The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C(OAC) No.3940 of 2017 Jagatjiban Patra …. Petitioner Mr. D.K. Mohanty, Advocate State of Odisha and Others -versus- …. Opposite Parties Mr. B. Mohanty, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 13.08.2024 Order No. 03. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia with the following prayer:- the facts noted above “Under and circumstances, the applicant humbly prays that this Hon’ble Court may graciously be pleased to quash the order dtd.21.01.2016 and 13.12.2016 under Annexure-7 & 11 and to direct the to consider and provide an Respondents on in employment compassionate.” of applicant favour 4. It is submitted that Petitioner’s father while working as a Peon in the establishment of Opposite Party No.4, he died on 15.11.2009. 4.1. It is submitted that on such death of the deceased Govt. employee, Petitioner made an application on 05.04.2010 under the provision of OCS (R.A) Rules, 1990 // 2 // under Annexure-3 series. The said application when was forwarded to O.P. No. 3, O.P. No.3 vide letter dated 03.06.2010 requested O.P. No.4 to submit the caste certificate, showing that petitioner belongs to schedule caste. 4.2. It is submitted that O.P. No. 2 thereafter vide letter dt.15.01.2011 under Annexure-4, requested O.P. No.3 to direct the petitioner to file a court affidavit to the effect that he will maintain the deceased family on being provided with compassionate appointment. Thereafter, vide letter dated 04.03.2011 under Annexure-5, O.P. No.2 forwarded the application of the petitioner to O.P. No.1 with a request to communicate the approval in favour of the petitioner as against the post of Jr. Clerk. 4.3. It is contended that O.P. No.1 on receipt of the application and vide letter dated 02.05.2013 under Annexure-6, requested O.P. No.2 to furnish various documents for appointment of the petitioner under R.A. Scheme. Petitioner also complied the requirement by submitting the required documents before O.P. No.3 on 07.06.2013 under Annexure-6 series and the documents
Decision
accordingly were forwarded to O.P. No.1 vide letter dated 04.01.2015. 4.4. It is further contended that O.P. No.2 vide letter dated 21.01.2016 under Annexure-7, when requested O.P. No.3 to furnish the application for such appointment under R.A. Scheme through the wife of the deceased Page 2 of 7 // 3 // employee on the ground that G.A. dept. taking into account the status of the petitioner as the 2nd legal heir of the deceased employee is not inclined to consider his claim, wife of the deceased employee vide letter dated 23.02.2016 under Annexure-8 series requested O.P. No.3 to consider the claim of the petitioner. 4.5. Accordingly, O.P. No.2 vide letter dated 18.06.2016 under Anexure-8 series also forwarded the same to O.P. No.1 for consideration of the claim of the petitioner taking into account the application submitted by the wife of the deceased employee on 23.02.2016. However, when no final decision was taken, petitioner approached the tribunal in O.A. No.3533(C) of 2016. The Tribunal vide order dated 29.09.2016 under Annexure-10 directed the Opp. Parties to consider the claim of the petitioner as submitted on 23.02.2016 under Annexure-8 series. 4.6. It is however contended that O.P. No.1 only on the ground that petitioner is the 2nd legal heir of the deceased employee and 1st legal heir i.e. wife of the deceased employee is very much available, rejected the claim relying on the provisions contained under Rule 2(b) of OCS(R.A.) Rules, 1990 vide the impugned order dated 13.12.2016 under Annexure-11. 4.7. Learned counsel for the Petitioner submitted that the other legal heirs of the deceased employee gave their no objection in favour of the Petitioner and Petitioner when made his application within the time, the same was Page 3 of 7 // 4 // recommended by O.P. Nos.2 & 3 vide communication issued on 04.11.2015 under Annexure-6 series and 18.06.2016 under Annexure-8 series. But O.P. No. 1 by misinterpreting the provision of Rule 2(b) of the Rules, held that since the Petitioner was not the sole member of the deceased family and the spouse was alive, his claim cannot be entertained while passing the impugned order dated 13.12.2016 under Annexure-11 4.8. Learned counsel for the Petitioner further submitted that this Court while considering the provision contained under Rule 2(b) of the Rules has held that, Rule 2(b) only prescribes the order of preference of the family members of the deceased employee and there is no stipulation that wife/husband of the deceased employee is to make the application only. Learned counsel for the Petitioner in support of his aforesaid submission relied on a decision of this Court reported in 2018(II) OLR 