The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5187 of 2017 Paresh Kumar Sasmal …. Petitioner Mr. K.C. Rajguru Mohapatra, Advocate State of Odisha & another -versus- …. Opposite Parties Mr. N.K. Praharaj, A.G.A. Mr. B.K. Dash, Advocate for O.P.-2 CORAM: JUSTICE A.K. MOHAPATRA Order No. 04. 1. This matter is taken up through Hybrid Arrangement (Virtual
Decision
ORDER 27.02.2024 /Physical Mode). I.A. No.2978 of 2024 2. Heard learned counsel for the Petitioner as well as learned Addl. Standing Counsel for the State. 3. Considering the submissions made, the order dated 21.02.2024 is hereby recalled. 4. Accordingly, the I.A. is disposed of. W.P.(C) No.5187 of 2017 5. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate and Mr. B.K. Dash, learned counsel appearing for the Opposite Party No.2. Perused the Writ Petition as well as the documents annexed thereto. 6. The present Writ Petition has been filed by the Petitioner with the following prayer : “It is therefore prayed that this Hon’ble Court may graciou8lsy be pleased to admit the writ petition, issue notice to the Opp.parties and after hearing both the sides, pleased to quash the impugned letter of rejection under Annexure-7 and 8 respectively and further be pleased to direct the Opp.Party // 2 // to give appointment No.2 the petitioner under Rehabilitation Assistance Scheme commensurating to his qualification forthwith. to And pass such other order/orders, direction/directions as this Hon’ble Court may deem just and proper in the eyes of law.” Learned counsel for the Petitioner at the outset submitted that the 7. father of the Petitioner was working as a Junior Technician in RE, Cell, DRDA, Cuttack under the Opposite Party No.2. While working as such, the father of the Petitioner died in harness on 16.04.2002, leaving behind his wife and two sons and two unmarried daughters. After the death of the deceased employee, the mother of the petitioner applied for appointment on compassionate ground before the Opposite Party No.2, after obtaining a legal heir certificate from the jurisdictional Tahasildar. Learned counsel for the Petitioner submitted that after the death of the deceased employee although the retiral dues in respect of the deceased employee, has been released in favour of the Petitioner, however, the authorities did not consider the case of the family of the petitioner for appointment of one of the member of the family on compassionate ground, who provides support to the family. He further contended that the Opposite Party No.2 being a wholly own Government agency has adopted the OCS (RA) Rules, 1990 so far compassionate appointment is concerned. 8. The application submitted by the mother of the Petitioner was rejected vide order dated 30.11.2015 under Annexure-7 to the writ application on the ground that because of the financial constraint faced by the agency and in view of the resolution of the governing body in its 32nd meeting thereby abolition all vacancies, the case of the mother of the Petitioner was not considered. Similarly, the application submitted by the present petitioner was directed to be considered by this Court vide order dated 07.01.2015 in W.P.(C) No.17461 of 2015, however, the Opposite Party No.2 vide order dated 29.12.2015 under Annexure-8 // 3 // also rejected the same on the ground of financial constraint and in view of the resolution dated 02.09.2009 of the 32nd Government Body meeting of the Opposite Party No.2. Being aggrieved by such conduct the Opposite Party No.2 the Petitioner once again has approached this Court by filing the present writ application. 9. Mr. B.K. Dash, learned counsel appearing for the Opposite Party No.2-Agency on the other hand contended that the Opposite Party No.2-Agency is a wholly own Government of Odisha Agency. He further contended that with the financial assistance provided by the Dept. of Science & Technology, Govt. of Odisha, the agency is functioning. Mr. Dash, learned counsel further contended that since agency is passing through a difficult financial assistance case, the governing body of the Opposite Party No.2 in its 32nd meeting passed a resolution dated 02.09.2009 thereby deciding to abolish all vacancies occurred due to different reasons. As a result of which, such vacancies are not being filled up. He further contended that although the case of the Petitioner eligible to be considered for such appointment, however, on the face of financial constraint and the resolution of the governing body, the case of the Petitioner was not considered and accordingly the Opposite Parties has not been considered. Therefore, it was contended that the Opposite Parties have not committed any illegality in passing order dated 29.12.2015 under Annexure-8 to the writ application. In such view of the matter, learned counsel appearing for the Opposite Party No.2 submitted that the writ petition is devoid of merit and the same should be dismissed. 10. In reply to the aforesaid contention, learned counsel for the Petitioner submitted that during pendency of the writ application the Opposite Parties have published a fresh advertisement for recruitment to the post of Technician and Junior Assistant on 08.04.2022 which has been appended to the I.A. No.5354 of 2022. On perusal of such // 4 // advertisement it appears that total 42 number of posts are advertised and filled up. In view of the provisions contained in OCS (RA) Rules, 1990, certain persons to the posts are to be reserved from out of the vacancies which have been advertised to be filled up under the OCS (RA) Rules, 1990 on compassionate ground. However, it is alleged that same has not been followed by the Opposite Parties while conducting the recruitment process pursuant to the advertisement dated 08.04.2022. In such view of the matter, learned counsel for the Petitioner submitted that the objection raised by the Opposite Party No.2 does not fruitful to the case. 11. Having heard the learned counsels appearing for the respective parties and on a careful consideration of their submission as well as on examination of the materials on record, this Court is of the considered view that taking into consideration the date of death of the deceased employee as well as the date of application, the case of the petitioner should have been considered under the OCS (RA) Rules, 1990. Moreover, the ground on which the application of the Petitioner and his mother has been rejected under Annexures-7 & 8 to the writ application, this Court is also of the considered view that such grounds are untenable in law. Further, it is also observed that the OCS (RA) Rules, 1990 provides that in the absence of any vacancy, the application should have been forwarded to the Head of the Dept. to find out a suitable post to fit to the education qualification of the petitioner. Such procedure as prescribed under the 1990 rules has not been adopted in the case of the Petitioner. 12. In view of the aforesaid analysis of fact as well as taking into consideration the well settled position of law and keeping in view the judgment of this Court in Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023, this Court while quashing the impugned orders under Annexure-7 & 8 to the writ application, deems it proper to remand the matter back to the Opposite // 5 // Party No.2 to consider the matter afresh against any available vacancy strictly in terms of the OCS (RA) Rules, 1990. Further, it is directed if no vacancies are available, then the application of the petitioner be forwarded to the Head of the Dept. as provided under the OCS (RA) Rules, 1990. The Opposite Party No.2 is further directed to complete the entire exercise within two months from the date of communication of a certified copy of this order. The final decision so taken be communicated to the Petitioner within a week from the date of taking such a decision. 13. With the aforesaid observations/ directions, the writ application stands disposed of. 14. Issue urgent certified copy of this order as per Rules. Rubi ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 04-Mar-2024 18:49:01