Orissa High Court
A. Sinu Rao vs Secretary To Government Of Odisha on 12 February, 2024
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
ORISSA HIGH COURT : CUTTACK
WPC (OAC) No.4125 of 2016
In the matter of an Application under Articles 226 and 227
of the Constitution of India, 1950
read with
Section 19 of the Administrative Tribunals Act, 1985
***
A. Sinu Rao Aged about 23 years Son of Late Ananda Rao residing at: Qrt. No.2R/194 Government Press Colony Nuapada, P.O.: Madhupatna District: Cuttack, Odisha ... Petitioner
-VERSUS-
1. Secretary to Government of Odisha Department of Commerce & Transport (Commerce) Secretariat Building, Bhubaneswar At/P.O.: Bhubaneswar District: Khordha, Odisha
2. Director, Printing, Stationery & Publication Odisha, Madhupatna City & District: Cuttack
3. The Collector, Cuttack At: Collectorate Office, P.O.: Chandini Chowk City & District: Cuttack ... Opposite parties Counsel appeared for the parties:
For the petitioner : M/s. Manoj Kumar Panda, S.R. Nayak and Ganjan Sabar, Advocates WPC (OAC) No.4125 of 2016 Page 1 of 43 For the opposite parties : Mr. Ajodhya Ranjan Dash, Additional Government Advocate P R E S E N T:
THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 09.02.2024 :: Date of Judgment : 12.02.2024 J UDGMENT MURAHARI SRI RAMAN, J.--
THE CHALLENGE BY THE PETITIONER:
Challenging the propriety and legality of decision rejecting the application for consideration of appointment under the provisions of the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 communicated vide Letter No. PRE(N) 17/2015 (Pt.)-- 5864/Com., dated 30.10.2015 of the Under Secretary to Government of Odisha in Commerce and Transport (Commerce) Department as at Annexure-7 and Letter No. Estt. Sec-1, 59/2014-- 3507/PSP, dated 19.11.2015 issued by Director, Directorate of Printing, Stationery & Publication, Odisha, Madhupatna, Cuttack (Annexure-
8), the petitioner, son of the deceased Government employee, came up before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack by way of filing application invoking provisions of Section 19 of the WPC (OAC) No.4125 of 2016 Page 2 of 43 Administrative Tribunals Act, 1985, registered as O.A. No.4125 (C) of 2016.
1.1. After abolition of the Odisha Administrative Tribunal by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F. No. A-11014/10/2015-AT [G.S.R.552(E).], dated 2nd August, 2019), the said case having been transferred to this Court, O.A. No. 4125 (C) of 2016 has been re-registered as WPC (OAC) No. 4125 of 2016.
FACTS AS ADUMBRATED BY THE PETITIONERS:
2. The petitioner, on the death of his father, died in harness on 12.07.2008 while working as helper in the Office of Director, Printing, Stationery & Publication, Odisha, made an application for consideration of appointment under the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 (for brevity, "RA Rules"), for Smt. Parbati Rao, the wife of the deceased employee, Late Ananda Rao, was found unfit to undertake Government job certified by the Standing Medical Board convened on 01.02.2014 vide Letter No. 1254/(SBM-2) CDMO, Cuttack, dated 07.02.2014 issued by the Convener SMB-cum-Chief District Medical Officer, Cuttack (Annexure-3).
2.1. The Director, Directorate of Printing, Stationery and Publication, Odisha vide Memo No.1619, dated 12.03.2014 having requested the Collector, Cuttack to WPC (OAC) No.4125 of 2016 Page 3 of 43 submit report regarding the financial status of the petitioner, after due enquiry being conducted, distress certificate in favour of the petitioner was furnished to the opposite party No.2-Director vide Letter No.3667/Gen. & Misc., dated 22.09.2014.
2.2. The said report along with other necessary and relevant documents being sent to the Government, the application for appointment under the RA Rules came to be rejected on 30.10.2015 by the Government of Odisha in Commerce & Transport (Commerce) Department citing that the claim is contradictory to the provisions of Rule 2(b) of RA Rules, as the mother of the petitioner is still alive/available for appointment.
2.3. Questioning the legal sanctity of decision taken to reject the application and asserting that such decision is beyond the weight of evidence on record, the petitioner moved the learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack for ventilation of grievance under Section 19 of the Administrative Tribunals Act, 1985, which has travelled to this Court for final adjudication.
REPLIES OF THE OPPOSITE PARTIES TO THE CONTENTS OF THE WRIT PETITION:
3. Having admitted the fact of Standing Medical Board declared Smt. Parbati Rao, mother of the petitioner unfit to undertake Government assignment, and conceding WPC (OAC) No.4125 of 2016 Page 4 of 43 the competent authority having submitted information regarding distress condition of the petitioner, by citing that "the appointment under the scheme is against the interest of the meritorious candidates seeking appointment" the opposite party Nos. 1 and 2 filed counter dated 22.06.2018 raised objection to the effect that "A. Sinu Rao, the second member of the deceased family has applied for appointment under RAS ignoring the 1st family member which cannot be taken into consideration for appointment".
4. To such stance of the opposite parties, the petitioner has replied by way of rejoinder dated 21.01.2019 that when it was not disputed nor denied that the mother of the petitioner, Smt. Parbati Rao, was examined by the Standing Medical Board and certified to be unfit to undertake Government job, it is contrary to requirement of the RA Rules to say that in terms of definition of "family member" contained in Rule 2(b), the petitioner is not eligible to seek for appointment as the mother is alive.
HEARING OF WRIT PETITION BEFORE THIS COURT:
5. This matter is listed on 09.02.2024 for admission. Since the petitioner has been pursuing the matter for appointment under the RA Rules and the pleadings are completed, on the consent of counsel for both sides, the matter is finally heard at the stage of "Admission".
