Karna Naik v. State of Odisha & another
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) No.675 OF 2016 Karna Naik ..… Petitioner Vs. State of Odisha & another ….. Opposite Parties For Petitioner : Mr. S.K. Dalai, Advocate For Opposite Parties : Mr. S.N. Pattanaik, AGA CORAM: JUSTICE SANJAY KUMAR MISHRA ________________________________________________________________ Date of Hearing and Judgment: 17.05.2023 ________________________________________________________________ S.K. Mishra, J. Though this matter was heard at length on 11.05.2023, it was ordered to be listed today under the heading ‘To be Mentioned’ directing the learned Counsel for the State to produce the decisions of the State Government, based on which letters appended to the Counter Affidavit filed by the State as Annexures A/1 and B/1 were issued. Today, in response to the said order, learned Counsel for the State produces the letter dated 17.05.2023 of the Under Secretary to Government, Housing & Urban Development Department, Government of Odisha along with Finance Department Memorandum dated 26.09.2011 after serving copy of the same on the learned Counsel for the Petitioner. The matter is taken up for final disposal, on consent of the learned Counsel for the parties. 2. Petitioner has filed this Writ Petition with a prayer to quash the Order dated 30.07.2015, passed by the Opposite Party No.2- Cuttack Municipal Corporation (CMC), Cuttack, wherein his representation for appointment under the Rehabilitation Assistance Scheme (RAS) has been rejected. The ground of challenge is, the said rejection order is illegal, arbitrary and contrary to the provisions of Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 (hereinafter referred to as ‘1990 Rules’ for brevity) 3. Brief facts of the case, in nutshell, are that the Petitioner is the son of late Purna Naik, who was working as Sweeper in CMC. After death of his father, he applied for appointment under the RAS to the Commissioner-Cum-Executive Officer, CMC, Cuttack under Rule-9(7) of the 1990 Rules with all required documents, he being the son of deceased Purna Naik. He also gave an undertaking that he will maintain the lively hood of family members and is living with them jointly. As the Petitioner’s W.P.(C) No.675 of 2016 Page 2 of 18 application was not considered by the CMC for appointment under RSA, he approached the Opposite Party No.1 by giving a representation to the said effect as he was eligible for appointment in terms of the 1990 Rules and waited for consideration of his representation. Because of inaction of the Authority concerned, the Petitioner was constrained to approach this Court in W.P.(C)
Decision
No.9221 of 2015, which was disposed of at the stage of admission on 15.05.2015 directing Opposite Party No.2 to consider and dispose of the representation of the Petitioner within a period of three months from the date of communication of the said order. Being so directed, the Opposite Party No.2-CMC, vide Order dated 30.07.2015, instead of referring the matter to the State Government for according necessary approval, rejected the representation of the Petitioner relying on the communications made by the Government in H & U.D. Department vide letter dated 17.06.2015, so also letter dated 08.06.2015. However, while rejecting the said representation of the Petitioner, it was intimated to him that, on his request, subject to readiness to work as Sweeper, his name can be sponsored by any outsourcing Agency. Accordingly, the Deputy Commissioner, CMC, Cuttack was W.P.(C) No.675 of 2016 Page 3 of 18 directed to forward the application of the Petitioner to the outsourcing Agency to consider his case as per eligibility and norms of the concerned Agency. Being aggrieved by such rejection Order dated 30.07.2015, the present Writ Petition has been preferred with a prayer to quash the said order, being contrary to the provision of 1990 Rules. 4. Being noticed, the Opposite Party No.2-CMC has filed Counter Affidavit stating therein that father of the Petitioner, namely, Purna Naik was working as Sweeper, who died on 04.09.2001 while in service. Thereafter, the Petitioner submitted a representation on 11.10.2001 to the CMC with recommendation of Cuttack Mehentar Sangha on the body of the said representation, praying for appointment against the post, in which his father was performing his duty. It has further been stated that the Petitioner did not submit any application in the prescribed form for appointment under the RAS, as required in terms of the 1990 Rules. That apart, a stand has been taken by the CMC that at the relevant time, the Government in H & U.D. Department in similar cases, for which proposal for appointment under the RAS were sent, rejected the said proposals of CMC on the ground that Government decided to outsource the job of Sweepers (Group-D) W.P.