The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OA) No.1115 of 2019 Deenel Kumar Acharya ..... Petitioner Ms. Sobhana Sahoo, Advocate State of Odisha & Ors. -versus- ..... CORAM: Opposite Parties Mr. S.K. Jee, AGA THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 09.01.2025 Order No. 16 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard Ms. S. Sahoo, learned counsel for the Petitioner and Mr. S.K. Jee, learned Addl. Govt. Advocate for the State. 3. Petitioner has filed the present writ petition 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 Group-C (Class-III) or Group-D post under the Rehabilitation Assistance Scheme as per the OCS (Rehabilitation Assistance) to OCS Rules, 1990 which was (Amendment) Rules, 2016 came into force by condoning upper age limit, if any, & extend all service and financial benefits. in vogue prior Page 1 of 6. 2. To quash the Annexure-7 of the writ petition and consider the petitioner for appointment under OCS(RA) Rules, 1990.” 4. Learned counsel for the petitioner contended that petitioner’s father while in service died on 30.04.2010. Petitioner being the son of the deceased, he made the application to get the benefit of appointment under the provisions of Rehabilitation Assistance Scheme on 13.08.2010 vide Annexure-4 series. 4.1. It is contended that not only the application submitted by the petitioner on 13.08.2010 was entertained but also it was processed by the Opp. Parties. But vide letter dated 21.11.2017 under Annexure-7, petitioner was directed to make a fresh application in terms of the Amended provisions of OCS (R.A.) Rules, 2016. Petitioner without knowing its true implication, made a further application on 12.12.2017 under Annexure-8. 4.2. Learned counsel for the petitioner contended that since petitioner’s father died while in service on 30.04.2010 and petitioner made the application within the stipulated time period on 13.08.2010 under Annexure-4 series, direction contained under Annexure-7 to make a fresh application under OCS(R.A.) Amended Rules, 2016 is not only illegal but also unsustainable in the eye of law. But petitioner without knowing its true implication wrongly made a fresh application under Annexure-8 on 12.12.2017. 4.3. It is also contended that even though such a fresh application was made on 12.12.2017, but no decision was taken in considering the claim of the petitioner. Only when the present Writ Petition was filed, while filing the counter affidavit, a stand has Page 2 of 6. been taken by the Opp. Parties in Para-10 of the counter affidavit that while considering the claim of the petitioner under the 2016 Amended provisions, petitioner was not found eligible to get the benefit of appointment. Relevant stand taken in Para-10 of the counter affidavit reads as follows:- “In the instant case during consideration of the petitioner’s grievance since the Rehabilitation Assistance Rules has undergone major amendment and the provisions under such amended rules with regard to consideration of the cases for appointment of R.A. Rules has undergone a lot of changes the case of the petitioner was duly considered as per the amended provision and upon due consideration of the candidature of the petitioner he secured 38 points to his credit by the screening committee consequently on the basis of points awarded in favour of the petitioner, the petitioner was not found eligible for his appointment. It may be mention here that out of fourteen nos. of candidates who were found eligible for their appointment the 14th person namely Sujata Kumari Padhy has secured 71 point to her credit and the petitioner has secured 38 points only. As such the rest of the candidates were found ineligible. In such view of the matter there is absolutely no illegality nor there is any irregularity nor even there is any infirmity in the process adopted by the authorities for selection of candidates for their appointment under the Rehabilitation Assistance Rules so as to invoke the extra-ordinary jurisdiction of this Hon’ble Court.” 4.4. Learned counsel for the petitioner contended that since petitioner’s father died while in service on 30.04.2010 and the application was made on 13.08.2010, in view of the decision rendered by the Hon’ble Apex Court in the case of Malaya Nanda Sethy v. State of Orissa, Civil Appeal No. 4103 of 2022 disposed of on 20.05.2022, rules prevailing at the time of death of the deceased employee was required to be followed to consider the claim of the petitioner. But taking advantage of the application submitted by the petitioner under Annexure-8, basing on Annexure-7, claim of the Page 3 of 6. petitioner as reflected in para-10 of the counter affidavit was considered and rejected in terms of the Amended provisions, 2016. 4.5. It is contended that in view of the decision in the case of Malaya Nanda Sethy as cited (supra), such rejection though not formally communicated to the petitioner, is not sustainable in the eye of law and application submitted by the petitioner on 13.08.2010 under Annexure-4 series, is required to be considered as per the prevailing rules. 5. Mr. S.K. Jee, learned Addl. Govt. Advocate on the other hand though does not dispute that on the death of the deceased employee on 30.04.2010, petitioner made the application to get the benefit of appointment on 13.08.2010 under Annexure-4 series, but it is contended that since while complying Annexure-7, petitioner made a fresh application on 12.12.2017 under Annexure-8, his claim was considered under the Amended Provisions, 2016. 5.1. Since as per the Amended provisions petitioner was not found eligible to get the benefit, his claim was rejected. The said fact though has not been communicated to the petitioner, but has been pleaded in Para-10 of the counter affidavit. It is contended that since petitioner without raising any objection to the direction issued under Annexure-7, made a fresh application on 12.12.2017 under Annexure-8, after making such an application, petitioner cannot take a stand that his claim cannot be considered as per the Amended provisions. Page 4 of 6. 5.2. It is accordingly contended that since as per the Amended provisions petitioner has not been found eligible, no illegality or irregularity can be found with such action of the Opp. Parties. 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that petitioner’s father while in service died on 30.04.2010. As further found, petitioner being the son of the deceased employee, made the application to get the benefit of appointment under R.A. Scheme on 13.08.2010 under Annexure-4 series. But as found, while keeping the matter pending, petitioner was asked to make a fresh application under the Amended 2016 Rules vide letter dated 21.11.2017 under Annexure-7. 6.1. Even though petitioner made a fresh application on 12.12.2017 under Annexure-8, but placing reliance on the decision in the case of Malaya Nanda Sethy as cited (supra), it is the view of this Court that the application submitted by petitioner on 13.08.2010 under Annexure-4 series, was required to be considered in accordance with the rules prevailing at the time of death of the deceased employee. Therefore, it is the view of this Court that the direction contained under Annexure-7 to make a fresh application under the Amended provisions is not sustainable in the eye of law. Accordingly, any consequential action taken basing on Annexure-7, is also not sustainable in the eye of law. 6.2. Therefore, this Court while quashing the request made to the petitioner to make a fresh application under Annexure-7 and the
Decision
rejection so indicated in Para-10 of the counter affidavit, disposed of the Writ Petition directing the O.P. No.3 to consider the application Page 5 of 6. submitted by the petitioner on 13.08.2010 under Annexure-4 series in accordance with the rules prevailing at the time of death of the deceased employee and communicate such decision within a period of 2 (two) months from the date of receipt of this order. 7. Accordingly, the Writ Petition stands disposed of. Basudev (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Jan-2025 11:30:28 Page 6 of 6.