WPC (OAC) No.4125 of 2016 Page 5 of 43SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES:
6. Sri Manoj Kumar Panda, learned Advocate for the petitioner submitted that the erroneous approach of the opposite party No.1 that when the mother of the petitioner is alive, the petitioner, son of the deceased Government employee, being placed at the second in the order of preference in the categories of persons enumerated in Section 2(b) of the RA Rules, is denied his legitimate claim for consideration of his application.
6.1. Sri Manoj Kumar Panda, learned counsel furnishing a copy of the Order dated 13.01.2017 passed in O.A. No.502 of 2016 by the Odisha Administrative Tribunal, Bhubaneswar, submitted that similar context was under
consideration in said application and the learned Tribunal has decided the matter in favour of the applicant-son of the deceased employee on the fact that his mother was certified to be unfit. Placing reliance on the Judgment of Division Bench in the case of Ajit Kumar Barik Vrs. State of Odisha, 2018 (II) OLR 10 and Single Bench Judgment in the case of Sunayana Panda Vrs. State of Odisha, 2022 (II) OLR 951, learned counsel for the petitioner strenuously argued that since Rule 2(b) of the RA Rules has not restricted to extend the benefit of said rules to other legal heirs, other than spouse of the deceased Government employee, the rejection of application for consideration of the petitioner for WPC (OAC) No.4125 of 2016 Page 6 of 43 appointment is uncalled for and untenable in the eye of law.
7. Sri Ajodhya Ranjan Dash, learned Additional Government Advocate, while admitting that the issue of tenability of rejection of claim of persons like the petitioner in the instant case citing Rule 2(b) of RA Rules has already been settled by this Court in very many cases, submitted that the object of RA Rules would be frustrated if person like the petitioner is given opportunity of employment when his mother is alive who comes within the first category in the order of preference enumerated in Rule 2(b). In the present case, immediacy of financial assistance being absent and there has been long lapse of period in the meantime since the date of death of Ananda Rao, deceased Government employee, on 12.07.2008, the application for appointment under the RA Rules has rightly been rejected with justification by the Government.
ISSUE INVOLVED, DISCUSSIONS AND ANALYSIS:
8. Perusal of Letter dated 30.10.2015 of the Government of Odisha in Commerce and Transport (Commerce) Department at Annexure-7 reveals the reason for denial of employment to the petitioner as:
"*** After thorough discussion it has been decided that the following 19 cases are liable for rejection as per General Administration Department Letter No.25004/ WPC (OAC) No.4125 of 2016 Page 7 of 43 Gen., dated 15.10.2015, since the sons/daughters of the deceased have applied for appointment under RAS while the spouses of the deceased are alive/available for appointment under RAS which contradicts the provision of Rule 2(b) of OCS (RA) Rules, 1990.
*** Group-D Fresh Cases
1. A. Sinu Rao, son of late Ananda Rao, ex-Helper.
2. ***"
8.1. Accordingly, the petitioner was intimated by Director, Directorate of Printing, Stationery and Publication, Odisha vide Letter No.3507-Estt.Sec-1,59/2014 (Pt.)/ PSP, dated 19.11.2015 (Annexure-8), which is to the following effect:
"You are hereby informed that after due consideration, Government have been pleased to reject your application for appointment under RAS as you have applied for appointment under RAS while spouse of the deceased is alive/available for appointment under RAS which contradicts the provision of Rule 2(b) of OCS (RA) Rules, 1990."
8.2. The learned counsel for the petitioner has raised strong exception to such a reason. Sri Manoj Kumar Panda, learned Advocate has urged that the material evidence which clinches that the spouse of the deceased Government employee was examined by the Standing Medical Board and certified "unfit for Government job", has been ignored by the Government despite the fact WPC (OAC) No.4125 of 2016 Page 8 of 43 that relevant documents, such as copies of Death Certificate of Late Ananda Rao, Legal Heir Certificate of said Andanda Rao, High School Examination Certificate of the petitioner, No Objection Certificate in shape of affidavit by other Legal Heirs, Family Maintenance Certificate in shape of affidavit by the petitioner were forwarded to the competent authority for consideration. As required after due enquiry by the Tahasildar, Cuttack Sadar on request of Collector, General & Misc., Collectorate, Cuttack, distress certificate in favour of the petitioner was also sent by the Office of the Collector, Cuttack. However, the State Government in arbitrary exercise of power rejected the application for consideration of appointment under the RA Rules on flimsy ground.
9. It transpires from the pleadings, rival contentions and perusal of reason ascribed by the authority for not considering the petitioner eligible for appointment only question arises in the instant case for adjudication is that on the facts and in the circumstances, whether son is entitled for consideration in view of Rule 2(b) of the RA Rules, when spouse of deceased Government employee is alive/available for appointment.
10. Before proceeding to decide the case in hand, it may be apt to refer to following relevant provisions contained in the RA Rules, 1990:
WPC (OAC) No.4125 of 2016 Page 9 of 43"2. Definition.--
In these rules, unless the context otherwise requires,--
(a) 'Deserving Case' means a case where the appointing authority is satisfied, after making such enquiry as may be necessary:
(i) that the death of the employee has adversely affected his family financially because the family has no other alternative mode of livelihood;
(ii) that there is existence of distress condition in the family after death of the employee;
(iii) that none of the family members of the employee who has died while in service is already in the employment of Government/Public or Private Sector or engaged in independent business with an earning capable of tide over the distress condition of the family arising out of the sudden death of the employee; and
(iv) that the family does not have adequate income from the immovable properties to earn its livelihood.
Explanation-I.--
The income of any earning member will be taken into account for the purpose of assessing the annual gross income of the family if his separation from the family has not been WPC (OAC) No.4125 of 2016 Page 10 of 43 established by registered partition deed made prior to the death of the Government employee.
Explanation-II.--
The total annual family income from all sources excluding Family Pension and Temporary Increase must not exceed Rs.72,000 (Rupees seventy-two thousand) for a family to be in a 'distress condition'.
