The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OA) No.1967 of 2017 Subham Patro …. Petitioner -versus- State of Odisha & Others …. Opposite Parties COROM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 27.03.2023 02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
the decision of this Court in the case of Ajit Kumar Barik Vs. State of Odisha & Ors. (2018 (II) OLR P-10). 4.2. Accordingly, it is contended that the Opposite Party No.1 without proper appreciation of the Petitioner’s claim vis-à-vis the materials produced before him rejected the claim by coming to an erroneous conclusion. Therefore, the said order under Annexure-9 is not sustainable in the eye of law. 5. Even though a counter affidavit has been filed by the Opposite Parties and submissions was made by Mr. Balabantaray, learned Addl. Government Advocate relying on the counter, but he failed to satisfy this Court with regard to the queries raised by this Court. However, it is fairly contended that on the death of the deceased employee on 22.09.2010, Petitioner’s mother made her application on 09.08.2011 under Annexure-3 and after obtaining the distress certificate, the application of the mother was recommended to the Opposite Party No.2 vide Annexure-4. During pendency of such application, when the Petitioner’s mother expressed her inability to take up the job, she was forwarded for medical examination by a Medical Board and after being found ineligible by the District Medical Board in its report under Annexure-5, the Page 3 of 5 // 4 // Petitioner made his application on 17.06.2015 under Annexure-6. The said application of the Petitioner was duly forwarded to the Government vide Annexure-6/1. Opposite Party No.1 after due consideration of the same, rightly rejected the Petitioner’s claim as the application was made when the Petitioner was only 13 years old. 6. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that admittedly Petitioner’s father died on 22.09.2010 and after the death, Petitioner’s mother made an application on 09.08.2011 under Annexure-3. But the Opposite Party No.1 by taking some irrelevant facts to his consideration, held the deceased employee to have died on 22.05.2006, which is not a fact at all. Similarly, the Opposite Party No.1 also committed wrong by holding that the application dated 09.08.2011 was submitted by the Petitioner though in fact it was submitted by her mother. 6.1. This Court is of the view that the Opposite Party No.1 while considering the claim of the Petitioner has not taken into consideration the relevant documents so forwarded to him vide Annexure-6/1. With regard to the stand taken by the Opposite Party No.1 that the application is contrary to the provision contained under Rule-2(b) of OCS (RA), 1990, in view of the decision of this Court in the case of Ajit Kumar Barik as cited (supra), the said plea no more holds the field. 7. Therefore, in view of such position, this Court is inclined to interfere with the impugned communication dated 05.01.2017 under Annexure-9. While quashing the same, this Court directs the Opposite Party No.1 to take a fresh decision on the application submitted by the Page 4 of 5 // 5 // Petitioner on 17.06.2015 under Annexure-6 and so forwarded to him vide letter dated 11.03.2016 under Annexure-6/1. While taking such a decision, Opposite Party No.1 shall follow the rules prevalent at the time death of the deceased employee following the recent decision of the Hon’ble Apex Court in the case of Malaya Nanda Sethy vs. State of Odisha & Others. This Court directs Opposite Party No.1 to take a fresh decision within a period of two months from the date of receipt of this order and communicate the result thereof to the Petitioner within the aforesaid time period. 8. The Writ Petition accordingly succeeds and disposed of. Judge (Biraja Prasanna Satapathy) Subrat Page 5 of 5
Arguments
2. Heard Mr.P.K. Sinha, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Government Advocate for the State-Opposite Parties. 3. The Petitioner has filed the present Writ Petition challenging the rejection of his claim for appointment under the provisions of Rehabilitation Assistance Scheme by the Government-Opposite Party No.1 under Annexure-9 dated 05.01.2017. 4. Learned counsel for the Petitioner contended that the father of the Petitioner while continuing as a Senior Clerk in the Office of Divisional Forest Officer, Koraput he died on 22.09.2010 vide Annexure-1. On his death, the Petitioner’s mothers made her application for appointment under the provision of Rehabilitation Assistance Scheme on 09.08.2011 under Annexure-3. The said application of the Petitioner’s mother was forwarded to the Collector, Ganjam, Chatrapur and on receipt of the distress // 2 // certificate vide Annexure-3/1, the claim of the Petitioner’s mother was referred to Opposite Party No.2 vide Annexure-4 dated 14.03.2013. In spite of such forwarding of her claim, the mater was kept pending at the level of Opposite Party Nos.1 and 2. In the interim, when the Petitioner’s mother suffered from various ailments and she expressed her inability to accept the job, she was referred for medical examination by the Medical Board vide letter dated 30.03.2015 of the Divisional Forest Officer, Koraput Division. On receipt of such requisition, Petitioner’s mother was duly examined by the Medical Board and the Medical Board in its report under Annexure-5 dated 21.05.2015 found the Petitioner’s mother as ineligible to take any strenuous physical and mental work. After such receipt of the Medical report from the Board under Annexure-5, the Petitioner being the son of the deceased employee made his application on 17.06.2015 under Annexure-6 with a prayer to provide him appointment under the provisions of Rehabilitation Assistance Scheme. The said application of the Petitioner was duly recommended to the Government by the Opposite Party No.2 vide letter dated 11.03.2016 under Annexure-6/1. But the Opposite Party No.1 on misconception and without going through the details of the application as well as the date of death of the deceased employee rejected the claim completely on erroneous consideration vide the impugned communication dated 05.01.2017 under Annexure-9. 4.1. It is contended that in the order of rejection under Annexure-9, the Opposite Party No.1 has taken the death of the deceased employee as 22.05.2006 though in fact and as admitted in Annexure-4 by the D.F.O, the date of death is 22.09.2010. Similarly in the impugned communication, Page 2 of 5 // 3 // Opposite Party No.1 has taken the application to have been made by the Petitioner on 09.08.2011 at the age of 13 years, though in fact the mother of the Petitioner had made such an application on 09.08.2011 under Annexure-3. The other ground taken by Opposite Party No.2 in rejecting the Petitioner’s application taking recourse to the provision under Rule-2(b) and 9(7) of the OCS (Rehabilitation Assistance) Rules, 1990 is no more applicable in view of