The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.20323 of 2023 Badal Sarangi …. Petitioner Mr.Asish Kumar Ray, Advocate -versus- State of Odisha & others …. Opposite Parties Mr.Iswar Mohanty, A.S.C.. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 01.09.2023 Order No. 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State. Perused the Writ Petition as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: “ Therefore the Petitioner most respectfully prays that your Lordship would graciously be pleased to admit the case, issue notice to the Opp.Parties and after hearing from the both parties allow the writ petition to the following extent i) May be pleased to quash the letter No.1038/Ex dated 02.06.2023 issued by the Opp.Paty No.4/Annexure-8 rejecting the application of the Petitioner as per the provisions of New Rule i.e. Odisha civil service (Rehabilitation Assistance) Rule 2020. ii) Direct the Opp.Party No.4 to appoint the Petitioner in Junior Clerk on compassionate ground under provisions of Odisha Civil Service (Rehabilitation assitance0 Rules, 1990 and amended Rule 2016, within stipulated period in light of the judgment of Honorable Apex Court passed in the case Malaya Nanda Sethy vrs. State // 2 // Orissa and others reported in AIR 2022 SC 2836. iii) And pass any other order/orders, direction/directions as it would be deemed fit and proper to the facts and circumstances of the case in order to provide complete justice to the Petitioner.” 4. It is submitted by the learned counsel for the Petitioner that the father of the Petitioner, who was working under the Government died in harness on 26.01.2004. Thereafter, the mother of the petitioner applied for appointment under OCS(RA) Rule, 1990 on 10.03.2004. The mother of the Petitioner was found eligible as per G.A.Department resolution No.33213 dated 15.12.2004. However, on 05.11.2021 the mother of the Petitioner was declared unfit. Thereafter, the mother of the Petitioner was never given appointment although she was selected. With the passage of time, the mother of the Petitioner became unfit for any Government service. Eventually, she was declared unfit for any Government service by the competent Medical Board on 05.11.2021. Prior to the mother of the Petitioner become unfit on 22.08.2016 the mother of the Petitioner realizing her illness and inability to discharge the duties in a Government service, requested the authority to consider the case of the Petitioner for appointment under Rehabilitation Assistance Scheme on 22.08.2016. While this was the scenario, on 30.08.2022 the authority rejected the application of the Petitioner by applying the new Rule of the year 2020. 5. Challenging the aforesaid order of rejection dated 30.08.2022 the Petitioner had earlier approached this Court by filing W.P.(C) No.7744 of 2023 which was disposed of by this Court on 22.03.2023 by directing the authority to reconsider the case of the Petitioner by taking into consideration the judgments of the Hon’ble Supreme Court in the case of Malaya Nanda Sethy vrs. State of Orissa and // 3 // others reported in 2022(II) OLR(SC) 1 and The State of West Bengal v. Debabrata Tiwari & Ors Etc.Etc. (Civil Appeal No.8842-8855 of 2022 decided on 3rd March, 2023) within a period of two months. Learned counsel for the Petitioner submits that despite such order dated 22.03.2022 of this Court, the Opposite Party No.4 the Superintendent of Excise, Khurda has rejected the application of the Petitioner by again applying the OCS(RA) Rule, 2020. Being aggrieved by such conduct the Petitioner has approached this Court by filing the present writ Petition. 6. On the other hand, learned Additional Standing Counsel contended that pursuant to the direction of this Court the application of the Petitioner was duly considered by Opposite Party No.4 and by order dated 02.06.2023 the application has been rejected taking into consideration the OCS(RA) Rule, 2020. In such view of the matter, learned Additional Standing Counsel submitted that the Opposite Party no.4 has not committed any illegality. Accordingly, the Writ Petition be dismissed as the same is devoid of merit. 7. This Court on a careful scrutiny of the impugned order dated 02.06.2023 under Annexure-8 is of the considered view that the Opposite Party no.4 has not considered the ratio decided in the case of Malaya Nanda Sethi. Further, it is observed in the earlier Writ Petition that this Court has categorically directed the Opposite Party No.4 to consider the case of the Petitioner in the light of the law laid down by the Hon’ble Supreme Court in Malaya Nanda Sethi’s case. However the Opposite Party no.4 by ignoring the direction of this Court had interpreted the judgment of the Hon’ble Supreme Court in Malaya Nanda Sethi’s case(supra) and accordingly rejected the application of the petitioner. The factual background of the present case clearly reveals that the father of the Petitioner expired on // 4 // 26.01.2004 while the OCS(RA) Rule 2020 was in force. Thereafter, the mother of the Petitioner though selected could not give any appointment after more than one and half decade. All the while L.Rs of the deceased Government employee had to undergo suffering and faced the situation of financial crisis. The Rule clearly provides even there is no vacancy available, then the application be forwarded to the Heads of the Department for appointment of the beneficiaries at any other place where there is vacancy under the heads of department keeping in view the objects of the legislation. In such view of the matter, this Court is of the considered view that the approach of Opposite Party No.4 is erroneous and illegal. Moreover, it is evident from the impugned rejection order that the Opposite Party No.4 while passing the impugned order, they were well aware of the orders passed in the earlier Writ Petition. Earlier, the application of the Petitioner was rejected on the very same ground. Despite the matter being remanded after setting aside the rejection order with a clear direction to consider the case of the Petitioner in the light of the ratio decided in the case of Malaya Nanda Sethi, the Opposite Party No.4 had made an attempt to overcome the direction issued by this Court after setting aside his previous order rejecting the application on the ground of applicability of the new Rule. Therefore, this Court deprecates the attempt made by Opposite Party No.4 in its conduct to reject the application again on the very same ground which was earlier set aside by this Court. 8. In view of the aforesaid analysis of law and keeping in view the factual background of the case, as well as the submissions made by the learned counsel for the respective parties, this Court deems it proper to dispose of the Writ Petition at the stage of admission by setting aside the impugned rejection order dated 02.06.2023 under // 5 // Annexure-8 to the Writ Petition. Accordingly, the same is hereby set aside. Further, the matter is remanded back to Opposite Party No.4 to consider the matter afresh in the light of the order passed by this Court on 22.03.2023 in W.P.(c) No.7744 of 2023 as well as keeping in view the judgment of Malaya Nanda Sethi vrs. State of Orissa and others reported in 2022(II) OLR(SC) 1 and The State of West Bengal v. Debabrata Tiwari & Ors Etc.Etc. (Civil Appeal No.8842-8855 of 2022 decided on 3rd March, 2023) within a period of two months from the date of production of certified copy of this order by the Petitioner. 9. With the aforesaid observation, the writ application stands disposed of. 10. Issue urgent certified copy of this order as per Rules. RKS ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 04-Sep-2023 12:01:51