(b) 'Family Members' shall mean and include the following members in order of preference--
(i) Wife/Husband;
(ii) Sons or step sons or sons legally adopted
through a registered deed;
(iii) Unmarried daughters and unmarried step daughter;
(iv) Widowed daughter or daughter-in-law residing permanently with the affected family.
(v) Unmarried or widowed sister permanently residing with the affected family;
(vi) Brother of unmarried Government servant who was wholly dependent on such Government servant at the time of death.
(c) & (d) ***
(e) 'Rehabilitation Assistance' means the assistance provided under these rules to a member of the family of Government servant who died while in service;
WPC (OAC) No.4125 of 2016 Page 11 of 433. Applicability.--
The assistance shall be applicable to a member of the family of the Government servant who dies while in service.
4. Objective of the Scheme.--
The rehabilitation assistance is conceived as a compassionate measure of saving the family of a Government servant from immediate distress when the Government servant suddenly dies while in service. The concept is based on the premises that in case of sudden death his family would not face starvation. The scheme has a direct relationship with the economic condition of the family of the Government servant. Appointment of the family member of the Government servant under these rules shall be subject to the provisions contained in Rule 9 and cannot be claimed as a matter of right.
***
6. The authority competent to make substantive appointment to the post shall be the competent authority to make appointment under these rules."
10.1. It is understood from bare reading of aforesaid provisions that as per Rule 3, the "rehabilitation assistance", as defined in Rule 2(e) of the RA Rules, is applicable to "a member" of the family of the Government servant who dies while in service. It is of significance to notice the article "a" before the expression "member of the family". Definition of "family member" in Rule 2(b) envisages "son" as "a member of the family".
WPC (OAC) No.4125 of 2016 Page 12 of 4310.2. It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and words by words. See Bhavnagar University Vrs. Palitana Sugar Mill Pvt. Ltd., (2003) 2 SCC 111. Indefinite article "a" before the expression "member of the family" in the definition of "rehabilitation assistance" contained in Rule 2(e) and Rule 3 of the RA Rules has significance. The word 'a' has varying meanings and uses. 'A' means 'one' or 'any', but less emphatically than either. It may mean 'one' where only one is intended, or it may mean any one of a great number. It is placed before nouns of the singular number, denoting an individual object or quality individualized. The meaning depends on the context. :
Black's Law Dictionary. 'A' is the first letter of English alphabet denoting the primary vowel sound. It is used before singular nouns beginning with consonants. 'A' may mean one of several things. : Gujarat University Vrs. Krishna Raghunath Mudholkar, (1963) Supp 1 SCR 112. Stated in Shri Ishar Alloy Steels Limited Vrs. Jayaswals Neco Limited, (2001) 3 SCC 609 that the word 'a' or 'an' has an indefinite effect and a generalizing force. It determines what particular thing is meant; i.e., what particular thing one is to assume to be meant. The words 'a bank' is indicator of the intention of Legislature and refers to an indirect (indefinite) article.WPC (OAC) No.4125 of 2016 Page 13 of 43
10.3. Going through the provisions of the RA Rules framed by the Governor of Odisha to "regulate recruitment to the State Civil Services and posts as a measure of rehabilitation assistance" "in exercise of powers conferred by the proviso to Article 309 of the Constitution of India", it is but unequivocal that in the order of preference "son" comes in the second order after "wife" of the deceased Government employee who died in harness.
10.4. The word "a" appearing before the expression "member of the family" in Rule 3 read juxtaposed with Rule 2(b) would lead to only one interpretation that if person mentioned as first preference foregoes choice of employment on compassionate considerations due to inability/incapacity, there is no restriction in considering second person enumerated in the order of preference as per Rule 2(b) of RA Rules.
10.5. It is manifest from record that the petitioner is entitled to apply for the job. The documents enclosed to the writ petition and stated to be available with the Government of Odisha in Commerce & Transport (Commerce) Department being forwarded by the Director, Directorate of Printing, Stationery & Publication overwhelmingly indicate that the application of the petitioner was duly considered in the manner provided under Rule 8 of the RA Rules. Perusal of record and reading of counter filed WPC (OAC) No.4125 of 2016 Page 14 of 43 by the opposite party Nos.1 and 2 indicates that the Standing/Special Medical Board convened by the Chief District Medical Officer, Cuttack along with two other Members comprising Professor of Medicine and Professor of Surgery of S.C.B. Medical College & Hospital, Cuttack, have certified that the spouse suffers from ailment and she is "unfit for Government job". The Director-opposite party No.2 having requested the Collector, Cuttack for conducting enquiry with regard to financial condition, the Tahasildar, Cuttack Sadar being directed by the said Collector furnished financial status of the family members of the deceased Government employee from all sources. It is complained by the counsel for the petitioner that such vital documents having not been given due weightage while considering the case of the petitioner, the opposite party No.1 has misdirected himself. The Government of Odisha in Commerce & Transport (Commerce) Department could not and should not have brushed aside the certificate issued by the Standing/Special Medical Board; as such, the reason ascribed by the opposite party No.1 that the case of the petitioner for compassionate/rehabilitation appointment is "liable for rejection" along with 18 others "since the sons/daughters of the deceased are alive/ available for appointment under RAS which contradicts the provisions of Rule 2(b) of OCS (RA) Rules, 1990".WPC (OAC) No.4125 of 2016 Page 15 of 43
10.6. It is pointed out at the bar that such a reason is inexplicable in view of finding recorded in the certificate issued by the Standing/Special Medical Board. Once the spouse of deceased employee enumerated first in the order of preference is incapable of or incapacitated for undertaking the appointment under the RA Rules, in view of Rule 3 a member of the family of the Government servant, who dies while in service is entitled to be considered as there is no restriction nor prohibition contained in the RA Rules to consider the "son"
appearing in the list of enumerated persons in Rule 2(b) and shown to be in the second order of preference.
