The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6573 of 2021 K.Tekeswar Achary …. Petitioner State of Odisha & others …. Opp. Parties Mr. C. Ananda Rao, Sr. Advocate -versus- Mr. P.K. Muduli, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 01.12.2023 03. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Mr. C. Ananda Rao, learned Senior counsel for the petitioner as well as Mr. P.K. Muduli, learned Additional Government Advocate for the State-Opposite Parties. Perused the writ petition as well as documents annexed thereto. 3. The present writ petition has been filed by the petitioners with the following prayers: “It is therefore, prayed that this Hon’ble Court may be graciously pleased to:- i) ii) iii) admit the Writ application; call for the Records; Issue Rule Nisi calling upon the Opp. Parties as to why the rejection order under Annexure-7 shall not be quashed and why the petitioner application for appointment under (Rehabilitation Assistance) Amendment Rules, 2016 shall not be considered on merit. If the Opp. Parties do not show cause or show insufficient cause issue a Writ in the nature of Mandamus or any other appropriate Writ/Writs, order /orders, direction/directions in quashing the rejection order under Annexure-7, the Opp. Parties may be the O.C.S iv) // 2 // directed to consider the petitioner’s application for compassionate the O.C.S (Rehabilitation Assistance) Amendment Rules, 2016 within a specified time.” appointment under 4. The factual background during the filing of the present writ application, in short, is that the father of the Petitioner while working as a Senior Clerk in the office of Sub-Collector, Gunupur in the district of Rayagada died in harness on 18.12.2017. The deceased government employee has left behind his widow, one married daughter and two unmarried sons as the survival being legal heirs. The present petitioner, who is one of the son and having the qualification of Bachelor of Pharmacy, submitted an application along with the required documents including the joined affidavit by his mother and other legal heirs. Such application filed by the Petitioner was received in the office of Opposite Party No.4-Sub- Collector, Gunupur and the same was forwarded on 04.09.2018 to the office of the Opposite Party No.2-Collector, Rayagada for consideration of the Petitioner’s appointment under OCS (RA) Rules, 1990 as amended by the amending Rule, 2016. 5. While the matter stood thus, the Additional District Magistrate, Rayagada intimated to the Sub-Collector, Gunupur on 29.11.2018 that the Petitioner be requested to furnish further information like the unfitness of his mother to undertake any Government job and undertaking by the Petitioner that he looked after the welfare of the family as well as no objection undertaking by other legal heirs. Such fact was intimated to the Petitioner by the Sub-Collector, Gunupur vide letter dated 07.12.2018, accordingly the Petitioner submitted all the required documents as requested vide letter dated 07.12.2018. Further, the documents which was submitted by the Petitioner pursuant to the letter dated 07.12.2018, was forwarded by the Sub- // 3 // collector vide his letter dated 04.02.2020 to the A.D.M., Rayagada for consideration. While this was the position, the Petitioner received intimation from the office of A.D.M., Rayagada vide letter dated 29.10.2020 informing him that as per the OCS (RA) Rules, 2020 the application submitted by the Petitioner for appointment on compassionate ground was evaluated and it was found that the petitioner has been allotted 15 points. Since total minimum 60 points are required to be eligible for consideration of appointment on compassionate ground, the application of the Petitioner of appointment on compassionate ground, thus was rejected which was intimated to the petitioner vide letter dated 29.10.2020 under Annexure-7 to the writ application. Being aggrieved by such order of communication dated 29.10.2020 under Annexure-7, the Petitioner has approached this Court by filing the present writ application. 6. Learned Additional Government Advocate on the other hand contended that although the father of the Petitioner died on 18.12.2017, the application submitted by the Petitioner could not be considered expeditiously as there are some delay in submitting the requisite documents. By the time the application submitted by the petitioner was taken up for consideration OCS (RA) Rules, 2020 was in force. Accordingly, the Opposite Parties have no other alternative to consider such application under the OCS (RA) Rules, 2020. Furthermore, in view of the rule 6 (9), all pending applications are to be considered under the new rules of the year, 2020. Accordingly, it was submitted by learned Additional Government Advocate that the Opposite Parties have not committed any illegality in considering the application of the Petitioner for appointment under the Rehabilitation Assistance Scheme by applying the rules of the year 2020 and thereby rejecting the application of the Petitioner due to lack of // 4 // adequate points for being considered for appointment under the scheme vide letter dated 29.10.2020 under Annexure-7 to the writ application. In such view of the matter, learned Additional Government Advocate submitted that the Opposite Parties have not committed any illegality by passing order dated 29.10.2020 under Annexure-7 to the writ application. Therefore, the present writ application is devoid of merit and accordingly, the same should not be entertained. 7. Having heard the learned counsels appearing for the respective parties and on a careful examination of the materials on record as well as the factual background of the present case, this Court is of the considered view that the only issue is involved in the present writ application is with regard to the applicability of relevant rules to the application submitted by the Petitioner and after death of his father. As it appears from record that the father of the petitioner died on 18.12.2017. Thereafter, the application for appointment on compassionate ground was submitted within the stipulated time as provided in the rules of the year, 1990 as amended up to 2016. However, there was a delay in considering the application of the petitioner by the Opposite Parties. By the time the same was taken up for consideration the new rule was in place and in view of rule 6 (9) the application was considered under the provision of the 2020 rules and accordingly the same has rejected. In view of the aforesaid context, this Court would like to refer 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 // 5 // Division Bench of this Court in W.A. No.810 of 2021 decided on 25.09.2023 where in it has been specifically held that the rule that was in force at the time of death the government employee shall be taken into consideration while considering the application for appointment on compassionate ground of the legal heirs. Further, this Court while examining the validity of rule 6 (9) of the OCS (RA) Rules, 2020 by elaborating judgment in the case of Biswajit Panigrahi v. State of Odisha & others (W.P.(C) No.27484 of 2022, decided on 19.5.2023) has declared that the aforesaid provision is ultra vires of Article 14 of the Constitution of India. Thus, examining the issue involved in the present writ application in the light of law discuss hereinabove, this Court is of the considered view that the Opposite Parties have committed illegality by rejecting the application of the Petitioner under the OCS (RA) Rules, 2020. 8. In view of the aforesaid analysis the fact as well as law, this Court has no hesitation in quashing the impugned rejection order dated 29.10.2020 under Annexure-7 and the same is hereby quashed. Further, the matter is remanded back to the Opposite Party No.3 to consider the matter afresh by taking into consideration the judgments referred to hereinabove. Accordingly, the Opposite Party No.3 shall make an every endeavour to find out as to whether the Petitioner is eligible under the OCS (RA) Rules, 1990 and keeping in view the education qualification of the petitioner, the post is suitable to the petitioner’s application be searched and the petitioner be considered for appointment against such post. While considering the application of the Petitioner the Opposite party No.3 shall also take into consideration the judgment of the Hon’ble Supreme Court in the case of State of West Bengal-v.-Debabrata Tiwari reported in (2023 (3) // 6 // SCALE-557. Let the aforesaid exercise be carried out within a period of eight weeks from the date of communication of a certified copy of this order by the petitioner. The final decision so taken 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. Anil ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 04-Dec-2023 11:14:25