The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.1000 of 2024 Rojalin Ojha …. Petitioner Mr.B.K.Sharma, Advocate -versus- State of Odisha and others …. Opp. Parties Mr.Nikhil Pratap, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 24.01.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer : “Under the aforesaid circumstances, is humbly prayed that your Lordship’s would graciously be pleased to issue Rule NISI calling upon the Opp.Parties to show cause as to why the order dated 20.12.2023 under Annexure-8 passed by the Engineer-in-Chief, Water Resources Department Opp.Party No.3 shall not be quashed and set aside and if the Opp.Parties fail to it // 2 // show cause or show insufficient cause make the said Rule NISI absolute; And further be pleased to issue a writ of certiorari in line with aforesaid Rule NISI quashing the impugned order dated 20.12.2023 under Annexure-8. And further be pleased to issue a writ of mandamus directing the Opp.Parties to appoint the Petitioner in Group-C post under Odisha Civil Service (Rehabilitation Assistance) Rules, 1990 as per the recommendation of the Committee as reflected in the communication dated 28.01.2020 under annexure-2 of Director (Personnel) to the Additional Secretary to Government in the Water Resources Department; And pass such other, direction/directions, order/orders as the Hon’ble Court may deem, fit and proper.” 4. At the outset it is submitted by the learned counsel for the Petitioner that this is a 3rd round of litigation at the instance of the present Petitioner. In the first Writ Petition filed by the Petitioner bearing W.P.(C) No.19674 of 2023 was disposed of vide order dated 03.072023 with a direction to the Opposite Party No.2 to consider the representation of the Petitioner under Annexure-8 to the said Writ Petition within two months. Further, it was directed that in the event there are vacancies available in Group-C post then the Petitioner shall be considered against such Group-C post subject to the Petitioner fulfilling the requirement of educational qualification prescribed for such post. After disposal of the first Writ Petition, the Petitioner approached the Opposite Party No.3, the Opposite Party No.3 again rejected the case of the Petitioner vide order dated 07.09.2023 under Annexure-6 to the Writ Petition. // 3 // 5. Thereafter, the Petitioner filed another Writ Petition bearing W.P.(C) No.31753 of 2023. This Court once again disposed of the same vide order dated 09.10.2023 by referring to the judgment in the case of Malaya Nanda Sethy v. State of Orissa and others : reported in 2022(II) OLR(SC) 1 as well as Suchitra Bal v. State of Odisha and others, Bindusagar Samantaray v. State of Odisha and Ors.. Finally, the second Writ Petition was disposed of with an observation that order dated 03.07.2023 in the first Writ Petition clearly provided that the case of the Petitioner shall be considered under the OCS(RA) Rule, 1990 for appointment against any Group-C post subject to the eligibility and suitability of the Petitioner. As such the Opposite Parties were directed to consider the case of the Petitioner again by setting aside the rejection order under Annxure-7 to the second Writ Petition. The Opposite Parties were directed to take a decision within two months from the date of communication of the order dated 09.10.2023. 6. Learned counsel for the Petitioner further submitted that after disposal of the second Writ Petition, the Petitioner again approached the Opposite Party No.3 along with a certified copy of the order passed by this Court, the Opposite Party No.3 vide order dated 22.12.2023 under Annexure-8 once again rejected the prayer of the Petitioner for appointment under compassionate ground. Referring to the impugned order under Annexure-8, learned counsel for the Petitioner submitted that the Opposite Party No.3 has rejected the application of the Petitioner by considering the same under the OCS(RA) Rule, 2020. He // 4 // further contended that such conduct of the Opposite Parties in considering the application of the Petitioner under 2020 Rule is illegal and arbitrary and accordingly the impugned rejection order under Annexure-8 is unsustainable in law. 7. Learned Additional Standing Counsel for the State on the other hand contended that after disposal of the earlier Writ Petitions, the Opposite Parties have considered the case of the Petitioner in accordance with law and the application of the Petitioner has been rejected by passing a speaking and reasoned order. In such view of the matter, learned Additional Standing Counsel submitted that the Opposite Party No.3 has not committed any illegality which would require interference of this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. 8. Having heard learned counsels for the respective parties, on careful examination of the background facts of the present case as well as materials on record, this Court on careful analysis of the orders passed by this Court in the earlier Writ Petition, which are annexed to this Writ Petition as Annexures-5 & 7. In the first Writ Petition which was disposed of on 03.07.2023, this Court has categorically directed that the case of the Petitioner be considered under the OCS(RA) Rule, 1990 against a Group C post subject to suitability and eligibility of the Petitioner. Despite such direction, the application of the Petitioner was rejected. In the second Writ Petition, this Court referring to the order passed in the previous Writ Petition as well as the // 5 // judgment of the Hon’ble Supreme Court and by this Court, which has been referred to herein above, once again directed the Opposite Parties to consider the application of the Petitioner under the OCS (RA) Rule, 1990. However, the Opposite Party No.3 has rejected the application of the Petitioner in a mechanical manner and without even examining the issue involved in the present Writ Petition. On perusal of the impugned order under Annexure-8, this Court observes that the order has been passed in a mechanical manner without referring to the judgment referred by this Court while disposing of the second Writ Petition. This Court further deems it proper to mention here that the Rule 6(9) which provides for consideration of all pending applications under the new Rule was the subject matter of dispute in the case of Biswajit Swain v. State of Odisha and others in W.P.(C) No.5214 of 2021, this Court while striking out the Rule 6(9) of Rule 2020 has held the same as ultra vires to Article 14 of the Constitution of India. Thus, Rule 6(9) is non- existent in 2020 Rules. The Opposite Party No.3 is expected to be aware of the legal position and he should have taken into consideration the fact that the Rule 6(9) does not exist in the law book any further after declaration of Rule 6(9) as ultra vires. On careful analysis of the impugned order, this Court does not approve of the conduct of the Opposite Party No.3 in the manner in which the case has been dealt with by the Opposite Party no.3 in his order dated 20.12.2023 under Annexue-8 to the Writ Petition. In view of the aforesaid finding and analysis of this Court, this Court is of the considered view that the impugned // 6 // rejection order under Annexure-8 is unsustainable. Accordingly the same is hereby quashed. The Petitioner is directed to approach the Opposite Party No.3 along with certified copy of the today’s order within 10 days from today. In such eventuality the Opposite Party No.3 is directed to consider the case of the Petitioner for his appointment against any vacant post befitting to the suitability and eligibility of the Petitioner within two months from the date when the Petitioner approaches Opposite Party No.3. The final order be communicated to the Petitioner within 10 days. 9. With the aforesaid observation and direction, the Writ Petition stands disposed of. RKS ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 29-Jan-2024 10:59:16