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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.30733 of 2022 Mamina Sahu Petitioner …. Mr.M.K.Mohapatro, Advocate State of Odisha and others -versus- …. Opposite Parties Mr.N.K.Praharaj, A.G.A. CORAM: JUSTICE A.K.MOHAPATRA Order No. ORDER 01.12.2023 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. Perused the pleadings of the parties as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer : “ Under the facts and circumstances mentioned above, it is therefore humbly prayed that this Hon’ble Court may graciously be pleased to allow this Writ Petition, issue Rule NISI thereby calling upon the Opp.Parties to show cause as to why the order of rejection Opp.Party No.3 under Annexure-4 shall not be set aside/quashed. And further direct the Opp.Parties to consider the Petitioner’s application the O.C.S.(Rehabilitation Assistance) Rules, 1990 instead of the O.C.S.(Rehabilitation Assistance) Rules, 2020; for appointment under Page 1 of 2 // 2 // And pass order/orders, direction/directions as this Hon‘ble Court may deem fit and proper;” other any 4. The factual matrix of the present case in gist is that the husband of the Petitioner, who was working as Constable under Opposite Party no.3 since 1997. While working as such, the husband of the Petitioner died in harness on 31.01.2019 leaving behind the Petitioner and a minor daughter and the old parents of the deceased employee. The present Petitioner being the only competent person to apply for appointment on compassionate ground, submitted an application for appointment on compassionate ground on 23.05.2019 along with all the required documents. The Writ Petition further reveals that the condition of the family of the deceased Government employee was in distress condition. Accordingly, the Petitioner being the wife of the deceased Government employee and she is only competent person of the family to apply for a job, submitted her application for appointment on compassionate ground. Perusal of the record reveals that during the pendency of the aforesaid application, the new Rule of the year 2020 was notified by G.A. & P.G. Department vide Notification No.5651/Gen dated 17.02.2020 bringing a set of Rule in the OCS(RA) Rule, 2020. After coming into force the new Rule in the year 2020 the Petitioner vide letter dated 09.06.2020 of the S.P., Balangir was asked to submit a fresh application under the OCS(RA) Rule, 2020 for appointment against Group ‘B’ post. The Petitioner, who was in need of a job to look after the well being of the family and to provide support to the entire family, submitted a fresh application as desired by the Superintendent of Police, Bolangir vide his letter dated 09.06.2020 annexed to the Counter Affidavit as Annexure-C/3. Thereafter, the Page 2 of 6 // 3 // authorities have evaluated the application of the Petitioner and it was found that the Petitioner has failed to secure adequate number of points as required to be eligible to be appointed on compassionate ground under the Rules of the year 2020. Accordingly, the Opposite Parties vide impugned order dated 28.09.2022 under Annexure-4 to
Decision
the Writ Petition have rejected the application of the Petitioner under the OCS(RA) Rule, 2020. Being aggrieved by such rejection the Petitioner has approached this Court by filing the present Writ Petition. 5. Learned counsel for the Petitioner at the outset contended that the impugned rejection order under Annexure-4 to the Writ Petition is highly illegal and arbitrary. He further contended that taking into consideration the fact that the date of death of the Government employee i.e., dated 31.01.2019 and the application seeking appointment much prior to the new Rule 2020 came into force, the application of the Petitioner should have been considered under the 1990 Rules instead of 2020 Rule. In the aforesaid context learned counsel for the Petitioner refers to the judgments Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1, 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. 6. A Counter Affidavit has been filed on behalf of the State- Opposite Parties. In the said Counter Affidavit, the Opposite Parties have supported the impugned rejection order principally on the ground that the Rule which was in force at the time of consideration Page 3 of 6 // 4 // of the application shall be taken into consideration while deciding the application of the Petitioner for appointment on compassionate ground. Learned Additional Government Advocate refers to the new Rule 2020 which provides that all pending applications shall be considered under 2020 Rules. Further, in support of his contention, learned Additional Government Advocate also refers to many judgments of the Hon’ble Supreme Court which have been specifically referred to and quoted in the Counter Affidavit. In such view of the matter, learned Additional Government Advocate submitted that the Opposite Parties have not committed any illegality in rejecting the application of the Petitioner by applying the Rule 2020. Hence the application is devoid of merit and accordingly the Writ Petition should be rejected. 7. In course of his argument, learned Additional Government Advocate also submitted that once the Petitioner has submitted a fresh application pursuant to the letter dated 09.06.2020 under Annexure-C/3 of the Superintendent of Police, Bolangir, there is a presumption that the Petitioner has given her willingness for consideration of new Rules, 2020. Therefore, learned Additional Government Advocate having given consent for consideration of application under 2020 Rules, it is no more open to the Opposite Parties to challenge the rejection order on the ground that the same has been rejected by applying the Rules of the year 2020. 8. Having heard the learned counsel appearing for the respective parties, on a careful examination of submissions, documents as well as materials on record, this Court observes that the only issue involved in the present case is with regard to the applicability of the Rule to the fact of the present case. So far the Page 4 of 6 // 5 // date of death of the Government employee is concerned, there is no dispute that the husband of the Petitioner died on 31.01.2019. Furthermore, there is also no dispute with regard to date of submission of R.A. application dated 22.05.2019, which is evident from letter under Annexure-F/3 to the Counter Affidavit. Thus, the factual position is very clear that the deceased Government employee died and the Petitioner being the only legal heir submitted her application before new Rule came into force. Since the Petitioner is the only member, who is eligible to be considered for appointment on compassionate ground as other members are minor daughter and the old parents of the deceased Government employee. Considering the objective of OCS(RA) Rules as enumerated in Rule-4, the authorities should have considered the application and disposed of the same as expeditiously as possible. However, the matter was kept pending for a long time. In the mean time, the new Rule was introduced and the same also came into force with effect from 17.02.2020. 9. On a careful examination of the submissions made by the learned counsel appearing for the parties and keeping in view the factual background of the present case, this Court examined the dispute with regard to applicability of the Rule. In the aforesaid factual background, this Court is of the considered view that the application of the Petitioner should have been considered under the OCS(RA) Rules, 1990 as amended up to the year 2016. This is so because of the view taken by this Court in the case of Biswajit Swain. In the aforesaid judgment the Rule which was prevailing at the time of death of the Government employee have been taken into consideration while considering the application of the Petitioner for Page 5 of 6 // 6 // appointment on compassionate ground. In such view of the matter, there is no hesitation in coming to the conclusion that the issue involved in the present Writ Petition has already attained finality in view of the aforesaid judgment. Therefore, the same is not required to be adjudicated once more. Accordingly, this Court is of the view that in view of the rejection order under Annexure-4 to the Writ Petition dated 28.09.2022 is illegal and unsustainable in law. Therefore, the same is hereby quashed. Further, the matter is remanded back to Opposite Party No.3 to consider the matter afresh in accordance with the aforesaid judgment as well as keeping in view the OCS(RA) Rule, 1990 and amended up to 2016 and take a final decision with regard to appointment within three months from the date of communication of the order. It is further directed that while considering the case of the Petitioner, the Opposite Parties shall also keep in mind the law laid down by the Hon’ble Supreme Court in State of West Bengal-v.-Debabrata Tiwri reported in (2023 (3) SCALE-557 and pass necessary orders considering the urgency of such appointment on compassionate ground to provide support to the family of the deceased Government employee. 10. With the aforesaid observation and direction the Writ Petition stands disposed of. 11. Issue urgent certified copy of this order as per Rules. RKS (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 07-Dec-2023 11:37:32 Page 6 of 6