The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5500 of 2024 Balakrushna Bhanja State of Odisha and others -versus- …. Petitioner Mr.C.R.Lenka, Advocate …. Opp. Parties Mr. D.Mohapatra, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 12.03.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioner as well as learned Additional Standing Counsel appearing for the State-Opposite Parties. Perused the writ petition as well as documents annexed in the Writ Petition. 3. The present Writ Petition has been filed by the Petitioner with the following prayer : “The petitioner, therefore, humbly prays that this Hon'ble Court may graciously be pleased to admit this writ petition, issue direction(s) or writ(s) of mandamus directing the opposite parties for to consider appointment under Rehabilitation Assistance Scheme as per the OCS (RA) Scheme, 2020. the application And may pass such other order(s)/direction(s), issue writ(s) as this Hon'ble Court deems just and proper as circumstances justify in favour of the petitioner;” 4. It is submitted by learned counsel for the Petitioner that the father of the Petitioner while working as an Attendant in C.H.C., Boipariguda died in harness on 10.07.2008 leaving behind his wife and two sons included the present Petitioner as the surviving legal heirs. After the // 2 // death of the deceased government employee, the elder brother of the present Petitioner had applied for appointment on compassionate ground in the year 2011. Such application was kept pending. Finally, on 11.05.2023 vide under Annexure-3, the application of the brother of the Petitioner, namely, Pramod Kumar Bhanja, was rejected by referring to a letter of the Health & Family Welfare Dept., Govt. of Odisha dated 01.12.2016 wherein the application of the Petitioner has been rejected for appointment under R.A. Scheme on the ground that wife of the deceased Govt. employee was not invalid at the time of death. Thereafter, the present Petitioner was submitted an application to consider the case for appointment on compassionate ground. However, no final decision has been taken on such application submitted by the Petitioner. Being aggrieved by such order the Petitioner has approached this Court by filing the present writ application. 5. Learned Additional Standing Counsel on the other hand contended that the case of the Petitioner was considered by the Health & Family Welfare Dept., Govt. of Odisha vide their letter No.25442/H, dtd. 01.12.2016, the application of the elder brother of the Petitioner has been rejected on the ground that mother of the Petitioner was available and he was not invalid at the time of death deceased government employee. In such view of the matter, learned Additional Standing Counsel submitted that the present writ application which is younger brother does not fall within the preferential list as provided under the Rule 2 (b) of the OCS (RA) Rules, 1990. In such view of matter, the application submitted by the Petitioner is devoid of merit and accordingly, the writ application should not be entertained at this stage. 6. In reply to the contention raised by learned Additional Standing Counsel, learned counsel for the Petitioner submitted that the wife of the deceased government employee was never summoned for any // 3 // medical examination by the authority. The authorities have proceeded in the matter by assuming that the wife of the deceased government employee was medically fit to perform such duties. In such view of the matter, learned counsel for the Petitioner submitted that the procedure as prescribed under the OCS (RA) 1990 Rules has not been followed in the present case. 7. Having heard the learned counsels appearing for the parties and on a careful examination of the background facts as well as materials on record, this Court is of the considered view that there is nothing on record to come to a conclusion that the wife of the deceased government employee was unfit at the time of consideration of such application either the elder brother or the present Petitioner. Therefore, the authorities should have summoned the wife of the deceased government employee for medical examination to find out her fitness for any government job while giving effect to the provision contained in Rule 2(b) of the OCS (RA) Rules, 1990. Such procedure have not been followed, the entire process followed in the case of the Petitioner has been vitiated. 8. In such view of the matter, this Court deems it proper to dispose of the writ application at the stage of admission by directing the Opposite Party No.3 to convene the examination the health condition of the wife of the deceased government employee. In the event it is found that the wife of the deceased government is unfit for any government job then by following the preferential list as provided in the rules the next eligible legal heir be called for and his application be considered for appointment on compassionate ground by following OCS (RA) Rules, 1990 keeping in view the judgment of the Hon’ble Supreme Court in the case of Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1 and State of West Bengal- // 4 // v.-Debabrata Tiwri passed in Civil Appeal No.8842 of 2022 decided on 3rd of March, 2023 reported in (2023 (3) SCALE-557 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 Division Bench of this Court in W.A. No.810 of 2021 decided on 25.09.2023. Further, it is directed that on production of a certified copy of this order by the petitioner within a period of three weeks from today, the Opposite Party No.3 shall do well to consider the matter afresh without being influenced by any earlier decision and further he shall consider the case of the Petitioner on any of the family members of the deceased govt. employees strictly in terms of the OCS (RA) Rules, 1990 by during regard to the observations made hereinabove within a period of eight weeks from the date of communication of a certified copy of this order. The final decision so taken by the Opposite Party No.3 be communicated to the petitioner within a period of two weeks from the date of taking such final decision. 9. With the aforesaid observation/direction, the writ petition is disposed of. 10. 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 Reason: Authentication Location: High Court of Orissa Date: 14-Mar-2024 21:16:22