The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.1382 of 2021 Manoj Kumar Nayak …. Petitioner Mr. K.P.Mishra,Advocate -versus- State of Odisha and others …. Opposite Parties Mr. D.Nayak,A.G.A. CORAM: JUSTICE A.K.MOHAPATRA Order No.
Decision
ORDER 06.03.2024 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 Government Advocate for the State-Opposite Parties. Perused the writ petition as well as documents annexed thereto. 3. The present writ petition has been filed by the petitioner with the following prayers: “Under the aforesaid facts and circumstances of the case, it is therefore, prayed that this Hon’ble Court may graciously be pleased to: (i) direct/order the Opp.Parties to appoint the petitioner under Odisha Civil Service (Rehabilitation Assistance) Rules-1990 commensurate to his qualification; hold/declare that the Odisha Civil Service (Rehabilitation Assistance) Rules-2020 is not applicable to the case of the petitioner; hold/declare that the Sub-Rule9) & (10) to Rule-6 of Odisha Civil Service (Rehabilitation Assistance) Rules-2020 as at Annexure-4 are ultravires to the Article 14, 16 and 309 of the Constitution of India.” (ii) (iii) // 2 // (iv) Quash the impugned order, dated 07.05.2020 passed by the Opp.Party No.4 under Annexure-3 is illegal and contrary to the rule of law; Pass such other order(s) or issue direction(s) as may be deemed fit and proper in the bona fide interest of justice.” It is submitted by learned counsel for the petitioner that the (v) 4. father of the petitioner, one late Maguni Nayak, who was working as a Khalasi (work charge) under the Administrative Control of Opposite Party No.4 died in harness on 29.05.2016. The mother of the present petitioner being the first legal heir was medically unfit to join in any Government service as such, she did not apply. Thereafter, the present petitioner being one of the legal heirs applied for appointment on compassionate ground along with all supporting documents. The application submitted by the petitioner was forwarded by the Opposite Party No.4 to Opposite Party No.3. Similarly, the Opposite Party No.3 forwarded the same to the Opposite Party No.2. Learned counsel for the petitioner also contended that the local administration has already issued a discharge certificate in favour of the petitioner, which has been transferred to the office of the Opposite Party No.2 for his consideration. 5. While the matter stood thus on 18.11.2017 the Opposite Party No.3 returned the RA application of the petitioner citing the reason that there are no adequate vacancies to accommodate the petitioner under the RA Scheme. Thereafter, no action was taken by the Opposite Parties. In the meanwhile the RA rules were amended and the O.C.S. (RA) Rules, 1990 has been replaced by the O.C.S. (RA) Rules, 2020 by virtue of the notification dated 17.02.2020. Learned counsel for the petitioner further contended that the application of the petitioner has been rejected by applying the O.C.S. Page 2 of 5 // 3 // (RA) Rules, 2020 vide order dated 07.05.2020 under Annexure-3 to the writ application. Learned counsel for the petitioner submitted that the petitioner was intimated vide letter dated 07.05.2020 under Annexure-3 to submit a fresh application under the new rules in view of the provisions contained in the O.C.S. (RA) Rules, 2020 wherein it has been specifically provided that all pending applications have to be considered under the O.C.S. (RA) Rules, 2020. Being aggrieved such conduct of opposite parties, the petitioner has approached this Court by filing the present writ application. 6. Learned Additional Government Advocate, on the other hand, contended that the RA application of the petitioner has already been rejected by the authorities by citing a reason under Annexure-3 to the writ application. Further, referring to the letter dated 18.11.2017 under Annexure-2, learned Additional Government Advocate submitted that the RA application of the petitioner was initially returned as there were no vacancies to accommodate the petitioner since the entire 10% quota of the total vacancies were filled up. It was further contended that since no valid application was pending before the authorities by the time new rules came into force, the petitioner was asked to submit a fresh application under the rules prevailing at the time, i.e. the O.C.S. (RA) Rules, 2020. In such view of the matter, learned Additional Government Advocate submitted that the opposite parties have not committed any illegality and as such, the present writ application is devoid of merit and the same is liable to be dismissed. 7. Having heard the learned counsels appearing for the respective parties, on a careful examination of the background facts Page 3 of 5 // 4 // as well as materials on record, this Court is of the observation that the fact that the father of the petitioner died in harness on 29.05.2016 is not disputed by the parties. Thereafter, the petitioner submitted an application within the stipulated period of time. However, the case of the petitioner was initially rejected vide order under Annexure-2 on the ground that there were no vacancies available under the Opposite Party No.2. In the aforesaid context this Court is required to examine the provisions of the rules. The rules provide that in the event vacancies are not available, the authorities are duty bound to forward the application of the petitioner/applicant to the Heads of Department to find out vacancies in order to accommodate the petitioner. However, such procedure has not been followed in case of the petitioner. Similarly, the letter under Annexure-3 requiring the petitioner to make a fresh application under the new rule of the year 2020 is equally illegal, especially since the Rule 6(9), which provides for all pending applications to be considered under the new rules, has been struck down by this Court in Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021. Further, the law with regard to appointment on compassionate ground prior to the new rule came into force has been taken note of and finally adjudicated by 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. In view of the above analysis the order under Annexure-2 and Annexure-3, according to this Court, are unsustainable in law. Page 4 of 5 // 5 // Hence, this Court has no hesitation in quashing the order under Annexure-2 and 3. Accordingly, the same is hereby quashed. As a consequence, the matter is remanded back to the Opposite Party No.2 to consider the matter afresh in terms of the aforesaid judgments and by applying the O.C.S. (RA) Rules, 1990 and to take a final decision within a period of two months from the date of communication of a certified copy of this order. The final decision so taken be communicated to the petitioner within two weeks thereafter. 8. With the aforesaid observations and direction the writ petition is disposed of. Rubi (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 12-Mar-2024 20:37:57 Page 5 of 5