The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.28860 of 2022 Rajesh Kumar Panday State of Odisha & Ors. . -versus- …. Petitioner Mr.D.P.Nanda,Sr.Advocate …. Opposite Parties Mr. N.Pratap, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA ORDER 14.12.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Mr. D.P.Nanda, learned senior counsel appearing for the Petitioner as well as the learned Additional Standing counsel for the State. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer : Order No. 05.
Decision
“It is therefore prayed that this Hon’ble Court may graciously be pleased to admit the writ petition and issue Rule “NISI” to the Opp.Parties to show cause as to; (i) Why the impugned order dated 28.09.2022 under Annexure-14 passed by the Opposite Party No.2 will not be declared illegal and liable to be set aside; and (ii) Why the Opposite Party No.2 will not be directed to allow the petitioner to rejoin in his work in the post of “Graphic Designer” pursuant to order of appointment dated 30.12.2020 issued under Annexure-5 within a stipulated time; and (iii) Why the Opposite Party No.2 will not be directed to release the salary of the petitioner from 31.12.2020 to till the date of rejoining. And if the Opp.parties do not show cause then the Rule be made absolute by issuing appropriate writ/writs and // 2 // any other order as deem fit be passed.” 4. The brief factual background of the present writ application is that, the father of the petitioner who was working as Binder Grade-III, under Opposite Party No.2, died in harness on 07.05.2014 leaving behind his legal heirs. The petitioner, being son of the deceased Government employee and one of the legal heirs, applied for appointment on compassionate ground by submitting an application before Opposite party No.2 on 07.04.2015 under Annexure-1 to the writ application. Initially said application was rejected by the authority vide order dated 19.11.2015, which was then challenged by the petitioner before the learned OAT Cuttack Bench, Cuttack, by filing O.A. No.2054(C) of 2016. The learned OAT, vide order dated 05.12.2017, quashed the impugned rejection order and further directed the Opposite Party No.2 to give appointment to the petitioner within a period of two months. 5. Being aggrieved by the aforesaid order passed by the learned OAT, the State Opposite Parties initially preferred a review bearing review petition No.17(c) of 2018. The said review petition was dismissed by the OAT vide order dated 08.05.2018. Thereafter, the State Opposite Parties preferred a writ petition before this Court, bearing W.P.(C) No.20332 of 2018, challenging the order dated 05.12.2017, passed in the O.A. No. 2054(C) of 2016, by the learned OAT, as well as the order dated 08.05.2018 passed in the above noted review petition. The Division Bench of this Court after hearing the learned counsels appearing for the respective parties, vide order dated 31.01.2020, while modifying the order of the Tribunal, directed the Opposite Party No.2 to consider the case of the petitioner keeping in mind the communication, dated 15.05.2017 and 15.05.2019, which have been issued by the competent authorities in favour of one Sankar Pradhan. Since the order passed by Division Bench of this Court was // 3 // not complied with, the petitioner was compelled to approach this Court by filing CONTC NO. 2097 of 2020. During the pendency of said contempt petition, the opposite parties issued an appointment order in favor of the petitioner, vide order dated 30.12.2020 under Annexure-5 to the Writ application, appointing the petitioner as a Graphic Designer on contractual basis. Pursuant to the aforesaid appointment order the petitioner submitted his joining report and started working. However, since the opposite parties did not pay the legitimate dues of the petitioner, the petitioner approached the opposite parties for payment of his dues. Since the representation of the petitioner was not considered by the opposite parties, the petitioner once again approached this Court by filing W.P.(C) No.34860 of 2021. The said writ application was disposed of by this Court, vide order dated 23.11.2021, directing Opposite Party No.2 to consider the representation of the petitioner dated 25.08.2021 under Annexure-9 to the writ application within a period of three months. 6. On receipt of the order dated 23.11.2021, the opposite party No.2 filed an I.A. No.2697 of 2022 before this Court in the above noted writ application with a prayer to grant for three months to comply with order dated 23.11.2021. Since no action was taken by the Opposite Parties the petitioner once again filed another contempt application bearing CONTC No.3793 of 2022, after which, the opposite party No.2 withdrew all works and assignments from the petitioner and he was not allowed to enter the office premises. Thereafter, the petitioner was communicated with order dated 28.08.2022 wherein it has been stated that the grievance of the petitioner with regard to the release of salary has been referred to the Opposite Party No.3 for its view. 7. While the matter stood thus, the petitioner received impugned order dated 28.09.2022 under Annexure-14 to the writ, issued by Opposite Party No.2, wherein the opposite Party No.2 basing on the communication dated 30.09.2022 cancelled the order of appointment // 4 // dated 30.12.2022 and the service of the petitioner has been terminated with immediate effect. 8. Mr. Nanda, learned Senior counsel appearing for the petitioner submitted that the father of the present petitioner died on 07.05.2014. Thereafter, the petitioner has submitted an application for appointment under the RA Scheme on 07.04.2016, which is within time stipulated under the OCS (RA) Rules, 1990. He further contended that after due scrutiny of the application submitted by the petitioner, the opposite parties though initially rejected the application of the petitioner, however, pursuant to the order passed by the tribunal as well as by this Court, the petitioner was given appointment as a Graphic Designer vide order dated 30.12.2020 under Anneuxre-5 to the writ application. Eventually, the order of appointment under Annexure-5 was cancelled by the Opposite Party No.2 by the impugned order dated 28.09.2022 under Annexure-14 to the writ application, and the service of the petitioner has been terminated without following any known legal procedure for termination of service. He further referred to the judgment of the Hon’ble Supreme Court 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 31.102023,State of West Bengal-v.