The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.7651 of 2023 Partha Sarathi Sarangi …. Petitioner Mr. A.K. Panda, Advocate -versus- State of Odisha and others …. Opposite Parties Mr. Nikhil Pratap, A.S.C. JUSTICE A.K. MOHAPATRA CORAM: Order No.
Decision
ORDER 30.11.2023 02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. Heard the learned counsel for the Petitioner as well as learned Additional Government Advocate appearing for the State-Opposite Parties. Perused the pleadings of the parties as well as the documents annexed thereto. 3. The present writ petition has been filed by the Petitioner with a prayer to quash the order dated 27.02.2023 passed by the Opposite Party No.2 under Annexure-5 to the writ petition and further for a direction to the Opposite Parties to provide suitable appointment to the Petitioner under the Rehabilitation Assistance Scheme with immediate effect. 4. It is submitted by the learned counsel for the Petitioner that the father of the Petitioner was initially engaged as a DLR Khalasi on 01.05.1989. While working as such, the father of the Petitioner was // 2 // brought over to the work-charged establishment on 28.02.2011. While working as a work charged employee, the father of the Petitioner died in harness on 10.10.2015. After the death of the Government employee, the present Petitioner as a son and a legal heir of the deceased Government employee submitted an application for appointment under the R.A. Scheme initially on 17.02.2016. The application submitted by the Petitioner was kept pending for more than 5 years. Finally, vide order dated 24.12.2021, the Opposite Parties rejected the application for appointment on compassionate ground by applying the new rules of the year 2020. 5. After rejection of his application dated 17.2.2016, the Petitioner had earlier approached this Court by filing W.P.(C) No.4227 of 2022 for quashing of the rejection order and for a direction to reconsider his case in the light of the latest law. A coordinate Bench of this Court vide order dated 16.2.2022 passed in W.P.(C) No.4227 of 2022 was pleased to quash the impugned rejection order on 24.12.2021 with a further direction to reconsider the matter in the light of the judgments of the Hon’ble Supreme Court in State of Madhya Pradesh v. Ashish Awasthi, 2021 (II) OLR (SC) 1072; and The Secretary of Govt. Department of Education (Primary) & Ors. v. Bheemesh Alias Bheemappa (Civil Appeal No.7752 of 2021). After disposal of the earlier writ petition, the Petitioner approached the Opposite Parties. Since Opposite Parties did not implement the order dated 16.2.2022, the Petitioner was compelled to file two contempt applications bearing CONTC No.3685 of 2022, which was disposed of 24.6.2022 and CONTC No.5615 of 2022. Learned counsel for the Petitioner further contended that during pendency of the second contempt application, // 3 // the Opposite Party No.2 passed impugned rejection order dated 27.2.2023 under Annexure-5 to the writ petition. 6. Referring to the impugned rejection order dated 27.2.2023 under Annexure-5 to the writ petition, learned counsel for the Petitioner submitted that the Opposite Party No.2 has rejected the application of the Petitioner for appointment on compassionate ground by referring to Rule-6(9) of the Rules, 2020. He further contended that Rule-6(9) of 2020 Rules which provides that all pending applications are to be considered under the new rules of the year 2020. He further submitted that the impugned rejection order also reveals that the Opposite Party No.2 by referring to the judgment of the Hon’ble Supreme Court in N.C. Santosh’s case has come to a conclusion that the judgment of the Hon’ble Supreme Court in the case of Malaya Nanda Sethy vrs. State of Orissa and others [C.A. No.4103 of 2022, arising out of SLP (Civil) No.936 of 2022)] shall not be applicable to the Petitioner as the judgment in N.C. Santosh’s case has been rendered by a Bench with higher strength of the Hon’ble Supreme Court. 7. In reply to the aforesaid ground taken in the rejection order, learned counsel for the Petitioner referring to the judgment of the Hon’ble Supreme Court in Malaya Nanda Sethy’s case (supra) as well as the judgments of this Court in Suchitra Bal v. State of Odisha & Ors. (W.P.(C) No.2081 of 2021 decided on 16.03.2023); in Bindusagar Samantaray v. State of Odisha & Ors. (W.A. No.810 of 2021 decided on 25.09.2023) and in Biswajit Swain v. State of Odisha and others (W.P.(C) No.5214 of 2021 disposed of on 31.10.2023), submitted before this Court that the law by now is well settled that the law applicable at the time of death of the Government // 4 // employee is to be taken into consideration while considering the appointment of the legal heir on compassionate ground. Further, specifically referring to the judgment in Biswajit Swain’s case, it was contended before this Court that this Court had an occasion to consider the validity of the Rule-6(9) of the O.C.S. (R.A.) Rules, 2020. This Court after elaborate discussion has come to a conclusion that the aforesaid provision in the shape of Rule-6(9) of Rules, 2020 is ultra vires of Article 14 of the Constitution of India. Moreover, once the aforesaid rule was declared ultra vires, the same is to be treated as non-existence in the rule book. In view of such legal position, learned counsel for the Petitioner submitted that the impugned order dated 27.2.2023 under Annexure-5 to the writ petition is unsustainable in law. 8. Learned Additional Government Advocate appearing for the State-Opposite Parties, on the other hand, contended that the impugned rejection order was passed on 27.2.2023 pursuant to the direction of this Court. The Opposite Parties on a careful examination of the facts of the Petitioner’s case have come to a conclusion that the Petitioner is not eligible to be appointed under the O.C.S. (R.A.) Rules, 1990 in view of the provision contained in Rule-6(9) of the Rules, 2020. Learned Additional Government Advocate also raises some objection with regard to the application submitted by the Petitioner by saying that the same was not complete in all respect. Thus, the Opposite Parties have not committed any illegality in rejecting the application of the Petitioner by applying the law as was prevailing at the relevant point of time. 9. This Court on a careful consideration of the submissions made by the learned counsel appearing for the respective parties as well as // 5 // the factual background of the present case and the legal position is of the considered view that the judgment in the case of Biswajit Swain’s case (supra) was rendered much after the rejection order was passed. Therefore, the authorities had no occasion to examine the judgment of this Court in Biswajit Swain’s case as well as in Suchitra Bal’s case, which was rendered by a Division Bench of this Court. Moreover, it is now well settled that the law applicable at the time of death of the Government employee was governing the field by considering the compassionate appointment in view of the latest judgment of this Court as well as the judgment of the Hon’ble Supreme Court in Malaya Nanda Sethy’s case (supra). In such view of the matter, this Court has no hesitation to quash the impugned order dated 27.2.2023 under Annexure-5. Accordingly, the same is hereby quashed. Further the matter is remanded back to the Opposite Party No.2 to reconsider the matter afresh keeping in view the judgment referred to hereinabove and with a further direction to consider the application of the Petitioner strictly in terms of the O.C.S. (R.A.) Rules, 1990 as amended upto the year 2016 and to take a decision under the aforesaid rules within a period of two months from the date of communication of a certified of this order. The decision so taken be communicated to the Petitioner within two weeks from the date of taking such decision. 10. With the aforesaid observation and direction, the writ petition is disposed of. Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Debasis Reason: Authentication Location: OHC, CUTTACK. Date: 04-Dec-2023 12:12:28 ( A.K. Mohapatra ) Judge