TaxTMI 
TaxTMI 
2025 (8) TMI 1853
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....a Civil Services (Rehabilitation Assistance) Rules, 1990 (for short, "RA Rules, 1990") before the competent authority and the respondent applied for the post of Forest Guard/Junior Clerk. 2.1. The appellant No.4 after lapse of four years, vide Letter dated 31.08.2018 taking shelter of Rule 8 of the RA Rules, 1990 as amended by virtue of the Odisha Civil Service (Rehabilitation Assistance) Rules, 2016 [General Administration Department Notification No.GAD-SC- RULES-0020-2015- 2335/Gen], dated 05.11.2016, prescribing new set of modalities directed the respondent to take test in Computer and English Skill test in the category of Group-C [Junior Clerk] for appointment under the RA Rules, 1990. As the Committee found him unsuitable for the said post, the application of the respondent was not accepted, which was intimated vide Letter dated 22.09.2018. 2.2. The respondent again made application dated 19.02.2019 for the post of "Forest Guard" which was taken up for consideration vide Letter Memo No.1908, dated 22.04.2020. The Division Forest Officer, Ghumsar North Division, Bhanjanagar, appellant No.4, by Letter dated 31.12.2020 directed the respondent to make application afresh as p....
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....he date of taking such decision. 7. With the aforesaid observation/ direction, the writ petition is disposed of." 2.4. Dissatisfied thereby, the appellants-functionaries of the Government of Odisha have filed the instant writ appeal with delay. 2.5. In this intra-Court appeal the appellants raised question of law as to whether the modalities prescribed in the RA Rules, 1990, for consideration of application for compassionate appointment are applicable in the present case on the ground that on the date of consideration of application for rehabilitation appointment, the petitioner applied afresh in term of the RA Rules, 2020. Hearing: 3. This matter was on board on 05.08.2025 under the heading "For Orders" for consideration of condonation of delay. The respondent entered appearance through Mr. Satyajit Behera, learned Advocate. 3.1. Since the matter relates to compassionate appointment under the Rehabilitation Assistance Scheme for extending succour to the family of the respondent-son, whose father died in harness in the year 2015, while in Government service, on the concession of counsel for the respondent, delay in filing the writ appeal was condoned on 05.0....
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....the Rules, 2020 came into force. 5.1. Expanding his argument further, he urged that this Court in the case of Suchitra Bal Vrs. State of Odisha, in W.P.(C) No.2081 of 2021 & batch, disposed of on 27.06.2023 and State of Odisha and others Vrs. Bindusagar Samantaray, in W.A. No.810 of 2021, disposed of on 25.09.2023 having already interpreted the application of relevant Rules, the same question cannot fall for reconsideration. In the said cases it has been held that the application for compassionate appointment under the Rehabilitation Assistance Scheme filed under the Rules, 1990 is to be considered as per the Rules prevailing on the date of application, but not in terms of the Rules, 2020. Such view of this Court finds support of the decision of the Hon'ble Supreme Court of India in the case of Malaya Nanda Sethy Vrs. State of Odisha and others, 2022 (II) OLR (SC) 1 = (2022) 4 SCR 707 = 2022 INSC 617. 5.2. It is submitted that since the father of the respondent died in harness on 25.03.2015 and the application for compassionate appointment was filed on 09.02.2016, the applicable Rules for consideration is the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990. ....
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....te 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." 7.3. In the case of State of West Bengal Vrs. Debabrata Tiwari, (2023) 2 SCR 611, laying emphasis on the observations made in Malaya Nanda Sethy (supra), the Hon'ble Supreme Court of India observed thus: "11. It may be apposite at this juncture to refer to the following observations of this Court in Malaya Nanda Sethy Vrs. State of Orissa, AIR 2022 SC 2836, as t....
