The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.11409 of 2021 Umme Habiba …. Petitioner Mr. Satya Prakash Nath, Advocate -versus- State of Odisha and others …. Opp. Parties Mr. Arnav Behera, ASC CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 30.01.2023 03. 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 Hon’ble Court be graciously pleased to Admit the writ application. i) ii) Call for the record. iii) Issue Rule Nisi calling upon the opposite parties to show cause as to why order No.15399 under Annexure-6 and the subsequent letter no.1400 under Annexure-7 issued by the opp. Party no.3 06.05.2020 29.04.2020 dated dated // 2 // shall not be quashed. iv) v) If the opposite parties do not show cause or show insufficient cause issue a writ in the nature of certiorari or any other appropriate writ/writs, order/orders the order No.15399 dated quashing 29.04.2020 under Annexure-6 and the subsequent dated 06.05.2020 under Annexure-7 issued by the opp. Party no.3; no.1400 letter in issue a writ And the nature of mandamus or any other appropriate writ/writs, order/orders, direction/directions directing the opposite party No.3 to give appointment to the petitioner under Group ‘C’ Constable Communication under Rehabilitation Assistance Scheme; vi) And/or pass such other order/orders, direction/directions as this Hon’ble Court deemed fit and proper for the ends of justice.” 4. It is submitted by the learned counsel for the Petitioner that the father of the present Petitioner was working as a Senior Assistant in the office of the Opposite Party No.2 for last 27 years. While working as such, the father of the Petitioner, namely, Sk. Ushimuddin died in harness on 22.11.2014 leaving behind his legal heirs including the present Petitioner. Since the present Petitioner was not having any income of his own, she was constrained to apply for appointment under the Rehabilitation Assistance Scheme, 1990. The application submitted by the Petitioner is annexed to the writ petition as Annexure-1. The application which is stated to have been submitted in the year 2015. Thereafter, the Orissa Civil Service (Rehabilitation Assistance) Rules amended in // 3 // the year 2016. However, the application of the Petitioner was not considered and kept pending by the Opposite Party No.2. The Petitioner was called upon to appear before the Opposite Party No.3 vide letter dated 10.12.2018. She appeared before the Opposite Party No.3 for verification of the documents. Thereafter, no action was taken by the Opposite Parties to issue appointment letter in favour of the Petitioner as per OCS (RA) Rules, 1990. In the meantime, OCS (RA) Rules, 1990 was amended in the year 2020. Finally, the Petitioner received a letter dated 29.04.2020 from the office of the Opposite Party No.3 indicating a list of candidates whose applications has been rejected in terms of the New RA Rules, 2020 and in the said list, Petitioner’s name has been reflected against Serial No.11. Finally, the Petitioner was communicated by the Opposite Party No.3 vide order dated 29.09.2020 as her claim for appointment under the Rehabilitation Assistance Scheme has been rejected under the new rules. 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) 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 // 4 // 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 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 2014. Thereafter, the Petitioner, who is a legal heir of the deceased Government employee, submitted her application for appointment within the // 5 // stipulated period of time, i.e., in the year 2015. 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 two 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 Annexures-6 & 7 are 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 Malaya Nanda Sethi’s case (supra) and take a final decision within a period of three months from the date of production of certified copy of this order. 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. Debasis ( A.K. Mohapatra) Judge