The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18007 of 2023 Sujit Kumar Mahanta and another …. Petitioners State of Odisha and others …. Opposite Parties Mr. S.K. Ojha, Advocate -versus- Mr. I. Mohanty, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 22.06.2023 01. 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: “Under the facts and circumstances stated above, it is most humbly and respectfully prayed that the Hon’ble Court may graciously be pleased to issue rule NISI calling upon the Opp. Partie3s to show cause as to why the writ in the nature of Mandamus shall not be issued directing the Opp.Party No.1 to consider and offer the appointment in any Gr. C. post to the petitioner letter dated as per recommendations made vide 17.03.2018 (Annexure-1) within a stipulated period Rules, 1990 of OCS(RA) Scheme and as amended in 2016; If the Opp.Parties failed to show any cause to show insufficient cause, rule may be made absolute. And further be pleased to pass any other Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 23-Jun-2023 11:38:47 // 2 // order/orders as deemed fit and proper;” 4. It is submitted by Mr. S.K. Ojha, learned counsel for the petitioners that the father of the petitioner no.1 Late Kushadhwaja Mahanta, who was working as a Special Officer, ITDA, Baripada under the Project Administrator, Integrated Tribal Development Agency, Baripada, Mayurbhanj-Opposite Party No.2 died in harness on 27.07.2017 leaving behind his legal heirs including the petitioner no.1. It is also submitted by the learned counsel for the Petitioners that the Petitioner No.1 applied for compassionate appointment under Rehabilitation Assistance Rules on consent of other legal heirs. It is further contended that although the father of the Petitioner no.1 was expired in the year 2017 till December, 2021, the Opposite Parties have not considered the case of the Petitioner. Learned counsel for the petitioners further submitted that although the petitioner no.1 has submitted an application for appointment on compassionate grounds, due to lack of documents for rectification returned the same. Only on 17.03.2018, the authorities forwarded the application of the petitioner after complying with the necessary formalities such as inquiry and collecting other information about the family. Being aggrieved the aforesaid inaction of the authorities in not taking a decision for appointment of the petitioner on compassionate ground, the petitioner has approached this Court by filing the present writ petition. 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 Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 23-Jun-2023 11:38:47 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, submitted that in the meantime OCS (RA) Rules has been amended and a new rule came into force in the year 2020. Pursuant to the same, the application of the petitioner no.1 was considered under the new rules of 2020 and asked the petitioners. Therefore, the authorities have rightly asked the petitioners to explain the delay to examine the distress condition of the family and find out as same is still continuing or not. Therefore, learned counsel for the State submits that the writ petition is devoid of merit and the same should be dismissed at the threshold. 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 the contentions raised by the learned counsels for the respective parties and upon conspectus background facts of Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 23-Jun-2023 11:38:47 the present case, this Court is of the considered view that the case of the petitioner should have been considered within a reasonable period from the date of submission of application and further it is not open for the Opposite Parties to sit over the matter for the years together // 4 // 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.1 to consider the case of the petitioner no.1 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 no.1, 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.1 is directed to consider the application of the petitioner no.1 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 petitioners. 9. It is further submitted that the Opposite Party No.1 shall do well do consider the case of the petitioner no.1 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 Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 23-Jun-2023 11:38:47 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 the same shall be communicated to the petitioner no.1 within a period // 5 // 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: 23-Jun-2023 11:38:47