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IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.7544 of 2024 1) Arati Sandha ..... Petitioner Represented By Adv. - Biren Sankar Tripathy -versus- 1) State Of Odisha ..... Opposite Parties 2) Director Of Land Records And Settlement, Board Of Revenue 3) The Settlement Officer, Balasore-mayurbhanj Major Settlement 4) The Asst. Settlement Officer (sadar) , Balasore Mayurbhanj Major Settlement Represented By Adv. – S.Das, A.G.A. THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA CORAM: Order No. ORDER 03.04.2024 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 Government Advocate appearing for the State-Opposite
Decision
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, most respectfully prays that your Lordships may graciously be pleased to admit this writ application, call for the records and issue rule Nisi to the OPs to show cause as to why the impugned order dtd.21.02.24 under annexure-14 shall not be quashed and further why they shall not be directed to consider the case of the petitioner to provide her an employment under the Rehabilitation Assistance Scheme; And on their failing to show cause or showing insufficient cause, the said rule be made absolute by issuing appropriate writ(s); And pass such further order(s) as may be deemed just and proper;” 4. It is submitted by learned counsel for the petitioner that the father of the petitioner, namely, late Panchanan Sandha who was appointed as Munsarim in the Charge Office, Balasore, died in harness on 11.04.2001, leaving behind his widow wife and two married daughters. The Petitioner is one such married daughter of the deceased govt. employee. After the death of the deceased govt. employee, the present Petitioner applied for appointment on compassionate ground initially on 09.07.2001 before the Opposite Party No.3. On 23.07.2001, the A.S.O. informed the Petitioner to submit her application in proper format which was adhered to by the Petitioner. However, such application was rejected on 14.08.2001. It further appears that vide letter dated 29.08.2001 under Annexure-5, the case of the Petitioner was recommended for appointment on compassionate ground. Earlier, the Petitioner approached the Tribunal by filing O.A. No.1837(C) of 2009. After the abolition of the Tribunal, the matter was transferred to this Court and was renumbered as WPC (OAC) No.1837 of 2009. A Coordinate Bench of this Court vide order dated 13.08.2021 disposed of the said writ application with a direction to the Opposite Parties to consider the grievance of the Petitioner in the light of the law laid down by the Hon’ble Supreme court in Canara Bank vs. M. Mahesh Kumar reported in (2015) 7 SCC 412 within a stipulated period of time. Since the order was not complied with the Petitioner was compelled to approach this Court by filing CONTC No.7668 of 2021 which was disposed of on 05.01.2022 by granting further three months time to the Opposite Parties to comply with the order. 5. While the matter stood thus, the Opposite Party No.4 again asked the Petitioner to submit a fresh application in terms of the G.A. & P.G. Dept. notification dated 07.02.2020, i.e. under the OCS (RA) Rules, 2020 vide letter dated 03.03.2022 under Annexure-10. Learned counsel for the Petitioner further contended that during the pendency of the aforesaid application for appointment on compassionate ground the Petitioner got separated from her husband by virtue of a divorce decree dated 05.09.2022 passed in C.P. Case No.90 of 2022 by the learned Judge Family Court, Balasore under Annexure-11 to the writ application. 6. Finally, vide order dated 07.10.2023 under Annexure-12 the application of the Petitioner for appointment on compassionate ground was rejected on the ground that married daughters are not included within the purview of OCS (RA) Rules, 1990. It has also been observed that in the impugned rejection order dated 07.10.2023 since the divorce decree was obtained on 05.09.2022, i.e. after the death of the deceased govt. employee, the same is not on such basis the application of the Petitioner for appointment on compassionate ground is not entertainable by the Opposite Parties as the Petitioner was not dependant on her father at the time of his death and on the relevant point of time she was residing at her husband’s house. 7. Thereafter, the Petitioner again approached this Court by filing W.P.(C) No.40212 of 2023 challenging the rejection order dated 07.10.2023 under Annexure-12. This Court on 18.12.2023 disposed of the said writ application by detailed order. This Court in its order dated 18.12.2023 by referring the judgment of this Court in Basanti Nayak vs. State of Odisha & ors. in WPC(OAC) No.2669 of 2008 disposed of on 27.10.2022 as well as the judgment of the Hon’ble Supreme Court in the case of Malaya Nanda Sethy vs. State of Orissa & ors: reported in 2022(II) OLR(SC)-1 & 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 directed the Opposite Parties to consider the case of the Petitioner afresh by setting aside the impugned rejection order under Annexure-12 to the writ application within a period of two months. After disposal of the above noted writ application, the petitioner again approached the Opposite Parties for reconsideration of his case in terms order passed by this Court on 18.12.2023 in W.P.(C) No.40212 of 2023. The Opposite Parties vide their letter dated 21.02.2024 under Annexure-14 to the writ application again rejected the application of the Petitioner for appointment on compassionate ground. While rejecting the application of the Petitioner the opposite Parties have taken a ground that the married daughter was not included within the definition of family members as provided in the OCS (RA) Rules, 1990. It has also been observed that the decree of divorce was obtained only on 05.09.2022, therefore, the application of the Petitioner on the ground that the Petitioner is a divorced daughter is not entertainable. Finally, it has been stated that the applicant was not a dependant at the time of death of her father and at that time she was residing with her husband. 8. Learned A.G.A. referring the impugned rejection order contended that married daughters were initially not included within the definition of family member as defined in Rule 2(b) of OCS (RA) Rules, 1990. Therefore, the application of the Petitioner was not considered on the ground that the Petitioner is a married daughter of the deceased govt. employee. Learned A.G.A. has fairly submitted that the position has changed in view of the judgment of the Division Bench of this Court in Khirabdi Bala Behera vs. State of Odisha in W.P.