The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.40212 of 2023 Arati Sandha …. Mr. B.S. Tripathy, Advocate Petitioner -versus- State of Odisha & others …. Opposite Parties Mr. N.K. Praharaj, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 18.12.2023 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate for the State-Opposite Parties. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed by the Petitioner with the following prayer : “The petitioner, therefore, most respectfully prays that your Lordships may graciously be pleased to admit this writ application, call for the records and issue rule Nisi to the Ops to show cause as to why the impugned order dtd.07.10.23 under annexure-15 shall not be quashed and further why they shall not be directed to consider the case of the petitioner to provide her an employment under the rehabilitation assistance scheme; And on their failing to show cause or showing insufficient cause, the said rule be made absolute by issuing appropriate writ(s); And pass such further order(s) as may be deemed just // 2 // and proper;” It is submitted by learned counsel for the Petitioner that earlier 4. the Petitioner had approached the Tribunal by filing O.A. No.1837(C)/09 with prayer for a direction to the Opposite Parties to give appointment to the Petitioner on compassionate ground under the Rehabilitation Assistance Scheme. After abolition of the Tribunal, the matter was transferred to this Court and was re-registered as WPC(OAC) No.1837/09. A Coordinate Bench of this Court vide order dated 02.07.2021 disposed of the aforesaid writ application by directing the Opposite Parties to consider the representation of the Petitioner keeping in view the judgment of the Hon’ble Supreme Court referred to in order dated 02.07.2021 within a period of three months. 5. After disposed of the aforesaid writ application, the order was not complied, compelling the Petitioner to approach this Court by filing CONTC No.7668 of 2021. The aforesaid contempt petition was also disposed of on 05.01.2022 by granting further three months time. Finally, the Opposite parties have rejected the application of the Petitioner vide order dated 07.10.2023 under Annexure-15 to the writ application on the ground that at the time of death of the Government servant, the OCS(RA) Rules, 1990 was in force and as per the provisions contained in OCS(RA) Rules, 1990, the married daughter was not included within the definition of the family of the deceased government employee. Therefore, the Opposite Parties although they have taken note the decree of divorce dated 05.09.2022 in the impugned order. However, since the applicant was married at the time of death of the Government employee and that she was not a dependant the application of the Petitioner for appointment on compassionate ground under the RA Scheme was rejected by the Opposite Party No.3. Being aggrieved by such rejection order the Petitioner has approached this Court by filing the present writ application. // 3 // 6. Learned counsel for the Petitioner further contended that so far the status of the present petitioner is concerned, she has filed a decree of divorce vide judgment dated 05.09.2022 passed in Civil Proceeding No.90/22 by the learned Judge, Family Court, Balasore before the authorities at the time of consideration of her application, however, the same has not been taken into consideration. Learned counsel for the Petitioner further contended that even accepting the status of the Petitioner was a married daughter at the time of death of the deceased Government employee, there was no bar in law to appoint the Petitioner on compassionate ground under the OCS(RA) Rules, 1990 in view of law laid down by this Court in Basanti Nayak vs. State of Odisha & ors. in WPC(OAC) No.2669 of 2008 disposed of on 27.10.2022. A coordinate bench of this Court in the above noted judgment had taken note of the claim of the married daughter and accordingly the rule has been interpreted and learned Coordinate Bench has come to a conclusion that discriminating the married daughter would amongst to violation of Article 14 of the Constitution of India. Therefore, a direction was given by the Coordinate Bench to consider the case of the married daughter also at par with the divorce daughter as provided under the OCS(RA) Rules, 1990. 7. Learned Additional Government Advocate, on the other hand contended that pursuant to the direction of this Court in the earlier writ application, the application of the Petitioner was considered keeping in view the judgment of the Hon’ble Supreme Court in Canara Bank v. M. Mahesh Kumar reported in (2015) 7 SCC 412. Accordingly, the application of the Petitioner has been rejected by the Opposite Parties by passing a speaking and reasoned order under Annexure-15 to the writ application. In such view of the matter, learned Additional Government Advocate submitted that the opposite parties have not // 4 // committed any illegality at all in rejecting the application of the Petitioner. 8. Having heard the submissions made by the learned counsels for the respective parties and on a careful examination of the background facts of the present case as well as materials on record, this Court observed that the impugned order clearly reveals that the status of the Petitioner was a married daughter. Since a married daughter was not included within the definition of the family as its true that the time of death of the government employee, the application of the Petitioner has not been considered on such ground. Further, it appears that the decree of divorce which was granted on 05.09.2022 i.e. much after the death of the government employee i.e. the father of the present petitioner. On a careful analysis of the factual background, this Court is of the considered view that it cannot be denied that status of the Petitioner at the time of death of the deceased government employee, was a married daughter. Therefore, the authorities should have considered the case of the Petitioner by taking into consideration her status as a married daughter at the time of death of the deceased government employee and by applying the ratio laid down by this Court in the Basant Nayak’s case (supra). In such view of the matter, this Court is of the considered view that the impugned order dated 07.10.2023 under Annexure-15 is unsustainable in law and accordingly the same is hereby set aside. Further, the matter is remanded back to the Opposite Party No.3 to consider the matter afresh by taking into consideration the judgment in Basant Nayak’s case (supra) as well as the judgment of the Hon’ble Supreme Court in the case of Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1 decided by the Hon’ble Supreme Court and the judgment of this Court in Suchitra Bal vs. State of Odisha & ors. by a Division Bench of this Court in // 5 // W.P.(C) No.2081 of 2021 decided on 16.03.2023 as well as Bindusagar Samantaray vs. State of Odisha & ors. by a Division Bench of this Court in W.A. No.810 of 2021 decided on 25.09.2023 and pass a speaking and reasoned order within a period of two months from the date of communication of certified copy of this order by the Petitioner. The final order so passed be communicated to Petitioner within two weeks thereafter. 9. With the aforesaid observations/ directions, the writ application stands disposed of. 10. Issue urgent certified copy of this order as per Rules. Anil ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 26-Dec-2023 11:40:21