10.7. At this juncture it may be apposite to refer to a decision of the Division Bench of this Court in the case of Ajit Kumar Barik Vrs. State of Odisha, 2018 (II) OLR 10, wherein the following observation stands recorded:
"Of course, the first preference is to be given to wife/ husband of the deceased employee, then son and unmarried daughter. Howefer, nowhere it was stated that in case a family member in order of preference in the hierarchy is unfit and a medical certificate furnished to that effect, claim shall not be considered for engagement of the other eligible members in case of distress condition of the family. Therefore, the finding given by the Tribunal in the impugned order that she is not prepared to accept Group-D post and offered it to her son in ignoring the material on records is not sustainable."WPC (OAC) No.4125 of 2016 Page 16 of 43
10.8. Aforesaid Judgment in Ajit Kumar Barik, was carried to the Hon'ble Supreme Court in S.L.P.(C) Diary No(s).35835/2018 by the Government of Odisha, which came to be disposed of vide Order dated 26.10.2018:
"Delay condoned.
We find no reason to entertain this special leave petition, which is, accordingly, dismissed.
Pending application(s), if any, shall stand disposed of."
10.9. Identical view has also been taken by a co-ordinate Bench of this Court in Sunayana Panda Vrs. State of Odisha, 2022 (II) OLR 951 following the case of Ajit Kumar Barik (supra).
11. Another pertinent aspect this Court takes into consideration is this, that the definition of the term "family members" contained in Rule 2(b) begins with expression "shall mean and include the following members in order of preference". It inter alia provided "Wife/Husband" preceding "Sons or step sons or sons legally adopted through a registered deed". Therefore, it may be necessary at this stage to have conspectus of the term "preference".
11.1. In Sher Singh Vrs. Union of India, AIR 1984 SC 200 = (1984) 1 SCC 107, the Supreme Court examined the provisions of Section 47(1) of the Motor Vehicles Act, 1939, providing for preference to the State Transport WPC (OAC) No.4125 of 2016 Page 17 of 43 Undertaking by grant of permit and explained the meaning of 'preference' as under:
"The expression 'preference' amongst others means prior right, advantage, precedence etc. But how would it be possible to give precedence one over the other? It signifies that other things being equal, one will have preference over the others. Preference in this context would mean that with things generally appearing to be qualitatively and quantitatively equal though not with mathematical accuracy, statutory provision will tilt the balance in favour of the Undertaking."
11.2. In Executive Officer Vrs. E. Tirupalu, AIR 1996 SC 1311 = (1996) 8 SCC 253 = (1996) 3 SCR 904, the Supreme Court held that where rules provide for preference to a particular class of candidates, that preference under the Rules cannot be applied irrespective of the merit of candidates, the inmates have to be given appointment. It means that the merit of the candidates being equal, preference would be given to the inmates of the class which is to be given preferential right and it certainly does not mean an automatic appointment without considering the cases of other candidates. Therefore, even if the rules provide for preferential right, candidates having such subjects would have preferential right only when they compete with other candidates and are found on equal footings, otherwise not.
WPC (OAC) No.4125 of 2016 Page 18 of 4311.3. In Secretary, Andhra Pradesh Public Service Commission Vrs. Y.V.V.R. Srinivasulu, (2003) 5 SCC 341 = AIR 2003 SC 3961 = 2003 AIR SCW 2851, it has been summarized as follows:
"The 'preference' envisaged in the Rules, in our view, under the scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate of complete precedence. *** It is not to be viewed as a preferential right conferred even for taking up their claims for consideration. On the other hand, the preference envisaged has to be given only when the claims of all candidates who are eligible are taken for consideration and when any one or more of them are found equally positioned, by using the additional qualification as a tilting factor, in their favour vis-à-vis others in the matter of actual selection."
11.4. In State of Uttar Pradesh Vrs. Om Prakash, AIR 2006 SC 3080 = 2006 AIR SCW 4281, the Supreme Court held that, the word 'preference' would mean that when the claims of all candidates who are eligible and who possess the requisite educational qualification prescribed in the advertisement are taken for consideration and when one or more of them are found equally positioned, then only the additional qualification may be taken as a tilting factor, in favour of candidates vis-à-vis others in the merit list prepared by the Commission. But 'preference' does not mean en bloc preference irrespective of inter se merit and suitability.
WPC (OAC) No.4125 of 2016 Page 19 of 4311.5. In view of the above, it is evident that question of giving preference would arise provided the person claiming preference stands on equal footing with others, otherwise not. Similar view may be found in Abdul Hameed Vrs. Union of India, (2017) 16 SCC 346).
11.6. Since the spouse of the deceased Government employee is found unfit to undertake Government job, she cannot be compared as equal to the son who comes second in the order of preference enumerated in Rule 2(b) of RA Rules.
12. It may of interest to note that the intent of the term "family members" in Rule 2(b) of the RA Rules by employing the words "shall mean and include" is unambiguous.
12.1. In Thalappalam Service Cooperative Bank Limited Vrs.
State of Kerala, (2013) 16 SCC 82, it has been interpreted as follows:
"30. Legislature, in its wisdom, while defining the expression "public authority" under Section 2(h), intended to embrace only those categories, which are specifically included, unless the context of the Act otherwise requires. Section 2(h) has used the expressions 'means' and includes'. When a word is defined to 'mean' something, the definition is prima facie restrictive and where the word is defined to 'include' some other thing, the definition is prima facie extensive. But when both the expressions "means" and "includes"WPC (OAC) No.4125 of 2016 Page 20 of 43
are used, the categories mentioned there would exhaust themselves. Meanings of the expressions 'means' and 'includes' have been explained by this Court in Delhi Development Authority Vrs. Bhola Nath Sharma (Dead) by LRs and others, (2011) 2 SCC 54, (in paras 25 to 28). When such expressions are used, they may afford an exhaustive explanation of the meaning which for the purpose of the Act, must invariably be attached to those words and expressions."