(C) No.675 of 2016 Page 4 of 18 in Urban Local Bodies. However, as there is a reference to the decision of the Government in the Counter of CMC, on being directed, an Affidavit was filed by the CMC on 16.01.2023, enclosing thereto earlier communications dated 08.06.2015 and 17.06.2015 made by the Under Secretary to Government, Housing & Urban Development Department to the Municipal Commissioner, CMC with regard to appointment under the RAS. 5. A Counter Affidavit has also been filed by the State-O.P. No.1 taking a similar stand and enclosing thereto the said communications, as has been appended to the Affidavit filed by the CMC dated 16.01.2023. In the said Affidavit, as there is a reference to the Government decision, this Court, vide Order dated 11.05.2023, directed the learned Counsel for the State to produce those decisions of the State Government, based on which letters appended to the Counter Affidavit as Annexures A/1 and B/1 were issued. 6. As has been detailed above, pursuant to the said Order, photocopy of the letter dated 17.05.2023 of the Under Secretary to Government, addressed to the Advocate General, along with a copy of the Office Memorandum dated 26.09.2011 of the W.P.(C) No.675 of 2016 Page 5 of 18 Government of Orissa, Finance Department i.e. Guidelines for outsourcing of services, has been filed today before this Court. 7. Mr. Dalai, learned Counsel for the Petitioner, referring to the said documents, submits that the said Office Memorandum is pertaining to regulating conditions meant for engaging outsourcing Agency and is not applicable to the cases under the 1990 Rules. No where under the said Office Memorandum, it has been specifically mentioned as to creating any bar opposing to RAS appointment under the 1990 Rules. That apart, Mr. Dalai, relying on the judgment of the apex Court in Malaya Nanda Sethy vs. State of Orissa, reported in AIR 2022 (SC) 2836, submits that the Petitioner-applicant applied under the RAS in the year 2011 whereas, the said rejection orders appended to the Counter Affidavit as Annexures A/1 and B/1, based on which the Petitioner’s application was rejected are of the year 2015 and were not in existence. He further submits, the said communications have been made to CMC misinterpreting the Office Memorandum dated 26.09.2011 of the Finance Department, where there is no such stipulation as to debarring the authority to consider the case of an applicant for appointment under the RAS in terms of 1990 Rules in the post of Sweeper or in a Group-D post. Rather, the W.P.(C) No.675 of 2016 Page 6 of 18 said Office Memorandum is with regard to guidelines for engagement of service providers for outsourcing of services in Group-D posts and procedure to be followed before such engagement. He further relies on a recent judgment passed by a coordinate Bench in Roshan Kerketta vs. State of Odisha and others (W.P.(C) No.11105 of 2021, decided on 13.01.2023) and submits that the case of the Petitioner was kept pending for years together and only on intervention of this Court, Petitioner’s representation was rejected by the CMC hastily, instead of referring the matter to the State Government seeking approval for appointment under the RAS in terms of the 1990 Rules, which was in vogue then. Referring to the impugned Order, Mr. Dalai further submits that the Petitioner was never communicated by the CMC authority that he has not submitted his application in the prescribed form, though the Authority concerned could have asked the Petitioner to apply in the prescribed form instead of keeping the Petitioner’s application pending till a direction was given by this Court for disposal of the representation of the Petitioner. He further submits, the new Rule i.e. OCS (RA) Rules, 2020, though is not applicable to the Petitioner, in terms of the said Rules, only a person can be appointed under the said Scheme W.P.(C) No.675 of 2016 Page 7 of 18 in a Group-D post. He further submits, the stand of the Opposite Parties that Government have decided to outsource the job of Sweepers (Group-D) in Urban Local Bodies and rejection of the application of the Petitioner on that score along deserves interference of this Court, the said rejection order being contrary to the statutory Rules, 1990. The impugned Order of rejection dated 30.07.2015 is per se illegal, arbitrary and production of non-application of mind and the Authority concerned acted in an illegal manner to rejection the representation of the Petitioner. Mr. Dalai submits that as per instruction received from his client, the Petitioner never approached the Commissioner requesting or agreeing for his engagement through service provider. Rather, the Commissioner on his own asked the Petitioner to accept the said offer and indicated accordingly in the impugned Order, as if his client had requested for such arrangement. As the said offer was not applicable to the Petitioner, he has rightly preferred the present Writ Petition. 8. Mr. Pattanaik, learned Counsel for the State reiterating the stand taken in the Counter Affidavit submits that the Opposite Party No.2 was justified to reject the application of the Petitioner in view of the earlier communications made to it by the State- W.P.