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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.60 of 2024 Asutosh Pattanaik …. Mr. Nihal Rath, Advocate Petitioner State of Odisha and another -versus- CORAM: …. Opposite Parties Mr. A.P.Das, A.S.C. JUSTICE A.K. MOHAPATRA ORDER 08.01.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned
Decision
Additional Government Advocate. Perused the Writ Petition as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: Order No. 01. “ It is therefore, most humbly prayed that this Hon’ble Court may graciously be pleased to admit the Writ application, to issue rule Nisi calling upon the Opposite Parties to show cause as to why the prayers made hereunder be not allowed, upon showing insufficient cause/no cause make the said Rule absolute, issue writ/writs in the nature of i) Mandamus directing the Opp.Parties to issue appointment order in favour of the Petitioner under OCS(RA) Rules, 1990 and further grant him consequential benefits by quashing the order of rejection dated 07.10.2023 at Annexue-19 within the stipulated period. ii) And/or may pass such other writ/writs, order/orders, direction/directions as this Hon’ble Court may think fit and proper for the ends of // 2 // justice.” 4. It is submitted by the learned counsel for the Petitioner that the father of the Petitioner, who was working as Amin died in harness on 05.09.2011. Thereafter, the Petitioner applied for appointment on compassionate ground, being one of the legal heirs of the deceased Government employee, on 09.02.2012. The application of the Petitioner was returned by the Collector. Thereafter, the application was resubmitted by the Petitioner. While the matter was pending before the competent authority the Petitioner was asked by the Government to intimate the reasons for which the wife of the deceased Government employee did not apply for Government job. Pursuant to such query the wife of the deceased Government employee intimated for appointment of the Petitioner under the R.A. scheme in the post of her deceased husband. On 13.10.2016 the Water Resources Department intimated the Petitioner that his application has been rejected. Thereafter, the Petitioner approached the learned Tribunal in O.A.No.1000 of 2017 and vide order dated 22.6.2018 the said O.A. was disposed of with a direction to reconsider the case of the Petitioner under the OCS(RA) Rule,1990. While reconsidering the case of the Petitioner the Opposite Party no.2 vide his letter dated 31.01.2019 requested the CDMO, Cuttack to inquire about the health condition of the mother of the Petitioner and to intimate her health status to the Office of Opposite Party no.2. On examination of the mother of the Petitioner the CDMO, Cuttack has given a certificate to the effect that the mother of the Petitioner is unable to perform Government duty and her health condition does not permit to do so. Since no further action was taken on the application of the petitioner, the Petitioner was constrained to // 3 // approach this Court by filing W.P.(C) No.924 of 2022. The said Writ Petition was disposed of by this Court vide order dated 20.01.2022 with a direction to Opposite Pay No.1 to act upon the order under Annexure-13, 14 and 15 to the abovenamed Writ Petition and to take a final decision taking into consideration the judgment of the Hon’ble Supreme Court in Civil Appeal. No.7752 of 2021 within a period of two months. The Opposite Parties have considered the case of the Petitioner and disposed of the same on 06.10.2023. 5. On perusal of the Writ Petition bearing W.P.(C) No.28023 of 2021, it appears that the application submitted by the Petitioner by applying the clarification of the GA & PG department dated 27.02.2020, it has been observed that as per sub-Rule (9) of Rule 6 of OCS(RA) Rules, all pending cases on the date of publication of the Rules are to be considered under the OCS(RA) Rule, 2020. Further, it reveals that while rejecting the application of the Petitioner under Annexure-19 to the Writ Petition. Learned Additional Standing Ciounsel also refers to the judgment of the Hon’ble Supreme Court in N.C.Santosh v. State of Karnatak reported in (2020) 7 SCC 617 By relying upon the case of the Petitioner the Opposite Parties have come to a conclusion that the judgment in the case of Indian Bank and others vs. Promila and another reported in (2020) 2 S.C.C. 729 and State of Madhya Pradesh vs. Ashish Awasthi reported in 2021 (II) OLR (SC) 1072 is not applicable to the facts of the present case. Accordingly, the application of the Petitioner has been rejected by applying the provision of OCS(RA) Rule, 1990. He also referring to the judgment of the Hon’ble Supreme Court in Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1 State of West Bengal-v.-Debabrata Tiwri reported in (2023 (3) SCALE-557,Suchitra Bal v. State of Odisha and others in W.P.(C) // 4 // No.2081 of 2021 & batch decided on 27.06.2023 and State of Odisha and others vs. Bindu Sagar Samantaray in W.A.No.810 of 2021. Biswajit Swain v. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023 submitted that the case of the Petitioner is required to be considered under the OCS(RA) Rule, 1990. 6. Learned Additional Standing Counsel for the State on the other hand contended that there is no illegality in the impugned rejection order under Annexure-19 to the Writ Petition. He further contended that pursuant to the direction of this Court the case of the Petitioner was duly considered by the Opposite Parties and accordingly, after analyzing the law elaborately, the Opp.Parties by referring to the judgment of the Hon’ble Supreme Court in N.C.Santsoh vs. State of Karataka, which has been delivered by a Three Judge Bench, the Opposite Parties have come to a conclusion that the application of the Petitioner is to be considered under the OCS(RA) Rule, 2020. He also referred to the provisions of Rule 6(9) of the OCS(RA) Rule, 2020. Learned Additional standing Counsel submitted that the case of the Petitioner has been lawfully rejected by the Opp.Parties vide Annexure-19 to the Writ Petition. Accordingly, the Writ Petition deserves to be dismissed at the threshold. 7. Having heard learned counsels for the respective parties and on a careful examination of the submissions and examination of the background facts of the present case, this Court observes that the matter is required to be decided in the present Writ Petition is with regard to applicability of the OCS(RA)Rule. Learned counsel for the Petitioner has emphatically submitted that in view of the judgment referred to hereinabove the case of the Petitioner is required to be considered under the OCS(RA) Rule, 1990. This Court on careful // 5 // analysis of the submissions made by the learned counsel appearing for the parties, is of the view that the issue involved in the present Writ Petition has no more res integra. This Court in the case of Biswajit Swain v. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023 has taken note of all the judgments of the Supreme Court including the case of N.C.Santosh v. State of Karnatak. Accordingly, by a detail judgment in the case of Biswajit Swain v. State of Odisha and others (supra) this Court has struck down of Rule 6(9) of OCS(RA) Rule 2020 holding the same as ultra vires of Article 14 and 16 of the Constitution of India. 8. In view of the law laid down by this Court in the aforesaid judgment in the case of Biswajit Swain v. State of Odisha and others, nothing survives to be adjudicated in the present case. Accordingly, the impugned order dated 07.10.2023 under Annexure- 19 is hereby quashed. Further, the matter is remanded to Opposite Party No.1 to consider the case of the Petitioner afresh in the light of the judgment of the Hon’ble Supreme Court in Malaya Nanda Sethy vrs. State of Orissa and others and judgment of this Court in Biswajit Swain v. State of Odisha and others and take a final decision within two months from the date of communication of certified copy of this order. 9. With the aforesaid observation, the writ application stands disposed of. Issue urgent certified copy of this order as per Rules. RKS ( A.K. Mohapatra ) Judge // 6 // Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 12-Jan-2024 18:20:27