12.2. In Satish Chander Ahuja Vrs. Sneha Ahuja, (2020) 12 SCR 189 it has been put forth as follows:
"49. A Three Judge bench judgment of this Court in Bharat Coop. Bank (Mumbai) Ltd. Vrs. Coop. Bank Employees Union, (2007) 4 SCC 685 had occasion to consider Section 2(bb) of Industrial Disputes Act, 1947, which section used both the words "means and includes". Explaining both the expressions, following was laid down in paragraph 23:
'23. ***It is trite to say that when in the definition clause given in any statute the word "means"
is used, what follows is intended to speak exhaustively. When the word "means" is used in the definition, to borrow the words of Lord Esher, M.R. in Gough Vrs. Gough, (1891) 2 QB 665 it is a "hard-and-fast" definition and no meaning other than that which is put in the definition can be assigned to the same. (Also see P. Kasilingam Vrs. P.S.G. College of Technology, 1995 Supp (2) SCC 348 = AIR 1995 SC 1395). On the other hand, when the word "includes" is used in the definition, the legislature does not intend to restrict the WPC (OAC) No.4125 of 2016 Page 21 of 43 definition: it makes the definition enumerative but not exhaustive. That is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within it matters, which in its ordinary meaning may or may not comprise. Therefore, the use of the word "means" followed by the word "includes" in Section 2(bb) of the ID Act is clearly indicative of the legislative intent to make the definition exhaustive and would cover only those banking companies which fall within the purview of the definition and no other."
50. We may notice another judgment of this Court in Pioneer Urban Land and Infrastructure Limited and Anr. Vrs. Union of India and Ors., (2019) 8 SCC 416 where this Court had occasion to consider both the expressions, i.e., "means and includes". In paragraph 82, this Court laid down:-
'82. ***In fact, in Jagir Singh Vrs. State of Bihar, (1976) 2 SCC 942, SCC paras 11 and 19 to 21 and Mahalakshmi Oil Mills Vrs. State of A.P., (1989) 1 SCC 164, SCC paras 8 and 11 (which has been cited in P. Kasilingam Vrs. PSG College of Technology, 1995 Supp (2) SCC 348, this Court set out definition sections where the expression "means" was followed by some words, after which came the expression "and includes" followed by other words, just as in Krishi Utpadan Mandi Samiti Vrs. Shankar Industries, 1993 Supp (3) SCC 361 (2). In two other recent judgments, Bharat Coop. Bank (Mumbai) Ltd. Vrs. Employees Union, (2007) 4 SCC 685, SCC paras 12 and 23 and State of W.B. Vrs. Associated Contractors, (2015) 1 SCC WPC (OAC) No.4125 of 2016 Page 22 of 43 32, SCC para 14, this Court has held that wherever the expression "means" is followed by the expression "and includes" whether with or without additional words separating "means" from "includes", these expressions indicate that the definition provision is exhaustive as a matter of statutory interpretation. It has also been held that the expression "and includes" is an expression which extends the definition contained in words which follow the expression "means"...***'
51. We may notice two more judgments relied by Shri Jayant Bhushan, learned senior counsel, i.e., The South Gujarat Roofing Tiles Manufacturers Association and Anr. Vrs. The State of Gujarat and Anr., (1976) 4 SCC 601. Shri Bhushan's submission is that use of expression "includes" in Section 2(s) has to be read as means. He placed reliance on following observations made by this Court in paragraph 5:
'5. *** Though "include" is generally used in interpretation clauses as a word of enlargement, in some cases the context might suggest a different intention. Pottery is an expression of very wide import, embracing all objects made of clay and hardened by heat. If it had been the legislature's intention to bring within the entry all possible articles of pottery, it was quite unnecessary to add an explanation. We have found that the explanation could not possibly have been introduced to extend the meaning of potteries industry or the articles listed therein added ex WPC (OAC) No.4125 of 2016 Page 23 of 43 abundanti cautela. It seems to us therefore that the legislature did not intend everything that the potteries industry turns out to be covered by the entry. What then could be the purpose of the explanation. The explanation says that, for the purpose of Entry 22, potteries industry "includes" manufacture of the nine articles of pottery named therein. It seems to us that the word "includes" has been used here in the sense of 'means'; this is the only construction that the word can bear in the context. In that sense it is not a word of extension, but limitation; it is exhaustive of the meaning which must be given to potteries industry for the purpose of Entry 22. The use of the word "includes" in the restrictive sense is not unknown. The observation of Lord Watson in Dilworth v. Commissioner of Stamps which is usually referred to on the use of "include" as a word of extension, is followed by these lines:
'But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.'
52. Next judgment relied by Shri Bhushan is Karnataka Power Transmission Corporation and Anr. Vrs. Ashok Iron Works Private Limited, (2009) 3 SCC 240.
WPC (OAC) No.4125 of 2016 Page 24 of 43In the above case also submission was made before this court that in the definition of person given in section 2(m) of Consumer Protection Act, the expression "includes" should be read as "means". This Court laid down that interpretation of a word or expression must depend on the text and the context. In paragraphs 14 to 17, following was laid down:
'14. The learned counsel also submitted that the word "includes" must be read as "means". In this regard, the learned counsel placed reliance upon two decisions of this Court, namely; (1) South Gujarat Roofing Tiles Manufacturers Assn. Vrs. State of Gujarat, (1976) 4 SCC 601 and (2) RBI Vrs. Peerless General Finance and Investment Co. Ltd., (1987) 1 SCC 424.
15. Lord Watson in Dilworth v. Stamps Commr., 1899 AC 99 made the following classic statement: (AC pp. 105-06) '*** The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case it may WPC (OAC) No.4125 of 2016 Page 25 of 43 afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.'
16. Dilworth, 1899 AC 99 and few other decisions came up for consideration in Peerless General Finance and Investment Co. Ltd., (1987) 1 SCC 424 and this Court summarised the legal position that (Peerless case, (1987) 1 SCC 424, SCC pp. 449-50, para 32) inclusive definition by the legislature is used:
'32. *** (1) to enlarge the meaning of words or phrases so as to take in the ordinary, popular and natural sense of the words and also the sense which the statute wishes to attribute to it; (2) to include meanings about which there might be some dispute; or (3) to bring under one nomenclature all transactions possessing certain similar features but going under different names.'
