The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.12024 of 2024 Rakesh Barik ..... Petitioner State Of Odisha & ors. -versus- ..... Represented By Adv. - Bikram Chandra Ghadei Opposite Parties Represented By Adv. – D.Mohapatra, ASC CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
Decision
ORDER 15.05.2024 This matter is taken up through hybrid mode. Heard learned counsel for the Petitioner as well as learned Order No. 01. 1. 2. counsel for the State-Opposite Parties. Perused the writ petition as well as documents annexed thereto. 3. The present writ petition has been filed by the Petitioner with the following prayers:- “The petitioner therefore prayed that in the premises stated above this Hon'ble court may be graciously pleased to admit this case, issue notice to the Opposite Parties and after hearing all the parties to this writ petition, may be pleased to quash the Order dated 16.04.21,passed by commandant of O.S.A.P First battalion, Dhenkanal vide Annexure-1 to this writ petition. And this Hon'ble may further be pleased to direct the opposite parties to appoint the petitioner as a Group-D employee in their organization under Rehabilitation Assistance Scheme And may pass any other order/ orders, direction/directions as this Hon'ble court may deem fit and proper;” 4. It is submitted by learned counsel for the Petitioner that the Page 1 of 5. father of the Petitioner, namely, late Ajaya Barik, while working as Barber under the Commandant 1st Battalion, Dhenkanal, died in harness on 31.10.2001 leaving behind his legal heirs. It is further contended that the present Petitioner, who was born in the year 2000, was the minor & aged about 1 year at the time of death of the deceased govt. employee. On attaining the age of majority, the Petitioner submitted an application for appointment on compassionate ground with the consent of other legal heirs along with a copy of the legal heir certificate and a copy of the affidavit by other legal heirs in support of the present Petitioner. Thereafter, steps were taken by the Commandant to assess the distressful condition of the family. The application of the Petitioner was submitted on 02.04.2019. However, the Commandant 1st Battalion, Dhenkanal vide his letter dated 16.04.2021 under Annexure- 1, by referring the G.A. & P.G. Dept. letter dated 17.02.2020 under Annexure-1 and further by applying the aforesaid OCS (RA) Rules, 2020 rejected the claim of the present Petitioner on the ground that the application for appointment on compassionate ground has been submitted by the Petitioner after a lapse of 17 years from the date of death of the deceased govt. employee. 5. Learned counsel for the Petitioner further referring to the materials on record submitted that at the time of the death of the deceased govt. employee, the Petitioner was aged about only 1 year, then only after attaining the majority in the year 2019, the Petitioner submitted his application for appointment on compassionate ground on 02.04.2019. He further contended that although the mother and the elder sister of the present Petitioner were available for such appointment, However, they were not suitable for any govt. job, therefore, they did not submit any application for such appointment. He further contended that the distressful condition of the family will Page 2 of 5. continue in two decades after the death of the govt. employee. 6. In course of his argument, learned counsel for the Petitioner referring to the judgment of Hon’ble Supreme Court in Malaya Nanda Sethy v. State of Orissa and others: reported in 2022(II) OLR(SC)-1 and a Division Bench of this Court in Suchitra Bal v. State of Odisha & others bearing W.P.(C) No.2081 of 2021 decided on 16.03.2021 and Bindusagar Samantaray v. State of Odisha and others bearing W.A. No.810 of 2021 decided on 25.09.2023 and the judgment dated 31.10.2023 in Biswajit Swain v. State of Odisha and others bearing W.P.(C) No.5214 of 2021 submitted before this Court that the application of the Petitioner be considered under the OCS (RA) Rules, 1990 as has been held by this Court in the above noted judgments. In such view of the matter leaned counsel for the Petitioner submitted that the conduct of the Opposite Parties in rejecting the application of the Petitioner is unsustainable in law. 7. Learned counsel for the State on the other hand submitted that the application of the Petitioner has been rejected not in a proper format. He further contended that such application was considered in terms of the OCS (RA) Rules, 2020, which was in force at the time of consideration of such application. He further contended that at the relevant point of time, the new Rule was in force and in view of Rule-6 (9) of the new Rules, all pending applications were to be considered under the OCS (RA) Rules, 2020. Since the Petitioner was not found eligible under the new Rules, his application has been rejected by the Opposite Parties. In such view of the matter learned Additional Standing Counsel submitted that the opposite parties have not committed any illegality at all in rejecting the application submitted by the Petitioner. 8. Having heard the learned counsels appearing for the respective Page 3 of 5. parties, on a careful examination of the background facts of the present case as well as the materials on record, this Court observed that there is no dispute with regard to the factual aspect of the present case. It further appears that the father of the present Petitioner died on 31.10.2001 and at the time of his death, the present petitioner is aged about one year. Thereafter, the attaining the age of the majority, he submitted his application on 02.04.2019 for appointment on compassionate ground which is well before new rule of the year 2020 came into force. In such view of the matter, this Court is of the considered view that the Opposite Party should have considered the case of the Petitioner under the OCS (RA) Rules, 1990 by condoning the delay, if any, as provided under the OCS (RA) Rules, 1990. Further, the Opposite Parties have committed an illegality while rejecting the application of the petitioner by applying the OCS (RA) Rules, 2020 and by referring to the G.A. & P.G. Dept. notification dated 17.02.2020. In the aforesaid context, this Court would like to refer to the judgment mentioned hereinabove. Further, it is apt to mention here that the law is with regard to well settle that the application of the Petitioner should have been considered under the OCS (RA) Rules, 1990. In such view of the matter, the impugned rejection order dated 16.04.2021 under Annexure-1 is unsustainable in law and accordingly, the same is hereby set aside. Further the matter is remanded back to the Opposite Party No.3 to reconsider the case of the Petitioner in terms of the OCS (RA) Rules, 1990 and in view of the judgments referred to hereinabove. While considering the case of the Petitioner, the Opposite Party No.3 shall also take into consideration the judgment of the Hon’ble Supreme Court in State of West Bengal v. Debabrata Tiwari passed in Civil Appeal No.8842 of 2022 decided on 3rd of March, 2023 reported in 2023(3) SCALE-557. It is also directed that the delay, if any, be considered and condoned in terms of the OCS Page 4 of 5. (RA) Rules, 1990 by the concerned Administrative Dept. Accordingly, it is directed that let the Petitioner approach the opposite Party No.3 along with a certified copy of today’s order within a period of three weeks from today. The Opposite Party No.3 shall do well to consider the case of the Petitioner and dispose of the grievance of the Petitioner by the Opposite Party No.3 within a period of two months by passing a speaking and reasoned order in terms of the OCS (RA) Rules, 1990 from the date of communication of a certified copy of today’s order. The final decision so taken be communicated to the Petitioner within ten days from the date of taking such decision. 9. With the aforesaid observation/direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. Anil ( A.K. Mohapatra ) Judge Page 5 of 5. Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 16-May-2024 12:05:46