The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.4745 of 2024 Rashes Nayak …. Petitioner Mr. A.B. Parida, Advocate State of Odisha and others …. Opposite Parties -versus-
Legal Reasoning
Mr. Saswat Das, AGA CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 05.03.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Mr. A.B. Parida, learned Counsel for the Petitioner and Mr. Saswat Das, learned Additional Government Advocate. 3. Perused the writ application as well as document annexures. The present writ application has been filed in the following prayer; “In view of the above facts and circumstances, it is humbly prayed that, this Honourable Court graciously be pleased to admit this writ petition and after hearing the parties issue a writ in nature of mandamus or any other appropriate writ directing to Collector, Khurda or any other opposite party to dispose of the application of petitioner regarding his appointment under Compassionate Ground as per Odisha Civil Service Rehabilitation Assistance Rules 1990 relying upon the judgment of Malayananda Sethy Vrs. State of Orissa and others reported in 2022(II) OLR (SC)-1 and give him appointment in Group-D post within the time stipulation so given by this Honourable Court, // 2 // such other order/orders, And may pass direction/directions as this Hon'ble Court deems just and proper for bonafide interest of justice.” It is submitted by learned counsel for the Petitioner that the 4. father of the Petitioner namely one Ramesh Chandra Nayak was working as a Peon (Group-D) in the office of Sub-Collector, Bhubaneswar under Collectorate Khurda. When working as such the father of the Petitioner died in harness on 20.10.2018. After the death of the deceased Government employee, the present Petitioner, who is one of the legal heirs, submitted an application for appointment on compassionate ground. Thereafter, it appears that an enquiry was conducted and a report was submitted by the Tahasildar, Balikuda on 08.06.2020 under Annexure-5 to the writ application. The learned counsel appearing for the Petitioner submits that no steps have been taken by the Opposite Parties to consider the case of the Petitioner for appointment on compassionate ground under the Rehabilitation Assistance Scheme. Being aggrieved by such inaction of the Opposite Parties, the Petitioner has approached this Court was filing the present writ application. 5. Learned Additional Government Advocate on the other hand contended that although the father of the Petitioner died in harness on 20.10.2018. However, no final decision was taken by the time the new rules of the year 2020 came into force. He further contended that in view of the Odisha Civil Services (Rehabilitation Assistance) Rules, 2020 as well as the Finance Department notification dated 17.02.2020, the Opposite Parties could not have considered the case of the Petitioner under the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990. In such view of the matter the learned // 3 // Additional Government Advocate submits that no final decision has been taken, so far the present Petitioner is concerned. He further submitted that it is also not known as to whether the Petitioner has applied under the Odisha Civil Services (Rehabilitation Assistance) Rules, 2020. In such view of the matter, learned Additional Government Advocate submitted that the Petitioner should have approached the opposite parties for redressal of grievance before approaching this Court by filing the present writ application. On such grounds it was submitted that the present writ application is devoid of merit and as such is liable to be dismissed. 6. Having heard the learned counsel appearing for the respective parties, and on a careful examination of the factual matrix of the present case as well as the materials on record, this Court observes that, so far the factual background of the case is concerned it is not disputed that the date of the death of the deceased Government employee is 20.10.2018. Thereafter, the application for appointment on compassionate ground was submitted under the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 within the time stipulation provided in the rules and the same was also forwarded to the Collector, Khurda vide letter under Annexure-2. However, the said application remain pending and no final decision was taken thereon before the new rules of the year 2020 came into force. At this juncture, this Court would like to refer to various judgments of this Court as well as the Hon’ble Supreme Court in State of West Bengal-v.-Debabrata Tiwri reported in (2023 (3) SCALE- 557,Suchitra Bal v. State of Odisha and others in W.P.(C) No.2081 of 2021 & batch decided on 27.06.2023 and State of Odisha and others vs. Bindu Sagar Samantaray in W.A.No.810 of 2021. Furthermore, the Hon’ble Supreme Court in Malayananda Sethy v. // 4 // State of Orissa reported in 2022(II) OLR(SC)-1 has held that in a case where the death of the Government employee is prior to the date when the new rules came into force and the application for appointment on compassionate ground has already been submitted before such date, and due to the inaction of the opposite parties such application has not been considered, then such application has to be considered under the provisions of the old rules i.e., Orissa Civil Service (Rehabilitation Assistance) Rules, 1990. Moreover, the Rule 6 (9) of the Odisha Civil Services (Rehabilitation Assistance) Rules, 2020, which provided for all pending applications to be considered under the new rules, has been held ultra vires to Article 14 & 16 of the Constitution of India in Biswajit Swain v. State of Odisha and ors. in W.P.(C) No.5214 of 2021. 7. In view of the aforesaid settled legal position of law, this Court is deems it proper to dispose of the writ application at the stage of admission by directing the Opposite Party No.2 to consider the application of the Petitioner for appointment on compassionate ground under the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 within a period of two months from the date of communication of a certified copy of the order by the Petitioner. The final decision so taken be communicated to the Petitioner within two weeks from the date of taking such decision. 8. With aforesaid observation and direction, the writ application is disposed of. ( A.K. Mohapatra ) Judge S.K. Rout Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Mar-2024 17:42:52