The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C ) NO.29045 of 2021 Subhasis Mohanty …. Petitioner Mr.P.K. Sahoo, Adv. State of Odisha & Others -versus- …. Opp. Parties
Legal Reasoning
Mr. S.P. Das, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No.
Decision
ORDER 16.12.2024 4. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging order dt.12.08.2021 so passed by Opp. Party No.3 under Annexure-8. Vide the said order, claim of the Petitioner to get the benefit of appointment under the Rehabilitation Assistance Scheme has been rejected. 4. Learned Counsel for the Petitioner contended that on the death of his mother on 28.05.2013, Petitioner made the application to get the benefit of appointment under 1 Rehabilitation Assistance Scheme on 13.08.2013 under Annexure-1. 4.1. It is contended that even though application so filed by the Petitioner on 13.08.2013 under Annexure-1 was duly processed, but when no final decision was taken, Petitioner approached this Court by filing W.P.(C ) No.15140 of 2021. This Court vide order dt.07.07.2021 disposed of the Writ Petition with a direction on Opp. Party No.4 to take a decision on the claim of the Petitioner. It is contended that in terms of the said order passed by this Court on 07.07.2021, claim of the Petitioner was rejected inter alia on two (2) grounds that Petitioner is the 3rd legal heirs of the deceased and his claim is not found in terms of the provisions contained under the amended 2016 Rules. 4.2. Learned counsel appearing for the Petitioner contended that rejection of the Petitioner’s claim on the ground that he is the 3rd legal heir of the deceased is no more sustainable in view of the decision of this Court in the case of Ajit Kumar Barik Vs. State of Odisha & Ors, (2018 (II) OLR P-10). This Court in Paragrap-6 & 7 of the said reported decision has held as follows: “6. The Rules as contended in the above paragraph nowhere restricted the jurisdiction of the the appointing authority application for appointment in a suitable available vacancy under his control. The Rules also define "Family Members" means include the following members in order of preference- to consider (i) Wife/Husband; 2 (ii) Sons or step sons or sons legally adopted through a registered deed (iii) Unmarried daughters and unmarried step daughters; (iv) Widowed daughter or daughter-in-law residing permanently with the affected family; (v) Unmarried or widowed sister permanently residing with the affected family; (vi) Brother of unmarried Government servant who was wholly dependent on such Government servant at the time of death. 7. Of course the first preference is to be given wife/husband of the deceased employee then son and unmarried daughter. However no where it was stated that in the case a family member in order of preference in the hierarchy is unfit and a medical certificate furnished to that effect, claim shall not be considered for engagement of the in case of distress other eligible members condition of the family. Therefore, the finding given by the Tribunal in the impugned order that she is not prepared to accept Group-’D’ post and offered it to her son in ignoring the material on records is not sustainable.” 4.3. It is also contended that in view of the decision rendered in the case of Malayananda Sethi Vs. State of Orissa & Others, Civil Appeal No. 4103 of 2022,Petitioner’s mother since had died on 28.05.2013, claim of the Petitioner should have been considered as per the provisions contained under the unamended 1990 Rules. But by applying the provisions of 2016 amended Rules, claim of the Petitioner has been rejected vide the impugned order dt.12.08.2021. It is accordingly contended that the impugned order is not sustainable in the eye of law. 3 5. Even though notice of the Writ Petition has been issued since 24.09.2021, but no counter affidavit has been filed as yet. However, it is contended that since by the time claim of the Petitioner was considered in the light of the order passed by this Court in W.P.(C ) No.15140 of 2021, 2016 Rules had already been notified, claim of the Petitioner was rejected relying on the said Rule. It is also contended that since husband of the deceased employee was very much available, Petitioner being the 3rd legal heir of the deceased is not eligible to get the benefit. It is accordingly contended that the claim of the Petitioner has been rightly rejected vide the impugned order under Annexure- 8. 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that on the death of the Petitioner’s mother on 28.05.2013, Petitioner made the application to get the benefit of appointment under Rehabilitation Assistance Scheme on 13.08.2013 under Annexure-1. Distress certificate was also issued by the Collector as found from Annexure-1 on 24.12.2013. But as found when no final decision was taken, Petitioner approached this Court by filing W.P.(C ) No15140 of 2021. 6.1. This Court vide order dt.07.07.2021 when directed for consideration of the Petitioner’s claim, the same has been rejected inter alia on two grounds that the Petitioner is the 3rd legal heir of the deceased employee and as per 2016 Rules, he is not eligible to get the benefit of appointment under the 4 Rehabilitation Assistance Scheme. Placing reliance on the decision in the case of Ajit Kumar Barik and so also Malayananda Sethi as cited supra, this Court is of the view that in view of the decision in the case of Ajit Ku. Barik, Petitioner even though is the 3rd legal heir, his claim cannot be rejected on the ground indicated in the impugned order. Similarly, in view of the decision in the case of Malayananda Sethi, the rules available at the time of the death of the deceased employee was required to be taken into consideration while considering the claim of the Petitioner. Since Petitioner’s mother has died on 28.05.2013, rejection of the Petitioner’s claim relying on the 2016 Rules is not also applicable. 6.2. In view of the aforesaid illegalities which is apparent on the face of the impugned order, this Court is inclined to quash order dt.12.08.2021 so passed by Opp. Party No.4 under Annexure-8. While quashing the same, this Court remits the matter to Opp. Party No.4 to take a fresh decision in the light of decision in the case of Ajit Kumar Barik and Malayananda Sethi as cited supra. This Court directs Opp. Party No.4 to take a fresh decision on the claim of the Petitioner within a period of two(2) months with due communication to the Petitioner. The Writ Petition accordingly stands disposed of. Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authenticaton of order sangita Location: high court of orissa, cuttack Date: 18-Dec-2024 18:54:49 5 (Biraja Prasanna Satapathy) Judge