The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.1317 of 2017 Abhishek Das Petitioner …. Mr.B.C.Pattanaik, Advocate Vice Chairman, BDA and others …. -versus- Opposite Parties Mr.S.Das, Advocate CORAM: JUSTICE A.K.MOHAPATRA Order No. ORDER 01.12.2023 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 Bhubaneswar Development Authority. Perused the pleadings of the respective parties as well as the documents annexed thereto 3. The present Writ Petition has been filed by the Petitioner with a prayer for a direction to the Opposite Parties to file show cause as to why the order dated 05.01.2017 under Annexure-9 shall not be quashed and as to why the case of the Petitioner shall not be allowed and in the event the Petitioner fails to provide any explanation or any insufficient explanation this Court be pleased to further quash the order under Annexure-9 by issuing appropriate writ with a further direction to Opposite e Party Nos 1 & 2 to appoint the Petitioner under the Rehabilitation Assistance Scheme. Page 1 of 2 // 2 // 4.
Legal Reasoning
The factual background of the present case as revealed from
Decision
the Writ Petition is that the father of the Petitioner was working as Superintendent Level-I in the Office of the Vice Chairman, Bhubaneswar Development Authority. While working as such the father of the Petitioner died in harness on 26.02.2010. After the untimely demise of the father of the Petitioner, the Petitioner being one of the legal heirs submitted an application for appointment on compassionate ground under the OCS(RA) Rule, 1990 which was in force at the time of death of Non-Government employee. In reply to such application the Opposite Party no.1 requested the mother of the Petitioner vide letter dated 28.08.2010 to apply under the Rehabilitation Assistance Scheme in the format enclosed to the aforesaid letter with the copies of the documents as requested by Opposite Party no.1 in his letter dated 28.08.2010. 5. After receipt of the letter dated 28.08.2010 the Petitioner submitted his application on 24.12.2010 along with relevant documents. Such application of the Petitioner was forwarded on 20.01.2011 to the Collector, Kendrapara for conducting an enquiry and to submit a report with regard to the distress condition of the family of the ex-Government employee. Pursuant to the said letter, the Collector, Kendrapara asked the Tahasildar, Derabish to enquire into the matter and submit his report. Accordingly, an enquiry was conducted by the Tahsildar and report was submitted to the authority stating therein that none of the family members of Ex-Government employee are in any Government service and it is a fact that the family of the deceased Government employee is in a condition of distress. Copy of the report submitted vide letter dated 06.12.2012 has been annexed as Annexure-2. The aforesaid distress certificate Page 2 of 6 // 3 // issued by the competent authority was forwarded to the Secretary, Bhubaneswar Development Authority vide letter of the Assistant Collector, Kendrapara. 6. On the basis of the aforesaid report with regard to distress condition of the family members of the Petitioner, the Petitioner applied for the post of Junior Grade Typist. However, the matter was kept pending awaiting instruction from the Government with regard to the qualification for appointment to the post of Junior Grade Typist. Finally, a clarification was received vide letter dated 25.10.2014. Vide Letter dated 29.11.2014 the Opposite Party no.5 requested the Opposite Party no.1 to take action as per the prevailing Rule and Regulation of the Bhubaneswar Development Authority for appointment under Rehabilitation Assistance Scheme against the post of Junior Grade Typist. 7. Learned counsel for the Petitioner at the outset contended that despite the fact that there is recommendation in favour of the Petitioner and the Petitioner is eligible to be considered against any of the Group C or Group D post available to be filled up by applying the post under the R.A. Scheme, the Opposite Parties are not taking any action for giving appointment to the Petitioner under R.A. scheme. He further contended that the case of the Petitioner has been kept pending on the ground that there is no vacancy in any Group C or Group D post in the Bhubaneswar Development Authority. Being aggrieved by such inaction the Petitioner has approached this Court by filing the present Writ Petition. 