The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.34664 of 2023 Swadhin Kumar Sahoo …. Petitioner Mr. S.B.Jena,Advocate Secretary, Orissa State Ware Housing Corporation and another …. -versus- Opp. Parties Mr. P.K.Mohanty, Sr.Advocate CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 19.02.2024 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioner as well as Mr. P.K.Mohanty, learned senior counsel for the Opposite Parties. Perused the writ petition as well as documents annexed thereto. 3. The present writ petition has been filed by the petitioner with the following prayers: “Under the abovementioned facts and circumstances of the case, this Hon'ble Court may graciously be pleased to quash the office order no.2917/OSWC dated.21.08.2023 under Annexure-10 And further be pleased to direct the Opp.Parties to consider the case of the Petitioner as per Rehabilitation Assistance Rule, 1990 and give appointment to the Petitioner in any post as per his qualification. Or pass any other order/orders as this Hon'ble Court may deem think fit and proper.” 4. It is submitted by learned counsel for the petitioner that the father of the petitioner while working as a Watchman under the Opposite Party No.1, died in harness on 26.06.2017. Thereafter, the present petitioner, being the legal heir and son of the deceased Government employee, applied for appointment on compassionate // 2 // ground under the O.C.S.(RA) Rules, 1990 on 04.04.2018, such application of the petitioner was kept pending unnecessarily. Thereafter, on 24.12.2019 the petitioner was asked to submit certain relevant documents for consideration of his case under the O.C.S.(RA) Rules, 1990. Pursuant to such request the petitioner submitted his documents on 01.02.2020, while the matter stood thus on 21.03.2020 the petitioner was again asked to submit a fresh application under the O.C.S.(RA) Rules,2020. Pursuant to such request the petitioner submitted a fresh application along with supporting documents. While the matter was pending the petitioner submitted the representation before the Opposite Party No.2 to consider his case under the O.C.S.(RA) Rules,1990 by filing a representation on 04.01.2020. 5. Learned counsel for the petitioner further contended that earlier the petitioner has approached this Court by filing W.P.(C) No.19413 of 2023. This Court vide order dated 14.07.2023 disposed of the above noted writ application with a direction to the Opposite party No.2 (in the present writ application Opposite Party No.1) to consider the representation of the petitioner in the light of the judgment of the Hon’ble Supreme Court in Malayananda Sethy’s case. Learned counsel for the petitioner further contended that after disposal of the earlier writ application, although he approached the Opposite party No.1, however, the Opposite Party No.1 in the most illegal and arbitrarily manner, vide order dated 21.08.2023, rejected the application of the petitioner under the O.C.S. (RA) rules, 2020. 6. Learned counsel for the petitioner further contended that taking into consideration the date of death of deceased Government employee, as well as date of initial application made by the petitioner, the case of the petitioner is required to be considered under the O.C.S.(RA) Rules,1990. He further referred to the // 3 // judgment of the Hon’ble Supreme Court in Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1, State of West Bengal-v.-Debabrata Tiwri reported in (2023 (3) SCALE- 557,Suchitra Bal v. State of Odisha and others in W.P.(C) No.2081 of 2021 & batch decided on 27.06.2023 and State of Odisha and others vs. Bindu Sagar Samantaray in W.A.No.810 of 2021. By referring to the aforesaid judgments. Learned counsel for the petitioner submitted that the law is well settled by now that the application which was pending at the time O.C.S. Rules, 2020 came into force has to be considered under the O.C.S.(RA) rules, 1990 as amended in the year 2016. In such view of the matter, learned counsel for the petitioner submitted that the impugned rejection order dated 21.08.2023 under Annexure-10 is unsustainable in law. Learned counsel for the petitioner further contended that in a similar case i.e. Ashok Kumar Nayak V. State of Orissa pursuant to the order passed by the W.P.(C) No.17288 of 2022, the Opposite Parties have already given appointment to the abovenamed Ashok Kumar Nayak who stands similar footing in the present petitioner. 7. Mr. P.K.Mohanty, learned senior counsel on the other hand contended that the application of the petitioner has been duly considered by the Opposite parties under the O.C.S. (RA) Rules, 2020 which was in force at the time of consideration of his application under the Rehabilitation Assistance Rules. He further referred to rule 6(9) Rules of the O.C.S. (RA) Rules and submitted that the said provision provides for the consideration of all pending applications under the new rules of the year 2020. In such view of the matter, learned Counsel for the State submitted that the Opposite parties have not committed any illegality in considering the application of the petitioner under the O.C.S. (RA) Rules 2020 and consequently rejecting such application as it was found that the // 4 // petitioner secured 32 out of 85 marks, while the qualifying mark is 48, as per such evaluation. Accordingly, it was submitted that the writ application is devoid of merit and the same should be dismissed. 8. Having heard learned counsels for the respective parties, on a careful examination of the background facts as well as materials on record, further taking into consideration the date of death of the deceased Government employee and the date of initial application, this Court is of the considered view that the case of the petitioner is squarely covered by the judgments of this Court in Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021 wherein this Court held that Rule 6(9) Rules of the O.C.S.(RA) Rules,2020 is ultra vires to Article 14 of Constitution of India. In such view of the matter, this Court has no hesitation in coming to a conclusion that the case of the petitioner has to be considered under the O.C.S. (RA) Rules, 1990 as amended of the year 2016. Accordingly, the impugned order under Annexure-10 is hereby set aside. Further the matter is remanded back to the Opposite party No.1 to reconsider the same under the O.C.S. (RA) Rules, 1990 as amended of the year 2016 within a period of two months from the date of communication of a certified copy of this order. The final decision so taken be communicated to the petitioner within two weeks thereafter. 9. With the aforesaid observation/direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. ( A.K. Mohapatra) Judge Rubi Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 26-Feb-2024 18:34:40