The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5787 of 2021 Santosh Kumar Hota State of Odisha & Ors. . -versus- …. Petitioner Mr. S.K.Nayak, Advocate …. Opposite Parties Mr. P.K.Muduli, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 01.12.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Addl. Government Advocate appearing for the State. Perused the Writ petition as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: Order No. 03. “Under these circumstances the petitioner most humbly prays that this Hon’ble Court be graciously pleased to issue a Rule NISI calling upon the opposite parties to show cause as to why; i) The petitioner rejecting the application of the petitioner for appointment under RA Scheme under Annexure-6 shall not be quashed; The opposite parties shall not be directed to consider the case of the petitioner for appointment under RA Scheme under 1990 Rules iii) The action of the opposite parties in considering the application of the petitioner for appointment under RA Scheme under 2020 Rules shall not be declared as illegal and arbitrary ii) // 2 // iv) The opposite parties shall not be directed to accord appointment to the petitioner in any Group-D post under RA Scheme under the provisions of 1990 Rules. If the opposite parties fail to show cause or show insufficient cause the Rule be made absolute.” 4. It is submitted by the learned counsel for the petitioner that the petitioner being aggrieved by the impugned rejection order under Annexure-6 to the writ application dated 17.12.2020, whereby his application for appointment on compassionate ground was rejected by applying the OCS RA Rule 2020, has approached this Court by filing the present writ application. In course of his argument learned counsel for the petitioner submitted that the father of the petitioner who was working as Assistant driver in the office of the Opposite Party No.3, he was suffering from cancer and died in harness on 27.08.2015. After the death of the father of the petitioner, leaving behind the petitioner and other legal heirs, the petitioner being the only son submitted an application on 17.12.2015 to the opposite party No.3 for appointment under the Rehabilitation Assistance scheme. The application submitted by the petitioner was duly scrutinized and forwarded to the office of the Collector and District Magistrate, Ganjam by the Opposite Party No.3 vide his letter dated 06.02.2016 to enquire into the particulars furnished by the petitioner and furnish a distress certificate in respect of the family of the deceased. 5. The learned counsel for the petitioner further contended that the Collector Ganjam after conducting the inquiry submitted a report to Opposite Party No.3 stating therein that the family of the petitioner was in fact in distress condition, and accordingly, it was recommended that the petitioner be considered for appointment under RA Scheme. Learned counsel for the petitioner also contended that // 3 // the Opposite Party No.3 wrote a letter to the CDMO, Ganjam dated 14.07.2017, requesting to constitute a medical board to know of the health condition of the wife of the deceased husband. The CDMO Ganjam, after conducting such inquiry and after the wife of the deceased Government employee was examined by the medical board on 01.11.2016, submitted a report indicating therein that the wife of the deceased employee was unfit for Government job. In such view of the matter learned counsel for the petitioner submitted that there is no impediment in giving appointment to the petitioner under the OCS RA Rule 1990. Further referring to letter dated 15.11.2016 under Annexure-5 to the writ application the Learned counsel for the petitioner contended that the superintended of police Ganjam has requested the Additional DG of police (personnel) Odisha to consider the case of the petitioner for appointment against any Group-D post as per the eligibility criteria under RA Scheme along with all supportive and relevant documents. However the matter was kept pending before the opposite parties for a long time. Finally the petitioner received letter dated 17.12.2020 under Annexure-6 whereunder the petitioner was intimated that he is required to submit a fresh application under the OCS RA Rule 2020 as communicated by GA & PG Department notification dated 17.02.2020. The aforesaid letter dated 17.02.2020 under Annexure-6 also reveals that the pending application of the petitioner has also been rejected by the SP of Police, P.M.T., Odisha, Cuttack. Being aggrieved by such order the petitioner approached this Court by filing the present writ application. 6. Learned Addl. Government Advocate on other hand contended that the opposite parties have not committed any illegality in passing // 4 // the impugned rejection order dated 17.12.2020 under Annexure-6 to the writ application. He further contended that although the deceased Government employee died in harness dated 17.08.2015 and application was made on 17.12.2015. The same was pending before the authority for their approval. In the meantime, the old Rehabilitation Assistance Rules were in force, a new rule, 2020 was notified by the G.A. & P.G. Department by notification dated 17.02.2020. He further contended that in view of the rules of the year 2020 all pending applications are to be considered under the new rules of the year 2020. Learned Addl. Govt. Advocate specifically pointed out the rules 6(9) of the OCS RA Rules 2020. In such view of the matter learned Additional Govt. Advocate submitted that opposite parties have not committed any legality in rejecting the pending application and further directing to the petitioner to file a application under the OCS RA rules 2020. It was further contended that, the application of the petitioner was rejected under the 2020 rules as the petitioner was not found eligible for appointment under Rehabilitation Assistance Scheme 2020. 7. Having heard the learned counsels appearing for the respective parties, and on a careful examination of the background facts, this Court is of the considered view that the issue involved in the present writ application is with regard to the applicability of the rules. So far the applicability of the rule is concerned, the same has been discussed in a catena of judgments including Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1, State of Odisha and others vs. Bindu Sagar Samantaray in W.A.No.810 of 2021 and Suchitra Bal v. State of Odisha and others in W.P.(C) No.2081 of 2021 & batch decided on 27.06.2023, as well as in // 5 // Biswajit Swain vs. State of Odisha & ors. in W.P.(C) No.5214 of 2021 decided on 31.10.2023, where it was categorically held that the application of the Petitioner in cases where the Government employee had died in harness before the 2020 Rule came into force, will be considered as per the old rules i.e. OCS (RA) Rules, 1990. In view of the aforesaid judgments of this Court, this Court deems it proper to quash the impugned rejection order dated 17.12.2020 under Annexure-6 and accordingly the same is hereby quashed. Further the matter is remanded back to opposite party no.4 to consider the matter afresh as per the aforesaid judgments and pass necessary orders strictly in terms of the aforesaid judgments within a period of two months from the date of communication of certified copy of this order by the petitioner. Final decision so taken be communicated to the petitioner within two weeks thereafter. 8. With the aforesaid observation, the writ application stands disposed of. 9. Issue urgent certified copy of this order as per Rules. Rubi ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 07-Dec-2023 11:42:52