The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.19465 OF 2023 (An application under Articles 226 and 227 of the Constitution of India) Madhab Bairagi … Petitioner -versus- State of Odisha and others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.S. Mallik, Advocate -versus- For Opposite Parties : Mr.I. Mohanty, Addl. Govt. Advocate --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 11.9.2023. Sashikanta Mishra,J. The Petitioner has approached this Court seeking the following relief; “In view of the facts mentioned above, the petitioner prays for the following relief(s); Page 1 of 8 (I) Quash the order dt.17.5.2023 as at Annexure-6. (II) Direct/order that the petitioner shall be appointed to a suitable post under Rehabilitation Assistance in terms of OCS (R.A.) Rules, 1990. (III) Pass any such orders a may be deemed fit in the interest of justice.” 2. The facts of the case are that the father of the Petitioner, Late Deba Bairagi, was a work charged Khalasi under the administrative control of the Chief Construction Engineer, Upper Kolab Project, Bariniput in the District of Koraput (Opposite Party No.3). As per order dated 1st October, 2010 passed by the Office of the Engineering in Chief, Water Resources, Odisha, Bhubaneswar (Opposite Party No.2) pursuant to the decision of the Government vide Notification dated 28th February, 2009, the NMR employees like the Petitioner’s father were brought over to the work charged establishment w.e.f. 1st March, 2009 on certain terms and conditions. Accordingly, the Opposite Party No.3 was directed to take necessary action. The matter was however kept pending, for reasons unknown, in the office of the Opposite Party W.P.(C) No. 19465 of 2023 Page 2 of 8 No.3 till as late as 17th April, 2011 on which the date, the formal order bringing over the Petitioner’s father (and other employees) to the work charged establishment was issued. But as ill-luck would have it, the Petitioner’s father died just four days prior to issuance of such order i.e. on 13th April, 2011. The Petitioner being unemployed submitted an application for appointment under the Rehabilitation Assistance Scheme to the Opposite Party No.3. The same was forwarded along the relevant documents to the Opposite Party No.2 for necessary action. Since no action was taken on the application, the Petitioner approached the erstwhile Administrative Tribunal in O.A. No.2470(C)/2016 which was transferred to this Court and registered as W.P.C.(OAC) No.2470/2016. By order dated 6th September, 2022, this Court directed the concerned authority to consider the claim of the Petitioner in the light of the order passed by the Tribunal in another case being O.A. No.4619/2011. In the said order passed in respect of the applicant, Kalpana Aich, learned Tribunal under similar facts W.P.(C) No. 19465 of 2023 Page 3 of 8 directed the authorities to treat the deceased employee as work charged employee as on 1st March, 2009 and to extend all benefits as admissible to such employees including appointment under the Rehabilitation Assistance Scheme in favour of the applicant. However, by order dated 17th May, 2023, which is impugned in the present Writ Petition, the Opposite Party No.2 rejected the application of the Petitioner for appointment under the Rehabilitation Assistance Scheme on the ground that the case of the Petitioner is not similar to that of the applicant in O.A. No.4619/2011. 3.
Legal Reasoning
Heard Mr. S. Mallik, learned counsel for the Petitioner and Mr. I. Mohanty, learned Addl. Standing Counsel for the State. 4. It is argued by Mr. Mallik that once the Government took a policy decision to bring the NMR employees like the Petitioner’s father into the work charged establishment and necessary orders were W.P.(C) No. 19465 of 2023 Page 4 of 8 passed by the competent authority being Engineer-in Chief, Water Resources making it effective from 1st March, 2009, the Office Order dated 17th April, 2011 passed by the Opposite Party No.2 in actually conferring such benefit is only consequential and formal. Had the Petitioner’s father been alive the effective date of coming over to the work charged establishment would not have changed under any circumstances and the same would have been treated as on 1st March, 2009. The question of seeking appointment under the Rehabilitation Assistance Scheme arose only because the deceased employee died unfortunately four days prior to issuance of the Office order. The delay in issuing the order cannot be attributed to either the deceased employee or the Petitioner. 5. Mr. I. Mohanty, learned Addl. Standing Counsel, has tried to justify the issuance of the impugned order. But on query by the Court, he fairly submits that the effective date of deceased employee coming over to the W.P.(C) No. 19465 of 2023 Page 5 of 8 work charged establishment has to be treated as 1st March, 2009. 6. This Court has heard the rival contentions and has also carefully perused the relevant documents including the impugned order. As it appears, only because this Court while disposing of the earlier Writ Petition had directed the authority to consider the claim of the Petitioner in the light of the order passed by the Odisha Administrative Tribunal in O.A. No.4619(C)/2011, the authority appears to have dwelt more upon the facts of the said case, rather than considering the aspect highlighted presently before this Court. The sum and substance of the case of the Petitioner is, once the decision was taken to bring the deceased employee over to the work charged establishment w.e.f. 1st March, 2009, for all practical purposes he must be deemed to have been so brought over from that date regardless of the date of issuance of the consequential formal order. Despite service of a
Decision
copy of the Writ Petition on the State counsel, nothing W.P.(C) No. 19465 of 2023 Page 6 of 8 has been stated as regards the delay in issuance of the Office order consequent upon the order passed on 1st January, 2010. In any case the delay in issuance of the said order cannot under any circumstances be attributed to the Petitioner. Further, the Opposite Party No.2 while considering the application of the Petitioner should also have taken note of the fact that such application was filed by a member of the distressed family and appointment sought for was meant to provide much needed succor and support to the family. 7. From what has been discussed hereinbefore, this Court has no hesitation in holding that the reasoning adopted by Opposite Party No.2 as reflected in the impugned order cannot be sustained. Resultantly, the Writ Petition is allowed. The impugned order dated 17th May, 2023, is hereby quashed. The Opposite Party No.2 shall take note of the observations made in this order and issue necessary orders appointing the Petitioner under the Rehabilitation W.P.(C) No. 19465 of 2023 Page 7 of 8 Assistance Scheme subject to satisfaction of the required formalities. The entire exercise should be completed within a period of four weeks from the date of communication of this order. ………..…….……………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.R.-CUM-SR.SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Sep-2023 11:11:29 W.P.(C) No. 19465 of 2023 Page 8 of 8