The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC ) NO.770 of 2017 Trilochan Guntha .... Petitioner Mr. D.R. Bhokta, Adv.. State of Odisha & Others -versus- ..... CORAM: Opp. Parties Mr. D.K. Mohanty, ASC THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 29.10.2024 Order No.8 1. This matter is taken up through Hybrid Mode. 2. Heard learned counsel appearing for the parties. 3. Petitioner has filed the present Writ Petition inter alia with the following prayer: “This Hon’ble Tribunal be graciously pleased to admit this O.A., call for the records and after hearing the parties allow the same thereby directing the respondents to issue appointment order in favour of the applicant under Rehabilitation Assistant Scheme in place to order under of his mother pursuant Annexure-14; (ii) Further be pleased to pass such other order/orders as would afford complete relief to the applicant.” 4.
Legal Reasoning
It is contended that on the death of his father on 19.02.2008, Petitioner’s mother made her claim to get the benefit of appointment under the provisions of Rehabilitation Assistance Scheme. 4.1. It is contended that Government-Opp. Party No.1 on due consideration of such claim of the Petitioner’s mother and vide letter dt.02.07.2011 under Annexure-6 requested Principal, D.A.V College, Koraput to provide appointment as against any Group-D post. It is contended that vide letter dt.20.07.2011 under Annexure-7, Principal of the College-Opp. Party No.4 expressed his inability to provide appointment to Petitioner’s mother on the ground of non-availability of the required post. In the alternate, Opp. Party No.4 requested Government-Opp. Party No.1 to accord necessary permission to give appointment to Petitioner’s mother as a Peon against the available vacant post of Laboratory Attendant. 4.2. It is contended that the request made by the Principal-Opp. Party No.4 under Annexure-7 was never acted upon and it was kept pending. Accordingly, benefit of appointment in terms of Anneuxre-6 could not be extended in favour of Petitioner’s mother. 4.3. It is contended that because of such delay in providing appointment and due to her illness, Petitioner’s mother expressed her inability to take the benefit of appointment which was duly forwarded by the Principal of the College vide letter dt.04.01.2013 under Annexure-9 series along with the affidavit. 4.4. It is also contended that in the meantime, Petitioner made his application to get the benefit of appointment which was duly forwarded by the Principal of the College vide letter dt.10.10.2015 under Annexure-10. It is contended that on receipt of the application so submitted by the Petitioner forwarded under Annexure-10, Government-Opp. Party No.1 vide letter dt.08.01.2016 under Annexure-11 requested Opp. Party No.2 to indicate the reason as to why Petitioner’s mother has not applied for appointment under Rehabilitation Assistance Scheme. 4.5. It is contended that vide letter dt.17.03.2016, Opp. Party No.4 requested Opp. Party No.2 to consider the claim of the Petitioner to get the benefit of appointment indicating therein that in terms of the letter issued under Annexure-6, Petitioner’s mother could not be provided with the appointment and request made by the Principal under Annexure-7 was never acted upon. It is also contended that in the meantime, on being referred, Petitioner’s mother was duly examined by the Medical Board on 16.08.2016 and she was declared unfit to do any Government job. But on the face of such report submitted under Annexure- 13 series and without taking a final decision on the claim of the Petitioner, Petitioner’s mother when once again was issued with the communication dt.16.11.2016 under Annexure-14 by Government- Opp. Party No.1 requesting Opp. Party No.2 to provide appointment to Petitioner’s mother, the present Writ Petition was filed inter alia with the prayer as indicated hereinabove. 4.6. Learned counsel for the Petitioner contended that on the death of his father, it is not disputed that Petitioner’s mother made the application to get the benefit. On due consideration of such claim vide letter dt.02.07.2011, Opp. Party No.1 though requested the Principal of the College, Opp. Party No.4 to provide appointment to Petitioner’s mother, but no such order of appointment could be issued by the Principal and in the alternate a request was made to the Government vide letter dt.20.07.2011 under Annexure-7. Opp. Party No.1 was requested to accord permission to give appointment to the Petitioner’s mother as a Peon against the available vacant post of Laboratory Attendant. 4.7. It is contended that such a request made by the Principal was never acted upon and as in the meantime, Petitioner’s mother became ill, she expressed her inability to take up Government job and made an application to consider the claim of the Petitioner in place of her which was duly forwarded by the Principal of the College vide Annexure-9 series on 04.01.2013. It is contended that subsequently Petitioner when made an application to get the benefit of appointment, the same was also forwarded vide letter dt.18.08.2014 under Annexure-9 series. 