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.... 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 the facts of the case. Then and then only the object and purpose of appointment on compassionate grounds can be achieved.' In the said case, the claim of the appellant-applicant therein for compassionate appointment was directed by this Court to be considered by the competent authority. This Court noted that in the said case, there was no lapse on the part of the appellant-applicant therein in diligently pursuing the matter. The delay in considering the application of the appellant therein was held to be solely attributable to the authorities of the State, and no part of it was occasioned by the appellant-applicant. Further, in the said case, the appellant-applicant was prejudiced not only because of the prolonged delay in considering his application but also by the fact that in the interim, the policy of the State governing compassionate appointment had changed to his detriment. Therefore, the facts of the said case were distinct from the facts involved herein. In the present case, the cond....
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....ation. 74. In Malaya Nanda Sethy (supra), the decision has been rendered on the issue whether the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990 which we have referred as the old Rules would apply in respect of all the applications which were submitted prior to 17.02.2020 on which day, the Odisha Civil Services (Rehabilitation Assistance) Rules, 2020 was brought in force in total suppression of the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990. 75. In Rule 6(9), all the pending cases were saved for consideration under the new Rules, 2020. We have reproduced the provisions of Rule 6(9) of the Odisha Civil Services (Rehabilitation Assistance) Rules, 2020. 76. The petitioner has challenged Rule-6(9) of the new Rules asserting that it takes away their right to be considered under the old Rules i.e. the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990. They are entitled to be considered under the old Rules for two reasons: (1) Death of the deceased employee/ worker had taken place prior to 17.02.2020 and the application for rehabilitation assistance in all the cases had been filed prior to 17.02.2020. ....
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....y in making the decision on the rehabilitation assistance/ appointment shall not give any premium to the authorities. As such, if the delay is attributable to the opposite parties, the application of the petitioners for rehabilitation assistance/ appointment should not be frustrated by bringing them under the new Rehabilitation Assistance Rules, 2020. Such application shall be considered, if filed before the Odisha Civil Services (Rehabilitation Assistance) Rules, 2020 came into force under the provisions of the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990. 83. The apex court thus in effect, read down the Rule 9(6) of the Odisha Civil Services (Rehabilitation Assistance) Rules, 2020. 84. In view of the above decision, we are of the view that the application for the petitioners shall be considered under the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 in as much as on scrutiny, it is found that all the applications were filed before 17.02.2020 and the delay in considering the applications in time is entirely attributable to the opposite parties. Such exercise shall be completed within a period of three months from the day when a co....
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....o. 2081 of 2021 [Suchitra Bal Vrs. State of Odisha & others] and batch, decided on 27.06.2023 it has been observed as follows: ( *** ' 9. It has been stated by the learned counsel for writ petitioners-respondents that in one case, since the mother is alive; the son's prayer for rehabilitation assistance appointment was denied on that ground that when mother is alive, no other person can be given benefit from the family. Mr. P.K. Mishra, learned counsel has pointed out that this Court has already decided the said issue in Ajit Kumar Barik Vrs. State of Odisha and others reported in 2018 (II) OLR 10. The State had challenged the said decision in Ajit Kumar Barik (supra), but the apex Court declined to interfere in the decision of Ajit Kumar Barik (supra), where this Court had an occasion to hold that under Rule 9(7) of the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 'ward' who is minor at the time of death of a Government servant will not be covered under the said provision, we are presently dealing with, due to delay and latches on the part of the Collector in issuing the distress certificate, after 13 years from the date when the R....
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....consideration of the distress condition, the State Government may provide rehabilitation appointment to the distressed families of the employees, who died in harness but this is left in the absolute discretion of the State Government. So far as question relating to the aided Government institutions or the block grant institutions is concerned it appears that the cases of rehabilitation will be covered by the Government policy as framed by the General Administration & Public Grievance Department vide their circular dated 14.10.1998, as referred above. So far as the objection as raised by the learned counsel for the appellants that some of the applications have been filed after the new Rule came into force, in this regard, nothing more is required to be explained. The scheme under the old Rules itself contains the rule of limitation and hence, all applications are to be filed within a period of one year from the date of death. If any application is filed even after new Rules came into force, that was not barred by limitation if filed within one year. But those applications are to be considered under the old Rules. Applications filed within one year from the....
