The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.6217 of 2024 Rakesh Kumar Sethi ..... Petitioner Represented By Adv. - Dr.purusottam Chuli -versus- State Of Odisha and another ..... Opposite Parties
Legal Reasoning
Represented By Adv. – Mr. Saswat Das, AGA CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
Decision
ORDER 25.04.2024 This matter is taken up through hybrid mode. Heard learned counsel for the Petitioner as well as learned Order No. 02. 1. 2. counsel 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 Petitioner with the following prayers:- “Under the above circumstances it is, therefore, humbly prayed this Hon’ble Court may graciously be pleased to: that i. Declare that Rule 6 (9) of the Odisha Civil Service (Rehabilitation Assistance) Rules, 2020 under Annexure-5 will operate prospectively and will not affect the right of the petitioner in view of the judgments passed by the Supreme Court of India in the State of Madhya Pradesh & ors. Versus Ashish Awasthi, 2021 (II) OLR (SC)-1072 and Page 1 of 5. Malayananda Sethy Vrs. State of Odisha and Others, 2022 (II) OLR (SC)-1, which have held that the policy prevalent at the time of death of the deceased employee is only to be considered and not the subsequent policy Quash the order dated 06.09.2022 issued by opp. party No.2-Director of Printing, Stationery and Publication, Odisha under Annexure-4, arbitrarily making the petitioner ineligible for appointment under the Odisha (Rehabilitation Assistance) Civil Service the Rules, 2020 and not considering for appointment petitioner’s application under Service Odisha the (Rehabilitation Assistance) Rules, 1990 under Annexure-3 series as the petitioner’s father Late Kailash Chandra Sethi died in harness on 18.04.2018; Civil Issue writ of mandamus or any other appropriate writ(s)/direction(s)/order(s) directing the opp. party No.2- Director of Printing, Stationery and Publication, Odisha to appoint the petitioner in the post of Helper in the Directorate, Printing, Stationery and Publication, Odisha, Madhupatna, Cuttack under Service (Rehabilitation Assistance) Rules, 1990 as the petitioner’s father Late Kailash Chandra Sethi died in harness on 18.04.2018. Orissa Civil the Issue further direction(s)/order(s) directing the opp. parties, particularly opp. party No.1 and 2, to calculate the differential arrear salary and pay the same to the petitioner within a stipulated period as deemed fit and proper by this Hon’ble Court; Pass such other order/ orders as this Hon’ble Court deems fit and proper to give complete relief to the petitioner.” ii. iii. iv. v. 4. It is submitted by learned counsel for the Petitioner that the father of the present Petitioner namely Late Kailash Chandra Sethi, was Page 2 of 5. working as a Senior Machine Man under the Opposite Party No.2, Director of Printing, Stationery and Publication, Odisha. While working as such the deceased Govt. employee died in harness on 18.04.2018 leaving behind his legal heirs including the present Petitioner. The present Petitioner with the consent of other legal heirs submitted an application within the limitation period prescribed under the applicable rules i.e., OCS (RA) Rule, 1990 for appointment on compassionate ground on 23.06.2019. Learned counsel for the Petitioner further contended that such application was deliberately kept pending and in the meantime the new Rule of the year 2020 was notified by the GA and PG Department vide notification dated 17.02.2020. Finally after keeping the matter pending for several years, the Opposite Party No.2 vide order dated 06.09.2022 has rejected the application of the Petitioner by considering such application under the OCS (RA) Rules, 2020. Being aggrieved by such conduct of Opposite Party No.2, the Petitioner has approached this Court by filing the present writ application 5. In course of his argument, learned counsel for the Petitioner referred to the judgment of the Hon’ble Supreme Court in the case of Malaya Nanda Sethy v. State of Orissa and others: reported in 2022(II) OLR(SC)-1 and State of West Bengal v. Debabrata Tiwari 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 v. State of Odisha & others by a Division Bench of this Court in W.P.(C) No.2081 of 2021 decided on 16.03.2021 as well as Bindusagar Samantaray v. State of Odisha and others by a Division Bench of this Court in W.A. No.810 of 2021 decided on 25.09.2023 and submitted before this Court that taking into consideration the date of death of Page 3 of 5. deceased government employee and the initial application of the Petitioner which was submitted in the year 2019, the case of the Petitioner should have been considered under the OCS (RA) Rules, 1990. 6. Learned counsel for the State on the other hand contended that in view of the provisions contained in OCS (RA) Rule, 2020, especially Rule 6 (9), all pending applications were considered under the new Rules. He further contended that since the Petitioner has secured 44 marks which is less than the marks required for appointment under the 2020 Rules, the case of the Petitioner has been rightly rejected by the Opposite Parties. Therefore, the Opposite Parties have not committed any illegality in rejecting the application of the Petitioner. It was further contended that, in view of the judgment of the Hon’ble Supreme Court in Debabrata Tiwari’s case (supra), while considering such application for compassionate appointment, the distressful condition of the family is to be taken into consideration. Accordingly, it was submitted that the Opposite Parties have rightly rejected the application of the Petitioner and as such the writ application is devoid of merit and the same is liable to be dismissed. 7. Having heard the learned counsels appearing for the respective parties, on a careful examination of the background facts as well as materials on record, this Court observes that there is no dispute with regard to the factual position involved in the present writ application, the only issue that is required to be adjudicated in the present writ application is with regard to the applicability of the Rules to the facts of the present case. In the aforesaid context, this Court is of the view that the issue is no more res-integra in light of the case of Biswajit Swain v. State of Odiha and others as well as in the case of Suchitra Bal v. State of Odisha and others by a Division Bench of this Court, Page 4 of 5. this Court has categorically held since the death has occurred and the application was submitted prior to the new Rule came into force, such application is to be considered under the OCS (RA) Rules, 1990. Further, in Biswajit Swain v. State of Odiha and others, this Bench after taking into consideration all aspects has come to a conclusion that the Rule 6 (9) of the OCS (RA) Rules, 2020 is ultra vires to Article 14 of the Constitution of India. In such view of the matter, this Court is of the view that the impugned rejection order under Annexure-4 to the writ application is unsustainable in law. Accordingly, the same is set aside. Further the matter is remanded back to the Opposite Party No.2 to consider the matter afresh by taking into consideration the aforesaid judgments referred to hereinabove as well as the judgment in State of West Bengal v. Debabrata Tiwari and to dispose of the grievance of the Petitioner by passing a speaking and reasoned order within a period of two months 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 ten days from the date of taking such decision. 8. With the aforesaid observation/direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. ( A.K. Mohapatra ) Judge S.K. Rout Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Apr-2024 21:02:13 Page 5 of 5.