The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.17281 of 2023 Jyotirmaya Bibhar …. Petitioner State of Odisha and others …. Opposite Parties
Legal Reasoning
Mr. S.K. Panda, Advocate -versus- Mr. I. Mohanty, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 23.06.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioners as well as learned counsel for the State. Perused the writ petition and the documents annexed thereto. 3. The present writ petition has been filed by the petitioners with the following prayers: to admit “It is therefore, prayed that this Hon’ble Court may graciously be pleased this Writ Application notice may be issued to the Opp.parties to file their counter as to why the petitioner shall not be appointed in Class-IV post under Rehabilitation Assistance Scheme and after hearing both sides the order in letter No.672 dt. 03.03.2022 issued by the CDVO, Sambalpur may be quashed directing the Director, Animal Husbandry & Veterinary Services, Odisha, Cuttack (O.P. No.2) and the Chief District Veterinary Officer, Samabalpur (O.P. No.4) to appoint the petitioner in Class-IV post under Rehabilitation Assistance Scheme in respect of in service death of his // 2 // father Late Dhananjaya Bibhar, Ex. Attnd. And.or any other order(s)/direction(s) as your Lordship deem fit and proper.” 4. It is submitted by learned counsel for the Petitioner that the father of the Petitioner, Late Dhananjay Bibhar, who was working as A.S.O. under the Director of Animal Husbandry and veterinary Services, Odisha Cuttack, expired prematurely on 30.08.2015. Thereafter, the Petitioner being the legal heir of his deceased father submitted an application for appointment under the Rehabilitation Assistance Scheme Rules, 1990 in the year 2015 within one year of death of his father. Further, it is submitted by learned counsel for the Petitioner that the application of the Petitioner has been returned with a direction to submit the application in Form ‘A’ as per O.C.S.(R.A.) Rule, 2020 by the impugned order dated 12.06.2020 under Annexure- 5. In this context, learned counsel for the Petitioner relies upon the judgment rendered by 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. Relying the aforesaid judgment, learned counsel for the Petitioner submits that the application of the Petitioner needs to be considered in the light of the judgment rendered by the Hon’ble Supreme Court. 5. Lastly, the Opposite Parties illegally returned the claim of the Petitioner for appointment under R.A. Scheme and also without considering his claim as per prevalent Rule. In this context, learned counsel for the petitioner relies upon the judgment rendered by the Hon’ble Supreme Court in the case of Indian Bank vs. Promila, reported in (2020) 2 SCC 729, State of Madhya Pradesh vs. Amit Shrivas, reported in (2020) 10 SCC 496, Hon’ble Apex Court in the // 3 // case of The Secretary to Govt., Department of Education (Primary) & Ors. vs. Bheemesh Alias Bheemappa (Civil Appeal No.7722 of 2021) as well as in the case of State of Madhya Pradesh vs. Ashish Awasthi, reported in 2021(II) OLR (SC) 1072 and also in the case of Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1. Relying the aforesaid judgment, learned counsel for the petitioners submits that the application of the petitioner no.1 needs to be considered in the light of the judgment rendered by the Hon’ble Supreme Court. 6. Learned counsel for the State, on the other hand, submits that during the pendency of the application submitted by the Petitioner for appointment on compassionate ground, a new rule was enacted in the year 2020. Therefore, the authorities, by referring to the new rules, have rejected the application to the Petitioner. However, he does not dispute on passing the impugned order and the authorities have not considered the law laid down in the case of the Malaya Nanda Sethy(supra). He further submits that he has no objection, if a direction is given to the authorities to consider the grievance petition of the Petitioner in accordance with law within a stipulated period of time. 7. However, this Court is of the considered view, such delay cannot take away the valuable right of the petitioner approached this Court within a reasonable time. 8. Having heard leaned counsel for the parties and considering the facts and circumstances of the case, this Court observes that the order dated 03.03.2022 under Annexure-1 is not sustainable in law and therefore, the same is hereby set aside and looking to the date of // 4 // death of the deceased and further it is not open for the Opposite Parties to sit over the matter for the years together without applying the law, which came into force subsequently. The Hon’ble Supreme Court has taken a decision in the case of Malaya Nanda Sethy vrs. State of Orissa and others (supra) and also taken similar view many other cases and this Court is of the considered view the impugned order is not sustainable in law. Accordingly, this Court disposed of the matter at the stage of admission by directing the Opposite Party No.2 to consider the case of the petitioner for appointment of compassionate ground under OCS(Rehabilitation Assistance) Scheme (1990) to consider the matter in the light of the law laid down by the Hon’ble Supreme Court of India in the case of Malaya Nanda Sethy vrs. State of Odisha (supra). Further, it is directed that while considering the application of the petitioner, the authorities shall also take into consideration the latest judgment in the case of State of West Bengal vrs. Debabrata Tiwari passed in Civil Appeal No.8842 of 2022 decided on 3rd of March, 2023 reported in (2023 (3) Scale-557). Accordingly, the Opposite Party No.2 is directed to consider the application of the petitioner as has been directed hereinabove and take a decision within a period of two months from the date of communication of this order by the petitioner. 9. It is further submitted that the Opposite Party No.2 shall do well do consider the case of the petitioner as per law laid down by 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 State of West Bengal vrs. Debabrata Tiwari passed in Civil Appeal No.8842 of 2022 decided on 3rd of March, 2023 reported in (2023 (3) Scale-557) within the aforesaid time. Any decision so taken on // 5 // the same shall be communicated to the petitioner within a period of ten days thereafter. 10. With the aforesaid observation/direction, the writ petition stands disposed of. Urgent certified copy of this order be granted on proper application. Jagabandhu ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 24-Jun-2023 13:05:13