The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.9984 of 2024 ..... Petitioners Represented By Adv. - Nirmal Ranjan Routray -versus- ..... Opposite Parties Represented By Adv. - 1) Renu Mohapatra 2) Manas Kumar Mohapatra 1) State Of Odisha 2) Secretary, Skilled Development And Technical Education Dept. 3) Director, Directorate Of Employment, Odisha 4) District Employment Exchange Officer, District Employment Exchange CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No.
Decision
ORDER 29.04.2024 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 : “The Petitioners humbly pray that this Hon’ble Court may graciously be pleased to issue notice to the Opp.Parties, call for records and after hearing both the Page 1 of 5. parties allow the Writ Petition by quashing he order of rejection dated 22.03.2023 under Annexure-14 and direct the Opp.Parties to consider the case of Petitioner No.2 or appointment on compassionate ground by applying the old rule which was prevalent at the time of death of the employee. And to pass any other order(s) as this Hon’ble Court deems fit and proper;” 4. It is submitted by the learned counsel for the Petitioners that the husband of Petitioner No.1 while working as Peon in the Office of Opposite Party No.4. While working as such, the husband of the Petitioner No.1 died in harness on 05.01.2010 leaving behind his legal heirs. The Petitioner No.1 being the wife and one of the legal heir of the deceased Government employee applied for appointment on compassionate ground and submitted an application on 29.03.2010 before the Opposite Party No.3. Initially certain deficiencies were pointed out in the application which was communicated to the Petitioner in the year 2015. In the meantime such deficiencies were complied with and finally the matter was placed before the Screening Committee. On 23.12.2015 the Screening Committee rejected the application of the Petitioner. Accordingly, on 02.04.2016 the rejection order was communicated to the Petitioner. Thereafter, the Petitioner approached the Orissa Administrative Tribunal by filing O.A.No.90 of 2017. Learned Orissa Administrative Tribunal got abolished. Accordingly all matters were transferred to this Court and reregistered as WPC(OAC) No.90 of 2017. A coordinate Bench of this Court disposed of the matter on 11.01.2024 quashing the rejection order under Annexure-8 and the matter was remanded back to Opposite Party No.2 to consider the matter afresh in the light of Malayanand Sethy –v.-State of Orissa Page 2 of 5. within a period of two months. 5. On remand the matter was taken up by the authority. Vide order dated 22.03.2024, the application of the Petitioner has been rejected by applying the ratio laid down by the Hon’ble Supreme Court in N.C.Santosh vs. State of Karnataka (2020) 7 SCC 617 and further it has been held that the Petitioner cannot claim compassionate appointment as a matter of right and that the claim of the Petitioner should be considered in accordance with the Rules which was in force at the time of consideration of such application. 6. Learned counsel for the Petitioner in course of his argument submitted that the application of the Petitioner be considered in accordance with the OCS(RA) Rule, 1990. In the aforesaid context learned counsel for the Petitioner refers the judgment 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. He further submitted that in the case of Biswajit Swain v. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023 has declared the Rule 6(9) as ultra vires to Article 14 of the Constitution of India. In such view of the matter, it was submitted that the application of the Petitioner should have been considered under the OCS(RA) Rule, 1990. 7. Learned Additional Standing Counsel for the State on the other hand contended that earlier the matter was remanded to Opposite Party no.1 to consider the matter afresh in terms of the judgment of Malaya Nanda Sethy vrs. State of Orissa and others. Accordingly, the Opposite Party no.1 vide order dated 22.03.2024 considered the Page 3 of 5. case of the Petitioner and the application of the Petitioner has been disposed of by passing a speaking order. Therefore, it was contended that the Opposite Parties have not committed any illegality. It is also contended that the Opposite Party no.1 has rightly referred the judgment of N.C.Santosh vs.State of Kanataka with regard to the applicability of the Rule to the facts of the present case. He further contended that in view of the law laid down in the case of N.C.Santosh-v.-State of Karnataka, the application of the Petitioner is to be considered under the OCS(RA) Rule, 2020 and that the claim of the Petitioner for appointment on compassionate ground does not confer any right on the Petitioner. Again such appointment cannot claim as a matter of right. Such appointment is subject to fulfillment of certain legal requirement. On such ground the Opposite Parties have not committed any illegality and as such the Writ Petition filed by the Petitioner is devoid of merit and is liable to be dismissed. 8. On careful examination of the materials on record, this Court observes that after the matter was remanded by this Court vide judgment dated 11.01.2024 in WPC(OAC) No.90 of 2017, the Opposite Parties have rejected the claim of the Petitioner vide order dated 22.03.2024 under Annexure-14. In the aforesaid context, this Court 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 and taking into consideration the principle laid down and applying the judgment relied by the Division Bench of this Court and judgment of this Court in Biswajit Swain v. State of Odisha and others in W.P.(C) No.5214 of 2021, this Court is of the considered view that in the present case the husband of Petitioner No.1 died much prior to the OCS(RA) Rule, 2020 came into force Page 4 of 5. and the Writ Petition filed after the new Rule came into force, the application of the Petitioner should have been considered under the OCS(RA) Rule, 1990. However, the Opposite Party no.1 has not done so by referring to the Judgment in N.C.Santosh (supra). In such view of the matter, this Court has no hesitation in setting aside the impugned order under Annexure-14 and the same is hereby set aside. Further, the matter is remanded to Opposite Party no.1 to consider the application of the Petitioner in terms of the OCS(RA) Rule, 2019 and the aforesaid judgment. Further, while considering the case of the petitioner the Opposite Party No.1 should have considered the law laid down in State of West Bengal-v.-Debabrata Tiwari reported in 2023 (3) SCALE-557 and shall dispose of the same within two months from the date of communication of certified copy of the order by the Petitioner. The final decision be communicated to the Petitioner within two weeks from the date of such order passed by the Opposite Party No.1. 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 Signature Not Verified Page 5 of 5. Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 30-Apr-2024 18:42:17