Case: Kishori Minz Vs High Court of Orissa and two Ors.. Orissa High Court

Party Name:Kishori Minz Vs High Court of Orissa and two Ors.
Judges:B.S. Chauhan, C.J. and B.N. Mahapatra, J.
Issue:Service Law
Citation:(2009) 107 CalLT 469
Judgement Date:February 13, 2009
Court:Orissa High Court
 
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Judgment:

B.S. Chauhan, C.J.

  1. This Writ Petition has been filed to issue direction to the Opposite Parties to appoint the Petitioner as peon on compassionate ground under the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 (hereinafter called the 'Rules').

  2. The facts and circumstances giving rise to this case are that Petitioner's husband Late Bijaya Kumar Minz, who was working as Process Server in the office of District Judge, Sundargarh died on 16.9.1997 leaving behind his wife, Smt. Kishori Minz/Petitioner, three minor daughters and one minor son. Petitioner filed an application seeking appointment for herself under the aforesaid Rules. The Opposite Party No. 2 held an inquiry on the financial status of the Petitioner, as to whether the family was in distress. The Revenue Inspector, Sadar, Sundargarh enquired into the matter and submitted a report to the Tahasildar, Sadar, Sundargarh on 14.5.1998 certifying that the family was in distress and rehabilitation assistance should be provided under the said Rules.The Establishment Officer of the Collectorate, Sundargarh issued letter dated 10.8.1998 to the District Judge, Sundargarh enclosing the distress certificate duly signed by the A.D.M., Sundargarh asking him to make appointment of the Petitioner under the said Rules. However, it was not acted upon. The Petitioner submitted another representation dated 16.1.1999 (Annex.-7) to the District Judge, Sundargarh wherein Petitioner disclosed that she had passed 9th Class and was eligible for appointment as a peon. It was difficult for her to maintain a family of seven persons without any assistance. She was having land measuring Ac. 1.58 dec. in the name of her father-in-law. The income from the said land was about Rs. 1,500 per year and they are living in a miserable condition. However, the Petitioner was not offered the appointment. Hence this petition.

  3. Learned Counsel for the Petitioner submitted that Petitioner belongs to Scheduled Tribe community. Her husband was the only bread earner for the family who died on 16th September, 1997. A period of more than 11 years has elapsed. Grievance of the Petitioner has not been redressed. The family of the Petitioner is living m a miserable condition.Therefore, a direction be issued to the Opposite Parties to appoint the Petitioner under the said Rules.

  4. On the contrary Learned Addl. Government Advocate has vehemently opposed the petition placing reliance upon the counter affidavit of the Opposite Party No. 2 and the said Rules, pointing out that the scheme under the said Rules has undergone a sea change as amendment was made in 1998 in the said Rules providing that the amount of family pension received by the dependent of the deceased employee also be taken into consideration while considering the financial condition of the family. Therefore, distress certificate is to be examined taking in to account the amount of family pension also. In the instant case, as the Petitioner was getting Rs. 1785 per month, her annual income from pension comes to Rs. 21,420, which is to be added to her other income of Rs. 11,500 as indicated in her distress certificate. Therefore, the total annual income comes to Rs. 32,920. The prescribed limit for distress family is Rs. 20,000. Thus Petitioner's case does not fall within the zone of consideration. She has rightly been not offered the appointment. It is further submitted by the Learned Addl. Government Advocate that counter affidavit, annexing all the documents including the amendment in the Rules etc. had been filed on 20.4.2000, but till date rebutting the same, no rejoinder affidavit has been filed by the Petitioner, though a period of nine years has lapsed. Thus the petition is liable to be dismissed.

  5. We have considered the rival submissions made by the Learned Counsel for the parties and perused the record.

  6. The law on the issue is no more res-integra, as the issue has been considered by the Court time and again.

  7. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the bereaved family which has lost its bread- earner. Mere death of a Government employee in harness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing 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 consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, it being not a vested right.

  8. In Smt. Sushma Gosain and Ors. v. Union of India and Ors. AIR 1989 SC 1976, the Apex Court held as under:

    It can be stated unequivocally that in all claims for appointment on compassionate ground, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointment should, therefore, be provided...

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