The High Court
Case Details
Order No. 02. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.8379 of 2023 Ganga Sagar Chita State of Odisha & others -versus- …. Petitioner Mr. A.K.Das,Advocate …. Opposite Parties Mr. N.K.Praharaj, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 16.01.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State-Opposite Parties. 3. The Petitioner has filed the present writ application with the following prayer: “It is therefore, prayed that your Lordships may be pleased to set aside/quash the impugned order of rejection dated 06.03.2023 under Annexure-13 and direct the State/O.P. No.2 to consider the case of the petitioner under the provision of Orissa Civil Services (Rehabilitation Assistance) Rules, 1990 instead of applying the new OCS (Rehabilitation Assistance) Rules, 2020 for appointment of the petitioner in a class-IV post in place of his deceased father. And pass any other order/orders as deemed fit and proper in the ends of justice.” 4. It is submitted by learned counsel for the petitioner that the father of the petitioner joined as a Peon in the office of the District Education Centre, Sundargarh on 20.05.1992. While working as such the father of the petitioner died in harness on 29.12.2018. Thereafter, the present petitioner being one of the legal heirs with the consent of widowed mother and two other brothers applied for a job on // 2 // compassionate ground under the Rehabilitation Assistance Scheme on 09.04.2019. It appears that along with his application for appointment the petitioner has also furnished an affidavit stating that in the event he is given an appointment, he shall look after and maintain the family. The application submitted by the petitioner was duly forwarded to the office of the Director of Industries, Odisha, Cuttack on 22.11.2019. Since no action was taken on the application submitted by the petitioner. The petitioner earlier approach this Court by filling W.P.(C) No.3166 of 2022 which was disposed by an order of coordinate Bench dated 09.02.2022 with a direction to the opposite parties to consider the case of the petitioner for appointment on compassionate ground by taking into consideration the judgment of the Hon’ble Supreme Court in State of Madhya Pradesh V. Ashish Awasthi 2021 (II) OLR (SC) 1072 as well as the Secretary to Government Department of Education(Primary) and others V. Bheemesh @ Bheemappa (Civil Appeal No.7752 of 2021) within a period of three months from the date of communication of order dated 09.02.2022. Learned counsel for the petitioner further contended that although the petitioner approached the opposite parties pursuant to the order passed by this Court. However, his application has been rejected on the ground that in view of the O.C.S. (RA) Rules 2020 particularly in view of Rule 6 (9) all pending applications are to be considered under the provisions of the new Rules. Accordingly the case of the petitioner was considered under the new Rules and it was found that the petitioner has failed to secure the minimum points as is required under new rules for consideration of appointment on compassionate ground under the new rule. Accordingly, the opposite parties have rejected the petitioner’s application for appointment on compassionate ground. Being aggrieved by such order the petitioner has approached this Court by // 3 // filling the present writ application. In the course of his argument the learned counsel for the petitioner referring to the judgment of the Hon’ble Supreme Court in Malaya Nanda Sethy vrs. State of Orissa and others as well as the judgment of this Court Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023, State of West Bengal-v.-Debabrata Tiwari 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 submitted before this Court that taking into consideration the date of death of the ex-Government employee as well as the date of the application made by the petitioner, the application of the petitioner should have been considered under the O.C.S. (RA) Rules 1990 as amended in the year 2016. However, the opposite parties have rejected the case of the petitioner by applying 2020 Rules, which is highly illegal and arbitrary and as such the impugned order is unsustainable in law. 5. Learned Additional Government Advocate on other hand contended that the opposite parties have considered the case of the petitioner pursuant to the order passed by this Court in the earlier writ application. He further contended that since the petitioner failed to acquire the qualifying mark that is required for his appointment on compassionate ground under the O.C.S. (RA) rules 2020. In view of the GA & PG Department notification dated 17.02.2020 the opposite parties have rightly rejected the case of the petitioner for appointment under the Rehabilitation Assistance Scheme. Accordingly, learned Additional Government Advocate submitted that the opposite parties have not committed any illegality in passing order dated 06.03.2023 under Annexure-13 to the writ application. In such view of the matter learned Additional Government Advocate submitted that the present // 4 // application is devoid of merit, accordingly, the same should be dismissed. 6. Having heard the learned counsels appearing for the parties and on a careful examination of the background facts as well as materials on record, this Court observes that the father of the present petitioner, who was a Govt. employee, died in harness on 29.12.2018. Thereafter, the petitioner submitted an application for appointment on compassionate ground in the year 2019, which was duly forwarded to the office of the Director of Industries, Odisha, Cuttack. Finally, the opposite parties by virtue of the impugned order have rejected the application of the petitioner by applying the 2020 Rules. The question that falls for consideration in the present writ application is as to whether the opposite parties were correct in their approach to reject the application of the petitioner by applying the new Rule of the year 2020. In the aforesaid context this Court has examined the judgment of the Hon’ble Supreme Court in Malaya Nanda Sethy vrs. State of Orissa and others reported in 2022(II) OLR(SC)-1 as well as other judgment of this Court including the one delivered by this bench in Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023. In Biswajit Swain vs. State of Odisha and others , wherein this Court has categorically held that Rule6(9) contained in the O.C.S. (RA) Rules, 2020 is ultra vires of Article 14 of the Constitution of India. Accordingly, the same has been struck down. In such view of the matter, the application submitted by the petitioner should have been considered under the O.C.S. (RA) Rules, 1990 as amended in the year 2016. In such view of the matter, this Court has no hesitation in coming to a conclusion that the impugned rejection order dated 06.03.2023, under Annexure-13, is unsustainable in law and the same is hereby quashed. Further, the matter is remanded back to the // 5 // Opposite Party No.2 to consider the matter afresh in the light of the above noted judgments and dispose of the application of the petitioner by passing and speaking and reasoned order within a period of two months from the date of communication of the certified copy of this order. The Opposite Party No.2 while considering the application of the petitioner shall do well to keep in mind the law laid down by the Hon’ble Supreme Court as well as this Court as has been referred to hereinabove. The final decision so taken be communicated to the petitioner within ten days from the date of taking such decision. 7. With the aforesaid observation and direction, the writ application stands disposed of. 8. 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: 20-Jan-2024 12:00:04