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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.3803 of 2021 Mithun Kumar Sahoo ..... Petitioner Represented By Adv. – Mr. J.K. Mishra(2) State Of Odisha and others ..... Opposite Parties -versus- Represented By Adv. – M. Saswat Das, A.G.A. CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No. ORDER 22.04.2024 03. 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 appearing for the Stat- Opposite Parties. Perused the pleadings of the respective parties as well as the documents annexed thereto. 3.
Decision
The writ petition has been filed by the Petitioner with the following prayers:- “The petitioner therefore most respectfully prays that your lordships may be graciously pleased to admit the writ petition and issue rule NISI to Opp. Parties to show cause as to why the impugned order shall not be quashed, and on their failing to show cause or showing insufficient cause make the rule absolute and this Hon’ble Page 1 of 9. Court issue a writ of certiorari by quashing the impugned order dt. 29.12.2020 vide Annexure-7 and further direct to the Opp. Parties to issue appointment order in favour of the petitioner under O.C.S. (R.A.) Rules, prevailing in the year 2011/12 within a stipulated period; And pass such further order/orders as deemed facts and circumstances of the case and allow the case with cost.” fit and proper the in 4. It is submitted that the learned counsel for the Petitioner that the father of the Petitioner, who was working as a Cook in the Odisha Police, died in harness on 30.08.2011 leaving behind his legal heirs including the present Petitioner. Thereafter the present Petitioner being one of the legal heirs of his deceased father, with the consent of other legal heirs, applied for a job on compassionate ground by submitting an application initially on 27.02.2012. He further contended that the family of the Petitioner was in a financially distressful condition. In the aforesaid context, learned counsel for the Petitioner submitted that the Tahasildar of the concerned locality has already issued a distress certificate in favour of the family of the Petitioner. Learned counsel for the Petitioner further contended that initially the application of the Petitioner was considered and it was found that the Petitioner is not fit for appointment in the armed police forces. Therefore, his application was rejected with a further direction to the Petitioner to submit a fresh application for consideration of his case against any of the Group-‘D’ post, for which, the Petitioner is eligible. It was also contended that the Petitioner was asked to submit an application under the O.C.S. Page 2 of 9. (R.A.) Rules, 1990 as amended upto the year 2016 vide letters No.4980/E dated 15.11.2017 and No.17/E dated 02.01.2018. 5. Learned counsel for the Petitioner further contended that pursuant to the request of the Opposite Parties although the Petitioner submitted another application in the year 2018, however, the same was also kept pending. Finally, the application of the Petitioner for appointment on compassionate ground has been rejected vide order dated 29.12.2020 under Annexure-7 to the writ petition. By referring to the impugned rejection order under Annexure-7, learned counsel for the Petitioner contended that the claim of the Petitioner for appointment on compassionate ground has been rejected by taking into consideration the provisions contained in O.C.S. (R.A.) Rules, 2020. In the aforesaid context, learned counsel for the Petitioner submitted that the Opposite Parties have committed an illegality by rejecting the application of the Petitioner by applying the rules of the year 2020. 6. In course of his argument, learned counsel for the Petitioner referring 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 as well as judgments of this Court in Biswajit Swain v. State of Odisha and others (W.P.(C) No.5214 of 2021 disposed of on 31.10.2023), Suchitra Bal v. State of Odisha & Ors. (W.P.(C) No.2081 of 2021 decided on 16.03.2023), and Bindusagar Samantaray v. State of Odisha & Ors. (W.A. No.810 of 2021 decided on 25.09.2023), submitted Page 3 of 9. before this Court that the application of the Petitioner is required to be considered under the O.C.S. (R.A.) Rules, 1990 taking into consideration the date of death of the deceased Government employee as well as the date of initial application submitted by the Petitioner. He further contended that in Biswajit Swain’s case (supra), this Court has already held that the provisions contained in Rule-6(9) of the O.C.S. (R.A.) Rules, 2020 is ultra vires of Article 14 of the Constitution of India. On such ground, learned counsel for the Petitioner submitted that the impugned order dated 29.12.2020 under Annexure-7 to the writ petition is unsustainable in law and, accordingly, the same should be quashed by this Court. 7. Learned Additional Government Advocate appearing for the State-Opposite Parties, on the other hand, referring to the counter affidavit filed by the State-Opposite Party No.1 to 3, submitted that the Opposite Parties have not committed any illegality in rejecting the application of the Petitioner vide order under Annexure-7 to the writ petition. He further contended that although the Petitioner had initially submitted an application on 27.02.2012, however, the same was considered by the Opposite Parties and it was found that the Petitioner is not fit for appointment to any of the post in the police forces. Therefore, while denying his appointment to the armed police forces, the Opposite Parties have requested the Petitioner to submit a fresh application which has been narrated in the para-6 of the counter affidavit. Page 4 of 9. 