The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.8557 of 2023 Asish Kumar Sahu …. Petitioner Mr. Subhadutta Routray, Advocate -versus- State of Odisha and others ….
Legal Reasoning
Opp. Parties Mr. Iswar Mohanty, ASC CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 21.08.2023 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned counsel appearing for the State-Opposite Parties. Perused the writ petition as well as the documents annexed thereto. 3. The present writ petition has been filed by the Petitioner with the following prayers:- “It is therefore, most humbly prayed that this Admit the writ application. Hon’ble Court be graciously pleased to i) ii) Call for the record. iii) Issue Rule NISI calling upon the opposite parties to show cause as to why order dated 02.03.2023 under Annexure-4 shall not be quashed; iv) If the opposite parties fail to show cause or show insufficient cause, issue writ in the nature of certiorari or any other writ/writs, direction/direction, order/orders by quashing the impugned order dated 02.03.2023 under Annexure-4; v) Issue a writ in the nature of mandamus or any // 2 // other writ/writs, direction/directions directing the opp. Parties to consider the case of the petitioner for compassionate appointment in terms of Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 and if the petitioner is found eligible, give compassionate appointment to the petitioner in terms of within a stipulated time to be fixed by this Hon’ble Court; vi) And/or order/orders, such direction/directions as this Hon’ble Court may deems fit and proper for the ends of justice.” other pass 4. It is submitted by the learned counsel for the Petitioner that the father of the present Petitioner was working as an Assistant Sub Inspector in Excise in the office of the Opposite Party No.2 for last 27 years. While working as such, the father of the Petitioner, namely, Premananda Sahu died in harness on 16.11.2017 leaving behind his legal heirs including the present Petitioner. Since the present Petitioner was not having any income of his own, he was constrained to apply for appointment under the Rehabilitation Assistance Scheme, 1990 on 05.06.2018. The application which is stated to have been submitted in the year 2018. In the meantime, OCS (RA) Rules, 1990 was amended in the year 2020. Finally, the Petitioner received a letter dated 02.03.2023 from the office of the Opposite Party No.3 wherein the case of the Petitioner has been rejected in terms of the New RA Rules, 2020. Aggrieved by the said order, the Petitioner has approached this Court by filing this present writ petition. 5. Learned counsel for the Petitioner submitted that the case of the Petitioner is covered by the law laid down by the Supreme Court in the case of cases of Malaya Nanda Sethy v. State of Orissa and others, reported in 2022(II) OLR(SC)-1; State of Madhya Pradesh; others v. Ashish Awasti, reported in 2021 (II) OLR (SC) // 3 // 1072; and Indian Bank v. Promila, reported in (2020) 2 SCC 729. Therefore, the rejection of the Petitioner’s claim for appointment on compassionate ground by applying the new Rules 2020 is illegal and arbitrary. It is further submitted that by applying the law laid down in Malaya Nanda Sethy’s case (supra), the case of the Petitioner should have been considered under the OCS (RA) Rules, 1990 which was prevailing at the time of the death of the Petitioner’s father and when her application was submitted and was considered by the authorities and, however, due to delay on the part of the authorities to take a decision, the new rule intervened. In such view of the matter, learned counsel for the Petitioner submits that such rejection order is illegal and arbitrary and, as such, the same is unsustainable in the eye of law. 6. Learned Additional Standing Counsel appearing for the State-Opposite Parties, on the other hand, submitted that by the time the application of the Petitioner for appointment on compassionate ground was taken up for consideration, the new rules were in force. Further, by referring to Rule-6(9) of the new rules, learned counsel for the Petitioner submitted that the authorities under obligation to consider the application under the new Rules, 2020. Therefore, it was contended by the learned Additional Standing Counsel that the State Authorities have not committed any illegality while considering the application of the Petitioner and rejecting the same by applying the rules of the year 2020. Therefore, it is submitted that the writ petition is devoid of merit and the same should be dismissed. 7. Having heard the learned counsel for the parties and upon a // 4 // careful consideration of the material placed before this Court, this Court observed that the father of the Petitioner while working as Government employee died in the year 2017. Thereafter, the Petitioner, who is a legal heir of the deceased Government employee, submitted her application for appointment within the stipulated period of time, i.e., in the year 2018. The same was under consideration and the Petitioner was called upon for verification of the documents in the year 2018. However, the authorities sat over the matter for almost four years and no final communication was given to the Petitioner. In the meantime, the rule was amended and the new rule of 2020 was introduced. By referring to the new rules, the authorities have rejected the application of the Petitioner. In my considered opinion, while considering the application of the Petitioner, the authorities have not applied the law laid down by the Hon’ble Supreme Court in Malaya Nanda Sethi’s (supra) as well as other decisions referred to hereinabove. 8. Therefore, the impugned rejection order under Annexure-4 is unsustainable in the eye of law and, accordingly, the same is hereby set aside. Further, the matter is remanded back to the Opposite Parties No.2 and 3 to consider the case afresh by keeping in view the law laid down by the Hon’ble Supreme Court in the case of Malaya Nanda Sethi vs. State of Odisha reported in 2022 (II) OLR (SC) 1 & another judgment of the Hon’ble Supreme Court in the case of The State of West Bengal v. Debabrata Tiwari & Ors. Etc. Etc. (Civil Appeal Nos.8842-8855 of 2022 decided on 3rd March, 2023) and take a final decision within a period of three months from the date of production of certified copy of this order. // 5 // Further, the Opposite Parties No.2 and 3 are directed to act upon production of certified copy of this order. 9. With the aforesaid observation and direction, this writ petition stands disposed of. Anil ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Aug-2023 19:18:18