The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.12036 of 2025 Golam Md Ali Khan ..... Petitioner Represented By Adv. - Dilip Kumar Patnaik -versus- 1) State Of Odisha 2) Director, Municipal Administration, Bbsr 3) Collector, Balasore 4) Executive Officer, Balasore Municipality ..... Opposite Parties Represented By Adv. Mr.J.K.Bal, AGA CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 03.05.2025 Order No. 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as the learned Additional Government Advocate. Perused the Writ Petition as well as the documents annexed thereto. 3. The Petitioner has filed the aforesaid Writ Petition with the following orders : “It is, this Hon’ble Court may graciously be pleased to issue Rule Nisi calling upon the Opp.Parties to show Page 1 of 7. therefore, humbly prayed that cause as to why writ/writs shall not be issued quashing the order under Annexure-14 series and further be pleased to direct the Opp.Parties to give appointment to the Petitioner under Rehabilitation Assistance Scheme in accordance with the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990 from the date SK. Zafaruddin has got appointment with all consequential and financial service benefits from the date of appointment and upon perusal of causes shown if any or upon insufficient causes shown make the said rule absolute and may pass such other order/orders as deemed just and proper” 4. Learned counsel for the Petitioner at the outset contended that the father of the Petitioner namely, Addual Mohin Khan, who was working under the Executive Officer, Balasore Municipality, died in harness on 12.04.2013 leaving behind his legal heirs. The Petitioner, being one of the legal heirs of the deceased Government employee, applied for appointment on compassionate ground along with relevant documents. He further contended that pursuant to such application, the Opposite Party No.3 verified the distressful condition of the family of the deceased Government employee and accordingly distress certificate was issued by the competent authority in favour of the Petitioner. Thereafter, the Opposite Party No.3 forwarded the application along with the distress certificate to the Government on 28.01.2015. 5. While this was the position, the Opposite Party No.2 vide order dated 21.01.2020 issued an order to appoint a number of candidates, who have applied for appointment on compassionate ground to different Executive Officers including one Sk.Zafaruddin. At this juncture, learned counsel for the Petitioner submitted that in the list prepared in the year 2013 Page 2 of 7. the name of the Petitioner was at Sl.No.1 and the said Sk.Zafaruddin was at Sl.No.2. However, the said Sk.Zafaruddin was given appointment and the case of the
Legal Reasoning
Petitioner was not considered. Being aggrieved by the inaction of the Opposite Parties, the Petitioner submitted his representation before Opposite Party Nos. 1 & 2 claiming appointment under OCS (RA) Rules, 1990 and specifically referring to the fact that the aforesaid Sk.Zafaruddin was given appointment since February, 2020. Accordingly, Opposite Party No.4 sought for instruction from the Government vide letter dated 13.07.2020. Since no action was taken by the Opposite Parties, the Petitioner was compelled to approach this Court by filing W.P.(C) No.12642 of 2022. A coordinate
Decision
Bench of this Court vide order dated 18.05.2022 disposed of the aforesaid Writ Petition with a direction to Opposite Party No.1 to take a lawful decision on the letter dated 13.07.2020 within a period of four weeks from the date of communication of the said order dated 18.05.2022. Challenging the inaction of the Opposite Parties, the Petitioner again approached this Court by filing CONTC No.3548 of 2023, which was disposed of on 23.06.2023 by granting further time to the Contemnors to comply with the order passed by this Court. 6. Finally, the Opposite Party No.1 vide letter No.8076 dated 09.04.2024 under Annexure-14 series rejected the claim of the Petitioner by referring to Rule 2(a)(iii) of OCS(RA) Rules, 1990. Being aggrieved by such order, the present Petitioner has approached this court by filing the present Writ Petition 7. In course of his argument learned counsel for the Page 3 of 7. Petitioner contended that the Opposite Party No.1 has committed an illegality in rejecting the application of the Petitioner by applying a repealed provision of Rules, 1990. While rejecting the application of the Petitioner under Annexure-14 series, the Opposite Party no.1 has quoted the Rule 2(a)(iii) of OCS(RA) Rules, 1990, which reads as follows : “that none of the family members of the employee who has died while in service is already in the employment of government/Public or Private Sector or engaged in