The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.11051 of 2024 Sanjay Kumar Behera ..... Petitioner Represented By Adv. - Amitav Tripathy -versus- State Of Odisha and others ..... Opposite Parties Represented By Adv. – Mr. D. Nayak, AGA
Legal Reasoning
CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
Decision
ORDER 06.05.2024 This matter is taken up through Hybrid mode. Heard learned counsel for the Petitioners as well as learned Order No. 01. 1. 2. Additional Government Advocate for the State-Opposite Parties. 3. The Petitioner has filed the present writ application with the following prayer: “The petitioner above named, therefore, prays that this Hon’ble Court may graciously be pleased to admit the writ application, issue rule nisi calling upon the opposite parties to show cause as to why the case of the petitioner shall not be consider under the Orissa Civil Services (Rehabilitation Assistance) Rules, 1990 and Odisha Civil Services (Rehabilitation Assistance) Rules; If the opposite parties fail to show cause or give insufficient cause, Your Lordships may be pleased to make the Rule absolute by issuing a writ of mandamus Page 1 of 5. directing the authorities to consider his case for giving Compassionate Appointment commensurate with his qualification within a stipulated period of two months from the date of passing of the order; And pass any other orders or directions as this Hon’ble Court may deem just and proper.” 4. It is submitted by learned counsel for the Petitioner that the father of the Petitioner who was working as a Watchman in the office of the Mining Officer, Phulbani died in harness on 18.11.2011 leaving behind his legal heirs including the present petitioner. The present Petitioner, who is the son of the present government employee, with the consent of other legal heirs, submitted an application for appointment on compassionate ground in order to mitigate the distressful condition of the family. Such application for appointment on compassionate ground was filed by the Petitioner on 19.12.2016 which was duly forwarded to the Office of Opposite Party No.3. While the aforesaid application was pending, the Petitioner received a letter from the Office of Opposite Party No.2 with a direction to apply in the proper format along with the required documents on 05.02.2018. Thereafter, the Petitioner was asked to appear for the Opposite Party No.4 for consideration of this case for appointment on compassionate grounds. Accordingly, the Petitioner appeared for the Opposite Party No.4 and submitted all the required documents for verification. Thereafter, the Opposite Parties kept the matter pending. Finally, the Petitioner received letter dated 13.12.2020 with a request to resubmit the application under the provisions of OCS (RA) Rules, 2020. 5. Learned counsel for the Petitioner further contended that while the application for appointment on compassionate ground was kept pending for several years and no decision was taken therein, a new Rule, i.e., OCS (RA) Rules, 2020 came into force. Accordingly, the Opposite Parties, in view of the GA & PG Department circular dated Page 2 of 5. 17.02.2020, has returned the application of the Petitioner for appointment on compassionate grounds with further direction to resubmit the same under the new Rules of the year 2020. Being aggrieved by such conduct of the Opposite Parties, the Petitioner approached the Opposite Party No.2 by filing a representation on 20.09.2022. However, no final decision has been taken on such representation of the Petitioner as of yet. 6. Learned Additional Government Advocate on the other hand contended that while the application of the Petitioner was pending, the new Rules of the year 2020 was notified by GA & PG Department resolution dated 17.02.2020. He further contended in view of Rule-6 (9) of the OCS (RA) Rules, 2020, all pending applications are to be considered under the new Rules of the year 2020. In such view of the matter learned Additional Government Advocate submitted that the Opposite Party No.4 has not committed any illegality asking the Petitioner to resubmit the application in new format under the OCS (RA) Rules, 2020. In such view of the matter, learned Additional Government Advocate submitted that the present writ application is devoid on merit and accordingly, the same should be dismissed. 7. In reply to the aforesaid contention of the learned Additional Government Advocate, learned counsel for the Petitioner submitted that the issue is regard to applicability of the Rules is no more res integra. He further referred to the judgments of the Hon’ble Supreme Court in Malaya Nanda Sethy v. State of Orissa and others: reported in 2022(II) OLR(SC)-1 and a Division Bench of this Court in Bindusagar Samantaray v. State of Odisha and others bearing W.A. No.810 of 2021 decided on 25.09.2023, as well as the judgment dated 31.10.2023 in Biswajit Swain v. State of Odisha and others bearing W.P.(C) No.5214 of 2021 rendered by this Bench, submitted that where the Page 3 of 5. deceased government employee has died prior to the date when the new Rules of the year 2020 came into force and, the application was pending at the time the new Rule came into force, such applications are to be considered under the OCS (RA) Rules, 1990. In such view of the matter, learned counsel for the Petitioner submitted that the Opposite Parties have committed an illegality by directing the Petitioner to furnish a fresh application under the OCS (RA) Rules,2020 vide their letter dated 30.12.2020. 8. Having heard the learned counsels appearing for the respective parties on a careful examination 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 factual background of the present case. It further appears that that father of the Petitioner died in harness on 18.11.2011 and the Petitioner had submitted an application for appointment on compassionate ground on 19.12.2016. It appears that there was a delay on part of the Petitioner in approaching the authorities for appointment on compassionate ground. However, under the OCS (RA) Rules, 1990, there is a provision for condonation of delay by the concerned Administrative Department. The only issue that is required to be adjudicated in the present writ application is with regard to the applicability of the Rules applicable to the facts of the present case. By taking into consideration the law laid down by Hon’ble Supreme Court in Malaya Nanda Sethy v. State of Orissa and others: reported in 2022(II) OLR(SC)-1 and State of West Bengal v. Debabrata Tiwari 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 and the judgment of this Court in Suchitra Bal v. State of Odisha & others by a Division Bench of this Court in W.P.(C) No.2081 of 2021 decided on 16.03.2021 as well as Bindusagar Samantaray v. State of Page 4 of 5. Odisha and others by a Division Bench of this Court in W.A. No.810 of 2021 decided on 25.09.2023, this Court is of the considered view that the law is well settled with regard to the applicability of the OCS (RA) Rules, 1990. Further, with regard to the delay in submission of said application it is open to the Opposite Parties to consider the same subject to the Petitioner satisfying the Opposite Parties for condonation of delay. This Court further observes that the Opposite Parties shall also take into consideration the judgment of Hon’ble Supreme Court in State of West Bengal v. Debabrata Tiwari passed in Civil Appeal No.8842 of 2022 decided on 3rd of March, 2023 reported in 2023(3) SCALE-557 and the principle laid down therein while considering the application of the Petitioner. In view of the aforesaid analysis of facts as well as the legal position, this Court deems it proper to dispose of the writ application at the stage of admission by directing the opposite parties to consider an application of the Petitioner under the OCS (RA) Rules, 1990, and dispose of the same strictly in accordance with the provisions contained in the said Rules within a period of two months from the date of communication of the certified copy of today’s order. The final order so passed be communicated to the Petitioner within ten days from the date of taking such decision. 9. With the aforesaid observation/direction, the writ application stands disposed of. 10. Issue urgent certified copy of this order as per Rules. S.K. Rout ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-May-2024 20:04:46 Page 5 of 5.