(C) No.14945 of 2015. He further contended that the status of the petitioner changed after obtaining the divorce decree on 05.09.2022. Therefore, the case of the Petitioner could not have been considered on the ground of a divorced daughter. It was also contended that admittedly the Petitioner was staying with her husband till 2006. Therefore, she was not dependant on her father at the time of the death of the deceased govt. employee. Learned A.G.A. further contended that after disposal of the earlier writ application, the Opposite Parties have disposed of the representation of the Petitioner by passing a speaking and reasoned order under Annexure-14 to the writ application. He further contended that the Opposite Parties have not committed any illegality in passing the order under Annexure-14 to the writ application. In course of his argument, it is submitted that that test which is required to be adopted by the Opposite Parties while considering the application for appointment on compassionate ground should be ‘dependency’ rather than the ‘marital status’ of the Petitioner. Since the Petitioner was not dependant on her father she is not entitled to be appointed on compassionate ground. In such view of the matter, learned A.G.A. submitted that the writ petition is devoid of merit and the same should be dismissed. 9. Having heard the learned counsels appearing for the respective parties and on careful consideration of the background facts as well as materials on record, this Court is of the opinion that there is no dispute with regard to factual aspects of the present case. Accordingly, the only dispute that requires adjudication in the present case is with regard to the interpretation of the rule. Further taking into consideration the admitted factual position that the deceased govt. employee died on 11.04.2001, the application submitted by the Petitioner on 09.07.2001 is required to be considered under the OCS (RA) Rules, 1990. Further, it is not disputed that the application was made within time stipulated in the rules of the year 1990. Moreover, in the earlier writ application, this Court had directed that the Opposite Parties to consider the case of the Petitioner in the light of the law laid down by this Court in Basanti Nayak’s case (supra). In the said case, the Coordinate bench of this Court while interpreting rule has categorically held that the married daughters are to be included within the definition of family members as has been provided under the Rule 2(b) of the 1990 Rules. The Opposite Parties, in their rejection order, although have taken note of the judgment in Basanti Nayak’s case (supra), however, they have not applied the principle laid down in the said judgment on the ground that the State-Opposite Parties have preferred a writ appeal against the said judgment. To clarify the legal position further, this Court would like to refer the judgment of the Division Bench of this Court in Khirabdi Bala Behera’s case (supra). In the aforesaid judgment of this Court, the Hon’ble Division Bench of this Court has categorically held that the married daughters cannot be discriminated against and as such they have been included within the definition of family member as provided in Rule 2(b) of OCS (RA) Rules, 1990. Therefore, there is no dispute with regard to the legal position that the married daughters are included within the definition of family members. With regard to the marital status of the present petitioner, it appears that the she got a divorce decree on 05.09.2022. Therefore, at the time of consideration of her application she was a married daughter. Her application has not been considered principally on the ground that she was residing with her husband and as such was not dependant on her father. Although, it is not disputed that she submitted an application for appointment on compassionate ground within the period of limitation as prescribed under the 1990 rules. Therefore, the opposite parties instead of rejecting the application of the Petitioner on the ground of her status, should have considered the same only on the ground of dependency. 10. This Court further observes that merely because the claimant is a married daughter and she was staying with her husband, the same would not automatically disentitle the Petitioner from being appointed under the OCS (RA) Rules, 1990. The objective behind having such a rule for providing compassionate appointment to the legal heirs of the deceased govt. employee is that it provides support to the family which is in a distressful condition due to the untimely demise of the deceased govt. employee. Therefore, it is claimed that the married daughter cannot take care of the parent’s family. It has been very succinctly narrated in the judgment of this Court in Basanti Nayak’s case (supra) as well as Khirabdi Bala Behera’s case (supra). This Court in the above noted two judgments has come to a conclusion that placing the married daughters on a different footing to other family members amounts to discrimination and the same would be hit by the principle contained in Article 14 of the Constitution of India. Accordingly, it was directed that the married daughters be treated at par with the other family members who are eligible for such appointment under the compassionate ground by treating them as family members as defined under the Rule-2(b) of the year 1990. With regard to immediacy and dependency also the law has been well discussed in the judgment of the State of West Bengal vs. Debabrata Tiwari and others Etc. reported in 2023 (III) SCALE 557. Therefore, the Opposite Parties should have considered the case of the Petitioner in the light of the aforesaid judgment by applying the rules of the year 1990. Since the decision taken by the opposite Parties vide impugned order under Anenxure-14 is not in consonance with the settled position of law as has been discussed hereinabove, this Court is of the considered view that the same is unsustainable in law. Accordingly, the impugned rejection order under Anenxure-14 is hereby set aside. Further, the matter is remanded back to the Opposite Party No.3 to consider the case of the Petitioner in the light of the aforesaid observation and by treating the Petitioner to be a married daughter of the deceased govt. employee and in the light of the judgment of this Court in Khirabdi Bala Behera’s case (supra) as well as Basanti Nayak’s case (supra) and the dependency as well as immediacy is to be tested in the light of the judgment of the Hon’ble Supreme Court in State of West Bengal vs. Debabrata Tiwari’s case (supra). On production of a certified copy of this order by the Petitioner, the opposite Party No.3 shall do well to consider the case of the Petitioner in the light of the aforesaid observation and shall take a final decision by passing a speaking and reasoned order within six weeks from the date of communication of a certified copy of this order. The final decision be taken be communicated to the Petitioner within two weeks from the date of taking such a decision. 11. With the aforesaid observation/direction, the writ petition is disposed of. 12. 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: 04-Apr-2024 15:39:34