(C) No.675 of 2016 Page 8 of 18 Opposite Party No.1 pertaining to other similarly placed applicants, who had applied for appointment under the RAS in Group-D post. However, Mr. Pattanaik fairly admits before this Court that before rejection of the application of the Petitioner, the CMC Authority did not refer the case of the Petitioner to the State Government seeking any kind of clarification or approval for consideration of his case for appointment under RAS in terms of 1990 Rules. 9. When the matter was heard on 11.05.2023, the learned Counsel for the CMC was absent. Today also the learned Counsel for the CMC is absent. However, it is pertinent to mention that as a similar stand has been taken in the Counter Affidavit filed by the CMC, as has been taken by the State-Opposite Party No.1, this matter being of the year 2019 pertaining to appointment under the RAS is taken up for final disposal, in absence of the Counsel for CMC. 10. Admittedly, the father of the Petitioner died on 04.09.2001 and immediately thereafter, the Petitioner applied for appointment under the 1990 Rules along with all the documents and same was duly recommended by the Cuttack Mehentar Sangha, a Registered Trade Union, of which the father of the Petitioner was a member. W.P.(C) No.675 of 2016 Page 9 of 18 The said application was kept pending till 30.07.2015. Only on being directed by this Court, the said application was dealt with and rejected relying on communications made by the Government to CMC with regard to some other applicants and no clarification and approval were sought for, so far as Petitioner’s case is concerned. 11. Though a stand has been taken by the Opposite Party No.2- CMC that the Petitioner did not apply in the prescribed form for consideration of his case for appointment under the RAS in terms of 1990 Rules, admittedly till rejection of his application on 30.07.2015, he was never communicated by the CMC advising him to resubmit his application in the prescribed form or rejection his application on the said ground. Rather, only after being directed by this Court, mechanically his application for appointment under the RAS was rejected on 30.07.2015 on the ground of some earlier communications made by the State Authority pertaining to some other applicants. 12. The text of the letter dated 17.05.2023 of the Under Secretary to Government, Housing & Urban Development Department, addressed to the Office of the learned Advocate General, so also the relevant portion of Office Memorandum dated W.P.(C) No.675 of 2016 Page 10 of 18 26.09.2011, based on which the earlier communications were made to the Opposite Party No.2-CMC, rejecting the application of similarly placed applicants for consideration of their cases in terms of 1990 Rules, are reproduced below. “File No.:HUD-MUN-CASEOP-0074-2022 /Letter No.: 10053 Date 17.05.2023 From Prashanta Kumar Mahapatra, Under Secretary to Govt. To Mr. Surya Narayan Pattnaik, AGA O/o the Advocate General, Odisha, Cuttack. Sub: Information in connection with W.P.(C) No.675/ 2016 (Karna Naik vs. State of Odisha and others), pursuant to the query made by the Hon’ble Court in course of hearing on 12.05.2023. Sir, In inviting a reference to the subject cited above, I am directed to inform you good-self that the procedure adopted by Housing & Urban Development Department for engagement of Group-D posts on outsourcing basis is being carried out by following the Govt. of Odisha, Finance Dept. Office Memorandum No.42284/F dt.26.09.2011 in which under the heading Outsourcing of Services (ii) it has been clearly indicated that “The services to be outsourced may include routine jobs like cleaning and sweeping of the premises, watch & ward, horticultural services, maintenance of buildings, transport services, courier communication services, technology related services, highly professional and technical services etc. which is illustrative but not exhaustive. Other kinds of services may also be housekeeping information work, and W.P.(C) No.675 of 2016 Page 11 of 18 outsourced in case of the need for economy and efficiency in provision of services.” A copy of the Finance Dept. Office Memorandum No.42284/F dt.26.09.2011 is enclosed for kind reference. This is for your kind information to appraise the Hon’ble Court, when the matter would be taken up. Yours faithfully, Sd/- Under Secretary to Govt.” “ GOVERNMENT OF ORISSA FINANCE DEPARTMENT No.42284/F Date 26.09.2011 Codes-27/11 OFFICE MEMORANDUM Subject: Guidelines for outsourcing of services. In order to reduce operating cost and provide more effective delivery of public services a number of auxiliary and support services are now being outsourced by the State Government and its various agencies. Pending revision of Orissa General Financial Rules on the lines of General Financial Rules-2005, there is a need to outline the basic policy framework for outsourcing of services. Outsourcing of Services: (i) Authority competent to outsource services: The competent authority i.e. Administrative Departments and Heads of Departments may allow outsourcing certain services in the interest of economy and efficiency. precedent (ii) Conditions outsourcing: Outsourcing of services may be resorted to if adequate man-power is not available in the Organization for providing the required services. The services to be outsourced may include routine jobs like cleaning and to W.P.