The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OA) No. 1175 of 2019 Siba Prasad Gouda ..... State of Odisha & Ors. -versus- ..... CORAM: Petitioner Ms. S. Sahoo, Advocate Opposite Parties Mr. S.P. Das, ASC THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 18.12.2024 Order No. 15 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard Ms. S. Sahoo, learned counsel appearing for the Petitioner and Mr. S.P. Das, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. The present writ petition has been filed inter alia with the following prayer:- “In view of the facts stated in para-6 above, the applicant prays for the following relief. 1. Direct the Govt./Respondents to provide appointment to the applicant in any Class-III post under R.A. Scheme as per the OCS (Rehabilitation Assistance) Rules, 1990 which was prevailing prior to OCS (Amendment) Rules, 2016 came into force and extend all service and financial benefits.
Decision
2. To quash Annexure-9 of the writ petition and consider the petitioner for appointment under OCS(RA) Rules 1990. 3. Pass any other order/orders as deemed fit and proper in favour of the applicant.” Page 1 of 5. 4. It is contended that even though Petitioner’s father while in service died on 24.03.1993 as reflected in Annexure-2, but since Petitioner at the relevant time was a minor, he could not make the application immediately. It is contended that on attaining his majority on 02.07.2011, in terms of the provisions contained under Rule 9(7) of the OCS (R.A.) Rules, 1990, he made the application to get the benefit of appointment on 03.09.2013 vide Annexure-5. Rule 9(7) of the Rules reads as follows:- “(7) [If at the time of death of the Government servant, there is ward who is minor and who alone is available in the family of the deceased Government servant for employment, he/she shall apply for job under these rules on attaining the age of eighteen years and in no case beyond three years from the date of attaining the age of eighteen years.]” 4.1. It is contended that the application of the Petitioner so submitted was not only entertained but also it was processed. But instead of taking a decision on the claim of the Petitioner as per the rules prevailing at the time of death of the deceased employee, Petitioner vide letter dtd.21.11.2017 when was directed to make a fresh application in terms of the Amended Rules 2016, Petitioner being aggrieved by such action is before this Court with the aforesaid prayer. 4.2. It is contended that since Petitioner’s father while in service died on 24.03.1993 and Petitioner made the application within the prescribed period of limitation as provided under Rule 9(7) of the Rules, Petitioner could not have been asked to make a fresh application under the Amended Provisions contained under 2016 Rules. Page 2 of 5. 4.3. It is also contended that even though no application was made pursuant to Annexure-9, but while considering his claim as per the Amended Provisions 2016, claim of the Petitioner has been rejected as reflected in Para 10 of the counter affidavit. Relevant extract of Para 10 showing the rejection is reproduced hereunder:- “It is humbly and respectfully submitted that the 14th person namely Sujata Kumari Padhy who got the appointment under the Scheme has secured 71 points to her credit. It is pertinent to mention here that since the petitioner has secured 50 points to his credit on the basis of the parameters and guidelines prescribed under the Amended Rules his name find place at Sl. No.80 of the merit list as such the petitioner was not found eligible for his engagement under the Rehabilitation Assistance Scheme. For better appreciation of facts copy of the minutes of the proceedings of District Level Committee dated.25.02.2019 is annexed herewith as Annexure-B/3.” 4.4. It is contended that since in terms of the impugned communication issued under Annexure-9, Petitioner never made any application, consideration of the Petitioner’s claim in terms of the amended 2016 Rules with rejection of the claim is not only illegal but also the direction issued to the Petitioner to make a fresh application in terms of the provisions contained under the Amended Rules, 2016 under Annexure-9. It is accordingly contended that the impugned direction issued under Annexure-9 is not only illegal but also rejection of the Petitioner’s claim in terms of the 2016 Rules as reflected in the counter so filed by the Opp. Parties. 5. Mr. S.P. Das, learned Addl. Standing Counsel on the other hand contended that Petitioner though made the application after Page 3 of 5. attaining the majority in terms of Rule 9(7) of the Rules, but by the time his claim was considered since 2016 Rules had already been notified, he was asked to make a fresh application as provided under the Amended Provisions, 2016 vide Annexure-9. 5.1. Even though no application was made in terms of Annexure- 9, but Petitioner’s claim was considered under the said provision and Petitioner was not found eligible to get the benefit. It is accordingly contended that no illegality or irregularity has been committed by the authority in asking the Petitioner to make a fresh application under 2016 Rules and rejection of the claim basing on the said Rule. 6. Having heard learned counsel appearing for the Parties and considering the submission made, this Court finds that Petitioner’s father while in service died on 24.03.1993. It is not disputed that Petitioner at the relevant point of time was a minor and he attained the majority only on 02.07.2011. As found Petitioner made the application on 03.09.2013 under Annexure-5, which is within the period of limitation prescribed under Rule 9(7) of the 1990 Rules. 6.1. Since Petitioner has made the application within the prescribed period of limitation, placing reliance on the decision in the case of Malayananda Sethy v. State of Orissa, Civil Appeal No.4103 of 2022 disposed of on 20.05.2022, it is the view of this Court that Petitioner’s application so submitted on 03.09.2013 under Annexure-5 should have been considered and disposed of as per the Rules prevailing at the time of death of his father. 6.2. Since as found from the record Petitioner’s claim has been rejected placing reliance on the 2016 Rules, this Court is of the Page 4 of 5. view that such rejection of the Petitioner’s claim by applying 2016 Rules after issuing Annexure-9 is not sustainable in the eye of law. 6.3. Therefore, this Court is inclined to quash the request made under Annexure-9 and the rejection of the Petitioner’s claim as found from the counter affidavit relying on the amended 2016 Rules. While quashing the same, this Court directs Opp. Party No. 3 to consider the application so submitted by the Petitioner under Annexure-5 in the light of the decision in the case of Malayananda Sethi and communicate the result thereof within a period of two (2) months from the date of receipt of this order. 7. The writ petition is accordingly disposed of. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2024 19:33:00 Page 5 of 5.