The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.28593 of 2023 Anil Sahu …. Petitioner Mr.Asish Kumar Ray, Advocate -versus- State of Odisha and others …. Opposite Parties Mr.N.K.Praharaj, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 04.09.2023 01 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard the learned counsel for the Petitioner as well as the learned Additional Government Advocate. Perused the Writ Petition as well as the documents annexed thereto. 3. The Petitioner has filed the present Writ Petition with the following prayer: the “ Therefore the Petitioner most respectfully prays that Your Lordship would graciously be pleased to admit the case, call for the relevant records and after hearing may be pleased to :- i) Quash dated impugned 11.05.2023/Annexure-7 passed by the Opp.Party No.4 on the basis of new Rule, in violation of the mandate of the Hon’ble Apex Court passed in the case of Malaya Nanda Sethy vrs. Orissa and others reported in AIR 2022 SC 2836. order ii) Direct Opp.Party no.4 to issue appointment order in favour of the Petitioner as per Annexure-6 wherein applicants standing in similar footing are // 2 // iii) And provided with appointment. any pass 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. Learned counsel for the Petitioner submitted that the sister of the present Petitioner, who is a spinster was working as a Government employee, however she died in harness on 20.09.2011 while she was continuing in employment under the Government. Thereafter, he Petitioner, who is the brother of the deceased Government employee applied for appointment under compassionate ground under OCS(RA) Rule, 1990. Such application having been rejected by the authority by applying the OCS (RA) Rule, 2020 and on the ground that the Petitioner being the brother is not eligible to be appointed under rehabilitation assistance scheme, the Petitioner has approached this Court changing he said order of rejection. 5. At the outset, earned counsel for the Petitioner submitted that since the deceased Government employee died on 20.09.2011 by applying the decision of the Hon’ble Supreme Court in Malayha Nanda Sethi-v. State of Odisha reported in 2022(II) OLR (SC) 1 and the judgment in the case of The State of West Bengal v. Debabrata Tiwari & others etc. etc. (Civil Appeal Nos.8842-8855 of 2022 decided on 3rd March, 2023) the application of the Petitioner should have been considered under the 1990 Rules. Learned counsel for the Petitioner further contended that under the OCS(RA) Rule 1990 particularly the provisions of 2(b)(vi) provides that brother of unmarried Government servant who was wholly dependent on the Government servant at the time of death, shall come within the definition of family members as described in Rule // 3 // 2(b) of 1990 Rules. In such view of the matter, learned counsel for the Petitioner submitted that the Petitioner, who is the brother of the unmarried deceased Government employee is fully dependent on his sister and accordingly after her death she applied for appointment under OCS(RA) Rule, 1990 Therefore, the application submitted by the Petitioner is a valid one under the 1990 Rules. 6. Learned Additional Government Advocate on the other hand submitted that the application of the Petitioner was considered while OCS(RA) Rule, 2020 was in force and accordingly, under the provision of Rule 6(ix) of OCS (RA) Rule, 2020 all pending applications were considered by applying the provisions of 2020 Rules. Accordingly, there is no provisions for appointment of the Petitioner under the 2020 Rule and the application of the Petitioner was rejected by the authority. In such view of the mater, learned Additional Government Advocate submitted that the Opposite Parties have not committed any illegality in rejecting the application of the petitioner for appointment under the rehabilitation assistance scheme. Accordingly, he further contended that the Writ Petition is devoid of merit and the Writ Petition be dismissed. 7. Having heard learned counsel for the respective parties and upon a careful examination of the submission of the learned counsel for the parties as well as the materials on record, this Court is of the considered view that the death of the deceased sister of the Petitioner had occurred in the year 2011. Although the Petitioner had applied since 2011 for getting appointment under OCS(RA) Rule, 1990 the authorities unnecessarily kept the matter pending for appointment for a decade and finally the application of the Petitioner was rejected by applying the OCS(RA) Rule, 2020. In the aforesaid context, this Court on careful examination of the case involved in Malaya Nanda // 4 // Sethi-v. State of Odisha reported in 2022(II) OLR (SC) 1 found that the death of the deceased employee was occurred in the year 2013 and accordingly Hon’ble Supreme Court has held that the case of the applicant (LR) shall have to be considered by applying the old Rule. In such view of the matter, this Court is of the considered view that the impugned rejection order under Annexure-6 is unsustainable in law. Accordingly, the same is set aside. Further, the matter is remanded back to Opposite Party No.4-Chief District Medical & Public Health Officer, Koraput to consider the matter afresh under OCS(RA) Rule, 1990 keeping in view the provisions in Rule – 2(b)(vi) and the judgment of the Hon’ble Supreme Court in Malaya Nanda Sethi-v. State of Odisha reported in 2022(II) OLR (SC) 1 and the judgment in the case of The State of West Bengal v. Debabrata Tiwari & others etc. etc. (Civil Appeal Nos.8842-8855 of 2022 decided on 3rd March, 2023) within a period of two months from the date of communication of the order of this court by the Petitioner. The decision so taken be communicated to the Petitioner within two weeks from the date of taking such decision. 7. With the aforesaid observation, the Writ Petition sands disposed of. 8. 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: 08-Sep-2023 14:08:31