The High Court
Case Details
Order No. 03. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.15100 of 2020 Suprava Halba @ Suchen State of Odisha & Ors. . -versus- …. Petitioner Mr. K.C.Sahu, Advocate …. Opposite Parties Mr. P.C.Das,A.S.C. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 01.12.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Addl. Standing counsel appearing for the State. Perused the Writ petition as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: “It is, therefore, prayed that your Lordships may be graciously be pleased to allow this writ petition by quashing the impugned letters of return under Annexure-11 & 12 by further directing the opp.parties for providing appointment of the petitioner as Jr.Clerk under the R.A. Scheme in view of the recommendation the prevailing the then existing provisions/rules on the date submission of the application form by the petitioner without applying the provisions of the new rule i.e. OCS (RA) Rules 2020 under Annexure-13 as the same shall not be applicable to the case of the petitioner within a time bound period for the interest of justice. letter under Annexure-10 as per And may further be pleased to pass any other order(s), direction(s) as deems fit and proper for the bonafide interest of // 2 // justice.” 4. The factual background of the case as the present writ application is that, the husband of the petitioner, namely one late Damodar Suchen, was working as an Assistant Engineer under the Opposite Party No.3. While he was on deputation under the officer P.A, ITDA, Phulbani, he died in harness on 24.11.2016 leaving behind his legal heirs including the present petitioner. The present petitioner who was an unemployed spouse having a qualification of graduation along with PGDCA in computer application submitted an application before the authorities for appointment on compassionate ground against class-III post of Junior Assistant/ Junior Clerk within the time stipulation as provided in the rules. Initially the application of the petitioner was returned which some defects, however, after rectifying such defects the application was resubmitted before the authorities in the prescribed format as per the OCS RA Rules, 1990 as amended in the year 2016. 5. After the application of the petitioner was resubmitted, the opposite party No.3 vide letter dated 10.06.2019 directed the petitioner to appear in the skill test in the basic computer knowledge for her appointment on compassionate ground fixing the date on 21.06.2019. Accordingly the petitioner appeared in the test conducted in 2019. Thereafter, vide letter dated 25.07.2019, the Opposite party No.3 had recommended names of eight persons including the present petitioner for appointment on compassionate ground to the R.A.S. Committee for the their evaluation. Finally vide letter dated 21.09.2019 the Opposite party No.3 has sent the name of the petitioner along with two others to the Government for // 3 // concurrence/approval for their appointment on compassionate ground under the Rehabilitation Assistance Scheme, against the 3 nos. of vacancies in the post of Jr. Assistant, on the basis of marks obtained by the petitioner. The writ petition further reveals that on receiving the recommendation letter under Annexure-7 and 8, the government vide letter dated 04.12.2019 directed the Opposite Party No.3 with an instruction that, as per the advice of the GA & PA Department, the recruitment on the level of Jr. Assistant are not being held and the same shall not be filled up by way of RA Scheme, and that the case of the petitioner along with other eligible persons seeking appointment on compassionate ground is required to be considered in some other base level post in order of death of the deceased Government employee. Finally the name of the petitioner was recommended for appointment along with two other time date to the Government for appointment against vacant post of Jr. Clerk under the office of Chief Construction Engineer, Anandapur Barrage Project, Salpada against available 36 numbers vacancies. 6. While the matter stood thus, the Director Personnel Water Resources of the office of the Engineer in Chief wrote a letter to the petitioner dated 02.06.2020 under Annexure-13 to the writ application intimating her that in view of the notification of the GA & PG department dated 17.02.2020 the petitioner is required to apply afresh under the OCS RA Rules 2020 for consideration of her application for appointment on compassionate ground against a Group-D post. Being aggrieved by such letter dated 02.06.2020 under Annexure-13 the petitioner approach this Court by filing the present wit application. 7. A counter affidavit has been filed on behalf of the State // 4 // Opposite Parties. On perusal of such counter affidavit is appears that the State Opposite Parties taken a ground that while the application of the petitioner was pending for consideration, a new rule, i.e. O.C.S. (RA) Rules 2020 came into force. Further the Opposite Parties have also referred to the notification GA & PA Department dated 17.02.2020 which required that all pending applications shall be reconsidered under the provisions of the new Rules 2020. Therefore, the Opposite Parties stated in their counter affidavit that they have not committed any illegality in asking the petitioner to file a fresh application for appointment on compassionate ground to Group-D post under the O.C.S. (RA) Rules 2020. 8. Learned Addl. Standing counsel for the State Opposite Parties while supporting the stand taken on the counter affidavit submitted before this Court that, in view of the provision contended in the OCS RA Rules 2020, all pending applications will be considered as per the new rules of the year 2020. Therefore, it was submitted before this Court that since the application of the petitioner was admittedly pending before the Opposite Parties, the application of the petitioner along with the application of similar other applications was considered under the provisions of the new rules. In such view of the matter, the learned Addl. Standing counsel submitted that the Opposite Parties have not committed any legality in issuing the impugned letter dated 02.06.2020 under Annexure- 12 and 13 to the writ application. Therefore, the writ application is devoid of merit and accordingly the same should not be entertained by this Court. 9. Having heard the learned counsels appearing for the respective parties, and on a careful consideration of their submissions as well as on examination of the factual background of the present case, this // 5 // Court observes that, the only issue involved in the present writ application is with regard to the validity of letter dated 02.06.2020 under Annexure-13 and letter dated 17.03.2020 under Annexure-12 thereunder directing to consider all pending application under O.C.S. (RA) Rule 2020 irrespective of the dare of death and the rule applicable at the time of death. In the aforesaid context this Court would like to observe that, the issue involved in the present writ application is the same as the ones that have already been dealt with elaborately in many other cases involving identical factual scenario. In Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1, the Hon’ble Supreme Court of India while dealing with an identical case has categorically stated that the application of the applicant in case the death has taken place prior to the date when the new rule came into force, is required to be considered under the old rule, i.e. OCS Rules 1990. This Court has also taken similar views in State of Odisha and others vs. Bindu Sagar Samantaray in W.A.No.810 of 2021, as well as Suchitra Bal v. State of Odisha and others in W.P.(C) No.2081 of 2021 & batch decided on 27.06.2023. Further Rule 6(9) of the O.C.S. (RA) Rules 2020, which was subject matter of this Court in Biswajit Swain’s case, this Court taking into consideration the contention of the parties and by referring to several judgments, was of the view that the said rule 6(9) OCS RA Rules 2020 is ultra vires of article 14 of the Constitution of India and accordingly, the same has been declared as such. In view of the aforesaid legal position nothing remains be adjudicated in the present writ application. In such view of the matter, this Court is of the view that, the impugned letter under Anexure-11 and 12 dated 17.03.2020 in the writ application is // 6 // unsustainable in law. Accordingly the same is hereby quashed. Further, the matter is remanded back to the Opposite Party No. 1 and 3 to consider grant of concurrence as has been requested vide letter under Annexure-7 and 9. Keeping in view the aforesaid analysis and the judgments referred to hereinabove let the aforesaid exercise be carried out within a period of two months from the date of communication of certified copy of this order. Any decision taken by the Opposite parties shall be communicated to the petitioner within ten days of taking such decision. This Court further directs that, in the event there is no other impediment, other than the issue involved in the present writ application, the opposite party shall take necessary steps for granting necessary approval/concurrence for appointment of the petitioner as has been recommended vide letter under Annexure-7 & 9. 10. With the aforesaid observation, the writ application stands disposed of. 11. Issue urgent certified copy of this order as per Rules. Rubi ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 07-Dec-2023 11:42:52