-Debabrata Tiwri 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, and submitted before this Court that, in identical scenario the Hon’ble Supreme Court as well as this Court have directed the Opposite Parties to consider the case of the petitioner for appointment on compassionate ground by following provisions of the O.C.S. (RA) Rules, 1990. Therefore, there is no dispute with regard to applicability of the O.C.S. (RA) // 5 // Rules, 1990 to the facts of the present case. He further contended that the impugned rejection order is illegal and arbitrary and, as such the same is unsustainable in law. In such view of the matter, learned Senior counsel submitted that the impugned rejection order be set aside and the petitioner be taken back to service with full back wages. 9. Learned Additional Standing counsel on the other hand referring to the order dated 28.09.2022, under Annexure-14, submitted before this Court that, the joining report of the petitioner was not accepted by the opposite parties since the very appointment of the petitioner was illegal. To substantiate his argument, the learned counsel for the State submitted that, by the time the petitioner was given appointment, the new Rule of the year 2020 had already come into force. Therefore, the opposite parties have, after reconsidering entire issue, found that the petitioner was given appointment illegally as he was not eligible for such appointment under the O.C.S. (RA) Rules, 2020. Further, referring to the provisions contended Rule 6 (9) O.C.S. (RA) Rules, 2020, the learned Additional Standing counsel submitted that the aforesaid sub- rule provides that all pending applications are to be considered under O.C.S. (RA) Rules, 2020. The application of the petitioner having been considered under the O.C.S. (RA) Rules, 1990 and appointment order having been issued pursuant thereto is illegal in view of the provision contained in the O.C.S. (RA) Rules, 2020. He further contended that the application of the petitioner was never considered by applying O.C.S. (RA) Rules, 2020. Therefore, such appointment order dated 30.12.2020 was entirely illegal and the same has been rightly recalled and the service of the petitioner has been terminated with immediate effect. In view of the aforesaid submissions, the learned counsel for the Opposite Parties submitted that the opposite parties have not committed any illegality while passing the order dated 28.09.2022 under Annexure-14 // 6 // to the writ application. 10. Having heard the learned counsels appearing for the respective parties, on a careful consideration of the materials on record, as well as submissions made by the counsels appearing for the respective parties, this Court is of the observation that, initially the application of the petitioner was rejected by the Opposite Party No.2. after which the petitioner had approached the Odisha Administrative Tribunal, who, vide its order dated 05.12.2017 under Annexure-2, set aside the rejection order and directed the Opposite Party No.2 to given appointment to the petitioner on compassionate ground, under the RA Scheme. Such order passed by tribunal was eventually modified by Division bench of this Court, by its order under Annexure-4 to the writ application, whereunder the Hon’ble Division bench modified the order passed by the tribunal to extent that, instead of directing for giving appointment, it was directed that the case of the petitioner be considered by the opposite parties. While the matter was thus, the petitioner approached this Court by filing the present writ application for implementation of the order passed by this Court. The opposite parties, to avoid action under the Contempt of Courts Act, issued the appointment letter dated 30.12.2020, thereby giving appointment to the petitioner as a Graphic Designer on the basis of the recommendation made by the competent authority by applying O.C.S. (RA) Rules, 1990. Such order passed by the Opposite Party No.2 was recalled, and the service of the petitioner was terminated by the impugned order Annexure-14 to the writ application on the ground that the petitioner is ineligible to be appointed under the O.C.S. (RA) Rules, 2020 which was in force at the time of consideration of the application of the petitioner for appointment on compassionate ground. 11. On a careful analysis of the aforesaid facts, as well as the law governing filed, this Court is of the considered view that issued involved in the present writ application is no more res integra as the // 7 // same has been answered by the judgment of the Hon’ble Supreme Court 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 31.102023, State of West Bengal-v.-Debabrata Tiwri 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. In such view of the matter, the impugned order, dated 28.09.2022 under Annexure-14, is set aside. The writ application is allowed. Opposite parties are directed to accept the joining report of the petitioner within a period of six weeks form the date of communication of the certified copy of this order. The petitioner be allowed to discharge his duties, moreover, it is needless to mention here that petitioner shall be paid his salary/remuneration as is due and admissible to him. 12. With the aforesaid observations/ directions, the writ application stands disposed of. Issue urgent certified copy of this order as per Rules. ( A.K. Mohapatra ) Judge Rubi Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: Orissa High Court Date: 20-Dec-2023 19:37:08