(C) No.675 of 2016 Page 12 of 18 sweeping of the premises, watch and ward, horticultural work, housekeeping services, maintenance of buildings, transport services, courier services, information and technology related services, highly communication professional and technical services etc. which is illustrative but not exhaustive. Other kinds of services may also be outsourced in case of the need for economy and efficiency in provision of services. (iii) Identification of the service to be outsourced: The identification of the service to be outsourced is to be finalised by the Administrative Department and Head of Department in respect of its own Office or any attached or subordinate Office (s). xxx xxx xxx” (Emphasis supplied) From the said Office Memorandum dated 26.09.2011, it is amply clear that a detailed guidelines have been prescribed by the Finance Department in order to reduce the operating cost and provide more effective delivery of public services through various agencies and for such outsourcing, one of the condition precedent is, if adequate man-power is not available in the Organization for providing the required services, then only the services are to be outsourced, including routine jobs like cleaning, sweeping of the premises, watch & ward, horticultural work, housekeeping services, maintenance of buildings, transport services etc. and there is no such restriction under the said Office Memorandum as to considering case of an applicant in terms of 1990 Rules, for his or her appointment under the RAS. W.P.(C) No.675 of 2016 Page 13 of 18 13. It may not be out of place to mention that in Malaya Nanda Sethy (supra), the Apex Court, vide Paragraphs 7 and 9, observed as follows: a of on on the the part delay inaction “7. Thus, from the aforesaid, it can be seen that there was no fault and/or delay and/or negligence on the part of the appellant at all. He was fulfilling all the conditions for appointment on compassionate grounds under the 1990 Rules. For no reason, his application was kept pending and/or no order was passed on one ground or the other. Therefore, when there was no fault and/or delay on the part of the appellant and all throughout there was the department/authorities, the appellant should not be made to suffer. Not appointing the appellant under the 1990 Rules would be giving a premium to the delay and/or the department/authorities. There was an absolute the department/ callousness on authorities. The facts are conspicuous and manifest the grave delay in entertaining the application submitted by the appellant in seeking employment which the department/authorities. In fact, the appellant has been deprived of seeking compassionate appointment, which he was otherwise entitled to under the 1990 Rules. The appellant has become a victim of the delay and/or inaction on the part of the department/authorities which may be deliberate or for reasons best known to the authorities concerned. Therefore, in the peculiar facts and circumstances of the case, keeping the larger question open and aside, as observed hereinabove, we are of the opinion that the appellant herein shall not be denied appointment under the 1990 Rules.” the part of indisputably attributable part to of is “9. Before parting with the present order, we are constrained to observe that considering the object and purpose of appointment on compassionate grounds, i.e., a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service and the basis or policy is immediacy in rendering of financial assistance to the family of the deceased consequent W.P.(C) No.675 of 2016 Page 14 of 18 and decide upon his untimely death, the authorities must for consider appointment on compassionate grounds as per the policy prevalent, at the earliest, but not beyond a period of six months from the date of submission of such completed applications. applications such We are constrained to direct as above as we have found that in several cases, applications for appointment on compassionate grounds are not attended in time and are kept pending for years together. As a result, the applicants in several cases have to approach the concerned High Courts seeking a writ of Mandamus for the consideration of their applications. Even after such a direction is issued, frivolous or vexatious reasons are given for rejecting the applications. Once again, the applicants have to challenge the order of rejection before the High Court which leads to pendency of litigation and passage of time, leaving the family of the employee