PRANABANDHU BEHERA Vs. DISTRICT JUDGE BALASORE

JUDGEMENT

(1.) PETITIONER No. 2 is the son of petitioner No. 1. Petitioner No. 1 was appointed as a Process Server in the year 1965 under the District Judge, Balasore, While he was continuing as such in the office of the Judicial Magistrate, First Class, Jaleswar, be suffered from knee joint pain, chest pain and diabetes and was forced to remain on leave with effect from 7 -12 -96. By letter dated 20 -12 -96 the petitioner requested opposite party No. 1 to get himself examined by the Chief District Medical Officer ('C.D.M.O.', for short) for the purpose of taking retirement on the ground of invalidation, By order dated 3 -2 -97 opposite party No. 2 directed the petitioner to get himself examined by the C. D. M. O., Balasore, and produce the medical certificate and the C. D. M. O. was also requested to examine petitioner No. 1. After examination, a report was submitted by the C. D. M. O. stating that the petitioner was suffering from chronic rheumatoid arthritis, diabetes, etc. and completely incapacitated for Government service. On the basis of such report the petitioner was allowed to take retirement having been declared by a competent medical authority to be completely and permanently incapacitated for further continuance in service of opposite party No. 1, on 30 -4 -1997. The petitioner thereafter in the month of July, 1997 requested for appointment of petitioner No. 2 on compassionate ground under the provisions of the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 ('the Rules', for short). The said prayer was rejected by opposite party No. 1 and the same was intimated to the petitioner by opposite party No. 2 by letter dated 11 -9 -97. The petitioner in this writ application challenges the legality of the said order and prays for a direction to quash the same and for reconsideration of his case in terms of the Rules.

(2.) IN the counter affidavit filed by opposite parties it is stated that as per the provisions of the Rules the appointing authority has discretion for giving rehabilitation assistance to a member of the family of the Government servant retiring on the ground of permanent incapacitation, if the case is a deserving one. Opposite party No. 1 did not extend the benefit to petitioner No. 2 since it was felt by opposite party No. 1 that the petitioner No. 1 was trying to put one of his dependents in a class III post by back -door method without subjecting him to competitive examination usually held for recruitment to the said post.

(3.) THE medical report, Annexure -4 clearly indicates that petitioner No. 1 appeared before the medical board on 13 -2 -97 and it was opined by the board that he was permanently and completely incapacitated for Government service. The order dated 30 -4 -97 passed by opposite party No. 1 allowing petitioner -No. 1 to retire also clearly indicates that the petitioner having been declared by the competent medical authority to be completely and permanently incapacitated for further service, has been allowed to retire on invalidation with effect from 30 -4 -97. Therefore, the stand taken by opposite parties that the conduct of petitioner No. 1 was deliberate to obtain an employment for petitioner No. 2 cannot be accepted. Rule 5 of the Rules prescribes that in deserving cases a member of the family of the Government servant who is permanently incapacitated or who dies while in service may be appointed to class III or class IV post by the appointing authority of that Government servant provided he/she possessed the requisite minimum educational qualification prescribed for the post, without following the procedure prescribed for recruitment to the post either by statutory rules or otherwise. 'Deserving case' has been defined in rule 2(a) which prescribes that the appointing authority after making such inquiry has to be satisfied that the death or incapacitation of the employee has adversely affected his family financially because the family has no other alternative mode of livelihood and other conditions. Rule 2(b) includes a son as a member of the family. In view of such provisions contained in the Rules, it was the duty of opposite party No. 1 to follow the Rules and pass appropriate orders with regard to appointment of petitioner No. 2 under the aforesaid Rules. Having not done so, the order under Annexure -10 rejecting the prayer of petitioner No. 1 for appointment of his son petitioner No, 2 is unsustainable and is accordingly quashed. Opposite party No. 1 is directed to reconsider the case of the petitioner in accordance with the Rules and pass necessary orders within a period of three months from the date of communication of this order. Requisites for communication of this order shall be filed within three days.