I.M. Quddusi, A.C.J.

1. This writ petition has been filed praying for quashing of the impugned order dated 22.1.2009 (Annexure-10) passed by opposite party No. 1 rejecting the prayer of the petitioner to appoint her under Rehabilitation Assistance Scheme in the judgeship of Koraput at Jeypore with a further prayer to direct the opposite parties to consider the case of the petitioner for appointment under Rehabilitation Assistance Scheme as done in case of similarly situated persons, who have been appointed vide Annexures-5, 6 and 7.

2. The brief facts of the case are that the father of the petitioner who was serving as Daftari in the office of the District Judge, Koraput died in harness on 7.12.2004. After his death, the petitioner who is a handicapped girl having completed her graduation, type writing and DCA in computer application, applied in the year 2005 in the prescribed form to the District Judge, Koraput with all necessary documents for compassionate appointment. Thereafter, the wife of the deceased employee filed an application before the District Judge reiterating her demand to extend compassionate appointment to the petitioner. When no action was taken by the District Judge on the application of the petitioner, the wife of the deceased filed a representation before the Registrar of this Court to direct the authorities to consider her case to appoint the petitioner under compassionate ground. Thereafter, the petitioner filed W.P.(C) No. 5046 of 2008 which was disposed of on 8.5.2008 observing that it would be proper for the petitioner to approach the learned District Judge, Koraput by filing a representation and in the event a representation is filed within a period of one month from that date, the same shall be considered and disposed of by the District Judge taking into consideration the distressed condition of the petitioner and the rule governing the field of appointment under Rehabilitation Assistance Scheme. On 11.5.2008, the petitioner preferred a representation (Annexure-4) before opposite party No. 2 for appointing her in any Class-Ill post under Rehabilitation Assistance Scheme. It appears from paragraph-10 of the writ petition, that during the pendency of the said representation (Annexure-4), one Srimanta Ku. Padhy has been appointed in the judgeship of Ganjam-Gajapati in the year 2008 and one Mamata Mallick and Jhunarani Senapati have been appointed in the judgeship of Khurda in the year 2004 and 2006 respectively under the Rehabilitation Assistance Scheme. To that effect, the petitioner has also filed a memo annexing the appointment order of the above persons vide Annexure-5, 6 and 7. When the matter stood thus, on 16.7.2008, opposite party No. 2 rejected the application of the petitioner without assigning any reason. Being aggrieved by the order dated 16.7.2008 passed by o.p.2, the petitioner again filed W.P.(C) No. 10820 of 2008 before this Court which was disposed of vide order dated 1.12.2008 requesting the learned District Judge, Koraput at Jeypore that whenever any vacancy occurs in Class-Ill or Class-IV post, the case of the petitioner may be considered for appointment on compassionate ground to the said post in accordance with law and if any vacancy is in existence, her case may also be considered giving strict adherence to the Statutory Rules. Pursuant to the order dated 1.12.2008, the petitioner filed an application (Annexure-9) before opposite party No. 2 and stated that 75 posts of Junior Clerks are lying vacant in his judgeship. Thereafter, wdeimpugned order, opposite party No. 2 issued a letter dated 22.1.2009 (Annexure-10) to the petitioner refusing her prayer for appointment under Rehabilitation Assistance Scheme on the ground that 75% vacancies now existing cannot be abolished as that would create situation of Court's and offices becoming defunct and non-functional as per Government Circular dated 29.12.2004. Therefore, her name cannot be recommended to the Govt. for consideration for appointment under Rehabilitation Assistance Scheme. Hence, the instant writ petition.

3. By order dated 16.4.2009, the opposite party No. 1 was directed to file his personal affidavit explaining the meaning of the impugned order dated 22.1.2009 pursuant to which an affidavit has been filed by opposite party No. 1. It has been stated therein that the impugned memo/order dated 22.1.2009 was passed keeping in view the guidelines laid down by the Govt. of Orissa, especially for filling up the vacancies under Rehabilitation Assistance Scheme vide Finance Department Letter No. Bt.-V-20/04-55375(50)/f, dated 29.12.2004 communicated to his office through Law Department vide Memo No. III-OE-111/89 344 dated 6.1.2005. It has been further stated in the counter affidavit that since no order either from the Government or the High Court has been received with regard to exemption of judiciary from the abolition of 75% base level vacant posts and basing on the restriction of constrictions, the memo was issued to the petitioner for her information.

