The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.31753 of 2023 Rojalin Ojha State of Odisha & others -versus- …. Petitioner Mr. B.K.Sharma, Advocate …. Opposite Parties Mr. N.K.Praharaj, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 09.10.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as the learned Additional Government Advocate 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 : “Under the aforesaid circumstances, it is humbly prayed that your Lordship’s would graciously be pleased to issue Rule NISI calling upon the Opposite Parties to show cause as to why the order dated 07.09.2023 under Annexure-7 the Engineer-in-Chief, Water Resources passed by Department Opposite Party No.2 shall not be quashed and set aside and if the Opposite Parties fail to show cause or show insufficient cause make the said Rule NISI absolute; And further be pleased to issue a writ of certiorari in line with aforesaid rule NISI quashing the impugned order dated 07.09.2023 under Annexure-7. And further be pleased to issue a writ of mandamus directing the Opposite Parties to appoint the petitioner in Group-C post as per the recommendation of the Committee as reflected in the communication dated 28.01.2020 under Annexure-2 of Director(Personnel) to the Additional Secretary to Government in the Water Resources Department; // 2 // And pass such other, direction/directions, order/orders as the Hon’ble Court may deem, fit and proper.” 4. At the outset it is submitted by Mr.Sharma, learned counsel appearing for the petitioner that earlier the petitioner had approached this Court by filing W.P.(C) No.19674 of 2023 which was disposed of by this Court vide order dated 03.07.2023 with a specific direction to the Opposite Party No.2 to consider the representation of the petitioner dated 05.04.2023 strictly in accordance with law within a period of two months and further it was directed that in the event vacancies are there in Group-C Post and he is found that the petitioner is having requisite education qualification for appointment under OCS (RA) Rules, 1990 and the Opposite Party No.2 shall consider the case of the petitioner for appointment a the Group-C Post keeping in view the educational qualification of the petitioner. 5. After disposal of the aforesaid writ application the petitioner approached the Opposite Party No.2, the Opposite Party No.2 after considering the application of the representation of the petitioner vide order dated 07.09.2023 rejected the claim of the petitioner for appointment against a Group-C Post. On perusal of the impugned rejection order under Annexure-7 in the writ application, it appears that the Engineering-in-Chief, Water Resources, Opposite Party No.2 has rejected the representation of the petitioner on the ground that she has already been appointed as a Peon under the OCS (RA) Rules, 2020 and that the petitioner has given an undertaking not to claim any Group-C Post in future. Therefore, the representation of the petitioner has been disposed of with an observation that there is no need to reconsider for appointment against Group-C posts. Further, it has also been stated that any such recommendation was to be in violation of provisions of rule 3(1) (2) of the OCS RA Rules 2020. Accordingly, the representation of the petitioner was found to be devoid of merit and the same was // 3 // rejected. Mr. Sharma, learned counsel referring to the letter under Annexure-2 to the writ application submitted that there are 14 vacancies in the post of Junior Clerk which is a Group-C Post. 6. Learned Additional Government Advocate on the other hand contended that after disposal earlier writ application the representation of the petitioner was considered by the Opposite Party No.2 vide his order dated 07.09.2023 under annexure-7 and by a detailed order the representation of the petitioner has been disposed of and since the petitioner was not found to suitable and eligible in view of the provision contended in the 2020 Rules his case has not been considered for appointment against any Group-C Post. Accordingly, it was submitted by learned Additional Government Advocate that the Opposite Party No.2 has not committed any illegality while passing the impugned order under annexure-7 to the writ application. Therefore, the present writ application is unsustainable in law and accordingly the same sould be dismissed. 7. Having heard the learned counsels appearing for the respective parties and on a careful consideration of the submissions and also on that scrutiny of the materials as well as on record, this Court observed that in the impugned rejection order under annexure-7 the Opposite Party No.2 has stated that the petitioner was appointed under the OCS RA Rules 2020 vide order dated 23.02.2021 and that in view of the provisions contained in the 2020 Rules no appointment in Group-C Post can be given after the OCS RA Rules were amended in the year of 2020. Further it appears that the Opposite Party No.2 has taken a stand since petitioner had given an undertaking that she will not claim in Group-C Post her claim in Group-C Post has rejected. In contrast on perusal of the appointment letter dated 23.02.2021 under Annexure-3 to the writ application it appears that the same clearly reveals that the petitioner was appointed under Rehabilitation Assistance Scheme // 4 // Amendment Rules 2016. The Amendment Rules of the year 2016 is a part of the principal Rule which was enacted in the year 1990 i.e. OCS(RA) Rules, 1990. Moreover, taking into consideration that the death of the deceased Government employee i.e. 12.05.2019 and in the date of application under the existing RA Rules and applying the law laid down by the Hon’ble Supreme Court in the case of Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1 as well as in Suchitra Bal vs. State of Odisha & ors. by a Division Bench of this Court in W.P.(C) No.2081 of 2021 decided on 16.03.2023 as well as Bindusagar Samantaray vs. State of Odisha & ors. by a Division Bench of this Court in W.A. No.810 of 2021 decided on 25.09.2023 the application of the petitioner should have been considered under the OCS RA Rules 2019 as amended to the year 2016. Therefore, the Opposite Party No.2 should have considered the case of the petitioner under the OCS RA Rules 2019 as amended of the year 2016. So far the undertaking given by the petitioner as has been referred to in the impugned rejection order, this Court is of the considered view that such undertaking cannot be used against the petitioner as the scheme of the rehabilitation appointment is a beneficial scheme is entitled to provide support to the family of the deceased government employee. Therefore, after the death of the former government employee the family members who were in a state of view and facing some financial condition sometimes under compulsion and bound to accept the terms and conditions for any appointment who safeguard the interest of the entire family. Therefore, any undertaking at that stage should not have been used against the petitioner. 8. In view of the aforesaid analysis order, this court is of the consider view that impugned rejection order 07.09.2023 under annexure 7 has not been passed in terms of the direction issued by this Court vide order dated 03.07.2023 on the W.P.(C) No.19674 of 2023. The order // 5 // dated 03.07.2023 clearly provides that the case of the petitioner should have been considered under the OCS RA Rules 1990 for appointment under any Group-C Post. In such view of the matter, the impugned order under Annexure-7 is unsustainable in law and accordingly, the same is hereby set aside. Further, the matter is remanded back to the Opposite Party No.2 to reconsider the entice issue in terms of order dated 03.07.2023 passed in W.P.(C) No. 19674 of 2023. Accordingly, the petitioner is directed to approach the Opposite Party No.2 along with a certified copy of the order within three weeks from today. In the event, the petitioner approaches the Opposite Party No.2, the Opposite Party No.2 shall do well to consider in the matter in the light of the aforesaid observation for discussion and passed necessary order within two months from the date of the communication of the order. The decision so taken be communicated to the Petitioner within two weeks thereafter. 9. With the aforesaid observations/ directions, the writ application stands disposed of. 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, Cuttack Date: 16-Oct-2023 11:06:34