The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.17401 of 2023 Prasanta Bhoi …. Petitioner Mr. M.M.Das,Advocate -versus- State of Odisha & others …. Opposite Parties Mr. S.Das, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 29.01.2024 Order No. 02. 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 for the State-Opposite Parties. 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, most humbly prayed that your Lordships would be graciously pleased to admit this writ petition and issue Rule NISI to the Opposite Parties calling upon them to show cause as to why the impugned order dated 03.05.2023 under Annexure-8 shall not be quashed and further why they shall not be directed to give appointment to the petitioner on compassionate ground under the OCS(RA) Rules, 1990. And on their failing to show cause or showing insufficient causes, issue as writ of certiorari quashing the impugned order dated 03.05.2023 under Annexure- 8. // 2 // And further a writ in the nature of mandamus or any other appropriate writ(s) be issued directing the Opposite parties to give appointment to the petitioner on compassionate ground under the OCS(RA) Rules, 1990. And pass such other order/orders as would be deemed fit and proper.” 4. It is submitted by learned counsel for the petitioner that the father of the present petitioner died on 10.07.2012. Thereafter, the mother of the petitioner applied for a job under the Rehabilitation Assistance Scheme on 17.03.2013. While the application of the mother of the petitioner was pending, the present petitioner also applied for a job on 11.02.2013. So far the mother of the present petitioner is concerned she was medically examined and after such examination she was found medically unfit for Government job by the District Medical Board on 07.08.2014. On such ground the application of the petitioner was returned by the Superintending Engineer, Main Dam Division vide letter dated20.11.2020 on the ground that such application could not be considered in view of the GA & PG Department notification dated 17.02.2020 and in view of the fact that the new Rule of the year 2020 under Rule 6 (9) provide that all pending applications have to be considered under the new rules of the year 2020. Further the petitioner was advised to file a fresh application under the O.C.S. (RA) Rules, 2020, which will be considered under the aforesaid rules. Learned counsel for the petitioner further contended that earlier the petitioner approach this Court by filing W.P.(C) No.3782 of 2021 which was disposed of vide order dated 22.11.2022 with a direction to the Opposite Parties to consider the application of the petitioner in the light of the law laid down by the Hon’ble Apex Court in the case of Malaya Nanda Sethy V. State of Orissa and others reported in 2022(II) OLR(SC) 1 as // 3 // well as in the case of the Tapan Kumar Nayak-v.-State of Odisha and others reported in 2022(II) OLR-735 decided by this Court. After disposal of the earlier writ application the petitioner approached the Opposite Party No.4. The Opposite Party No.4 vide order dated 03.05.2023 has been pleased to reject the application of the petitioner by taking into consideration the judgment of the Hon’ble Supreme Court in N.C. Santosh-v.-State of Karnataka and others reported in (2020) 7 SSC 617 under Annexure-8. 5. Learned Additional Government Advocate on the other hand contended that after disposal of the earlier writ application by this Court, the Opposite party No.4 has considered the case of the petitioner pursuant to the direction of this Court. It was further contended that on a careful examination of the petitioner’s case, the Opposite parties have rejected the application by passing the detailed order dated 03.05.2023 under Annexure-8 to the writ application. In such view of the matter learned Additional Government Advocate submitted that the Opposite parties have not committed any illegality by passing the impugned order under Annexure-8. Therefore the same does not necessitate interference by this Court at this juncture. In such view of the matter it was contended that the present writ is devoid of merit and accordingly the same should be dismissed. 6. Having heard learned counsels appearing for the respective parties, and on a careful examination of the factual background as well as the materials on record, this Court observes that the deceased Government employee i.e. the father of the present petitioner died on 10.07.2012, such facts as remain undisputed as per the pleadings of the parties. Further it appears that the mother of the petitioner had initially applied for a job under RA Scheme but she was found unfit to perform any Government Job. The present petitioner who is the // 4 // only son of the deceased Government employee applied for a job along with such unfit certificate of his mother and other documents. The application submitted by the petitioner was kept pending for a long time and finally the same was rejected by applying the 2020 Rules, under Annexure-8 to the writ application. On a careful scrutiny, the order under Annexure-8, this Court observes that the application of the petitioner has been rejected under Rules 6(9) of O.C.S. (RA) Rules, 2020 and considering the application under the new rules in the light of the judgment of the Hon’ble Supreme Court in N.C. Santosh case (supra). On a careful analysis of the factual backgrounds as well as current legal position, this Court referring to the judgments of this Court Malaya Nanda Sethy vrs. State of Orissa and others: reported in 2022(II) OLR(SC)-1, Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023, State of West Bengal-v.-Debabrata Tiwari reported in (2023 (3) SCALE-557, Suchitra Bal v. State of Odisha and others in W.P.(C) No.2081 of 2021 & batch decided on 27.06.2023, and State of Odisha and others vs. Bindu Sagar Samantaray in W.A.No.810 of 2021, is of the view that considering the date of the application, the application submitted by the petitioner should have been considered under the O.C.S. (RA) Rules, 1990. Moreover, in Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023 this Court has categorically observed that the Rule 6(9) of the O.C.S. (RA) Rules, 2020 is ultra vires of Article 14 of the Constitution of India. Accordingly, the same has been struck down. In such view of the matter, this Court further observes that impugned rejection order is not in conformity with the legal position. Accordingly, the impugned order under Annexure-8 is hereby set aside. Further the matter is remanded back to the Opposite // 5 // Party No.4 to consider the case of the petitioner for appointment under the Rehabilitation Assistance Scheme, 1990 within a period of two months from the date of communication of a certified copy of this order by taking into consideration the aforesaid judgments. The final decision so taken be communicated to the petitioner within two weeks from the date of taking such decision. 7. With the aforesaid observation, the writ application stands disposed of. 8. 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: 05-Feb-2024 11:08:14