A married daughter is entitled to compassionate appointment under the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990, as the exclusion based on marital status is unconstitutional.

JUDGMENT :

SASHIKANTA MISHRA, J.

The petitioner has filed this writ application with the following prayer;

“It is therefore prayed that, this Hon’ble Court may graciously be pleased to admit this writ petition, issue notice to the Opposite Parties and after hearing the counsels for the parties be pleased to set aside the order dated 23.08.2023 vide Memo No. 2357 under Annexure-1 passed by the Opp.Party No.2, the Collector, Puri in the interest of Justice.

And further be pleased to direct the Opposite Party No.2 to give her appointment in view of the judgment dtd. 15.09.2022 passed in W.P.(C) No.14945 of 2015 (Khirabdhi Bala Behera).

And or pass any other order/orders, direction/directions as deem fit and proper in the facts and circumstances of the case.”

2. The facts of the case are that the petitioner is the son of one Michhu Biswal, who was serving as a peon in the office of the Collector, Puri (opposite party No.2). After serving for 32 years and 6 months said Michhu Biswal died on 17.06.2016 in harness. He left behind his widow and two married daughters, Satyabhama (petitioner) and Tilotama as his legal heirs. After his death, the petitioner being the elder daughter submitted an application on 07.03.2017 before the Collector for appointment under the Rehabilitation Assistance Scheme. At that time, the widow of the deceased Government Servant had crossed the age of 50 years and was also suffering from various ailments and therefore, not in a position to take up government service. The younger daughter, Tilotama having married, was residing outside Odisha. The widow was residing with Satyabhama, who was taking all care of her. The widow submitted a no objection certificate in the form on an affidavit sworn before the Notary Public, Puri regarding appointment of the petitioner. The application of the petitioner was not considered for a long time and on 08.03.2018, on an application being submitted under the RTI Act by the petitioner’s husband, the Deputy Collector, Puri informed that she is not eligible for appointment as she does not come within the definition of ‘family members’ of the deceased. The petitioner challenged such rejection of her application before the erstwhile Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1308 (C) of 2018, which was transferred to this Court and registered as W.P.(C) No. 1308 of 2018. The said writ petition was disposed of vide order dated 15.09.2022 in terms of the judgment passed by a Division Bench of this Court in Kshirabadhi Bala Behera vs. Orissa Administrative Tribunal and others (W.P.(C) No. 14945 of 2015 decided on 24.08.2022). The petitioner submitted a representation along with the order of this Court to the opposite party No.2 on 11.11.2022 but the same was rejected by opposite party No.2 on the ground that her case is not similar to the case of Kshirabadhi Bala Behera (supra) as she had already married prior to death of her father. The petitioner challenged such rejection of her representation before this Court in W.P.(C) No. 3452 of 2023. By order dated 11.01.2023, this Court held that the relevant provision of the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 ( in short ‘1990 Rules’) having been declared ultra vires by this Court, the Collector could not have rejected the representation by referring to the said provision. The order of rejection was thus, quashed and the matter was remanded to the Collector to consider the representation afresh keeping in view the judgment in Kshirabadhi Bala Behera (supra). Accordingly, the petitioner again approached the Collector on 20.03.2023. Since the representation was not c