17. It goes without saying that interpretation of a word or expression must depend on the text and the context. The resort to the word "includes" by the legislature often shows the intention of the legislature that it wanted to give extensive and enlarged meaning to such expression. Sometimes, however, the context may suggest that word "includes" may have been designed to mean "means". The setting, context and object of an enactment may provide sufficient guidance for interpretation of the word "includes" for the purposes of such enactment.' WPC (OAC) No.4125 of 2016 Page 26 of 43
53. After noticing the ratio of above judgments, Section 2(s), which uses both the expressions "means and includes" and looking to the context, we are of the view that the definition of shared household in Section 2(s) is an exhaustive definition. The first part of definition begins with expression "means" which is undoubtedly an exhaustive definition and second part of definition, which begins with word "includes" is explanatory of what was meant by the definition. ***
54. The use of both the expressions "means and includes" in Section 2(s) of Act, 2005, thus, clearly indicate the legislative intent that the definition is exhaustive and shall cover only those which fall within the purview of definition and no other."
12.3. Such being the interpretation of the expression "means and includes" used in the statutory definitions, it is explicit that Rule 2(b) of the RA Rules envisages meaning of the term 'Family Members' to "mean and include"
certain categories of "members in order of preference".
13. Smt. Prabati Rao, the "wife" of the deceased Government employee mentioned in the first order of preference, though is alive, she is not found eligible to take up the Government job in view of opinion rendered by the expert, i.e., Standing/Special Medical Board comprising Professor of Medicine, Professor of Surgery and Chief District Medical Officer. Therefore, taking into account the interpretation of "preference" and "mean and include" as discussed in the decisions referred to supra, WPC (OAC) No.4125 of 2016 Page 27 of 43 it is obvious that on the fact of incapacity of the spouse of deceased Government employee to take up the Government job, there is no interdiction to offer employment to the son in order to meet the requirement of avowed "objective of the scheme" as contemplated under Rule 4 of the RA Rules.
14. This Court, while taking note of State of Haryana Vrs.
Ankur Gupta, (2003) 7 SCC 704 = AIR 2003 SC 3797 that the compassionate appointment cannot be made de hors any statutory policy, recognized existence of statutory policy to extend benefit of "rehabilitation assistance" as per Rule 2(e) read with Rule 3 of the RA Rules to the "son" who appears at the second in the order of preference in Rule 2(b) ibid., vide Judgment dated 05.07.2017 in W.P.(C) 9036 of 2016 : Bibhuti Bhusan Patnaik Vrs. State of Odisha and Others, reported at 2017 (II) ILR-CUT 896. The observation of this Court in the said reported case runs as follows:
"11. In the instant case, the husband having been died, his wife to be given preference for compassionate appointment. Since she relinquished her claim because of her illness, recourse should have taken by the authority to Clause (ii) of Sub-Clause (b) of Rule 2, i.e., second preference category to which the petitioner, who is the son of the deceased and his case should have been considered for such appointment. For that, all endeavours had been made by the State Government, particularly, the very same authority by calling upon the petitioner to WPC (OAC) No.4125 of 2016 Page 28 of 43 produce the relevant documents and also no objection certificate from other legal heirs of the deceased employee. The same having been furnished, on subsequent stage instead of considering for giving appointment to the petitioner, the very same authority passed the order impugned in Annexure-15 stating that the claim of the petitioner cannot be considered in view of the provisions contained in Rule 2(b) of the OCS (RA) Rules, 1990.
12. On perusal of the provisions contained in Rule 2(b) of the OCS (RA) Rules, it appears that the son is the second priority for consideration of compassionate appointment. If the widow has relinquished her claim, the case of the petitioner has to be taken into consideration. As such, the authority has accepted the request and required certain documents in that regard. The petitioner filed the required documents. At a belated stage, the authority could not have rejected the application of the petitioner for compassionate appointment stating that it is hit by Rule 2(b) of the OCS (RA) Rules, 1990."
14.1. In an identical fact-situation, dismissing writ petition, being W.P.(C) No. 4239 of 2018 : State of Odisha Vrs. Kartika Bhoi, vide Order dated 25.04.2018, this Court was pleased to make the following observation:
"In view of the above, it does not mean that in case the person who is coming under 1st preference and was medically declared unfit for such appointment or is found not suitable, then automatically the other members in the order of preference will be extinguished from the zone of consideration.WPC (OAC) No.4125 of 2016 Page 29 of 43
Rule 2(b) of 1990 Rules does not debar the family member placed in the 2nd preference to get the appointment in case the member placed in the 1st preference is unfit medically. The Tribunal has quashed the rejection order as it was illegal and arbitrary one and held that the ground of rejection to the effect that it contravenes Rule 2(b) of the 1990 Rules is not at all sustainable. In view of such finding of the Tribunal, we are not inclined to interfere with the same, since there is no error apparent on the face of it."
14.2. To the similar effect is the case of State of Odisha & Others Vrs. Biranchi Nayak, W.P.(C) No. 33872 of 2020, wherein vide Order dated 28.10.2021, this Court taking cognizance of definition of "Family Members" contained in Rule 2(b) of the RA Rules, observed as follows:
"8. Having heard learned Additional Government Advocate and Mr. P.K. Mishra, learned counsel appearing for Opp. Party, we fail to understand in what way, the order of the learned Tribunal has come to prejudice a welfare State, which should look after the well-being of all sundry. Here, there is clear intention on the part of the other family members, namely, mother, brothers and sister of Opp. Party for compassionate appointment of Opposite Party in place of his deceased father. They must have expressed such intention on the trust, faith and belief that the Opposite Party, being appointed in place of his deceased father, shall revive the family from destitution."
