REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4103 OF 2022

(Arising out of S.L.P.(Civil) No. 936/2022)

Malaya Nanda Sethy …Appellant

Versus

State of Orissa and others …Respondents

J U D G M E N T

M.R. SHAH, J.

1.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,

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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

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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.

2.1Despite 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 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.

2.2Feeling 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

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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.

2.3Feeling 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.

3.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.

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3.1Learned counsel appearing on behalf of the appellant has heavily

relied upon the decisions of this Court in the cases of Indian Bank and

others v. Promila and another (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) and others 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.

4.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

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Rules that were prevalent at the time of death of the government

servant.

4.1Learned 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.

4.2Learned counsel appearing on behalf of the appellant has pointed

out that in 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).

5.We have heard the learned counsel for the respective parties at

length.

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

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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.

6.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

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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.

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7.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

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

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the opinion that the appellant herein shall not be denied appointment

under the 1990 Rules.

8.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.

9.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

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per the policy prevalent, at the earliest, but not beyond a period of six

months from the date of submission of such completed applications.

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.

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

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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 the

facts of the case. Then and then only the object and purpose of

appointment on compassionate grounds can be achieved.

…………………………………….J.

[M.R. SHAH]

NEW DELHI; …………………………………….J.

MAY 20, 2022. [B.V. NAGARATHNA]

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