Judgment:
D.M. Patnaik, J.
1. Aggrieved by the action of the Executive Engineer, G.N.E. Division, Berhampur (opposite party No. 3) refusing the appointment of Prasanna Kumar Mohanty son of the petitioner on compassionate ground under the Rehabilitation Scheme, the petitioner has approached this Court for appropriate relief.
2. The petitioner's case is, her son Meghananda Mohanty while working as helper under the Executive Engineer, G.N.E. Division, Berhampur met premature death on 15.6.1983. The petitioner's son Basanta Kumar Mohanty applied for a job against the Class-IV post under the Rehabilitation Scheme. Since this matter was delayed, the petitioner filed' O.J.C. No. 3534 of 1987 which was disposed of on 21.6.1988 directing the authorities to dispose of the representation of the petitioner within three months. Since the petitioner was given out that there was a ban order for appointment to Class-IV posts, her other son Prasanna Kumar Mohanty applied afresh for such appointment against a Class-Ill post. As per the terms and conditions of the scheme, he appeared at the competitive test twice, one on 31.1.1989 and the other on 15.2.1989 but failed on both the occasions and so on 3.2.1993 his application was rejected. The petitioner filed OJC No. 7157 of 1994 challenging this order which was disposed of on 20.5.1995.
It is the case of the petitioner that while disposing of this writ petition by judgment dated 20.5.1995 this Court appreciated the admitted position that the case of the petitioner needed further consideration and directed the authorities to give one more opportunity for seeking appointment under the scheme. But the opposite parties by letter dated 23.12.1995 (under Annexure-4) intimated that no such appointment could be given to said Prasanna Kumar Mohanty since under the 1992 Rehabilitation Assistance Scheme 'brother' of a deceased employee did not come under the definition of 'family member'. The petitioner further claims that the opposite parties have given appointment to one Ashis Kumar Panda whose brother died while in service and this happened after the amendment of the scheme in the year 1992. Therefore, rejection of the petitioner's case amounts to gross arbitrariness and discrimination.
3. In the counter, the opposite parties have taken several grounds denying the factual aspects pleaded by the petitioner. However, the main grounds taken in the counter are that, Basanta Kumar Mohanty's case was not considered under the 1985 Scheme since there was a ban order prohibiting such appointment to Class-IV posts. Secondly, so far as Prasanna's case is concerned, he having failed twice at the competitive test he could not have been appointed under the Scheme. Thirdly, the original Rehabilitation Assistance Scheme was superseded by the 1992 Scheme where a brother of the deceased employee was excluded from the definition of 'family member' and lastly, the appointment of Ashis Kumar Panda was considered as a special case.
4. We have heard Mr. Anil Deo, learned counsel for the petitioner and Mr. B. K. Nayak, learned counsel for the GRIDCO extensively. Their respective contentions are examined and disposed of in the following manner.
So far as the first point relating to the ban order for appointment against a Class-IV post is concerned we may point out that the ban order as is clear from Annexure-1, the conditions for the scheme, was imposed by the Board itself and secondly that itself was from 15.2.1984 (vide para 8 of Annexure-1). Meghnanda Mohanty admittedly died in the year 1983 when there was no bar order in force. Therefore, the ban order was not applicable to the case. This Court has no information when the scheme was enforced, but Annexure-1 is clear that specific conditions were embodied on 16.12.1985 i.e. after the death of Meghananda.
Further, such a ban order should not have been made applicable to the petitioner's case because the ban order normally must have been meant for the posts for regular appointment. In the present case, appointment was sought for under exceptional circumstance when unexpected misery engulfed the family because of the premature death of Meghananda. The Board themselves could have considered for not making the ban order applicable to such a case.
The second point is, failure of Prasanna Kumar Mohanty in not qualifying in the two tests as asserted by the opposite parties. We are of the view that the purpose and the object of such Rehabilitation Assistance Scheme is to save the affected family from destitution. Those are appointments on compassionate grounds. The very meaning of the words employed and the intention of rule making authorities and the noble purpose for which the scheme was adopted are that the family should not be allowed to starve on account of the sudden death of its bread earner. Therefore, it would be inappropriate to ask an applicant to face a competitive test for judging his suitability for his appointment to any post. The very action of the authorities asking such a candidate to face a competitive test along with others is to frustrate the very purpose for which the scheme was framed/adopted.
In our view in such circumstances said Prasanna should not have been asked to compete with others and the conditions in the scheme prescribing such test were extremely unreasonable. However, it does not mean that suitability should never be judged whether a person is at all capable of managing the post to which he was seeking employment. But the test to judge the suitability should not be that igorous and in no case it shall be tested with other competing eligible candidates so that there may be scope for eliminating the candidate on the pretext that he did not fare better than other candidates.
The third point is, refusing appointment on the ground that in the 1992 Scheme a brother of the deceased employee was excluded from 'family member' for being eligible for appointment to a post because of the amendment.
We may say the approach is wholly unacceptable to us. The reason is as follows:
5. Meghananda Mohanty died in 1983. Basant's case was considered under the 1985 Scheme. This Court in the first writ petition directed for considering Basant's case. His case was not considered by the Board because of ban order which should not have been made applicable to him as we have already observed above. Be that as it may, because of the ban order appointment of Basanta against the Class-IV post was not considered, but the family banked on Prasanna who applied for the post and Prasanna's case was not considered as he was found unsuitable as having failed in the two competitive tests.
After refusal of Prasanna's appointment the petitioner moved this Court for the second time in OJC No. 7156 of 1994. This Court when disposing of the writ petition on 27.7.1995 clearly indicated by keeping in view the admitted factual position that the petitioner's case for appointment of her son was considered under the 1988 Scheme (seems to be a mistake for 1985). Having observed this, the Court directed that since the candidate failed to qualify in the tests one more opportunity should be given to said Prasanna to seek appointment under the scheme. Such an observation and direction was certainly consistent with the intent and purpose of the Rehabilitation Scheme. This Court was conscious of the fact that the opposite party-Board did not dispute the fact that the petitioner's family in fact needed rehabilitation assistance. Thus it is clear that when Prasanna's case was taken up the same was considered under the old scheme. The new Scheme of 1992 as clear from para 6 of the counter came into force from 1.6.1992. Therefore, it was absolutely wrong and improper on the part of the opposite parties to say that the petitioner's case was covered under the 1992 Scheme. We are of the view that it came under the scheme prior to 1992 since the matter related back to the year 1983 when Meghananda died.
6. With regard to the allegation of the petitioner that the opposite parties gave appointment to one Ashis Kumar Panda even though the right to claim the benefit accrued after the 1992 amendment, but refusal to the petitioner's claim amounted to gross discrimination, the opposite parties took the ground that the case of Ashis Kumar Panda was considered as a special case. Not a single material has been placed before this Court to satisfy us how and under what special circumstance the case of said Ashis Kumar Panda was considered though admittedly the death of the employee in that case occurred after the 1992 amendment of the scheme; whereas the petitioner's case is a case of the year 1983. We are satisfied that there has been gross discrimination in dealing with the case of the petitioner. This is sufficient reason to allow the writ petition.
For the above reasons we hold that the petitioner has been able to make out a case that her son Prasanna Kumar Mohanty should be extended the benefit of appointment under opposite party No. 1 which the opposite party No. 1 shall consider in the light of the observation made above.
7. In the result, the writ petition is allowed. The opposite party No. 1 is hereby directed to consider the case of said Prasanna Kumar Mohanty for an appointment against any suitable post within a period of three months from the date of receipt of this order. No cost.
S. Chatterji, J.
8. I agree.