The High Court
Case Details
Order No. 02. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 31853 of 2022 Sri Silu Dakua …. Petitioner Mr. S.B. Mohanty, Advocate State of Odisha and others …. -versus- Opposite Parties Mr. T.K. Pattnaik, ASC CORAM: JUSTICE A.K.MOHAPATRA ORDER 19.01.2023 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. Heard learned counsel appearing for the Petitioner as well as learned Additional Standing Counsel appearing for the State- Opposite Parties. Perused the writ petition as well as the documents annexed thereto. 3. This writ petition has been filed by the Petitioner with a prayer to quash the order dated 15.9.2015 passed by the Joint Secretary to Government of Odisha, Agriculture Department under Annexure-9 and further direction to the Opposite Parties to give him appointment in any Group-C post as suggested by the Addl. Director of Agriculture (Administration) of the office of the Director of Agriculture & Food Production, Odisha vide his order dated 08.08.2014 under Annexure-6 and in view of the order dated 06.07.2015 passed by the Member (Admn.), Orissa Administrative Page 1 of 8 Tribunal, Bhubaneswar in O.A. No.27(B)/2014 under Annexure-8 to the writ petition as per O.C.S. Rehabilitation Assistance Rules, 1990. 4.
Legal Reasoning
The factual background of the case, in short, is that the Petitioner’s father died in harness on 15.03.1986 while he was working as L.D.C. in the office of District Agriculture Officer, Motu, Malkangiri under the Administrative control of Deputy Director of Agriculture, Koraput Range, Jeypore. The mother of the Petitioner died on 30.10.1985. At the time of death of the Government employee in harness, his legal heirs, i.e., surviving children were all minor. Therefore, they were not eligible to apply within the time stipulation. It has also specifically averred in the writ petition that at the time of death of the deceased Government employee, his sons one Suraj Kumar Dakua was about 9 years, Firoz Kumar Dakua was about 7 years, Dhiraj Kumar Dakua was about 5 years and the Petitioner was aged about 3 years. As such, nobody was eligible at the relevant point of time for appointment under the Rehabilitation Assistance Scheme. 5. The Present Petitioner on attaining the age of majority in the year 2002 applied in proper form under OCS (RA) Rules, 1990 and submitted his application on 10.03.2022 before the Deputy Director Agriculture, Malkangiri. After receiving the application of the Petitioner, the Deputy Director forwarded the application to the Collector, Ganjam to conduct an enquiry and find out the financial condition of the family of the Petitioner. Accordingly, enquiry was conducted by the Tahasildar, Berhampur who vide his letter dated 10.05.2013 intimated to the Deputy Collector, Ganjam stating Page 2 of 8 therein that the family of the Petitioner is in distressed condition. On receipt of such report, the Deputy Collector (Estt.), Ganjam, Chhatrapur forwarded the said distress report to the Deputy Director, Agriculture, Koraput Range vide letter dated 13.09.2013. Thereafter, the Director Agriculture and Food Production vide letter dated 08.08.2014 intimated to the Government, Department of Agriculture recommending the case of the Petitioner for appointment under the OCS (RA) Rules as the family was in a distress condition. Since the Petitioner was not appointed after so many years, he approached the Government on 30.04.2015 by filing a representation. However, no action was taken on such representation. Finally, the was Petitioner compelled to approach the Odisha Administrative Tribunal, Berhampur Bench, Berhampur in O.A. No.27(B) of 2014. After hearing the learned counsels, the Odisha Administrative Tribunal, Berhampur Bench vide order dated 06.07.2015 directed the respondent No.1-Secretary, Department of Agriculture to consider the case of the Petitioner for appointment on compassionate ground as the case of the Petitioner is a deserving one within a period of two months. 6.
Legal Reasoning
Learned counsel for the Petitioner at this juncture submitted that the order passed by the Tribunal on 06.07.2015 has not been challenged further. Therefore, the same has attained finality. Pursuant to the direction of the Tribunal, the Petitioner approached the Government. However, vide the impugned order dated 15.09.2015 under Annexure-9, the application of the Petitioner has been rejected vide order of the Joint Secretary to Government of Odisha, Agriculture Department on the ground that the present Petitioner is not in order of preference in the members, as he is 4th Page 3 of 8 son and 4th legal heir of the deceased family member, the present Petitioner is not the sole legal heir and was a minor, the applicant had not applied for employment under Rehabilitant Assistance Scheme within a stipulated period of one year and finally in paragraph-7 of that order, the application has been rejected on the ground that the Petitioner has submitted the application 16 years after the death of the Government employee. Referring to the judgment of the Hon’ble Supreme Court in the cases of Umesh Kumar Nagpal Vrs. State of Haryana decided on 04.05.1994 and Nand Kishore Vrs. State of U.P. and Others (Civil Appeal No.7243 of 2010, arising out of SLP (C) No.12636/2006 decided on 31.08.2010), the Government has rejected the application of the Petitioner on the ground that the same is devoid of merit. 7. Learned counsel for the Petitioner while assailing the order dated 15.09.2015 further contended that the Petitioner was aged about only 3 years at the time of death of the deceased Government employee in harness. Therefore, on attaining the age of majority in the year 2002, the Petitioner has submitted his application for appointment under the Rehabilitation Assistance Rules, 1990 before the competent authority. The competent authority sought for a report on the distress condition of the family, which was submitted almost a decade after, the same was called for in the year 2013. Thereafter, the case of the Petitioner was recommended to the Government for appointment. However, no action was taken at the Government level. Thereafter, the Petitioner approached the Tribunal and pursuant to the direction of the Tribunal, the impugned order has been passed and the claim of the Petitioner for appointment to a Page 4 of 8 Group-C post has been rejected by the Government in an illegal and arbitrary manner. 