The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OA) NO.2360 of 2018 Aditya Mohanty ..... Petitioner Mr. P.K. Mishra, Adv. State of Odisha & Others ..... -versus- Opposite Parties Mr. S.K. Samal, AGA CORAM: THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY Order No.2 ORDER 16.07.2024 1. This matter is taken up through hybrid mode. 2. Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order dt.11.07.2018 so passed by Opp. Party No.3 under Annexure-20. Vide the said order, claim of the Petitioner to get the benefit of appointment under Rehabilitation Assistance Scheme was rejected. 4.
Legal Reasoning
It is contended that even though Petitioner’s father died while in service on 22.04.1985, but since Petitioner was a minor at the relevant point of time, he made his application on 25.11.1993 as reflected in Annexures-5 & 6. 4.1. It is contended that the application so submitted by the Petitioner was not only . entertained but also Collector, Puri issued the Distress Certificate in his favour vide Annexure- 8/1. On receipt of the Distress Certificate vide letter dt.14.11.2000 under Annexure-9, application of the Petitioner was forwarded to Opp. Party No.2 to take a final decision. 4.2. It is contended that in spite of such recommendation made under Annexure-9, when no decision was taken, Petitioner approached the Tribunal in OA No.133 of 2004. The Tribunal vide order dt.03.03.2004 under Annexure-10 while disposing the matter, directed Opp. Party No.2 to take a decision on the claim of the Petitioner. 4.3. It is contended that after such order passed by the Tribunal and communication issued under Annexure-11, when no final decision was taken, Petitioner again approached the Tribunal in OA No.1762 of 2013 seeking a direction on the Opp. Parties to consider his application so submitted on 25.11.1993.The Tribunal vide order dt.05.05.2018 under Annexure-12 disposed of the said matter with a direction on the competent authority to consider the case of the Petitioner for appointment under Rehabilitation Assistance Scheme in accordance with the Resolution issued by the Government in the Labour Employment and Housing Department on 09.09.1976 under Annexure-2 and the provisions contained under OCS (RA) Rules, 1990. . 4.4. It is contended that even though the Tribunal vide its order under Annexure-12 directed the competent authority to take a decision on the claim of the Petitioner by following the Resolution issued under Annexure-2 and the provisions contained under OCS (RA) Rules, 1990, but by placing reliance on the amended notification issued by the Government in the G.A Department on 05.11.2016, claim of the Petitioner was rejected vide the impugned order dt.11.07.2018 under Annexure-20. 4.5. Learned counsel for the Petitioner contended that since Petitioner’s father while in service died on 22.04.1985,claim of the Petitioner could not have been rejected following the amended rules so issued by the G.A Department vide Notification dt.05.11.2016 in view of the Hon’ble Apex Court in the case of Malayananda Sethi Vs. State of Orissa & Others, Civil Appeal No. 4103 of 2022 disposed of on 20.05.2022. 4.6. It is also contended that similarly situated applicants have got the benefit of appointment under RA Scheme pursuant to the order passed by the Tribunal and so also by this Court under Annexures-14,15 & 16. It is accordingly contended
Decision
that the impugned order is not sustainable in the eye of law and requires interference of this Court. . 5. Learned Addl. Govt. Advocate on the other hand contended that in terms of the order passed by the Tribunal on 05.05.2018 under Annexure- 12, claim of the Petitioner was considered in terms of the Government Order issued by the G.A. Department on 14.07.2016. As per the said Government Order, a direction was issued to consider all pending applications so available prior to 07.11.2016 in terms of the amended notification issued by the G.A. Department on 05.11.2016. It is accordingly contended that since by the time the amended notification was issued on 05.11.2016, Petitioner’s claim was pending consideration, the same was considered in the light of the amended provision and Petitioner on being found unsuitable, his claim was rejected vide the impugned order under Annexure-20. It is accordingly contended that no wrong has been committed by Opp. Party No.3 while rejecting such claim of the Petitioner. 6. Having heard learned counsel for the Petitioner and considering the submission made, this Court finds that Petitioner’s father while in service died on 22.04.1985. Petitioner on attaining his majority, made his application on 25.11.1993 as found from Annexures-5 & 6. It is also found from the record that application of the Petitioner was not only entertained but also Collector, Puri issued the Distress Certificate in his favour vide Annexure-8/1. After receipt of such Distress . Certificate, claim of the Petitioner though was recommended vide Annexure-9, but Opp. Party No.2 did not take a final decision on the same. Thereafter on the face of the order passed by the Tribunal in OA No.133 of 2004, claim of the Petitioner was also kept pending. Petitioner thereafter again approached the Tribunal in OA No.1762 of 2013. The Tribunal vide order dt.05.05.2018 under Annexure-12 while disposing the matter directed the competent authority to consider the claim of the Petitioner in the light of the Resolution issued by the Government on 09.09.1976 under Annexure-2 and the provisions contained under OCS(RA) Rules, 1990. But Opp. Party No.3 by following the amended provisions so issued on 05.11.2016, rejected the claim of the Petitioner vide the impugned order dt.11.07.2018 under Annexure-20. Placing reliance on the decision in the case of Malayananda Sethi as cited supra, it is the view of this Court that rules available/prevalent at the time of the death of the deceased employee was required to be taken into consideration while considering the claim of the Petitioner. 5.1. In view of the same, this Court is inclined to quash order dt.11.07.2018 so issued by Opp. Party No.3 under Annexure-20. While quashing the same, this Court remits the matter to Opp. Party No.3 to take a fresh decision in the light of the decision in the case of Malayananda Sethi as . cited supra within a period of two (2) months from the date of receipt of this order. It is further observed that while taking such a decision, benefit if any extended in favour of similarly situated persons pursuant to the orders passed by this Court under Annexure-14 to 16, be also taken into consideration, if it is applicable, as contended. With the aforesaid observation and direction, the Writ Petition is disposed of. Judge P.T.O ( BIRAJA PRASANNA SATAPATHY) sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 19-Jul-2024 19:07:11 .