The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.21228 of 2023 Sushanta Kumar Nayak …. Petitioner Mr. S.B.Jena,Advocate -versus- State of Odisha & others Opposite Parties Mr. N.K.Praharaj, A.G.A. Mr. B.K.Sahoo, Adv. For O.P. No.2 and 3 …. CORAM: JUSTICE A.K.MOHAPATRA Order No. ORDER 12.02.2024 04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. Heard learned counsel for the petitioner as well as the learned Additional Government Advocate for the State opposite
Legal Reasoning
Parties and Mr. B.K. Sahoo, learned counsel for Opposite Party Nos.2 and 3 that is Orissa State Ware Housing Corporation. Perused the pleadings of the parties as well as documents annexed thereto. 3. By filling the present writ application the petitioner has prayed for the quashing of the office order No.1922/OSWC dated 07.06.2023 under Annexure-12 to the writ application and further for a direction to the Opposite parties to appoint the petitioner under the O.C.S. (RA) Rules, 1990, as has been done in the case of one Ashok Kumar Nayak, who is placed similarly with the present petitioner. Learned counsel for the petitioner at the outset submitted that the father of the petitioner late Jasobanta Nayak was initially // 2 // engaged as a Watchman by the Opposite Party Nos.2 and 3. While working as such the father of the petitioner died in harness on 25.09.2012 leaving behind the widowed wife and four sons, including the present petitioner. After the death of the corporation employee, the petitioner being one of the legal heirs, with the consent of other legal heirs, applied for an appointment on compassionate ground in the year 2013 and filied such application for compassionate appointment, the Opposite party No.2 requested the Collector, Cuttack to submit a report with regard to the distressful condition of the family of late Jasobanta Nayak vide letter dated 12.02.2014. Pursuant to such request, the Collector, Cuttack directed the Tahasildar Salepur to conduct an inquiry vide letter dated 22.08.2015. In the year 2016, the other legal heirs of the deceased Govt. employee filed affidavit stating therein that they have no objection in the event the petitioner is considered that appointed under the O.C.S.(RA) Rules, 1990. 4. While the matter stood thus the O.C.S. (RA) Rules was amended in the year 2016. Pursuant to such amendment the Opposite Party Nos.2 and 3 insisted that the petitioner should make a fresh application under the amended rules. Accordingly the petitioner again submitted an application under Rehabilitation Assistance Rules, 1990 as amended in the year 2016 on 12.03.2018. The application so submitted by the petitioner was kept pending for a long time. Learned counsel for the petitioner also contended that although applications submitted by some other applicants on compassionate ground have been considered and they have been given appointment. However, the case of the petitioner was not considered and the same was kept pending for a long time. Page 2 of 6 // 3 // 5. Since the case of the petitioner was not being considered by the authorities, the petitioner had no other option but to approach this Court by filing W.P(C) No.11072 of 2023. This Court vide
Decision
order dated 20.04.2023 disposed of the writ petition by directing the Opposite Party No.2 to consider the representation of the petitioner within a period of two months from the date of communication of the order dated 20.04.2023. After disposal of the above noted writ application the Opposite Party No.3 vide order dated 07.06.2023 rejected the prayer of the petitioner under the O.C.S.(RA) Rules, 2020. In the aforesaid rejection order a specific ground has been taken that the petitioner has scored 38 point out of 85 point. Therefore, the petitioner is not eligible to be appointed under the O.C.S.(RA) Rules, 2020. In course of his argument, learned counsel for the petitioner submitted that the Opposite Parties have wrongly considered the case of the petitioner under the O.C.S.(RA) Rules, 2020. He further contended that in view of the law laid down by the Hon’ble Supreme Court in Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1, State of West Bengal- v.-Debabrata Tiwri 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 and a judgment of this Court in Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021, the case of the petitioner should have been considered under the O.C.S. (RA) Rules 1990. However, the Opposite Parties have committed an illegality by considering the same under the O.C.S.