The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.7255 of 2024 Bhabani Shankar Das ..... Petitioner 1) State Of Odisha 2) Collector, Nayagarh 3) Tahasildar, Khandapada -versus- ..... Represented By Adv. - Sidhartha Swain Opposite Parties Represented By Adv. – Mr.N.K.Praharaj, AGA
Legal Reasoning
CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No.
Decision
ORDER 15.04.2024 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. Perused the writ petition as well as documents annexed to thereto. 3. The present writ petition has been filed by the petitioner with the following prayer : “It is therefore humbly prayed that under the above circumstances, the Hon’ble court may graciously be pleased to issue RULE NISI, calling upon the Opposite Parties to show cause and if the Opposite Parties failed to file show cause or filed insufficient cause on perusal of causes shown make the said Rule absolute and be further pleased to: Issue a writ of certiorari or any other appropriate Page 1 of 5. i) ii) writ or order quashing letter dated 24.04.2023 under annexue-10 passed by the Tahasildar, Khandapada, Nayagarh-Opposite Party No.3 as wrong, illegal and otherwise bad in law; and i.e. under Issue a writ of mandamus or any other appropriate writ or order directing the Tahsildar, Khandapada, Nayagarh –Opposite Party No.3 for appointment of the Petitioner under Rehabilitation Assistance Scheme the Odisha civil Service (Rehabilitation Assistance) Rules, 1990 in place of the Odisha Civil (Rehabilitation assistance) Rules, 2020, the Petitioner’s father being expired on 24.11.2018 and he applied for appointment under Rehabilitation Assistance Scheme on 19.03.2019 within a stipulated period as fixed by the Hon’ble Court; Services And/or pass such other order/orders, writ/wits, direction/directions as deem fit and proper in the facts and circumstances of the case;” 4. It is submitted by learned counsel for the petitioner that the father of the Petitioner died on 24.11.2018 in harness. The Petitioner, who is one of the legal heirs with the consent of other legal heirs applied for appointment under OCS(RA) Rule, 1990 on 19.03.2019. The application, as it appears is within the period prescribed in the Statute. Since the application of the Petitioner was not considered, the Petitioner earlier approached this Court in W.P.(C) No.12700 of 2022 and this Court disposed of the Writ Petition on 27.06.2022 with a direction to the Opposite Party No.3 to consider the case of the Petitioner within a period of three months from the date of communication of certified copy of the order, under the OCS(RA) Rule, 1990. 5. Learned counsel for the Petitioner further contended that despite the order dated 27.06.2022 the Opposite Party No.3 Page 2 of 5. considered the case of the Petitioner by applying the OCS(RA) Rule, 2020 vide order dated 24.04.2023 under Annexure-10 the application of the Petitioner has been rejected. In the aforesaid context, learned counsel for the Petitioner by referring to 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, 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 that the application of the Petitioner is required to be considered under the OCS(RA) Rule, 1990 as amended up to the year 2016 as has been held by this Court as well as the Hon’ble Supreme Court. In such view of the matter, the impugned rejection order is unsustainable in law. 6. Learned Additional Government Advocate on the other hand submitted that in the earlier Writ Petition, this Court had directed the Opposite Parties to consider the case of the Petitioner in the light of the judgment of the Hon’ble Supreme Court in the case of State of Madhya Pradesh vs. Ashish Awasthi, reported in 2021(II) OLR (SC) 1072, however there was no specific direction to consider the case of the Petitioner under OCS(RA) Rule 1990. He further contended that pursuant to the order passed by this Court, the Opposite Parties considered the case of the Petitioner by applying the ratio decided in the case of Ashish Awasthi and it was found that the case of the Petitioner was to be considered under OCS(RA) Rule, 2020 and accordingly after considering the case of the Petitioner under the aforesaid Rule, his case has been rejected. In such view of the matter, learned Additional Government Advocate submitted that Page 3 of 5. the Opposite Parties have not committed any illegality in rejecting the application of the Petitioner. Accordingly, the Writ Petition is devoid of merit and hence the same should be dismissed. 7. Having heard learned counsel for the respective parties, on a careful examination of the materials on record as well as the factual background of the present case, this Court observes that there exists no dispute with regard to the factual aspect of the matter. It is further observed that the deceased Government employee died and the application for appointment on compassionate ground was made much prior to the date on which the OCS(RA) Rule, 2020 came into force. Therefore, by applying the ratio decided in the case of Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1, 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 as has been discussed above, this Court is of the considered view that the case of the Petitioner is required to be considered under the OCS(RA) Rule, 1990 as amended up to the year 2016. In such view of the matter, this Court is also of the considered view that the impugned rejection order under Annexure-10 is unsustainable in law and accordingly the same is hereby set aside. Accordingly, the matter is remanded back to Opposite Party No.3 to consider the case of the Petitioner in the light of the ratio decided in the case of Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1, 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 in terms of OCS(RA) Rule, 1990 within a period of two months Page 4 of 5. from the date of communication of certified copy of this order. The final decision so taken be communicated to the Petitioner within two weeks from the date of taking such decision. 8. With the aforesaid observation/direction, the writ petition is disposed of. 9. Urgent certified copy of this order be granted on proper application. RKS ( A.K. Mohapatra) Judge Page 5 of 5. Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 16-Apr-2024 17:28:33