The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.29240 of 2023 Prasannajit Sejpada …. Petitioner Mr. S.C.Puspalaka,Advocate -versus- State of Odisha & others …. Opposite Parties Mr. S.Das, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 29.01.2024 Order No. 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate for the State-Opposite Parties. Perused the Writ Petition as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: therefore prays “The petitioner that your Lordships may be pleased to consider the facts stated above, admit the writ application, call for the records and after hearing the order dated the parties, 05.08.2022 issued by the District Panchayat Officer, Mayurbhanj may kindly be quashed and necessary direction may kindly be the Opp.Parties to reconsider the case of the petitioner for appointment against the post of Panchayat Executive Officer in terms of the Rehabilitation Assistance Rules- 1990 within a stipulated time period or else the issued directing // 2 // petitioner will be seriously prejudiced and hall suffer irreparable loss. Any other order/orders may kindly be passed as this Hon’ble Court would deem just and proper.” 4. It is submitted by learned counsel for the petitioner the father of the petitioner, while working in the District Panchayat Office, Mayurbhanj died in harness on 07.09.2019. Thereafter, the petitioner being one of the legal heirs applied for appointment under the Rehabilitation Assistance Rules, 1990 on 13.01.2020. Considering the application of the petitioner, the authorities appointed the petitioner to the post of a Peon (Group-D) on 14.12.2021. On 20.12.2022, the petitioner joined in the Post of Peon in the Office of the DPO, Mayurbhanj. Thereafter, the petitioner filed an application before appointing authority to consider his case for appointment to Group-C Post as was permissible under the O.C.S. (RA) Rules, 1990. Such application was filed on 30.03.2020. Since no decision was taken on the application of the petitioner. The petitioner was compelled to approach this Court by filing W.P.(C) No.12193 of 2022, which was disposed of by a coordinate bench of this Court vide order dated 18.05.2022. The coordinate bench of this Court vide order dated 18.05.2022 directed the Opposite party No.3 to consider the case of the petitioner in accordance with law within a period of three months. After disposal of the earlier writ application the petitioner approach the Opposite party No.3 the DPO, Mayurbhanj, the DPO, Mayurbhanj after considering the case of the petitioner disposed of the grievance of the petitioner vide order dated 05.08.2022 under Annexure-14 to the writ application. 5. On perusal of the impugned rejection order dated 05.08.2022 // 3 // under Annexure-14, it appears that the application of the petitioner has been considered under the O.C.S. (RA) Rules, 2020 and keeping in view the GA & PG Department notification dated 17.02.2020. Accordingly, the Opposite Parties found that the petitioner is not eligible for appointment in Group-C post and hence the application of the petitioner dated 30.03.2022 has been rejected by the Opposite parties by passing a speaking order. Learned Additional Government Advocate on the other hand contended that the petitioner has already been given appointment against a Group-D post vide order dated 14.12.2021 and the petitioner pursuant to such appointment has already joined against such post of Peon in the Office of the DPO, Mayurbhanj on 20.12.2020. In such view of the matter, learned Additional Government Advocate submitted that since the petitioner has already joined in the Group-D post, his case for appointment in Group-C post does not arise at all for consideration. It was also contended before this Court that the application of the petitioner have been considered under the 2020 Rules and under said Rules there is no provision for appointment on compassionate ground against Group-C post, the application of the petitioner has been rightly rejected by the authorities. In such view of the matter, learned Additional Government Advocate submitted that the prayer of the petitioner does not reserve any consideration by this Court at this stage. Accordingly this writ petition has liable dismissed. 6. Having heard learned counsels appearing for the respective parties, and on a careful examination of the factual background as well as materials on record, this Court is of the observation that pursuant to the appointment order under Annexure-7 to the writ application, the petitioner joined in duty on 20.12.2022. However // 4 // much prior to that order on 30.03.2022 he has submitted an application before the Opposite Party No.3 to consider his case for appointment against a Group-C post as is permissible under the old Rules of the year 1990. However, the Opposite parties initially did not take any action for which the petitioner was compelled to approach this Court by filing a writ application. After disposal of the earlier writ application the Opposite parties have rejected the case of the petitioner by considering the same to be the case under the O.C.S. (RA) Rules, 2020. In the aforesaid context this Court referring to the judgment of the Hon’ble Supreme Court in Malaya Nanda Sethy vrs. State of Orissa and others: reported in 2022(II) OLR(SC)-1, Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023, State of West Bengal-v.-Debabrata Tiwari 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 is of the considered view that the deceased Government employee having died, an application has been made prior to the new rules came into force therefore the case of the petitioner is to be considered under the O.C.S.(RA) Rules, 1990. Moreover, the Rule 6(9) contained in 2020 rule having been declared ultra vires by this Court in case of Biswajit Swain’s case supra, the authorities have committed illegality by considering the application of the petitioner under the new rules of the year 2020. In such view of the matter, this Court is of the considered view that the impugned rejection order dated 05.08.2022 under Annexure-14 is unsustainable in law. Accordingly, the impugned order dated 05.08.2022 is hereby set aside. Further the matter is remanded back // 5 // to the Opposite Party No.3 to consider afresh under the O.C.S.(RA) Rules,1990 within a period of two months from the date of communication of a certified copy of this order. The authorities are further directed to consider the application of the petitioner strictly in accordance with law and dispose of the same within aforesaid stipulated period of time by passing a speaking order. The final order so passed be communicated to the petitioner within ten days from the date of passing such order. 7. With the aforesaid observation, the writ application stands disposed of. 8. Issue urgent certified copy of this order as per Rules. Rubi ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 05-Feb-2024 11:08:14