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....r power under Article 142 of the Constitution of India and to do complete justice between the parties enhanced the amount of compensation from Rs.1,00,000/- to Rs.2,00,000/-. On a plain reading of the judgment in State of M.P. Vrs. Amit Shrivas reported in (2020) 10 SCC 496, it appears that the three Judge Bench has affirmed the ratio laid down in Indian Bank's Case supra. 41. In State of Madhya Pradesh Vrs. Ashish Awasthi reported in (2022) 2 SCC 157, the Hon'ble Supreme Court of India was dealing with a case of compassionate appointment, wherein the father of the applicant died on 08.10.2015 while he was working as a work-charged employee. The question arose as to whether the applicant, who is not entitled to employment, would get compensation under the circular of the year 2014 or 2016 i.e. a subsequent circular enhancing the compensation amount. The Hon'ble Supreme Court referring to the judgment in Indian Bank and Ors. Vrs. Promila and Another reported in 2020 (2 SCC 729) (supra) and State of M.P. Vs. Amit Shrivas reported in (2020) 10 SCC 496 finally held that the policy/ circular prevalent at the time of the death of the Government employee shall apply a....
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....s of the aforesaid case, it appears that the deceased Government employee, who is the father of the appellant-claimant, while working as an Assistant Sub-Inspector of Police in the Government Department died in harness on 02.01.2010. Thereafter, the appellant submitted his application for appointment as a Junior Clerk on compassionate grounds under the OCS (R.A) Rules, 1990 in July 2010. 45. However, the said application was not considered by the Competent Authority for a considerable period of time. The Competent Authority, from time to time, deferred the consideration of the appellant's application for want of compliance with some of the requirements under the rules and as a result, final adjudication of the matter was delayed. Thereafter, the OCS (RA) Rules, 1990 was replaced by a new set of Rules namely, OCS (RA) Rules, 2020 vide Notification dated 17.02.2020, which provides that the family member of a deceased Government servant could be appointed on compassionate grounds against Group-D level post. 46. Thereafter, the application of the appellant was remanded to the authority for fresh consideration under the 2020 Rules. The appellant preferred a writ pe....
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....under the proviso to Article 309 of the Constitution of India [vide General Administration and Public Grievance Department Notification No.5651-GAD-SC-RAS-0029-2014/Gen], dated 17.02.2020 was published in the Extraordinary issue No.395 of the Odisha Gazette on 27.02.2020.]. Therefore, there is no doubt that the family members of the Government employee who died in harness after 17.02.2020 are to be governed by the 2020 Rules for compassionate appointment. Rule 6 Sub-rule (9) of the 2020 Rules provides that all applications for compassionate appointment pending as of the date on which the new set of rules came into force shall be governed by the Rules, 2020. 54. On a comparison of the two Rules as demonstrated by the learned counsel for the petitioners, it appears that the Rules, 1990 is less cumbersome and more beneficial to the family members of the deceased Government employee. However, it is seen from the record that many applications filed prior to 17.02.2020 were kept pending for reasons best known to the authorities. In some cases, the applications for appointment on compassionate ground were kept pending for more than a decade. Furthermore, the applications received....
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.... is a transitional provision conferring power upon the executive to frame rules having the force of law and the same shall remain in force till the legislatures legislate on the subject matter as has been decided by the Hon'ble Supreme Court of India in A.K. Krishna Vs. State of Karnataka reported in AIR 1998 SC 1050. 57. Furthermore, a benefit that has accrued under the existing rules cannot be taken away by an amendment with retrospective effect and no statutory rule or administrative order can whittle down or destroy any right, which has become crystallized and no rule can be framed under this proviso, which affects or impairs the vested rights as has been held in the case of R.S. Ajara Vrs. State of Gujurat reported in (1997) 3 SCC 641 and in Chairman Railway Board Vrs. C.R. Rangadhamaiah reported in (1997) 6 SCC 623. It has also been held by the Hon'ble Supreme Court of India in State of Karnataka Vrs. Ameerbi reported in (2007) 11 SCC 681 that the Rules framed under the proviso to Article 309 of the Constitution of India are not attracted in the case of appointees under a scheme which is not of a permanent nature, although the employees might have continued f....
