The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.1831 of 2023 Umakanta Naik …. Petitioner State of Odisha & others …. Opp. Parties Mr. B.K. Mohanty, Advocate -versus- CORAM: Mr. P.C. Das, A.S.C. JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 07.12.2023 05. 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-Opposite Parties. Perused the pleadings of the parties as well as documents annexed thereto. 3. The present writ petition has been filed by the petitioner with the following prayers: “It is therefore prayed that the writ petitioner may be admitted, and issue notice to the Opp. Parties, relevant records may be called for and after hearing the counsels for the parties the Writ Petition be allowed quashing the order dated.21.04.2020.Passed by the Opp. Party No.3 under the Annexure-11 as completely illegal and contrary to the law. And And further direct to give appointment to the petitioner under R.A. Scheme taking into consideration Annexure-7. the Opp. Parties And pass such order/orders as may be deemed just and proper,” The factual background during the filing of the present writ 4. application is that the father of the petitioner, who was in Government service and was working as Constable in the Police // 2 // Department under the Superintendent of Police, Sundargarh died in harness on 22.03.2017. The deceased Government employee has left behind his widow and other legal heirs. The Petitioner being one of the legal heirs applied for appointment on compassionate ground immediately after the death of his father. The application submitted by the present Petitioner was duly processed by the authorities. While scrutinizing the application of the petitioner the authorities demanded on unfitness certificate of the mother of the Petitioner, who has a preferential right of appointment under Rule 2 (b) of the OCS (RA) Rules, 1990. Accordingly, the matter of the Petitioner was medically examined and on the basis of the report of the Chief District Medical Officer, Sundargarh dated 16.07.2018, it has been concluded that the mother of the Petitioner is physically unfit to perform any duties. Thereafter, the application submitted by the Petitioner was further processed on production of several documents as was required by the authorities. Finally, the petitioner was called upon to appear in a physical measurement test. Pursuant to such request of the petitioner appeared for physical measurement test and vide memo dated 29.11.2018 written to the I.G. of Police (Personnel), Odisha, Cuttack by the Superintendent of Police, Sundargarh. It has been observed that after physical measurement, it is found that the petitioner is fit to be appointed on the rank of Constable. Moreover, such memo also reveals that the petitioner is having requisite educational qualification for being appointed as a Constable. 5. While this was so, the Petitioner was called upon for verification has original documents vide letter dated 22.11.2018. Thereafter, the Petitioner was informed through VHF message under Annexure-9 from the office of the Superintendent of Police, Sundargarh that is required to appear before the I.G., Police // 3 // Personnel, Odisha, Cuttack at the State Police Headquarters on 05.04.2019 for scrutiny of his application and for appointment under the Rehabilitation Assistance Scheme. While this was the position, vide letter dated 27.03.2020 the Petitioner was intimated by the Superintendent of Police, Sundargarh to submit a fresh application under the OCS (RA) Rules, 2020. Since, the family of the Petitioner was in a distressful condition, therefore, they have no alternative granting to comply with the requirement of the Opposite Parties in submitting another application under OCS (RA) Rules, 2020. The application which was submitted pursuant to the request of the Superintendent of Police, Sundargarh under 2020 Rules has been rejected by the Opposite parties vide letter dated 21.04.2020 under Annexure-11 to the writ application. Being aggrieved such conduct of the Opposite Parties, the Petitioner has approached this Court by filing the present writ application. 6. A counter affidavit has been filed on behalf of the State- Opposite parties wherein a specific stand has been taken that the OCS (RA) Rules, 1990 has been superseded by OCS (RA) Rules, 2020. Moreover, in view of the notification of the G.A. and P.G. Dept. dated 17.02.2020 the Petitioner was required to file a fresh application and such application has to be considered under the OCS (RA) Rules, 2020 in view of the specific provisions contained in Rule 6 (9) of the Rules, 2020. In view of the aforesaid provisions of Rule 6 (9) the authorities have not committed any illegality calling upon the Petitioner to file a fresh application for consideration of his case for appointment on compassionate ground under the 2020 Rules. In the counter affidavit the Opposite Parties have categorically stated in para-22 that after the death of the Government employee on 22.03.2017 the initial R.A. application of the Petitioner was received // 4 // on 03.01.2018. 7. Learned Additional Standing Counsel appearing on behalf of the State-Opposite Parties submitted before this Court that the Opposite Parties have not committed any illegality in rejecting the application of the petitioner under the 2020 rules as the Petitioner has failed to secure a required number of points as is required for appointment on compassionate ground. He further contended that in view of the specific provision contained in Rule 6 (9) of OCS (RA) Rules, 2020 the Opposite Parties have rightly considered and rejected the case of the petitioner by applying the new rule of the year 2020. Accordingly, it was submitted that the present writ application is devoid of merit and the same should be dismissed. 8. Having heard the learned counsels appearing for the respective parties and on a careful examination of their submissions as well as on a careful examination of the pleadings of both sides and documents on record, this Court is of the view that the only issue that requires adjudication in the present writ application is rejection of the Petitioner’s application by applying the provisions of the 2020 Rules in view of the fact that the father of the petitioner died on 22.03.2017 and the initial application was submitted before the authorities on 03.01.2018. In the said context, the only provisions that governs the plea under Rule 6 (9) of OCS (RA) Rules, 2020 which provides that all pending applications shall be considered under the OCS (RA) Rules, 2020. The aforesaid issue has elaborately dealt with by this Court in Biswajit Swain vs. State of Odisha & others in W.P.(C) No.5214 of 2021 decided on 31.10.2023 wherein this Court found that the provision of Rule 6 (9) is arbitrary in nature and accordingly the rule 6 (9) has been struck down on the ground that the same is ultra vires the Article 14 of the Constitution of India. Moreover, there // 5 // are several judgments of the Hon’ble Supreme Court in the case of Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1 decided by the Hon’ble Supreme Court and the judgment of this Court in Suchitra Bal vs. State of Odisha & ors. by a Division Bench of this Court in W.P.(C) No.2081 of 2021 decided on 16.03.2023 as well as Bindusagar Samantaray vs. State of Odisha & ors. by a Division Bench of this Court in W.A. No.810 of 2021 decided on 25.09.2023 wherein it has been categorically held that the rule which was prevailing at the time of death is to be considered while considering the case of the appointment of the petitioner on compassionate ground. In such view of the matter, this Court has no hesitation while coming to a conclusion that the Opposites Parties have committed an illegality in rejecting the application by applying the provisions of new rule of the 2020, accordingly the impugned order under Annexure-11 is hereby quashed. Further, the matter is remanded back to the Opposite Party No.3 to reconsider the case in the light of the aforesaid observations and keeping in view the judgments referred to hereinabove and take a final decision within a period of two months from today by passing a speaking and reasoned order. Further, it is directed that any final decision taken in the matter shall be communicated to the petitioner within two weeks from the date of taking such a decision. 9. With the aforesaid observation/direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. ( 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: 09-Dec-2023 14:59:45