The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18911 of 2021 Pinku Jena …. Petitioner State of Odisha & others …. Opp. Parties Mr. A. Mohanty, Advocate -versus- Mr. P.K. Muduli, A.G.A. Mr. K.P. Nanda, Advocate for O.P. No.3 CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 01.12.2023 05. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2.
Legal Reasoning
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, the case of the Petitioner should have been considered under the OCS (RA) Rules, 1990 as amended up to the year 2016. He further contended that in view of the judgment of this Court in Biswajit Panigrahi v. State of Odisha & others (W.P.(C) No.27484 of 2022, decided on 19.5.2023) where the provision of rule 6 (9) of the 2020 was under consideration, this Court after thorough analysis of the judgment and by an // 4 // elaborate judgment has categorically held that the provision contained in rule 6 (9) of the 2020 rules is ultra vires of the Article 14 of the Constitution of India. In such view of the matter, learned counsel for the Petitioner submitted that the application of the Petitioner should have been considered under the old rules i.e. OCS (RA) Rules, 1990 as amended up to the year 2016. Therefore, the Opposite Parties have committed any illegality by rejecting the application of the Petitioner vide order dated 12.05.2021 under Annexure-11. 6. A counter affidavit has also been filed on behalf of the Opposite Party-Bank wherein the specific stand has been taken that the recommendation letter under Annexure-8 to the writ application which is being heavily relied upon by the petitioner, is a recommendation by the Registrar, Cooperative Societies to consider the case of the petitioner under the OCS (RA) Rules, 2020. Therefore, the Opposite Parties have not committed any illegality as they have considered the case of the petitioner under the 2020 rules and found the Petitioner to be not eligible for such appointment. In such addition, learned counsel for the Opposite Party-Bank submitted in view of the provisions contained in 2020 rules all pending application are to be considered under the provision of new rules, 2020. Accordingly, the application of the Petitioner was which forwarded to the competent authority, the same has been duly considered by the competent authority and since it was found that the petitioner has failed to secure adequate number of points as is required i.e. 60 point in the present case for being eligible to be considered for appointment on compassionate ground, the case of the petitioner has been duly considered and rejected by the Opposite // 5 // Parties by virtue of the order dated 12.05.2021 under Annexure-11 to the writ application. In such view of the matter, learned counsel for the Opposite Party No.3 also referred to the judgment of the Hon’ble Supreme Court in N.C. Santosh vs. State of Karnataka reported in AIR 2020 SC 1401. Relying upon the aforesaid judgment, learned counsel for the Opposite Parties submitted that the Hon’ble Supreme Court has observed that none prevailing on the date of consideration of the application shall be taken into consideration while considering the application for appointment on compassionate ground under the relevant scheme. In view of the aforesaid submission, learned counsel for the Opposite Parties submitted that the Opposite Parties have not committed any illegality in passing the impugned order dated 12.05.2021 under Annexure-11 to the writ application, accordingly it was submitted that the present writ application is devoid of merit and accordingly, the same deserves to be dismissed. 7. Having heard the learned counsels appearing for the respective parties and on a careful examination of the materials on record as well as the factual background of the present case, this Court observed that only dispute involved in the present writ application is with regard to the applicability of the rule to the facts of the petitioner’s case. Learned counsel for the petitioner claims that his case has to be considered under the 1990 rules as amended up to 2016 in the judgment hereinabove, on the contrary, learned counsel for the Opposite Parties submitted that in view of the judgment in N.C. Santosh case (supra) as well as the provisions contained 6 (9) of the OCS (RA) Rules, 2020, the application submitted by the Petitioner is to be considered under the 2020 rules. On a careful examination of the factual as well as legal aspect, this Court is of the considered view that the issue involved in the present writ application // 6 // is no more dis-integra. The issue which is directly in issuing the present case has been considered by this Court and the same has been answered in the above referred judgments. So far applicability of rule 6 (9) of the OCS (RA) Rules, 2020 is concerned, this Court would like to refer the judgment in Biswajit Panigrahi’s case (supra) wherein this Court has categorically held that the provisions contained in rule 6 (9) is ultra vires of Article 14 of the Constitution of India. With regard to the judgment in N.C. Santosh’s case (supra) the same has also been dealt with by this Court in the above noted judgment in Biswajit Panigrahi’s case (supra). Thus, there is no dispute that the father of the petitioner has been died and application has been made prior to coming into force of a new rule, 2020. The rule which was prevailing at the time of having death of the father of the petitioner and filing of the application shall be applicable as has been held by this Court in many cases including the one referred to hereinabove. In such view of the matter, this Court has no hesitation in coming to a conclusion that the Opposite Parties have committed an illegality by rejecting the application of the Petitioner under provisions of OCS (RA) Rules, 2020. 