The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.2321 of 2023 Bijay Kumar Parida State of Odisha & others -versus- …. Petitioner Mr.K.C.Sahu,Advocate …. Opposite Parties Mr. N.K.Prharaj, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 15.12.2023 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2.
Legal Reasoning
Heard learned counsel for the Petitioner as well as the learned Additional Government Advocate 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 : “It is, therefore, prayed that Hon’ble Court be graciously pleased to allow this writ petition by quashing the impugned orders of rejection dtd.08.04.2016 under Annexure-8 and order dtd.01.11.2022 under Annexure-11 by further directing the Opp.parties for appointment of the petitioner in any Class-IV post as per the provisions of O.C.S (R.A) Rules 1990 keeping in view of the settled position of law as has been decided by this Hon’ble Court so also Hon’ble Apex Court in a catena of decisions within a time bound period for the interest of justice. And may further be pleased to pass any other order(s), direction(s) as deems fit & proper for the bonafide interest of justice.” // 2 // 4. The factual background leading to the filing of the present case is that, the father of the present petitioner, who was working as junior Store Keeper under Opposite Party Nos. 3 and 4, died in harness on 17.11.2005. After the death of the Government employee the present petitioner being one of the legal heirs and a son of the deceased Government employee, applied for appointment under the RA Scheme, with the consent of the other family members, on date 02.08.2013 under Annexure-3 to the writ. The opposite Party No. 3 forwarded the application of the petitioner, vide letter dated on 05.06.2014, along with all supporting documents, including the physical unfitness certificate of mother of the petitioner, to the EIC, WR Department, Bhubaneswar i.e. Opposite Party No. 2, for considering the application of the petitioner for appointment on compassionate ground. Accordingly, the Opposite Party No. 2, vide letter dated 25.11.2014, forwarded the application of the petitioner to the Government for appointment, by enclosing all the relevant documents under Annexure-7 to the writ application 5. Meanwhile, the matter was kept pending for a couple of years and finally, vide order dated 08.04.2016, the application of the petitioner was rejected by the Government along with 169 other candidates in a mechanical manner without passing a speaking order under Annexure-8 to the writ application. Challenging the aforesaid rejection order dated 08.04.2016 the petitioner initially approached the learned OAT by filing OA No. 2251 of 2019. After abolition of the OAT, the matter was transferred to this Court and was re- registered as W.P.C(OA) No.2251 of 2019. A coordinate bench of this Court, after hearing the counsels appearing for the parties, vide
Decision
order dated 16.08.2021, disposed of the writ application by directing // 3 // the State Opposite parties to consider case of the petitioner for appointment under the RA Scheme, keeping in view the judgments passed in the case of Prakash Chandra Nayak, Pradeep Kumar Jena, Kartik Bhoi, by order dated 16.08.2021, under Annexure-10 to the writ application reveals that, the above named three persons were also in the very same list at serial number list 82, 80 and 50. The name of the petitioner also finds place in the very same list. Since one Kartik Bhoi has already been given appointment, whose name appears to the very same list, the petitioner has alleged discrimination in the writ application. The State opposite parties, on receipt of the order dated 16.08.2021 and, on receipt of copy of the order passed by the Government, informed the petitioner that his case has been rejected on the self -same ground on which it was earlier rejected by the Government. A copy of rejection order has been filed in Annexure-11 to the writ application. Being aggrieved by the rejection order, the petitioner has approached this Court by filling the present writ application. 6. Learned Additional Government Advocate on the other hand referring to the counter affidavit by the State opposite parties, submitted before this Court that, the case of the petitioner was duly considered by the Government pursuant to the order passed by this Court in the earlier writ application. He further contended that, after such verification it was found that the petitioner is ineligible for such appointment. Further, referring to the very same counter affidavit learned Additional Government Advocate submitted that, in view of the Rule 2(b) of the O.C.S. (RA) Rules, 1990, the cases under the RA Scheme are to be considered on the basis of the priority. He further submitted that, since the wife of the deceased Government employee // 4 // was alive, the present petitioner who is a son of the said Government Employee, is ineligible for such appointment. It was also contended that, the unfitness certificate of the wife of the deceased Government employee was not submitted in time. Therefore, the opposite parties have not committed any illegality in rejecting the claim of the petitioner for appointment on compassionate ground. In such view of the matter, the learned Additional Government Advocate submitted that, the impugned rejection order passed the opposite parties is not illegal and hence, the writ petition is devoid of merit and the same should be dismissed. So far the case of Kartik bhoi is concerned, learned Additional Government Advocate submitted that, in the case of the Kartik Bhoi the unfitness certificate of the mother was filed in time, therefore, his case was considered on his own merit and hence the same cannot be compared with the case of the present petitioner. 