The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C(OAPC) No.94 of 2017 Sunita Rout …. Petitioner Mr. G.R. Sethi, Advocate D.G. and I.G. of Police and Others -versus- …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 26.06.2024 Order No. 05. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the notification dated 17.12.2015 issued vide Annexure-3. Vide the said notification, petitioner was directed to appear the qualifying test to get the benefit of appointment as against the post of Junior Clerk under the Rehabilitation Assistance Scheme. 3.1. Learned counsel for the petitioner contended that on the death of her father on 18.11.2013, petitioner made her application to get the benefit of appointment under the provisions of Rehabilitation Assistance Scheme. It is contended that as provided under OCS(R.A.) Rules, 1990, // 2 // there is no such provision to conduct a qualifying test in order to ascertain the suitability of an applicant to get the benefit of appointment under the provisions of Rehabilitation Assistance Scheme. 3.2. It is accordingly contended that action of the Opp. Parties to take the test in terms of the impugned communication on 17.12.2015 under Annexure-3 is not sustainable in the eye of law. 4. Mr. S.K. Samal, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by O.P. No.1 to 3. It is contended that on the death of the petitioner’s father on 18.11.2013, petitioner made her application as against the post of Junior Clerk on 13.01.2014. On submission of the application by the petitioner, application of the petitioner was also considered and vide letter dated 04.03.2015 her claim has recommended. Though in the meantime vide letter dated 22.12.2015, petitioner was directed to appear the qualifying test, but petitioner was asked to submit a fresh application basing on the Amended 2016 Rules so notified by the Govt. on 05.11.2016. Accordingly, petitioner on 04.01.2018 was requested to make a fresh application and petitioner made the same on 05.01.2018. On consideration of such fresh application, the Board once again recommended the case of the petitioner for her appointment as against the Page 2 of 5 // 3 // post of Junior Clerk under Rehabilitation Assistance Scheme. But since 3 (three) post of Junior Clerk were lying vacant, application of the petitioner was sent back with a request to consider the same in accordance with G.A. Department Resolution dated 29.01.2017 and State Police Headquarter letter dated 13.10.2017. Thereafter, the Committee so constituted suggested for consideration of the case of the petitioner for appointment in the post of Junior Clerk under Rehabilitation Assistance Scheme on contractual basis. But since in the meantime, G.A. Department issued a fresh notification on 17.02.2020 amending the provisions of OCS (R.A) Rules, 1990, claim of the petitioner under the Amended provisions was again considered and she was found ineligible to get the benefit. 4.1. It is accordingly contended that since as per the provisions contained under the Amended Rules, petitioner has been found ineligible, petitioner is not eligible and entitled to get the benefit as prayed for. 5. To the submission made by learned State Counsel, learned counsel for the petitioner contended that similar issue was before this Court in W.P.C(OAC) No.2955 of 2017. This Court while taking a view that no such provision is there under the provisions of OCS(R.A) Rules to conduct any test, held the action of the Opp. Parties in going for the test and declaring the petitioner therein Page 3 of 5 // 4 // ineligible to get the benefit as not sustainable in the eye of law. 5.1. While quashing such action of the Opp. Parties, this Court vide its order dated 19.06.2024 directed the Opp. Parties therein to consider the claim of the petitioner in the light of the decision in the case of Malayananda Sethy Vrs. State of Odisha and Others. The view expressed in Para-6 and 7 of order dated 19.06.2024 are reproduced hereunder:- “6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that the father of the Petitioner while continuing in the establishment of Opposite Party died on 10.12.2012. Petitioner being the son of the deceased employee made his application to get the benefit of appointment under the Rehabilitation Assistance Scheme on 02.07.2013 under Annexure-3. Since there is no such provision to hold any test under the provisions contained under OCS (RA) Rules, 1990, it is the view of this Court that the claim of the Petitioner could not have been rejected by holding that Petitioner has failed to qualify the test so held on 10.01.2016. Since there is no provision to hold any test under OCS (RA) Rules, 1990, the action of the Opposite Party in going for such a test and thereafter declaring the Petitioner ineligible to get the benefit is not sustainable in the eye of law. 7. in vide Annexure-7 Therefore, this Court is inclined to quash the rejection of the Petitioner’s application on the ground indicated communication dtd.03.10.2016. While quashing the same, this Court directs Opposite Party No.5 to consider the claim of the Petitioner in the light of the decision in the case of Malayananda Sethy v. State of Orissa, Civil Appeal No.4103 of 2022 disposed of on 20.05.2022 within a period of two (2) months from the date of receipt of this order with due communication to the Petitioner.” Page 4 of 5 // 5 // 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that on the death of the petitioner’s father on 18.11.2013, petitioner made her application to get the benefit of appointment on 13.01.2014. As found from the record, petitioner’s claim though was recommended time and again but she was not favoured with any appointment. But as found from the record, petitioner’s claim has ultimately been rejected basing on the Amended provisions of 2020. Therefore, this Court while declaring the action of the Opp. Parties in going for the test vide notification dated 17.12.2015 under Annexure-3 as illegal is also inclined to interfere with the rejection of the petitioner’s claim basing on the Amended provisions, 2020 as contended in the counter affidavit. Placing reliance on the decision in the case of Malayananda Sethy as cited (supra) and while quashing the rejection of the petitioner’s claim, this Court directs Opp. Party No.3 to take a fresh decision on the claim of the petitioner, within a period of 2 (two) months from the date of receipt of this order with due intimation to the petitioner. 7. The Writ Petition is accordingly disposed of. Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Basudev Reason: Authentication of order Location: High Court of Orissa, Cuttack Date: 03-Jul-2024 17:26:51 (Biraja Prasanna Satapathy) Judge Page 5 of 5