there are a few exceptions to the said rule also which have been evolved to meet certain contingencies As per one such exception relief is provided to the bereaved family of a deceased employee by accommodating one of his dependants in a vacancy. The object is to give succor to the family which has been suddenly plunged into penury due to the untimely death of its sole breadwinner. This Court has observed time and again that the object of providing such ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment.”

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Similar view has also been taken by the apex Court in State of U.P. v. Paras Nath, (1998) 2 SCC 412, and Commissioner of Public Instructions v. K.R. Vishwanath,

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(2005) 7 SCC 206.

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In Sushma Gosain v. Union of India , (1989) 4 SCC

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468, the apex Court pointed out that the purpose of providing

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appointment on compassionate grounds is to mitigate the hardship due to death of the bread earner in the family and that such appointment should, therefore, be provided immediately to redeem the family in distress.

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8. In Director of Education v. Pushpendra Kumar ,

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(1998) 5 SCC 192, the apex Court explained the purpose of compassionate appointment and pointed out its exceptional nature and the need to take care that its application did not interfere with the right of other persons who are eligible to seek employment.

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9. In Balbir Kaur and another v. Steel Authority of

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India Ltd. and others, AIR 2000 SC 1596 it is categorically held that sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump sum amount being made available to the family. This is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and it is at that juncture if some lump sum amount is made available with a compassionate appointment, the grief stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. This being the reasons assigned,

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compassionate appointment can be granted to a member of the deceased family.

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In Umesh Kumar Nagpal v. State of Haryana ,

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(1994) 4 SCC 138, the apex Court laid down the principles relating to compassionate appointment in clear and emphatic language, which is reproduced below:-

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“The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Class III and IV are

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the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule make in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.”

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In Govind Prakash Verma v. LIC of India, (2005) 10 SCC 289, the apex Court held that compassionate appointment is recompense over and above whatever is admissible to the legal representatives of deceased employee as benefits of service which they get on death of the employee.

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This being the purpose of giving compassionate appointment, the same cannot be frustrated in any manner by issuing a circular by the Registrar, Cooperative Societies, Orissa stating that the appointment made after 01.01.1990 should be removed and relying upon such circular the consequential communication made to the Secretary, CARD Bank, Berhampur

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by the General Manager, CARD Bank, Berhapur, vide Annexure6, directing for removal of service of the petitioners cannot and should not be sustained in the eye of law, especially when the institution is running with dearth of staff, and as such the petitioners have been appointed against the sanctioned post and discharging their duties assigned to them sincerely.

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On perusal of Annexure-6 dated 01.02.2003 only ground taken in the said letter is that pursuant to the circular issued by the Registrar, Cooperative Societies, Orissa dated 24.03.1998 directing to limit the management cost to 2.5% of the working capital and the bank should not incur expenditure more than the management cost released every month and, therefore, the action has been taken for removal of 5 staff those who have been appointed after 01.01.1990, including the petitioners, those who have been given benefit of compassionate appointment. On perusal of the circular dated 24.03.1998 in Annexure-3, it does not say about the removal of employees those who have been given compassionate appointment. Though fact remains that the petitioners have been appointment after 01.01.1990, but that ipso facto cannot deny them to continue in service pursuant to circular dated 24.03.1998 issued by the Registrar, Cooperative

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Societies, Orissa. As such, the consequential letter issued by the General Manager, CARD Bank to the Secretary, Berhampur CARD Bank dated 01.02.2003 in Annexure-6, relying upon circular of the Registrar, Cooperative Societies dated 24.03.1998, directing to remove the petitioners from service who are continuing on compassionate appointment basis, cannot sustain in the eye of law, in view of the fact that the same will amount to frustrate the very purpose of compassionate appointment.

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Needless to say that by virtue of the interim order dated 31.03.2003 passed by this Court, the petitioners are continuing in service and in the meantime more than 14 years have elapsed. Therefore, at this stage, this Court does not wish to unsettle the settled position. Therefore, in the interest of justice, equity and fair play, the letter dated 01.02.2003 in Annexure-6 issued by the General Manager, CARD Bank, Berhampur to the Secretary, CARD Bank, Berhampur advising to remove the petitioners from service, having not considered the nature of their appointment, merits no consideration and the same is hereby quashed. As the petitioners have been given compassionate appointment, they should be allowed to continue

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in service as before and all consequential service benefits

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admissible to them in accordance with law should be extended.

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The writ petition is accordingly allowed. No order as

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to cost.

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The High Court of Orissa, Cuttack The 9^th January, 2018/Ajaya/GDS

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True copy

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Sr. Steno

Bhabani S.Pandit v. Regr.,Co-Op.Societie

Case brief

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Bhabani S.Pandit v. Regr.,Co-Op.Societie

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