10 (Ajit Kumar Barik vs. State of Orissa & Others). This Court in Para 6 & 7 of the said Judgment held as follows:- “6. The Rules as contended in the above paragraph nowhere restricted the jurisdiction of the appointing authority to consider the application for appointment in a suitable available vacancy under his control. The Rules the also define "Family Members" means following members in order of preference- include (i) Wife/Husband; (ii) Sons or step sons or sons legally adopted through a registered deed (iii) Unmarried daughters and unmarried step daughters; (iv) Widowed daughter or daughter-in-law residing permanently with the affected family; Page 4 of 7 // 5 // (v) Unmarried or widowed sister permanently residing with the affected family; (vi) Brother of unmarried Government servant who was wholly dependent on such Government servant at the time of death. is to be given 7. Of course the first preference wife/husband of the deceased employee then son and unmarried daughter. However no where it was stated that in the case a family member in order of preference in the hierarchy is unfit and a medical certificate furnished to that effect, claim shall not be considered for engagement of the other eligible members in case of distress condition of the family. Therefore, the finding given by the Tribunal in the impugned order that she is not prepared to accept Group-’D’ post and offered it to her son in ignoring the material on records is not sustainable.” 4.9. Learned counsel for the Petitioner submitted that order passed in the above noted reported decision of this Court was also confirmed by the Hon’ble Apex Court vide its order dtd.26.10.2018. Accordingly it is submitted that in view of the ratio decided in the above noted reported case of this Court, which has been confirmed by the Hon’ble Apex Court, claim of the Petitioner could not have been rejected on the grounds indicated therein. 4.10. It is also submitted that in view of the no objection given by the other legal heirs of the deceased employee and the reported decision of this Court, rejection of Petitioner’s claim so made by O.P. No. 1 vide order dtd.13.12.2016 under Annexure-11 is illegal and not sustainable in the eye of law. 5. Mr. B. Mohanty, learned Addl. Govt. Advocate while supporting the impugned rejection submitted that since other legal heirs were available at the relevant point of Page 5 of 7 // 6 // time, Petitioner’s application has been rightly rejected vide the impugned order dtd.13.12.2016 under Annexure-11. Learned Addl. Govt. Advocate further submitted that since wife of the deceased employee was very much available to make the claim and on the face of Annexure-7, she never made the application, there is no illegality or irregularity in rejecting the Petitioner’s claim by O.P. No. 1 vide Order dtd.13.12.2016 under Annexure- 11. 6. Heard learned counsel appearing for the Parties. Perused the materials available on record. This Court after going through the same finds that the Petitioner’s application for compassionate appointment was not only accepted but also it was considered with recommendation made under Annexure-6 series and Annexure-8 series. But ultimately petitioner’s claim was rejected vide order dtd.13.12.2016 under Annexure-11 on the ground that petitioner being the 2nd legal heir, his claim cannot be considered. 6.1. This Court in view of the decision of this Court reported in the case of Ajit Kumar Barik Vs. State of Odisha & Ors. reported in 2018 (II) OLR 10 is of the view that there is no bar on the part of the Petitioner to make his application for extension of the benefit under the provision of OCS (R.A.) Rules, 1990. 6.2. Therefore, this Court placing reliance on the decision reported in the case of Ajit Kumar Barik, is of the view Page 6 of 7 // 7 // that O.P. No. 1 has illegally rejected Petitioner’s claim vide order dtd.13.12.2016 under Annexure-11. Therefore, this Court while quashing the same directs O.P. No. 1 to take a fresh decision on the claim of the Petitioner. 6.3. Since the deceased employee has died on 15.11.2009, this Court relying on the recent decision of the Hon’ble Apex Court in the case of Malayananda Sethi Vs. State of Odisha & Ors (Civil Appeal No.4103 of 2022 disposed of on 20.05.2022) directs O.P. No. 1 to take a decision on the Petitioner’s claim in terms of the rules prevalent at the time of the death of the deceased employee. This Court directs O.P. No. 1 to complete the entire exercise within a period of two (2) months from the date of receipt of this Order with due intimation to the Petitioner. 7. The writ Petition is disposed of with the aforesaid observation and directions. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2024 19:18:51 Page 7 of 7