4. Learned Counsel for the petitioner has contended that since the Rehabilitation Assistance Scheme is aimed at providing scours to the distressed families, the restriction imposed by the State Government for filling up base level posts should not stand on its way and in other Judgeships such appointments having been made, the learned District Judge, Koraput, was not right in refusing to extend such benefit to the petitioner.

5. It is no doubt true that the Government in Finance Department Circular No. 32861/F. dated 3.8.2004 in order to take forward the fiscal correction process, at the first instance resolved to abolish 75% of the base level post as on 1.4.2004 and requested all departments to issue office order abolishing 75% of the vacant regular posts at entry level except in case of Primary School Teachers, Doctors, Nursing Personnel and Striking Force in the Police Department. In F.D. Circular No. 55375/F. dated 29.12.2004 it was clarified that since appointment under Rehabilitation Assistance is directly linked with filling up of vacant posts, the proposals for rehabilitation assistance need to be sent to Finance Department for concurrence only after enforcement of abolition of 75% base level vacant post. On perusal of F.D. Circular No. 32861 (45) dated 3rd August, 2004, it appears that while imposing the ban certain category of posts like Primary School Teachers, Doctors, Nursing Personnel and Striking Force were not brought within the purview of the ban. It may be stated that the nature of work and staffing pattern of the subordinate Courts as well as the High Court is quite different from the staffing pattern in other Government Offices. The present strength in the judiciary is not sufficient to cope up with the work. With the increase in the number of cases proportionate increase in staff strength has not been made. Having regard to the nature of work in the Judiciary, the High Court had in the past requested the State Government that the circulars relating to ban be not made applicable to the Judiciary. Having regard to the nature of job and the increase in litigation vis-a-vis the existing staff strength, it cannot be denied that the Judiciary is under-staffed. If the F.D. resolution referred to above is followed and 75% of the vacant post are abolished it would lead to a chaotic situation. That is the reason why the High Court urged upon the State Government to exempt the Judiciary from implementing the resolution. We have perused the minutes of discussion of the joint meeting of the Hon'ble Minister, Law and Hon'ble Minister, Finance on establishment of new Judicial Courts in the State during the year 2007-08 held on 11.12.2006 in which the Registrar (Administration) and Principal Secretary to Government Law Department strongly objected to the abolition of such posts from the Judiciary. However, in the discussion the Hon'ble Ministers desired that the number of ministerial posts lying vacant in different judgeships be obtained to decide if any such posts can be abolished or otherwise. However, by letter No. 3970 dated 17.2.2005, copy of which has been made available to us by the opposite party No. 1, the High Court sent proposal to the State Government to exempt the Judiciary from abolishing 75% of the base level vacant posts. Rehabilitation assistance is conceived as a compassionate measure of saving the family of a deceased Government servant from immediate distress on account of sudden death of the earning member. The whole objective is to enable the family to tide over the sudden crisis. If the assistance is delayed beyond a reasonable period, the purpose is defeated and the distress condition may not continue to exist in the family or condition of the family may become pitiable. Taking into consideration all the above aspect, the State Government in F.D. Resolution No. 54447/F. dated 5.12.2005 decided that the Administrative Departments are competent enough to accord approval for cases that qualify for appointment under OCS (RA) Rules, 1990 with amendments made from time to time and other guidelines by G.A. Department in the matter. It was further decided therein that cases of appointment under Rehabilitation Assistance need not be referred to Finance Department for concurrence. It appears from Annexure-5, 6 and 7 that appointment on rehabilitation assistance has been made in other judgeships in the mean time. It has also come to our notice that in spite of the restriction, the State Government has created posts for establishment of Courts at different Judgeships. Under Article 235 of the Constitution, the High Court has control over subordinate Courts, Posts are created taking into consideration the requirement having regard to the nature of different types of work. Reducing the strength of the staff of the subordinate Courts would definitely affect the administration of justice adversely. Therefore, the restriction imposed by the Finance Department vide Circular dated 29.12.2004 cannot be applicable to the Judiciary.

6. In view of the above, the learned District Judge is directed to reconsider the question of appointment of the petitioner under rehabilitation assistance scheme afresh in the light of the observation made above. Consequently, the order dated 22.1.2009 (Annexure-IO) passed by the learned District Judge is quashed. Needless to mention that the decision shall be taken as expeditiously as possible preferably within a period of one month from the date of production of a certified copy of this judgment.

7. The writ petition is accordingly allowed. There would be no order as to costs.

Sanju Panda, J.

I agree.