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....6, Sub-Rule (9) of the 2020 Rules as void, only if the provision violates Article 14 of the Constitution of India. 59. Even assuming that the Rules in question are policy decisions of the Government or a scheme by the State to provide benefit to the distressed family members of the Government employees who have died in harness, this Court would not get jurisdiction to interfere with the same unless this Court holds that the same is violative of Article 14 of the Constitution of India. The Govt. has full freedom to change any policy decision and the Court shall not interfere with the same unless such administrative policy/ scheme violates some of the provisions of the Constitution like Article 14, which requires that, even the administrative authority must act fairly and treat its employees equally as has been laid down by the Hon'ble Supreme Court of India in the case of Distt. Registrar Vrs. M.B. Koyakutty reported in AIR 1979 SC 1060 and S.L. Sachdev Vrs. Union of India, reported in AIR 1981 SC 411. 60. Thus, where the Rules/ Policy/ Scheme violates the provisions of Article 14 of the Constitution, the Court would be perfectly justified in interfering with t....
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....butable to the appointing authorities, that too under the new Rules of 2020, while already giving appointments to family members of some of the deceased Government employees irrespective of the date of death of such employee, in the considered view of this Court, is in violation of Article 14 of the Constitution of India. Furthermore, any rule compelling them to do so would not stand the scrutiny of law under Article 14 of the Constitution of India. Therefore, Rule 6, sub- rule (9) of the 2020 Rules would not pass the test of judicial scrutiny upon the same being tested with the touchstone of Article 14 in the factual background of the present cases and similar other cases pending for adjudication before this Court. The discrimination in the present case i.e. the family members of some of the employees who have been given appointment under the old Rules, 1990 in comparison to the ones who have been asked to apply afresh under the new Rules, 2020, although their predecessors have died prior to 2020 Rules came into force, is an actual one and not abstract or theoretical. 63. No doubt the appointment means an actual appointment by posting the person concerned to a particular ....
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....4 of the Constitution of India. In National Highway Authority of India Vrs. Madhukar Kumar (Civil Appeal No.11141 of 2018 decided on 23.09.2021 [(2021) 13 SCR 299 = 2021 INSC 532], the Hon'ble Supreme Court of India has held that in India, every State action must be fair, failing which, it will fall foul of the mandate of Article 14 of the Constitution of India. Similarly, in Ajay Hasia Vrs. Khalid Mujib Sehravardi reported in AIR 1981 SC 487, the Hon'ble Supreme Court of India has held that Article 14 of the Constitution of India strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. Whenever, therefore, there is arbitrariness in State action, whether it be legislature or of the executive, Article 14 immediately springs into action and strikes down such action. Similar view has also been taken in E.P. Royappa Vrs. State of T.N. reported in AIR 1974 SC 555 and Maneka Gandhi Vrs. Union of India reported in AIR 1978 SC 597. 66. The word "arbitrariness" has been defined in a judgment of the Hon'ble Apex Court in Sharma Transport Vs. Government of Andhra Pradesh reported in (2002) 2 SCC 188. The Hon'ble Supr....
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....titution of India. 69. In E.P. Royappa's case (supra), which is a Constitution Bench judgment of the Supreme Court of India, Justice Bhagawati in a concurring judgment observed as follows: 'The basic principle which, therefore, informs both Article 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalizing principle? It is a founding faith, to use the words of Bose, J., "a way of life", and it must not be subjected to a narrow and pedantic and lexicographic approach. We cannot countenance any attempt to truncate its all- embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be 'cribbed', cabined and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the Rule of Law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political l....