who died in harness in the lurch and in financial difficulty. Further, for reasons best known to the authorities and on irrelevant considerations, applications made for compassionate appointment are rejected. After several years or are not considered at all as in the instant case. If the object and purpose of appointment on compassionate grounds as envisaged under the relevant policies or the rules have to be achieved then it is just and necessary that such applications are considered well in time and not in a tardy way. We have come across cases where for nearly two decades the controversy regarding the application made for is not resolved. This compassionate appointment consequently leads to the frustration of the very policy of granting compassionate appointment on the death of the employee while in service. We have, therefore, directed that such applications must be considered at an earliest point of time. The consideration must be fair, reasonable and based on relevant consideration. The application cannot be rejected on the basis of frivolous and for reasons extraneous to the facts of the case. Then and then only the object and purpose of appointment on compassionate grounds can be achieved.” W.P.(C) No.675 of 2016 (Emphasis supplied) Page 15 of 18 14. Similarly, one of the coordinate Bench, relying on the case of Malaya Nanda Sethy (supra), in Roshan Kerketta vs. State of Odisha and Others, (W.P.(C) No.11105 of 2021, decided on 13.01.2023), at Paragraph-20, held as follows: “ 20. Reverting back to the issue involved in the present writ petition, this Court after careful analysis of the legal position, is of the considered view that though there exists rule in shape of Rule-6(9) in the Rules, 2020 to consider all pending applications under the new Rules, 2020, the case of the Petitioner is peculiar and stands in a different footing. In the context of the present case, this Court would like to refer to the judgment of the Hon’ble Supreme Court in the matter of Malaya Nanda Sehty vs. State of Odisha and others, reported in AIR 2022 SC 2836 wherein the Hon’ble Apex Court while considering the peculiar facts and circumstances of the case presented before it for adjudication, decided that the rule prevalent at the time of death of the deceased employee shall be applicable to the claim made by the dependent family members. After going through the judgment in the case of Malaya Nanda Sethy (supra), this Court observed that the said case was decided in the background of OCS Rehabilitation Rules of the State of Odisha and the facts of that case are somewhat similar to the facts of the present case.” 15. Admittedly, the Opposite Party No.2-CMC was negligent to consider the case of the Petitioner for his appointment under the RAS and it was also not justified to reject the representation of the Petitioner relying on the communications made to it by the State-Opposite Party No.1 dated 08.06.2015 and 17.06.2015 on the plea of decision of the Finance Department to outsource the job of Sweepers in Urban Local Bodies when actually there is no W.P.(C) No.675 of 2016 Page 16 of 18 such restriction vide the said Memorandum of the Finance Department dated 26.09.2011, as has been quoted above. That apart, the said Memorandum cannot override the statutory Rules, 1990 for appointment under the RAS. 16. Hence, this Court is of the view that the impugned rejection Order dated 30.07.2015 is illegal, unjustified and deserves to be quashed. Accordingly, impugned Order dated 30.07.2015, as at Annexure-3, is hereby set aside, being unsustainable in the eye of law. 17. Since one of the reason assigned in the impugned Order that the Petitioner never applied in prescribed form but before rejecting his representation of the year 2011, in the year 2015 the Authority concerned never made any communication to the said effect, the Petitioner is at liberty to file a fresh application in the prescribed form with relevant documents, along with certified copy of this judgment within four weeks hence, enabling the Authority concerned to do the needful for consideration of his case in terms of the 1990 Rules. 18. On submission of such application, the Opposite Parties are directed to consider the case of the Petitioner for appointment under the RAS in terms of the 1990 Rules and take a decision W.P.(C) No.675 of 2016 Page 17 of 18 thereon within a period of three months from the date of production of certified copy of the judgment, so also application, as observed above. In the event the Petitioner is found eligible, he may be appointed within the stipulated period, as directed above. 19. With the aforesaid direction, the Writ Petition stands disposed of. However, there shall be no order as to cost. JUDGE (S.K. MISHRA) Orissa High Court, Cuttack Dated, 17th May, 2023/Padma Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Secretary In-Charge Reason: Authentication Location: ORISSA HIGH COURT Date: 23-May-2023 12:02:55 W.P.(C) No.675 of 2016 Page 18 of 18