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2022 SCC OnLine SC 684
In the Supreme Court of India
(BEFORE M.R. SHAH AND B.V. NAGARATHNA, JJ.)
Malaya Nanda Sethy … Appellant;
Versus
State of Orissa and Others … Respondents.
Civil Appeal No. 4103 of 2022 (Arising out of S.L.P. (Civil) No. 936/2022)
Decided on May 20, 2022
The Judgment of the Court was delivered by
M.R. SHAH, J.:— 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 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, 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 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.
3. 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
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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.
4. 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 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.
5. 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.
6. 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.
7. Learned counsel appearing on behalf of the appellant has heavily relied upon the
decisions of this Court in the cases of Indian Bank v. Promila, (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) 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.
8. 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 Rules that
were prevalent at the time of death of the government servant.
9. 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.
10. Learned counsel appearing on behalf of the appellant has pointed out that in
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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).
11. We have heard the learned counsel for the respective parties at length.
12. 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 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.
13. 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 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.
14. 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
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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 the opinion that the appellant herein shall not be
denied appointment under the 1990 Rules.
15. 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.
16. 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 per the policy prevalent, at
the earliest, but not beyond a period of six months from the date of submission of
such completed applications.
17. 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.
18. 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 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
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the facts of the case. Then and then only the object and purpose of appointment on
compassionate grounds can be achieved.
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