7. Having heard learned counsels appearing for the respective parties, and on a careful consideration of submissions, and upon further scrutiny of the materials available on record, this Court at the outset is of the observation that, the application of the petitioner has been rejected by the authorities specifically on two grounds. The first being that the petitioner was ineligible for consideration as the wife of the deceased Government employee, and the mother of the present petitioner, was alive at the time of consideration of petitioner’s application, therefore, in view of Rule 2(b) of the O.C.S. (RA) Rules, 1990, the case of the mother of the petitioner was to be considered first. However, an application was submitted by the petitioner for appointment on compassionate ground. Secondly, a ground has also been taken that the unfitness medical certificate of the mother of the petitioner, i.e. the widow of the Government employee, was // 5 // submitted at a later date to the submission of application under RA Scheme, accordingly, the opposite parties have drawn an inference that the same is an after-thought and is therefore not acceptable as per the rules in force. This Court, on a careful analysis of the factual background of the case, observes that, the deceased Government employee died on 17.11.2005, thereafter an application was submitted by the petitioner as a son of the deceased Government Employee, to provide support to the family which was in distressful condition. Learned counsel for the petitioner contended that the medical certificate has also been issued in favour of the mother of the petitioner by the competent doctor with seal and signature under Article 49 of Civil Service Regulation, wherein it has been stated that, the mother of the present petitioner was found to be unfit to discharge any job or duty under the Government. It was also contended by learned counsel for the petitioner that the mother of the petitioner was in fact unfit and now she is almost 61 years of age. He further contended that such certificate issued by the competent medical authority has not been taken into consideration by the opposite parties on the ground that the same has been submitted subsequent to the application for appointment under the rehabilitation scheme. With regard to applicability of Rule 2(b) of the O.C.S. (RA) Rules, 1990, this Court oblige to refer to the judgment in Bimal Bhengra vs. State of Odisha and others in W.P.(C) No.25602 of 2019 decided in 01.12.2023. While deciding the case which arose before this Court, this Court taking into consideration the submissions made by counsels appearing for the parties and, on a careful examination of the materials place before this Court and further referring to the decision in Ajit Kumar Barik V. State of // 6 // Odisha and others reported in 2018 2 OLR Page 10 (DV), has allowed the said writ application, thereby quashing impugned rejection and directing the opposite parties to consider the case of the petitioner by taking into consideration the medical certificate of the mother submitted by the petitioner in the abovenoted case. Therefore, the provisions contained in Rule 2(b) do not stand as a bar in the case of the present petitioner being considered for appointment under the O.C.S. (RA) Rules, 1990. A similar view has also been taken in another judgment in Subash Chandra Khatua vs. State of Odisha and others decided on 05.11.2020 in W.P.(C) No.22678 of 2020 by a Division Bench of this Court. So far issue with regard to medical certificate is concerned, the explanation given in the impugned rejection order is not at all satisfactory and the same appears to be very vague. This Court further observes that, the observation of the opposite parties that production of the medical certificate of the mother of the petitioner after the application under RA Rule was submitted is an after-thought, appears to be quite vague and baseless, and the same cannot be a ground for rejection of application of the present petitioner for appointment under compassionate ground. In any case, as per the rules, the opposite parties are required to ask the mother to appear before medical board to find out as to whether she is able to discharge Government duties or not, and if the answer is no, then they should have proceeded with the case of the petitioner for such appointment as per the rules. Moreover, the mother of the petitioner has already reached 61 years of age, so no question of being appointed for any Government service arises at this stage. In view of the aforesaid analysis, as well as legal position as enumerated hereinabove, this Court is of the considered view that, the impugned // 7 // rejection order dated 01.11.2022 under Annexure-11 is unsustainable in law and, accordingly, the same is liable to be quashed and, same is hereby quashed. Further the matter is remanded back to the opposite party No.1 and 2 to consider the matter afresh in the light of observation herein, as well as taking into consideration the judgments of this Court, and by applying the O.C.S. (RA) Rules 1990. Accordingly, the petitioner is directed to approach the Opposite Party Nos. 1 and 2, along with a certified copy of the order within a period of three weeks from today. In the event the petitioner approaches within the aforesaid stipulated time, the opposite party Nos. 1 and 2 shall do well to consider the case of the petitioner, on its own merit, without being influenced by the fact that the mother of the petitioner had not applied and, shall consider case of the petitioner by applying provisions of O.C.S. (RA) Rules, 1990 in view of the judgment of this Court in Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023. Further, it is directed that, in the event petitioner is found eligible for such appointment, then the petitioner shall be issued an appointment order against any suitable post within a period of two months from the communication of this order. 8. With the aforesaid observations/ directions, the writ application stands disposed of. Issue urgent certified copy of this order as per Rules. ( A.K. Mohapatra ) Judge Rubi Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: Orissa High Court Date: 20-Dec-2023 19:50:32