14.3. This Court in the case of Prem Sagar Naik Vrs. State of Odisha, W.P.(C) No. 18981 of 2016, vide Judgment dated WPC (OAC) No.4125 of 2016 Page 30 of 43 21.08.2017 reported at 2017 (II) ILR-CUT 826, while considering whether second son could be considered for employment under the RA Rules in terms of Rule 2(b), held as follows:
"A plain reading of the aforesaid provision reveals that Rehabilitation Assistance to the family members, who are eligible for appointment under Rehabilitation Assistance Scheme, should be provided in order of preference as indicated above. Thus, a plain reading of the provisions means that a person who is entitled to any appointment under the Rehabilitation Assistance Scheme, the authority has to see if the spouse of the deceased employee is alive and intends to avail the benefit under the Rehabilitation Assistance Scheme. If he/she is ineligible for over age, ailment or cannot be given appointment under the Rehabilitation Assistance Scheme, as per the scheme, the second preference will be given to the sons. The Rules do not provide that a younger son should not be treated in a preferential manner and the elder son should be given appointment. There is no provision in the said Rules that while considering the second category of persons, the elder son should be given appointment and the younger son cannot be appointed. However, the State Government has devised an expression namely "transferable right" and has taken a stand that since the spouse of the deceased is alive, elder son is living there, right cannot be transferred in favour of the petitioner. The decision taken by the opposite parties 1 and 2 is illegal and contrary to the basic scheme of the aforesaid Rules."
14.4. This Court takes into consideration the decision of the Hon'ble Supreme Court in the case of State of U.P. Vrs.
WPC (OAC) No.4125 of 2016 Page 31 of 43Arvind Kumar Srivastava, reported in (2015) 1 SCC 347 wherein at paragraph 22 it has been observed as follows:
"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under.
22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the WPC (OAC) No.4125 of 2016 Page 32 of 43 acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma Vrs. Union of India, (1997) 6 SCC 721).
On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
14.5. Similarly in the case of State of Karnataka Vrs. C. Lalitha reported in (2006) 2 SCC 747, paragraph 29 reads as follows:
"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the Court that would not mean that persons similarly situated should be WPC (OAC) No.4125 of 2016 Page 33 of 43 treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to."
14.6. Therefore, it has been laid down as a norm that when a particular set of employees are given relief by the Court all other identically situated persons need to be treated alike by extending that benefit. Not extending such benefit would attract vice of discrimination and, thereby the action of the authority would be arbitrary being violative of Article 14 of the Constitution of India. It has also come to be observed that in case of Judgment in personam, though it has no application but on such pronouncement it becomes an obligation on the part of the authorities to extend the benefit to all such similarly situated persons except the person so approaches shall have to satisfy that their particular request does not suffer from either latches and delays or acquiescence. In deciding the case in State of Karnataka Vrs. C. Lalitha, reported in (2006) 2 SCC 747, Hon'ble Apex Court has come to observe that service jurisprudence evolved from time to time postulates that similarly situated employees WPC (OAC) No.4125 of 2016 Page 34 of 43 should be treated similarly. Merely because one person approached the Court that would not mean person similarly situated can be treated differently. It is for the above consistent view of the Hon'ble Supreme Court of India, this Court finds the State of Odisha, model employer, has no escape from applying the principle decided in the case of Ritanjali Giri @ Paul vrs. State of Odisha (School & Mass Education Department), 2016 (I) ILR-CUT 1162 to all such similarly situated cases. Such a view has been expressed by this Court in Prasanta Kumar Mohapatra Vrs. State of Odisha, W.P.(C) No.23312 of 2020, etc., vide Judgment dated 28.09.2021.
14.7. As a corollary, it is, therefore, held that the case of the petitioner has not been considered by the authorities vide Annexures-7 and 8 in proper perspective. In such view of the matter, the decision contained in Letter dated 30.10.2015 of the Government in Annexure-7 as communicated to the petitioner in Letter dated 19.11.2015 by the Director, Directorate of Printing, Stationery & Publication, Odisha vide Annexure-8 cannot be countenanced in law. It is, hence, felt necessary to issue writ of certiorari by quashing the impugned decision in Annexure-7 as communicated to the petitioner in Annexure-8.
CONCLUSION & DECISION:
WPC (OAC) No.4125 of 2016 Page 35 of 4315. Before concluding, this Court wishes to keep in mind the following observation of the Hon'ble Supreme Court of India in the case of Indian Bank Vrs. Promila, (2020) 1 SCR 408:
"17. We have to keep in mind the basic principles applicable to the cases of compassionate employment, i.e., succor being provided at the stage of unfortunate demise, coupled with compassionate employment not being an alternate method of public employment. If these factors are kept in mind, it would be noticed that the respondents had the wherewithal at the relevant stage of time, as per the norms, to deal with the unfortunate situation which they were faced with. Thus, looked under any Schemes, the respondents cannot claim benefit, though, as clarified aforesaid, it is only the relevant Scheme prevalent on the date of demise of the employee, which could have been considered to be applicable, in view of the judgment of this Court in Canara Bank Vrs. M. Mahesh Kumar, (2015) 7 SCC 412 = (2015) 9 SCR 724. It is not for the Courts to substitute a Scheme or add or subtract from the terms thereof in judicial review, as has been recently emphasized by this Court in State of Himachal Pradesh Vrs. Parkash Chand, (2019) 4 SCC 285 = (2019) 1 SCR 533."
15.1. In the case of Malaya Nanda Sethy Vrs. State of Odisha, (2022) 4 SCR 707, it has been cautioned as follows:
"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 WPC (OAC) No.4125 of 2016 Page 36 of 43 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 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 application WPC (OAC) No.4125 of 2016 Page 37 of 43 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."
15.2. Undisputed facts as unfurled through the pleading emanate that on the death of Ananda Rao, who died in harness, his son applied for appointment in terms of the RA Rules in place of Parbati Rao, wife of deceased Government employee as she was certified to be "unfit for Government job" by expert body, i.e., the Standard/Special Medical Board. Necessary and relevant documents including distress certificate required under the RA Rules were forwarded for consideration by appropriate authority.
