The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAS) No.28 of 2018 Akshaya Kumar Seth …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 05.01.2023 Order No 02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. D. K. Panda, Learned counsel appearing for the petitioner and M. K. Balabantaray, Learned AGA appearing for the opp. parties. 3. The present writ petition has been filed with the following prayer:- “(a) Issue order/direction to set aside the order No. 24940 dated 25.10.2017 of Govt. in DOWR at Annexure - 12. (b) Issue order/direction to issue order of appointment in favour of the applicant on RA Scheme with a stipulated period. (c) Pass any other order/direction as deemed just and proper in the circumstances of the case. (d) To allow the application with cost.” 4. It is submitted on the death of the petitioner’s father on 13.05.2012 who was working as Ex-Mazdoor (work charged) in the office of the Executive Engineer, Sambalpur Irrigation Division, Sambalpur - O.P. No. 4, the petitioner made an application for his // 2 // appointment under the provision of Rehabilitation Assistance Scheme for a suitable post as her mother was medically unfit for any kind of job. 5. It is submitted that the Engineer-In-Chief, Water Resources, Odisha, Bhubaneswar, O.P. No. 2 on 24.07.2014 submitted the proposal for appointment of the petitioner under Rehabilitation Assistance Scheme to Principal, Secretary to Govt., Department of Water Resources, Bhubaneswar - O.P. No. 1 who in turn on 07.11.2015 vide Annexure - 5 directed the petitioner’s mother to appear in person along with the petitioner on 16.11.2015 and established her unsuitability to avail the benefit under R.A Scheme in order of preference provided under Rule - 2(b) of OCS (RA) Rules, 1990. On 21.11.2015 vide Annexure - 6 the Deputy Secretary to Govt., Water Resources Department issued a letter to Engineer-In-Chief, Water Resources Department - O.P. No. 2 that on appearance before the Principal Secretary - O.P. No. 1, the widow of the deceased employee could not established her unsuitability for appointment under Rehabilitation Assistance Scheme and directed the petitioner’s mother to apply under Rehabilitation Assistance Scheme instead of the petitioner. Being aggrieved by the order vide Annexure - 6 dated 21.11.2015, the petitioner filed an Original Application before the Orissa Administrative Tribunal, Circuit Bench, Sambalpur bearing O.A No. 33(S) of 2016 vide Annexure - 11 which was disposed of on 14.09.2017 in which the Hon’ble Tribunal quashed the order dated 21.11.2015 vide Annexure - 6 and directed that the petitioner being the next preference as per Rule - 2(b) of OCS (RA) Rule, 2016 and he had applied under RA Scheme and the same had already been duly forwarded by his immediate authorities to the Govt., the Page 2 of 5 // 3 // Respondent No. 1 is directed to consider the case of the applicant to appoint him under the R.A Scheme in any suitable post, preferably within a period of four months. But Principal, Secretary to Govt., Department of Water Resources, Bhubaneswar - O.P. No. 1 vide order dated 25.10.2017 at Annexure - 12 rejected the case of the petitioner for employment under RAS that the appointment under R.A Scheme cannot be offered to a family as per their choice. Appointment under R.A Scheme in deserving case is considered in favour of family of the deceased Govt. servant in order of preference provided under Rule - 2(b) of OCS (RA) Rules, 1992 and therefore the petitioner was not found suitable for appointment under Rehabilitation Assistance Scheme on the ground that when the spouse of the deceased employee was available and medical certificate of the spouse of the deceased employee was obtained much after submission of the application for appointment. 6. Learned counsel for the Petitioner submitted that Opp. Party No. 1 in an absolutely casual manner and without applying his mind rejected the Petitioner’s claim for appointment under RAS vide letter No.24940 dated 25.10.2017 under Annexure-12. 7. It is submitted that the ground on which the claim of the Petitioner was rejected vide letter No.24940 dated 25.10.2017 under Annexure-12 is no more res integra in view of the decision of this Court reported in the case of Ajit Kumar Barik Vs. State of Odisha & Ors. (2018 (II) OLR P-10). 8. It is submitted that in the aforesaid reported decision it has been held that “Family Members” as defined under Rules 2(b) of the OCS (R.A.) Rules, 1990 are eligible to make their application and there is no hard and first rule that only wife/husband of the Page 3 of 5 // 4 // deceased Govt. employee as eligible to make such application. It is also submitted that since the Petitioner complied with all the requirements and filed the no objection certificate in his favour along with the medical certificate declaring the wife of the deceased employee is not fit for Govt. job, the claim of the Petitioner should not have been rejected. 9. Mr. M.K. Balabantaray, learned AGA on the other hand submitted that since the wife of the deceased employee was very much available, the claim of the Petitioner being the 2nd legal heir of the deceased employee is not entertainable and accordingly no illegality has been committed by the O.P. No. 1 in rejecting the same. 10. Heard learned counsel appearing for the Parties. Perused the materials available on record. This Court after going through the same finds that the grounds on which the claim of the Petitioner has been rejected is not sustainable in view of the reported decision of this Court as cited (supra). This Court also finds that the application submitted by the Petitioner was not only entertained, but also was duly processed by the Executive Engineer, Sambalpur Irrigation Division, Sambalpur-O.P. No. 4 as well as Engineer-in-Chief, Water Resources, Odisha, Bhubaneswar-O.P. No. 2. 11. In view of such steps taken in the matter, the claim of the Petitioner should not have been rejected. This Court finds that the Petitioner’s claim has been illegally rejected and accordingly this Court is inclined to quash the said order of rejection available at Annexure-12. While quashing the same, this Court basing on the recent decision of the Hon’ble Apex Court in the case of State of Odisha & Ors. Vs. Malayananda Sethi directs the O.P. No. 1 to Page 4 of 5 // 5 // take appropriate step in the matter and take a fresh decision in accordance with the Rule prevalent at the time of death of the deceased employee. On such reconsideration if the Petitioner is found otherwise eligible, steps be taken to provide her appointment under the provisions of R.A. Scheme. The entire exercise shall be completed within a period of two (2) months from the date of receipt of this order.
Decision
12. The writ Petition is disposed of with the aforesaid observation and directions. (Biraja Prasanna Satapathy) Judge Sneha Page 5 of 5