The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.10686 of 2024 Kanhu Charan Muduli ..... Petitioner Represented By Adv. - Sidheswar Mallik ..... Opposite Parties Represented By Adv. – A.P.Das, ASC -versus- 1) State Of Odisha 2) Engineer-in- Chief, Water Resources 3) Addl. Chief Engineer, Central Irrigation Circle 4) Superintending Engineer, Nimapara Irrigation Div
Legal Reasoning
CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No.
Decision
ORDER 01.05.2024 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 Standing Counsel appearing for the State-Opposite Parties. Perused the writ petition as well as documents annexed in the Writ Petition. 3. The present Writ Petition has been filed by the Petitioner with the following prayer : that “Under the aforesaid facts and circumstance the this Hon'ble court may petitioner humbly prays graciously be pleased to, I) Quash the rejection order dated 27.7.2023 under Annexure- 6 II) Direct/order that the opposite party No.2 shall consider the appointment of the petitioner in terms of the OCS (RA) Rules, 1990 within a stipulated period and in the event the petitioner is found eligible he shall be appointed to a suitable post within a stipulated time. Page 1 of 4. III) Pass such other orders/directions as may be deemed fit and proper in the interest of justice.” 4. It is submitted by learned counsel for the petitioner that the father of the petitioner, late Brundaban Muduli, who was working as Khalasi in the work charged establishment, died in harness on 11.04.2016, leaving behind his legal heirs. After the death of the deceased ex-govt. employee, the Petitioner being one of the legal heirs submitted an application for appointment on compassionate ground on 19.07.2016 under the OCS (RA) Rules, 1990. Learned counsel for the Petitioner further contended that the Executive Engineer forwarded such application to the office of the Superintending Engineer, RWS&S Circle, Cuttack. Such application of the Petitioner was kept pending in the office of the Superintending Enginner for a long time. In the meantime, the OCS (RA) Rules, rule 2020 came into force. Finally, the Petitioner’s application was returned vide letter dated 27.7.2023 under Annexure-6 with a remark that the Petitioner’s case shall consider under the OCS (RA) Rules, 2020 and in view of the G.A. & P.G. Dept. notification dated 17.02.2020 and that since the Petitioner has failed to secure the required points for being appointed on compassionate ground, his case was not considered and accordingly, the application of the Petitioner has been returned vide letter dated 27.07.2023 under Annexure-6. 5. In course of hearing, learned counsel for the Petitioner referring the judgment of the Hon’ble Supreme Court in the case of Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1 as well as the judgment in Suchitra Bal vs. State of Odisha & ors. by a Division Bench of this Court in W.P.(C) No.2081 of 2021 decided on 16.03.2023 as well as Bindusagar Samantaray vs. State of Odisha & ors. by a Division Bench of this Court in W.A. No.810 of 2021 decided on 25.09.2023 submitted that prior to the new Page 2 of 4. rule came into force the application of the petitioner was kept pending for a long time, the same should have been considered under the OCS (RA) Rules, 1990. He also referred to the judgment of this Court in Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023, wherein this Court while examining the validity of Rule-6(9) of the OCS (RA) Rules, 2020 has come into conclusion that the said Rule is ultra vires under Article-14 of the Constitution of India. In the aforesaid legal background, learned counsel for the Petitioner submitted that the application of the Petitioner should have been considered under the R.A. Rules, 1990. 6. Learned Additional Standing Counsel appearing for the State- Opposite Parties, on the other hand, submitted that since the application of the Petitioner was considered on the basis of the OCS (RA) Rules, 2020 as the application of the petitioner was pending when the new rule came into force. He further referring to the G.A. & P.G. Dept. notification dated 17.02.2020 submitted that in view of the Rule-6(9) of the rules, 2020, all pending application were to be considered under the OCS(RA)Rules, 2020. Accordingly, the application of the Petitioner was considered and he was found unsuitable for appointment on compassionate ground. Therefore, the application of the Petitioner has been rejected. On such ground, learned counsel for the State submitted that the Opposite Parties have not committed any illegality in rejecting the application of the Petitioner. In such view of the matter, it was contended that the writ application is devoid of merit and the same should be dismissed. 7. Having heard the submissions made by learned counsels appearing for the respective parties and on careful consideration of the background facts as well as materials on record, this Court is of the considered view that there is no dispute with regard to the date of Page 3 of 4. death of the deceased govt. employee as well as the application submitted by the Petitioner for appointment on compassionate ground. In view of the settled position of law by the Hon’ble Supreme Court as well as this Court, the application of the Petitioner should have been considered under the OCS (RA) Rules, 1990, however, the Opposite Parties have rejected the case of the Petitioner by applying the OCS (RA) Rules, 2020. In such view of the matter, this Court has no hesitation while setting aside the order dated 27.07.2023 under Annexure-6 to the writ application, accordingly, the same is hereby set aside. Further, the matter is remanded back to the Opposite Party No.2 to consider the case of the Petitioner keeping in view the law laid down in the aforesaid judgments as well as the law laid down in State of West Bengal-v.-Debabrata Tiwri passed in Civil Appeal No.8842 of 2022 decided on 3rd of March, 2023 reported in (2023 (3) SCALE-557 decided by the Hon’ble Supreme Court within a period of two months from the date of communication of a certified copy of this order by passing a speaking and reasoned order. The final decision so taken be communicated to the Petitioner within ten days thereafter. 8. With the aforesaid observation/direction, the writ petition is disposed of. 9. Urgent certified copy of this order be granted on proper application. Anil ( A.K. Mohapatra) Judge Page 4 of 4. Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 03-May-2024 15:33:01