The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.10260 of 2024 S.goutami Achary ..... Petitioner Represented By Adv. - Arijeet Mishra -versus- ..... Opposite Parties Represented By Adv. – D.Mohapatra, ASC 1) State Of Odisha 2) Joint Director, Dist Local Fund Audit, Odisha 3) Dist Audit Officer, Local Fund Audit
Legal Reasoning
CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No.
Decision
ORDER 30.04.2024 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 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 : “Under the above circumstances, it is humbly prayed by the petitioner that this Hon’ble Court may be graciously pleased to Admit, Issue Notice to the Opp.parties and after hearing both the parties be pleased to quash the order dated 16.10.2023 under Annexure-4 and further be pleased to direct the Opp.Parties more particularly Opp.party No.3 for the case as per the prescribed evaluation sheet under Rule-6(2)(b) of The Odisha Civil Service (Rehabilitation Assistance) Rules, 2020 and to reconsider the claim of the petitioner with regard to giving appointment to her under the rehabilitation scheme on any such other terms and conditions as deem just and Page 1 of 5. proper. And further be pleased to pass any other order(s), direction(s) as deem fit and proper.” 4. It is submitted by learned counsel for the petitioner that the father of the petitioner, late S. Hanumanta Rao Achary, who was working under the Govt. as a peon under the Opposite Party No.3, died in harness on 03.01.2018. Thereafter, the death of the ex-Govt. employee, the Petitioner being one of the legal heirs submitted an application for appointment on compassionate ground much prior to the new rule, 2020 came into force, however, such application was kept pending. Finally, the application of the petitioner has been rejected vide order dated 16.10.2023 under the OCS (RA) Rules, 2020. Learned counsel for the Petitioner further contended that the application submitted by the Petitioner was evaluated under the 2020 rules and accordingly, it was rejected as the Petitioner is failing to secure the minimum marks as being required to become eligible for appointment on compassionate ground. 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 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 Page 2 of 5. the validity of Rule-6(9) of the OCS (RA) Rules, 2020 has come into conclusion that the said Rule is ultra vires under the 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, contended that the Opposite Parties have not committed any illegality. He further contended that the application of the Petitioner was considered under the R.A. Rules, 2020 that is the rule which was prevailing at the time of consideration of his application. In course of his argument, he also referred to provisions contained in Rule-6(9) of the OCS (RA) Rules, 2020. By referring to the aforesaid rule, learned counsel for the State submitted in view of the provisions contained in said rule, all pending applications were to be considered under the new rules, 2020. In such view of the matter, learned counsel for the State submitted that the order dated 16.10.2023 in rejecting the application of the Petitioner under the new rules, 2020 under Annexure-4 to the writ application is legally valid and unassailable. In such view of the matter, learned counsel for the State submitted that the present 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 observed that only issue that falls for determination in the present writ application is with regard to applicability of the rules. So far the present Petitioner is concerned, it is gone out from the record, the father of the Petitioner who was an ex-govt. employee, died in harness on 03.01.2018. Thereafter, the application under Annexure-1 Page 3 of 5. was submitted for appointment on compassionate ground much prior to the new rule came into force as submitted by learned counsel for the Petitioner. Therefore, there is no doubt that the application of the Petitioner should have been considered under the OCS (RA) Rules, 1990. The aforesaid legal position gets support from the judgment of this Court in Biswajit Swain’s case (supra), wherein this Court has already held that the provisions contained in Rule-6(9) is ultra vires under the Article-14 of the constitution of India. 8. In the aforesaid legal and factual background, this Court has no hesitation in coming to a conclusion that the impugned rejection order dated 16.10.2023 under Annexure-4 is unsustainable in law and accordingly, the same is hereby set aside. Further, the matter is remanded back to the Opposite Party No.3, who shall consider the matter afresh in the light of the judgments referred to hereinabove. It is further directed that while considering the application 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 Tiwri passed in Civil Appeal No.8842 of 2022 decided on 3rd of March, 2023 reported in (2023 (3) SCALE-557. Further, taking into consideration the submission made by learned Additional Standing Counsel, the Opposite Party No.3 shall first determine the date of application. In the event it was found that the application has been submitted prior to the new rule of the year 2020 came into force w.e.f. 17.02.2020, then the application of the Petitioner shall be considered strictly in terms of the aforesaid directions and shall be disposed of by passing a speaking and reasoned order within two months from the date of communication of a certified copy of this order. The final decision be communicated to the petitioner within ten days from the date of taking such a decision. Page 4 of 5. 9. With the aforesaid observation/direction, the writ petition is disposed of. 10. Urgent certified copy of this order be granted on proper application. Anil ( A.K. Mohapatra) Judge Signature Not Verified Page 5 of 5. Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 01-May-2024 10:22:05