The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.403 of 2024 Lalita Mahakud …. Mr. Nihal Rath, Advocate Petitioner -versus- State of Odisha and others …. Opposite Parties Mr. N.K. Praharaj, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 17.01.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned 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 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 her consequential benefits by quashing the order of rejection dated 26.08.2022 at Annexue-8 within the stipulated period and further holding the at Annexure-5 unsustainable in contrary to the purpose and spirit of R.A. Rules, 1990. dt.9.10.2020 order // 2 // 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 justice.” 4. It is submitted by the learned counsel for the Petitioner that the husband of the Petitioner, who was working as Khalasi RWSS died in harness on 23.12.2017. Thereafter, the Petitioner applied for appointment on compassionate ground, being legal heir of the deceased Government employee, on 10.05.2018. The application of the Petitioner was forwarded to the E.I.C. by the Deputy Collector. 5. On perusal of the Writ Petition, it appears that the application submitted by the Petitioner was rejected the application of the Petitioner under Annexures-5 & 8 to the Writ Petition. Learned Additional Government Advocate 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 refers 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) 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. // 3 // 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 Government Advocate for the State on the other hand contended that there is no illegality in the impugned rejection order under Annexures-5 & 8 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 Annexures-5 & 8 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 analysis of the submissions made by the learned counsel appearing for the parties, is of the view that the issue // 4 // 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 09.10.2020 and dtd.26.08.2022 under Annexures-5 & 8 are 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. ( A.K. Mohapatra ) Judge Anil Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 19-Jan-2024 12:40:36