8. Further, referring to the counter affidavit, learned Additional Government Advocate submitted that on consideration of the application of the Petitioner, the Evaluation Committee initially recommended the case of the Petitioner for appointment to the rank of Junior Clerk under the O.C.S. (R.A.) Rules, 1990 as amended upto the year 2016. It is further contended that since 12 posts of Junior Clerk and 9 posts of Record Keeper were available and only 3 posts were lying vacant in the rank of Junior Clerk at the relevant point of time, it was not feasible on the part of the Opposite Parties to consider the case of the Petitioner for appointment in the rank of Junior Clerk under the R.A. Scheme. Therefore, along with the recommendation of the Evaluation Committee and the connected papers, the case of the Petitioner was forwarded to the Dy. Commissioner of Police (Hdqrs.), office of the Commissioner of Police, Bhubaneswar-Cuttack vide office letter dated 13.04.2018 to consider the case of the Petitioner for appointment in the rank of Junior Clerk. He further contended that the State Police Headquarter returned the documents to the C.P. Headquarters, Bhubaneswar-Cuttack vide letter dated 28.05.2018 with a request to reprocess the same as per the guidelines issued vide State Police Headquarters vide letter dated 16.05.2018. Finally, the State Police Headquarters, Odisha, Cuttack intimated the Petitioner to appear in the Mini Conference Hall of State Police Headquarters, Odisha, Cuttack on 31.10.2018 for scrutiny of his application. Pursuant to the aforesaid intimation, the Petitioner appeared before the authorities on 31.10.2018 for scrutiny of his Page 5 of 9. papers. However, since there was a discrepancy with regard to the immovable property of the family of the deceased Government employee, the same was directed to be rectified by the police authorities. Thereafter, the Tahasildar, Barmba, Cuttack was requested to verify the immovable property of the family of the Petitioner and the B.D.O., Baramba was requested to furnish a evaluation report of the properties belonging to the Petitioner’s family. Finally, the counter affidavit reveals that in response to letter dated 21.01.2019, the Junior Engineer, Baramba (R&B) Section, Baramba, Cuttack intimated vide letter dated 25.01.2019 that the approximate cost of the house of Petitioner’s father is Rs.69,992/-. A copy of such report has also been attached to the counter affidavit as Annexure-S/3. 9. Learned Additional Government Advocate further referring to Rule-6(9) of the O.C.S. (R.A.) Rules, 2020 submitted before this court that in view of the provisions contained in the aforesaid rule all pending applications are required to be considered under the rules that are in force at the time of consideration of such applications, i.e. the O.C.S. (R.A.) Rules, 1990. He also referred to the G.A. & P.G. Department Notification dated 17.02.2020 as well as the letter dated 02.03.2021 communicated to the State Police Headquarters that all pending applications are to be considered under the O.C.S. (R.A.) Rules, 2020. In such view of the matter, learned Additional Government Advocate submitted that the application of the Petitioner was considered under the provisions of the O.C.S. (R.A.) Rules, 2020 and, accordingly, as the Petitioner Page 6 of 9. was found to have secured 36 points out of the requisites 85 points, which is not adequate to get appointment under the new rules, the application of the Petitioner has been rightly rejected by the Opposite Parties vide order dated 29.12.2020 under Annexure-7 to the writ petition. On such ground, learned Additional Government Advocate submitted that the Opposite Parties have not committed any illegality and that they have acted in accordance with the provisions contained in Rules, 2020. In such view of the matter, it is submitted that the writ petition is devoid of merit and, accordingly, the same should be dismissed. 10. Having heard the learned counsels appearing for both the sides and on a careful examination of the pleadings from both sides as well as the materials on record, this Court is of the considered view that the only issue that required adjudicated in the present writ petition is with regard to the applicability of the rules to the facts of the Petitioner’s case. Further, it appears that there is no dispute with regard to the factual matrix involved in the present writ petition. It is admitted by the learned counsel for the parties that the father of the Petitioner died in harness while he was working as a Cook in the Police Department on 30.08.2011 and thereafter the Petitioner, being one of the legal heirs, submitted his application for appointment on compassionate ground initially on 27.02.2012. However, such application remained under consideration by the Opposite Parties for more than a decade and finally the same has been rejected vide order dated 29.12.2020 under Annexure-7 to the Page 7 of 9. writ petition by applying the provisions of the O.C.S. (R.A.) Rules, 2020. 11. This Court further observes that the law with regard to applicability of the rules is no more res integra. The Hon’ble Supreme Court in Malaya Nanda Sethy’s case (supra) as well as the Division Bench of this Court in the judgments of Suchitra Bal’s case (supra) and Bindusagar Samantaray’s case (supra), have already taken a view that such pending applications are to be considered under the O.C.S. (R.A.) Rules, 1990 by taking into consideration the inordinate delay in consideration of such application. Further, this Court in Biswajit Swain’s case (supra), has already declared that Rule-6(9) of the O.C.S. (R.A.) Rules, 2020, which is the main plank of argument of learned Additional Government Advocate, is ultra vires to the Article 14 of the Constitution of India. Although the State-Opposite Parties have preferred appeal before the Hon’ble Supreme Court, however, no interim order has been passed in the meantime or, at least no such interim order was produced before this Court while considering the present case. Learned Additional Government Advocate very fairly submitted that in all those matters pending before the Hon’ble Supreme Court, the Hon’ble Supreme Court has only issued notice to the Opposite Parties. 12. In such view of the matter, by applying the law laid down by the Hon’ble Supreme Court in Malaya Nanda Sethy’s case (supra) as well as by this Court in Suchitra Bal’s case (supra), Bindusagar Samantaray’s case (supra) and Biswajit Swain’s Page 8 of 9. case (supra), this Court is of the considered view that the Opposite Parties have committed an illegality by rejecting the application of the Petitioner vide impugned order dated 29.12.2020 under Annexure-7 to the writ petition. Therefore, this Court has no hesitation in quashing the impugned order under Annexure-7 and, accordingly, the same is hereby quashed. Further, the matter is remanded back to the Opposite Party No.3 to reconsider the case of the Petitioner again in terms of the O.C.S. (R.A.) Rules, 1990 within a period of three months from the date of communication of a copy of this order. The final decision so taken by the Opposite Party No.3 be communicated to the Petitioner within a week from the date of taking such decision. 13. With the aforesaid observation and direction, the writ petition is disposed of. Debasis ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: OHC, CUTTACK. Date: 25-Apr-2024 20:15:07 Page 9 of 9.