The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.4089 of 2024 Basanta Kumar Panda …. Petitioner Smt. Baijayanti Mohanty, Advocate -versus- State of Odisha and others …. Opposite Parties Mr. A.P.Das, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 27.02.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as the learned Additional Standing Counsel appearing for the State- Opposite Parties. 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 this Hon’ble Court may graciously be pleased to admit the Writ Petition, issue notice to the Opp. Parties to show cause as to why the impugned Order No.94 dtd. 02.01.2024 under Annexure-38, will not be quashed and further why the petitioner will not be appointed as a Junior Clerk as per the then existing rules in 2015 e.g. Rule-1990; And in the event the Opposite Parties fail to show cause or shows insufficient cause, then the said Rule be made absolute and the Writ Petition // 2 // be allowed directing the Opposite Parties to appoint the petitioner in Group-C post, And may further be pleased to pass any other order(s)/direction(s) as this Hon’ble Court deems fit and proper.” 4. It is submitted by the learned counsel for the Petitioner that the Petitioner had approached this Court earlier on two occasions. First, in W.P.(C) No.6031 of 2023 challenging the rejection of his application for appointment on compassionate ground vide order dated 13.04.2021. This Court vide order dated 16.03.2023 disposed of the aforesaid writ petition by setting aside the impugned order dated 13.04.2021 under Annexure-33 with a direction to the Opposite Parties to consider the application of the Petitioner afresh in the light of the law laid down by the Hon’ble Supreme Court in Malaya Nanda Sethy’s case. Learned counsel for the Petitioner further contended that despite such direction in the earlier writ petition, his application was again rejected vide order dated 09.05.2023 which compelled the Petitioner to approach this Court again by filing the W.P.(C) No.31975 of 2023. This Court again vide order dated 10.10.2023 disposed of the said writ petition by passing a detailed order. While disposing of the writ petition, this Court again quashed the impugned order dated 09.05.2023 under Annexure-35 to the said writ petition and remanded the matter back to the Opposite Party No.2 to consider the same strictly in accordance with law laid down by the Hon’ble Supreme Court in Malaya Nanda Sethi’s case as well as the judgment of this Court in Suchitra Bal and Bindusagar Samantaray. After // 3 // disposal of the second application, the Petitioner again approached the Opposite Party No.2, the Director, Drinking Water & Sanitation, Government of Odisha. The Opposite Party No.2 again vide order dated 02.01.2024 rejected the application of the Petitioner by referring to sub-rule-9 of Rule-6 of the OCS (RA) Rules, 2020 and it has been held that in view of Rule-6 and sub-rule-9 of the OCS (RA) Rules, 2020, all pending applications are to be considered under the new rules of the year 2020. Therefore, the consideration of the Petitioner’s case under OCS (RA) Rules, 1990 is beyond the competence of department in question and such consideration will amount to infringement of OCS (RA) Rules, 2020. Being aggrieved by such decision of the Opposite Party No.2, the Petitioner has again approached this Court by filing the present writ petition. 5. Learned Additional Government Advocate appearing for the State-Opposite Parties, on the other hand, contended that after disposal of the earlier writ petition, the case of the Petitioner has been duly considered by the Opposite Party No.2. He further submitted that the Opposite Party No.2 being influenced by the provisions contained in Rule-6(9) of the OCS (RA) Rules, 2020 has held that the application of the Petitioner is to be considered under the rules of the year 2020 and, accordingly, they have rejected application of the Petitioner under the new rules. 6. Learned Additional Standing Counsel appearing for the State-Opposite Parties further submitted that the order dated 2.1.2024 has been passed by the Opposite Party No.2 on wrong // 4 // premises as they were not aware of the development of law in the meantime and the judgment of this Court in Biswajit Swain v. State of Odisha and others (W.P.(C) No.5214 of 2021 decided on 31.10.2023). In such view of the matter, learned Additional Standing Counsel prayed for another opportunity to be granted to the Opposite Party No.2 to reconsider the case in accordance with law laid down by this Court as well as by the Hon’ble Supreme Court. 7. Considering the submissions made by the learned counsels appearing for the respective parties and on a careful examination of the background facts as well as the material on record and further taking into consideration the directions issued by this Court in the earlier two writ petitions, this Court is of the view that the Opposite Party No.2 has definitely violated the direction issued in the earlier two writ petitions by passing order dated 02.01.2024. However, considering the same to be a bona fide mistake, this Court without initiating a proceeding against the Opposite Party No.2 deems it proper to provide another opportunity to rectify the mistake. This Court further clarifies that the ground on which the application of the Petitioner has been rejected vide impugned order dated 02.01.2024 has been directly answered by this Court in the judgment in Biswajit Swain’s case (supra). Therefore, there exists no doubt that Rule- 6(9) of the OCS (RA) Rules, 2020 has been declared ultra-virus and does not exist in the rule. Moreover, since the judgment in Biswajit Swain’s case (supra) has not been assailed before any higher forum, the principle laid down therein has attained // 5 // finality. 8. In such view of the matter, this Court while granting another opportunity to the Opposite Party No.2, deems it proper to dispose of the writ petition by remanding the matter back to the Opposite Party No.2 with a further direction to consider the case of the Petitioner by applying OCS (RA) Rules, 1990 within a period of two months from the date of communication of a copy of this order. The final decision so taken thereon be communicated to the Petitioner within two weeks from the date of taking such decision. 9. With the aforesaid observation and direction, the writ petition is disposed of. Issue urgent certified copy of this order as per Rules. ( A.K. Mohapatra ) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 02-Mar-2024 20:58:08