15.3. Taking into account Rule 2(b) read with Rule 3 of the RA Rules, it is held that when the mother was unable to undertake a Government job due to her medical condition, the petitioner-A. Sinu Rao, being the son of the deceased Government employee coming within the WPC (OAC) No.4125 of 2016 Page 38 of 43 meaning of definition of "family member" is entitled to be considered for appointment on the death of his father.
15.4. In this connection, it is apposite here to refer to following observation of this Court in the case of Sanjay Kumar Roula Vrs. Registrar of Cooperative Societies, Odisha, Bhubaneswar and Another, W.P.(C) No.15825 of 2013, vide Judgment dated 10.01.2014 [2014 SCC OnLine Ori 16 = 2014 Lab IC 1756]:
"10. It is the bounden duty of a model employer to act benevolently with all sincerity for welfare of the legal heirs of an employee who died in harness. A model employer should not only intimate the legal heir(s) of the deceased employee regarding the provisions/procedure for getting various benefits, but also should send copy of the said provision/procedure to enable the bereaved family member(s) to avail the benefit available to them in the event of death of their father/mother. This attitude of the employer, no doubt, creates ample hope and confidence in the minds of the employees for achieving excellence in service. A model employer should not take advantage of the ignorance of the legal heirs of any deceased employee in the matter of getting any benefit under any Rehabilitation Assistance Scheme. An employer should neither exploit its employees nor take advantage of any helplessness and misery of the employees [See State of Haryana Vrs. Piara Singh, (1992) 4 SCC 118].WPC (OAC) No.4125 of 2016 Page 39 of 43
11. The apex Court in Balbir Kaur & Anr. Vrs. Steel Authority of India Ltd. & Ors., JT 2000 (6) SC 281, while dealing with a matter relating to family benefit scheme and compassionate appointment in the case of an employee of Steel Authority of India who died in harness observed as under:
'The employer being Steel Authority of India, admittedly an authority within the meaning of Article 12 has thus an obligation to act in terms of the avowed objective of social and economic justice as enshrined in the Constitution but has the authority in the facts of the matters under consideration acted like a model and an ideal employer - It is in this factual backdrop, the issue needs an answer as to whether we have been able to obtain the benefit of constitutional philosophy of social and economic justice or not. Have the lofty ideals which the founding fathers placed before us any effect in our daily life-- the answer cannot however but be in the negative-- what happens to the constitutional philosophy as is available in the Constitution itself, which we ourselves have so fondly conferred on to ourselves. The socialistic pattern of society as envisaged in the Constitution has to be attributed its full meaning: A person dies while taking the wife to a hospital and the cry of the lady for bare subsistence would go unheeded on a certain technicality. The bread earner is no longer available and prayer for compassionate appointment would be denied, as "it is likely to open a Pandora's Box" -
This is the resultant effect of our entry into the new millennium. Can the law courts be a mute spectator in the matter of denial of such a relief to the horrendous sufferings of an WPC (OAC) No.4125 of 2016 Page 40 of 43 employee's family by reason of the death of the bread-earner.'
12. Needless to say that in the matter of compassionate appointment for which specific Schemes are there, technicalities cannot have preference over substantive justice."
15.5. To the similar effect is the cases of Pabitra Mohan Palei Vrs. Registrar of Cooperative Societies, Odisha, Bhubaneswar, 2014 SCC OnLine Ori 15 = 118 (2014) CLT 254 = 2014 (I) OLR 777; Akash Putel Vrs. State of Odisha, 2023 SCC OnLine Ori 2063.
15.6. This Court finds that the approach of the petitioner was in conformity with the requirement of the RA Rules, rather it is unfortunate that the authority concerned has blown hot and cold in the same breath. The stand of the Commerce and Transport (Commerce) Department that since spouse is alive/available for appointment under the RA Rules is not only contrary to Rule 2(b) read with Rules 3 and 4, but also runs counter to the unimpeachable certificate of the Standard/Special Medical Board comprising experts. In view of fact that the spouse of the deceased Government employee is examined and certified to be unfit to undertake Government job, such certificate could not have been lightly brushed aside by the Government by holding that she is alive/available for appointment. Thus, this Court is constrained to observe that the action of the WPC (OAC) No.4125 of 2016 Page 41 of 43 Government of Odisha in Commerce & Transport (Commerce) Department is not above reproach.
16. With the aforesaid perspective of law and in consideration of the factual matrix discussed supra there is no ambiguity in mind but to hold that the decision contained in Letter dated 30.10.2015 of the Government of Odisha in Commerce & Transport (Commerce) Department in Annexure-7 as communicated to the petitioner in Letter dated 19.11.2015 by the Director, Directorate of Printing, Stationery & Publication, Odisha vide Annexure-8 does suffer from infirmity warranting interference.
17. Under aforesaid premises, this Court is, therefore, inclined to quash the decision taken vide Letter dated 30.10.2015 of the Government of Odisha in Commerce & Transport (Commerce) Department in Annexure-7 as communicated to the petitioner in Letter dated 19.11.2015 by the Director, Directorate of Printing, Stationery & Publication, Odisha vide Annexure-8 and direct the opposite party No.1-Secretary to Government of Odisha in Department of Commerce & Transpot (Commerce) to consider the case of the petitioner in the light of the discussions and observations made above and dispose of the matter on merit in accordance with law within the period of four months from today.
WPC (OAC) No.4125 of 2016 Page 42 of 4318. Resultantly, the writ petition stands disposed of, but in the circumstances without any order as to costs.
(MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: PERSONAL ASSISTANT Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 12-Feb-2024 17:26:58 High Court of Orissa, Cuttack The 12th February, 2024 Aswini/Laxmikant/Suchitra WPC (OAC) No.4125 of 2016 Page 43 of 43