4.8. It is also contended that on such receipt of the application and basing on the letter issued by the Government on 23.09.2015, Opp. Party No.4 vide letter dt.10.10.2015 under Annexure-10 forwarded all the required documents for consideration of the claim of the Petitioner to get the benefit. It is also contended that taking into account the claim made by the Petitioner, petitioner’s mother was recommended for medical examination by the Board which was also conducted on 20.08.2016. As found from Annexure-13 series, Medical Board clearly opined that Petitioner’s mother is unfit to do Government job. 4.9. It is accordingly contended that on the face of the documents available on record and the report of the Medical Board available under Annexure-13 series, instead of considering the claim of the Petitioner, the communication dt.16.11.2016 under Annexujre-14 could not have been issued. It is also contended that no follow-up action has also been taken in terms of Annexurfe- 14 as on date by providing appointment to petitioner’s mother. It is accordingly contended that direction be issued to Op. Party No.1 to consider the claim of the Petitioner under Rehabilitation Assistance Scheme. 5. Mr. D.K. Mohanty, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No.1. 5.1. Placing reliance on the stand taken in the affidavit, it is contended that since on the death of the Government employee, Petitioner’s mother made the application and she was offered with the appointment initially vide Annexure-6 and lastly vide communication dt.16.11.2016 under Annexure-14, appointment under Rehabilitation Assistance Scheme being not transferable in nature, claim of the Petitioner was not considered. It is however contended that in terms of Annexure- 6, Petitioner’s mother was never provided with any order of appointment by Opp. Party No.4 nor any follow-up action has been taken by Opp. Party No.2 after receipt of the communication dt.16.11.2016 under Annexure-14. 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that on the death of the employee concerned on 19.02.2008, Petitioner’s mother made the application to get the benefit of appointment under Rehabilitation Assistance Scheme. As found on consideration of such claim and vide letter dt.02.07.2011, Opp. Party No.4 was requested by Opp. Party No.1 to provide appointment to the mother of the Petitioner. But as found from Annexure-7 letter dt.20.07.2011, no such order of appointment could be issued by Opp. Party No.4 and in the alternate, a request was made to the Government to accord permission to provide appointment to Petitioner’s mother as Peon against any available vacant post of Laboratory Attendant. 6.1. No document has been produced by the State in the counter showing that such permission was accorded by the Government on receipt of Annexure-7. As further found from the record, in the year 2013 taking into account the inaction on the part of the Opp. Party in providing appointment to the Petitioner’s mother, she made an application to ignore her case and to consider the claim of the Petitioner. Such a claim made by the Petitioners mother was forwarded to the Government vide letter dt.04.01.2013 under Annexure-9 series. 6.2. Not only that, application made by the Petitioner to get the benefit of appointment was also forwarded to the Government vide letter dt.18.08.2014 under Annexure-9 series. As further found, basing on the letter issued by the Government on 23.09. 2015, required documents were submitted by Opp. Party No.4 vide letter dt.10.10.2015 under Annexure-10. On such receipt of the application, when a query was made by the Government under Annexure-11 as to why the first legal heir of the deceased employee i.e. wife of the deceased employee has not made any application, clarification was made by the Principal vide letter dt.17.03.2016 under Annexure-12. On such receipt of the clarification, Petitioner’s mother was referred to the Medical Board. Medical Board while examining her on 16.08.2016, clearly opined that she is unfit to do any Govt. job. 6.3. In view of the analysis given here-in-above, it is the considered view of this Court that no such request could have been issued by Government- Opp. Party No.1 to provide appointment to Petitioner’s mother vide letter dt.16.11.2016 under Annexure-14. This Court however is of the view that claim of the Petitioner is required to be considered to get the benefit of appointment in place of her mother. 6.2. This Court accordingly while disposing the Writ Petition directs Opp. Party No.1 to take a decision on the claim of the Petitioner to get the benefit in terms of the Rules prevalent at the time of the death of the deceased employee and following the decision in the case of Malayananda Sethi Vs. State of Orissa & Others,. Such a fresh decision as directed be taken and communicated within a period of two (2) months from the date of receipt of this order.
Decision
The Writ Petition is accordingly disposed of. sangita (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: orissa high court cuttack Date: 20-Nov-2024 12:06:20