independent business with an earning above Rs.20,000 (Rupees twenty thousand) a year,” He further contended that by taking into consideration the aforesaid provisions of OCS (RA) Rule, 1990 the application of the Petitioner has been rejected. In the said context, learned counsel for the Petitioner, drawing the attention of this Court to the relevant Rules, contended that the provisions which have been quoted hereinabove have been repealed since 29.12.2008 by virtue of a Government Notification issued by the G.A. Department. Further, referring to the aforesaid Notification under Annexure-15, learned counsel or the Petitioner contended that by virtue of the OCS(RA) Amendment Rules, 2008 the provisions contained in Rule 2(a)(iii) has been amended and by virtue of the amendment the explanation provides as follows : “Explanation II – The total annual family income from all sources excluding the Family Pension and Temporary Increase must not exceed Rs.72,000 (Rupees Seventy two thousand) for a family to be in a ‘distress conditions.” 8. Learned counsel for the Petitioner contended that In view Page 4 of 7. of the aforesaid amended provisions indicated in the OCS (RA) Rules, 1990 by virtue of a Notification dated 29.12.2008, the decision taken by the Opposite Parties in rejecting the application of the Petitioner is highly illegal and arbitrary. As such the learned counsel for the Petitioner contended that the impugned order dated 09.04.2024 under Annexure-14 is unsustainable in law. 9. Learned Additional Government Advocate on the other hand contended that the Opposite Party No.1 has not committed any illegality while passing the order dated 09.04.2024 under Annexure-14. He further contended that pursuant to the order passed in the earlier Writ Petition, the representation of the Petitioner has been duly considered and the same has been disposed of by passing a speaking order. However, learned Additional Government Advocate did not dispute that the OCS (RA) Rule, 1990 was amended in the year 2008 and a new ceiling has been provided. In such view of the matter, learned Additional Government Advocate contended that the Opposite Party no.1 has not committed any illegality in rejecting the application of the Petitioner for compassionate appointment. 10. Having heard learned counsels for the respective parties, on a careful examination of the background facts of the present case, on a careful reading of the rejection order under Annexure-14 series, this Court observes that the representation of the Petitioner has been rejected by referring to Rule 2(a)(iii) of the OCS(RA) Rule, 1990. On a careful examination of the factual aspect involved in the present Writ Page 5 of 7. Petition, this Court observes that the deceased Government employee admittedly died on 30.03.2013 as is evident from the death certificate under Annexure-1 to the Writ Petition. Similarly, the mother of the Petitioner died on 27.04.2011 under Annexure-2. Moreover, the competent authority has initially issued a distress certificate in favour of the family of the deceased Government employee on 17.12.2014 under Annexure-5 to the Writ Petition. In view of the aforesaid position, this Court is of the considered view that the provisions which have been relied upon to reject the application of the Petitioner is not applicable to the case of the Petitioner as by the time the father of the Petitioner (deceased Government employee) died, the Rule was already amended in terms of the Notification under Annexure-15 to the Writ Petition. Therefore, this Court has no hesitation to hold that the impugned rejection order is highly illegal and unsustainable in law. Accordingly, the impugned rejection order under Annexure-14 is hereby quashed. Further, the matter is remanded back to Opposite Party No.1 to consider the matter afresh in terms of OCS(RA) Rule, 1990 and further taking into consideration the Notification of the G.A.& P.G. Department dated 04.04.2025. Accordingly, the application of the Petitioner be considered and disposed of within a period of three months from the date of communication of this order. The final decision so taken be communicated to the Petitioner within 10 days thereafter. While considering the case of the Petitioner the Opposite Party No.1 shall also take into consideration the fact that similarly situated person, like one Sk.Zafaruddin, has been given Page 6 of 7. appointment on compassionate ground in the meantime. 11. With the aforesaid observation/direction, the Writ Petition is disposed of. Issue urgent certified copy of this order as per Rules. RKS ( A.K. Mohapatra ) Judge Page 7 of 7. Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: AR-CUM-Senior Secretary Reason: Authentication Location: High Court of Orissa Date: 05-May-2025 16:09:08