8. Accordingly, it is held that the order dated 12.05.2021 under Annexure-11 to the writ application is illegal and unsustainable in law, accordingly the same is hereby quashed. Further, the matter is remanded back to the Opposite Party No.3 to consider the matter afresh in the light of the above noted judgments and by taking into consideration the OCS (RA) Rules, 1990 as amended up to the year 2016 within a period of three months from the date of communication of a certified copy of this order by the petitioner. While considering the application of the Petitioner the Opposite Party No.3 shall also take into consideration the fact that similarly situated // 7 // persons whose cases were similar to the petitioner have also appointed in the meantime on compassionate ground. The final decision so taken be communicated to the petitioner within two weeks from the date of taking such a decision. 9. With the aforesaid observation/direction, the writ petition is
Arguments
Heard Mr. A. Mohanty, learned counsel for the petitioner as well as Mr. K.P. Nanda, learned counsel for the Opposite Party No.3 and Mr. P.K. Muduli, learned Additional Government Advocate for the State-Opposite Parties. Perused the pleadings of the parties as well as documents annexed thereto. 3. The present writ petition has been filed by the petitioners with the following prayers: “It is, therefore, most respectfully prayed that, let this Hon’ble Court may be graciously be pleased to allow this Writ Petition and issue writ of mandamus to quash the decision dated 12.05.2021 under Annexure-11 in the interest of justice. And further be pleased to direct the Opposite Parties the to give appointment of Rehabilitation Assistant Scheme on Compassionate Ground by taking into account the Resolution dated 26.02.2020 as well as keeping in view of the decision taken dated 13.10.2020 under Annexure-9, in the interest of justice. the Petitioner under And /or further be pleased to pass any other order/orders, direction/ directions as this Hon’ble Court // 2 // deems just fit and proper in the facts and circumstances of the present case;” The factual background of the present case, in a nut shell, is 4. that the father of the Petitioner who was working in the Odisha State Cooperative Bank in the post of Sub-Staff on being duly appointed on 19.08.2004. While he was continuing in service the father of the Petitioner died in harness on 18.05.2019. Thereafter, the present Petitioner is one of the legal heirs with the consent of other legal heirs applied for appointment on compassionate ground on 21.11.2019. The application submitted by the petitioner was duly considered by the Scrutiny Committee and such Scrutiny Committee found the Petitioner to be suitable for appointment against a Group-D post, accordingly, the name of the Petitioner was forwarded to the Managing Committee of the Bank as well as the Registrar, Cooperative Societies. The writ application further reveals that while the application of the Petitioner was pending the OCS (RA) Rules, 2020 was notified by the G.A. & P.G. Dept., Govt. of Odisha. It also appears that the new rule which was introduced in the year 2020 was also adopted by the Managing Committee of the bank in its meeting. Since, the new rule was in force at the time of consideration of the application of the petitioner, the application of the Petitioner was considered under the aforesaid 2020 rules and it was found that the Petitioner is not having the adequate point as is required for being eligible to be appointed under the Rehabilitation Assistance Scheme. His application has been rejected vide order dated 12.05.2021 under Annexure-11 to the writ application. Being aggrieved by such rejection order, the Petitioner has approached this Court by filing the present writ application. 5. Learned counsel for the Petitioner submitted before this Court that the father of the Petitioner died on 18.05.2019 i.e. much before // 3 // the new rule came into force. He also contended that the application for appointment on compassionate ground was also filed much prior to the new rule came into force i.e. 21.11.2019. It was contended that the application submitted by the petitioner was duly scrutinized by the Scrutiny Committee and it was found that the Petitioner is eligible to be appointed under the Rehabilitation Assistant Scheme. Therefore, the name of the Petitioner was recommended for appointment with the approval of the Managing Committee as well as Registrar, Cooperative Societies. Learned counsel for the petitioner also contended that after verification of the documents as well as keeping in view the education qualification of the Petitioner, his name was recommended for appointment vide letter dated 02.05.2020 under Annexure-8 to the writ application. In the context of rejection order dated under Annexure-11 dated 12.05.2021, learned counsel for the petitioner submitted that in view of the judgment of the Hon’ble Surpeme Court in the case of Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1 and State of West Bengal-v.-Debabrata Tiwari reported in (2023 (3) SCALE-557 as well as in Suchitra Bal vs. State of
Decision
disposed of. Urgent certified copy of this order be granted on proper application. Anil ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 04-Dec-2023 11:14:25