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....he authorities have failed to consider their cases for appointment under OCS (RA) Rules, 1990 (as amended in the year 2016 wherever, the same is applicable). This court further observed that it is a matter of record that while not considering the case of the Petitioners, the authorities have considered and appointed persons who had applied along with the petitioner or subsequent to the petitioner. No reasonable explanation is coming forth from the side of Government-Opp. Parties as to why some persons were shown favour by appointing them and the petitioners and many others were not appointed. Moreover, it has also not been satisfactorily explained as to why the petitioners have been asked to apply under the Rules, 2020 which is unfavourable to them except the provision contained in Rule 6, sub-rule (9) of the Rules, 2020. The opposite parties have thus failed to come up with an intelligible differentia so far the class of the present petitioners are concerned in contrast to the persons who have been appointed under a more favourable Rule, 1990. Such conduct on the part of the opposite parties either rejecting the petitioners application or asking some of them to apply afresh under ....
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....t employee on 25.03.2015, though the application was submitted on 09.02.2016 (within the period stipulated under Rule 9(6) [Sub-rule (6) of Rule 9 of Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 stood thus: "Application for appointment under these rules shall be considered if it is received within one year from the date of death of the Government servant."] of the Rules, 1990), the Order refusing employment on compassionate ground came to be passed. Thus, there appears delay in taking up the application for consideration of the case of the respondent. Due to delay in consideration by the appellant No.4, in view of ratio of Malaya Nanda Sethy (supra), the benefit of the RA Rules, 1990 cannot be denied to the respondent. During pendency of consideration of application furnished under the Rules, 1990, another set of rules, i.e., the RA Rules, 2020 came into force. In the said Rules, sub-rule (9) of Rule 6 was the bone of contention, wherein it has been laid down that all pending applications were to be considered under said new Rules. However, in Biswajit Swain (supra), such provision has been declared as ultra vires. This apart, in Suchitra Bal (supra) said provis....
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....or deciding on the rights involved in such a proceeding. [See, East India Commercial Co. Ltd., AIR 1962 SC 1893; Chowhan Machinery Mart Vrs. State of Orissa, (2009) 19 VST 178 (Ori)]. 7.11. As it transpires from close perusal of the record, the appellant No.4-Divisional Forest Officer, Ghumsur North Division, Bhanjanagar has delayed the matter in considering application dated 09.02.2016. Taking cue from the principle laid down by the Hon'ble Supreme Court in Malaya Nanda Sethy (supra), it can safely be said that the learned Single Bench was correct in its approach to direct the authority to consider the case of the respondent in terms of Suchitra Bal (supra) and Bindusagar Samantaray (supra). 7.12. This Court is of the considered view that the Order dated 01.02.2024 of the learned Single Bench suffers no illegality nor infirmity in law in view of principles stated in Suchitra Bal (Supra) and Bindusagar Samantaray (Supra). 8. This Court is taken to have a look at another angle. 8.1. At the stage of the hearing of the present matter, learned counsel for the respondent brought to the notice of this Court subsequent event. Though the matter relating to rendering sub-rul....
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....ccurred on or after commencement of the Odisha Civil Service (Rehabilitation Assistance) Amendment Rules, 2016 and before commencement of the Odisha Civil Services (Rehabilitation Assistance) Rules, 2020, the appointing authority shall ascertain the present financial distress of the family by calling for a report from Collector of the district in which the family ordinarily resides, as to whether the family is in financial distress as per the provisions of rule 8 of the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990. Explanation for the distress certificate prescribed under clause (c).- The total annual family income from all sources excluding Family pension and temporary increase must not exceed Rs.1,91,000/- (Rupees One Lakh and Ninety-One Thousand) for a family to be in a 'distress condition'." (ii) The sub-rule (10) shall be omitted." 8.2. In the instant case, as the date of death of the Government employee was on 25.03.2015, i.e., on or before commencement of the Odisha Civil Service (Rehabilitation Assistance) Amendment Rules, 2016, in terms of proviso to clause (a) of sub-rule (9) of Rule 6 as substituted by virtue of the O....