The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.11698 of 2024 Swetalina Das ..... Petitioner Represented By Adv. - Nihal Rath State Of Odisha & ors. ..... Opposite Parties -versus- Represented By Adv. – N.K.Praharaj, AGA
Legal Reasoning
CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No.
Decision
ORDER 13.05.2024 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 Government Advocate appearing for the State. 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 : “It is, therefore, most humbly prayed that this Hon'ble Court may graciously be pleased Admit the writ application, to issue rule Nisi calling upon the opposite parties to show cause as to why the prayers made hereunder be not allowed, Upon showing insufficient cause/ no cause make the said Rule absolute, Issue writ/ writs in the nature of i. Mandamus directing the opp. Parties to issue appointment order in favour of the petitioner under OCS (RA) Rules, 1990 and further grant him consequential benefits by quashing the order No.2965 dt. 21.09.2022 under Annexure-6 whereby she was called upon to file her application afresh within the stipulated period. ii. And/or may pass such other writ/writs, order/orders, direction/directions as this Hon'ble Court may think fit and proper for the ends of justice.” Page 1 of 4. 4. Being aggrieved by the letter dated 21.09.2022 under Annexure-6 to the writ application, thereby the Petitioner has been informed to file a fresh application under the OCS (RA) Rules, 2020 and in terms of the G.A. & P.G. Dept. notification dated 17.02.2020, the Petitioner has approached this Court by filing the present writ application. Learned counsel for the Petitioner at the outset submitted that the father of the Petitioner while working as Amin in the office of the Additional Sub- Collector, Puri died in harness on 12.02.2019. Thereafter, the Petitioner being one of the legal heirs, after obtaining a legal heir certificate and income certificate issued by the competent Revenue Authority submitted an application for appointment on compassionate ground in the year 2019. In the said application under Annexure-3 was duly forwarded by the Opposite Party No.5 to the Opposite Party No.4 vide letter dated 23.12.2019. Since no decision has been taken on such application of the Petitioner for appointment on compassionate ground the Petitioner being aggrieved by such inaction on the part of the Opposite Party Nos.4 and 5 has approached this Court by filing the present writ application. 5. Learned Additional Government Advocate appearing for the State, on the other hand, contended that it appears from the documents annexed to the writ application that such application has been forwarded to the Opposite Party No.4. He further contended that in the event, the said application is pending before the Opposite Party No.4, he will have no objection in the event this Court directs the Opposite party No.4 to consider and dispose of the same in accordance with the applicable rules within a stipulated period of time. In course of his submission, learned counsel for the State submitted that the C.D.M. and P.H.O., Puri has informed the Opposite Party No.4 that the mother of the present Petitioner, who has a preferential right for appointment on compassionate ground has been certified to be unfit for govt. job only Page 2 of 4. vide letter dated 28.04.2021, which was communicated to the Opposite Party No.4 on 30.09.2021. In such view of the matter, learned counsel for the State submitted that the application of the Petitioner to be considered by applying the OCS (RA) Rules, 2020 and in terms of the G.A. & P.G. Dept. notification dated 17.02.2020. He further contended that since the application submitted by the Petitioner appears to be pending before the Opposite Party No.4, the present writ application is premature and the same should be dismissed. 6. In reply to the contentions, learned counsel for the Petitioner referred to 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 and the judgment of this Court 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 and the judgment of this Court in the case of Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023, submitted that the application of the Petitioner should have been considered in the OCS (RA) Rules, 1990. However, the Opposite Party No.4 vide his letter dated 21.09.2022 under Annexure-6 has asked the Petitioner to submit an application under the OCS (RA) Rules, 2020 and in view of the G.A. & P.G. Dept. notification dated 17.02.2022 (which has been mentioned erroneously i.e. the correct date of notification is 17.02.2020). In the aforesaid context, learned counsel for the Petitioner submitted that the law is well settled in view of the aforesaid judgment that the deceased govt. has died prior to come into force that the new rule, then the application has already been submitted and the same was pending at the time of new rule came into force, then such application is required to be considered under the R.A. Rules, 1990. It was also Page 3 of 4. contended that in Bindusagar Samantaray’s case (supra) & in Biswajit Swain’s case (supra), the Division Bench as well as the Single Judge Bench of this Court have held that the rule 6(9) of the OCS (RA) Rules, 2020 would be violative of Article 14 of the Constitution of India. 7. Considering the submissions made by learned counsels appearing for the respective parties, on a careful examination of the background facts as well as materials on record, this Court deems it proper to dispose of the writ application at the stage of admission by directing the Opposite Party No.4 to consider the pending application of the Petitioner, if no final decision has been taken in the meantime, strictly in accordance with the OCS (RA) Rules, 1990 and dispose of the same within a period of two months by passing a speaking and reasoned order. Any decision so taken on the same shall be communicated to the petitioner within a period of ten days from the date of taking such a decision. 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: 14-May-2024 10:52:36