8. Counter Affidavit has been filed on behalf of Opposite Party Nos.1 & 2. In the said Counter Affidavit, Opposite Parties have not disputed the factual background of the present case. On perusal of Page 3 of 6 // 4 // the Counter Affidavit, it appears that in Paragraph- 8, the Opposite Party Nos. 1 & 2 have specifically submitted that the grievance of the Petitioner has not been rejected by the State-Opposite Parties, rather the representation of the Petitioner has been disposed of mentioning that the same will be considered as and when the vacancy will arise. Learned counsel for the Opposite Parties also contended that since there are vacancies in any Group C or Group D post and further in view of the decision of the Government not to fill up any Group C or Group D post, such post has been abolished from time to time. Thus, it was contended before this Court that there are no adequate vacancy in Group C or Group D post to accommodate the Petitioner by giving him appointment on compassionate ground Accordingly, learned counsel for the Opposite Parties submitted that whenever such vacancy arises, the case of the Petitioner shall be considered by the Opposite Parties. 9. A Rejoinder Affidavit has been filed by the Petitioner. The Rejoinder Affidavit reveals the educational qualification of the Petitioner along with supporting certificate. Further the same also reveals that some posts of Junior Assistant are lying vacant as per the information received under the RTI Act. Referring to the letter dated 14.08.2019 under Annexure-11 to the Rejoinder Affidavit, learned counsel for the Petitioner submitted that on the RTI application of the Petitioner the senior Administrative Officer-cum-PIO has informed that 16 nos. of Junior Assistant posts are lying vacant. It is also revealed from the copy of a letter dated 09.08.2019 that around 10 persons have been appointed under the Rehabilitation Assistance Scheme. Page 4 of 6 // 5 // 10. Having heard learned counsel for the respective parties, on a careful examination of the submissions made as well as pleadings of the parties and the materials on record, this Court is of the considered view that the urgency involved for appointment under the Rehabilitation Assistance Scheme is of paramount consideration. The aforesaid aspect has been emphasized by the Hon’ble Supreme Court in the case of State of West Bengal-v. Debabrata Tiwari reported in . 2023 SCC OnLine SC 219.This Court is also of the view that unless the appointments are given immediately to family of the deceased Government employee, they will not be benefited and such delay in considering the case of the Petitioner by the authority with regard to his eligibility for appointment, such inaction would cause injustice not only to the person seeking appointment but also the entire family of the deceased Government employee, who are in distress condition. With regard to the applicability of the Rules, this Court would also like to observe that the same has attained finality in view of the judgment of the Hon’ble Supreme Court in Malaya Nanda Sethy-v.- State of Orissa and others reported in 2022(II) OLR(SC)-1, Therefore, there is no quarrel to the proposition that the Rule which was in force at the time of death of Government employee would be applicable to the legal heirs of the deceased employee who are seeking appointment under compassionate ground. Moreover, this Court is of the considered view that non-availability of vacancy is not a ground to sit over the matter. It is provided that in case there is no vacancy in the hand of the employer and such application are to be forwarded to the Heads of Department to find out the vacancy which will be suitable to the Petitioner seeking appointment under compassionate ground. Therefore, this Court has no hesitation in Page 5 of 6 // 6 // coming to a conclusion that sitting over for a longer period will cause more injustice to the family of the deceased Government employee. 11. Accordingly, this Court while disposing of the Writ Petition directs the Opposite Parties to take immediate and prompt action to find out any vacancy befitting to the qualification of the present Petitioner and in the event such vacancy are available in the employer of the deceased Government employee, such vacancy shall be forwarded to the Heads of the department as provided under OCS(RA) Rule, 1990 for giving appointment to the Petitioner on compassionate ground. Let the entire exercise be carried out within three months from the date of communication of certified copy of this order by the Petitioner. 12. With the aforesaid observation, the Writ Petition is disposed of. 13. Issue urgent certified copy of this order as per Rules. RKS (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 07-Dec-2023 11:37:31 Page 6 of 6