(RA) Rules, 2020. Page 3 of 6 // 4 // 6. Mr. B.K.Sahoo, learned counsel appearing for the Opposite party Nos.2 and 3 Corporation on the other hand contended that such Opposite parties have filed a counter affidavit and in the counter affidavit a specific stand is taken that in view of the Rule 6(9) of the O.C.S. (RA) Rules,2020, all pending applications are to be considered under the O.C.S. (RA) Rules, 2020. Learned counsel for the Opposite party Nos.2 and 3 further contended that in view of the aforesaid specific stipulation in the O.C.S. (RA) Rules,2020 the application of the petitioner was duly considered under the Rules of the year 2020 and since the petitioner has failed to secure the minimum qualifying marks i.e. the petitioner secured only 38 out of 85, as such the prayer of the petitioner for appointment on compassionate ground has been rejected. So far the case of the one Ashok Kumar Nayak is concerned, in Para-10 of the counter affidavit, it has been specifically stated that the case of the Ashok Kumar Nayak was also initially rejected under the O.C.S. (RA) Rules, 2020. However this Court in W.P.(C) No.17288 of 2022, decided on 26.07.2022, quashed the impugned rejection order and further directed the Opposite parties to consider the case of Ashok Kumar Nayak under the old rules. Therefore, the case above named Ashok Kumar Nayak was considered under the old rules and accordingly an order of appointment has been issued in favour of Ashok Kumar Nayak. In such view of the matter, learned counsel appearing for the Opposite Party Nos. 2 and 3 submitted that the present petitioner does not stand in a similar footing to the above named Ashok Kumar Nayak. Moreover, in view of the provision contained under Rule 6(9) of the O.C.S. (RA) Rules,2020 the case Page 4 of 6 // 5 // of the petitioner has been duly considered by the Opposite Party Nos.2 and 3 and same has been rejected under the new rules. 7. Having heard learned counsel appearing for the respective Parties, and on a careful consideration of the submissions advance by the learned counsels, and on careful examination of the background facts as well as pleadings of the parties, further taking into consideration the materials available on record, this Court observes that, with regard to the factual aspects of the matter there is no dispute between both sides. However, the question that falls for determination in the present writ application is with regard to the applicability of the rules. Learned counsel for the petitioner, referring to the judgments of this Court as well as Hon’ble Apex Court, has submitted that the case of the petitioner should have been considered under the old rules of the year 1990. On the contrary learned counsel for the Opposite Party Nos.2 and 3 submitted that the case of the petitioner is to be considered under the new Rules of the year 2020 particularly in view of the provision contained in rule 6(9) of the 2020 rules. 8. This Court on a careful consideration of the submission made by learned counsel for the Opposite Parties found that the submission of the Opposite Party Nos.2 and 3 are based on Rule 6(9) of the O.C.S.(RA) Rules 2020, which provides that all pending applications are to be considered under the O.C.S. (RA) Rules, 2020. In the aforesaid context, this Court refers to the judgment of this Court in Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021 wherein this Court has declared the aforesaid Rule 6(9) of the O.C.S.(RA) Rules, 2020 to be ultra vires to Article 14 of the Constitution of India. In such view of the matter, this Court Page 5 of 6 // 6 // holds that the rejection order under Annexure-12 is unsustainable in law. Accordingly, the same is hereby quashed. Further taking into consideration the fact that one similarly situated person, namely Ashok Kumar Nayak, whole case was initially rejected under the new Rules, has been reconsidered pursuant to the direction of this Court and he has been given appointment in the meantime, this Court deems it proper to dispose of the writ application by directing the Opposite Party Nos.2 and 3 to consider the case of the petitioner under the O.C.S. (RA) Rules, 1990 keeping in view the case of above name Ashok Kumar Nayak within a period of two months from the date of communication of a copy of this judgment. In the event, it is found that the petitioner satisfies the eligibility criteria then his case may be considered for appointment on compassionate ground under the O.C.S. (RA) Rules, 1990. Accordingly the petitioner be appointed against a suitable post keeping in view his educational qualifications. 9. With the aforesaid observation, direction writ application stands allowed. Rubi (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 16-Feb-2024 12:26:58 Page 6 of 6