8. Learned counsel for the Petitioner further submits that the grounds shown in the impugned order are not supported by the rules. Moreover, the delay of 16 years as has been stated in the rejection order has been sufficiently explained by the Petitioner by submitting that the Petitioner was aged about 3 years while his father died on 15.3.1986 in harness. Therefore, learned counsel for the Petitioner submitted that technically there is no delay, so far the present Petitioner is concerned. 9. In reply to the order of preference, learned counsel for the Petitioner submits that other legal heirs were not eligible to be appointed for Government service although the brother of the deceased applied for a job under the Rehabilitation Assistance Scheme immediately after the death of the deceased Government employee, the same was rejected on the ground that he is not eligible as he is not the member of the family of the deceased Government employee, namely, Tarini Charan Dakua. In view of the aforesaid submission, learned counsel for the Petitioner submitted that the impugned order dated 15.09.2015 is unsustainable in the eye of law. Accordingly, he prayed that the order under Aneexure-9 be quashed. 10. Learned Additional Standing Counsel appearing for the State-Opposite Parties, on the other hand, submitted that pursuant to the order passed by the Tribunal in O.A. No.27(B)/2014, the application of the Petitioner was considered by the Government in the Agricultural Department and the same has been rightly rejected Page 5 of 8 by the impugned order dated 15.09.2015 under Annexure-9. Learned Additional Standing Counsel at the outset challenged the writ petition on the ground that the same has been filed after a delay of almost 7 years from the date of impugned order 15.9.2015. Further, it is submitted by the learned Additional Standing Counsel that there was also a delay on the part of the Petitioner while submitting the application which has been reflected in the impugned order. Learned Additional Standing Counsel also supported the ground taken by the State-Opposite Parties in rejecting the application of the Petitioner vide order dated 15.09.2015. 11. Learned Additional Standing Counsel appearing for the State-Opposite Parties also submits that the Rehabilitation Assistance Rules, 1990 does not confer any vested right, so far as the present Petitioner is concerned. Therefore, he cannot claim appointment as a matter of right. In such view of the matter, learned Additional Standing Counsel submitted that the writ petition is devoid of merit and the same is grossly barred by limitation. Accordingly, the same should not be entertained by this Court. 12. In reply to the contention of the learned counsel for the State, learned counsel for the Petitioner submitted that earlier the Petitioner had earlier approach this Court by fling W.P.(C) No.23641 of 2022. However, vide order dated 23.9.2022, he was
Decision
permitted to withdraw the writ petition with liberty to approach the appropriate authority. Accordingly, the Petitioner approached the authority by filing a representation on 10.10.2022 before the Opposite Party No.1. It is further contended by the learned counsel for the Petitioner that no decision has been taken by the Opposite Page 6 of 8 Party No.1 on his representation under Annexure-13 dated 10.10.2022 as of now. In reply to the submission that there was initially a delay in approaching the authority within one year as stipulated in the rules, learned counsel for the Petitioner submitted that it is a matter of record that the Petitioner was about 3 years at the time of death of his father in harness. Therefore, on attaining the age of majority, the Petitioner approached the authority by filing an application in the year 2002. He further contended that the authority kept it pending almost for a decade to get a distress condition report in respect of the Petitioner’s family which was submitted by the Tahasildar, Berhampur in the year 2013. In such view of the matter, he further contended that the delay, if any, cannot be attributed to the Petitioner. 13. Having heard the learned counsel for the respective parties and upon a careful consideration of the background facts of the present case and also upon scrutiny of the documents annexed to the writ petition, so also on examination of the impugned order under Annexure-9, this Court found that the grounds indicated in the rejection order dated 15.09.2015 under Annexure-9 are not legally sustainable. While rejecting the application of the Petitioner vide order dated 15.09.2015, the authorities were required to consider the distressful condition of the family which is the avowed objective in enacting the rule. Further, while considering the order of preference, there is no whisper with regard to the other legal heirs and their status and the fact as to whether they were eligible at the relevant point of time. Moreover, the delay of 16 years which has been indicated in paragraph-7 of the order is not applicable to the Petitioner since he was only 3 years at the time of death of his father Page 7 of 8 in harness. Therefore, the said ground of delay of 16 years is also unsustainable in the eye of law. 14. In view of the aforesaid analysis, this Court deems it proper to set aside the impugned order dated 15.09.2015 under Annexure-9. Further, the matter is remitted back to the Opposite Party No.1 to consider the matter afresh by applying the OCS (RA) Rules, 1990 as has been directed by the Tribunal vide its order dated 06.07.2015 passed in O.A. No.27(B)/2014. While considering the application of the Petitioner under the OCS (RA) Rules, 1990, it is open for the Opposite Parties to call for a fresh report with regard to distress condition of the Petitioner and his family and in the event such a report is called for, the same shall be produced within 4 weeks. The Opposite Party No.1 shall take a final decision within three months from today and the final decision shall be communicated to the Petitioner within two weeks thereafter. The authorities are directed to act upon production of certified copy of this order. 15. With the aforesaid observation and direction, this writ petition stands disposed of. Debasis (A.K. Mohapatra) Judge Page 8 of 8