The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.40457 of 2023 Simadri Das State of Odisha & others -versus- …. Petitioner Mr. A.K.Chaudhury,Advocate …. Opposite Parties Mr. P.K.Muduli, 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 the learned Additional Government Advocate for the State. Perused the Writ Petition, as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer : “It is therefore, prayed that this Hon’ble Court may graciously be pleased to admit the writ application, issue show cause notice to the Opp. Parties and after hearing may direct the Opp. Party No.3 to consider the petitioner’s application for appointment under R.A. Scheme on the basis of O.C.S(R.A.) Rules, 1990 with immediate effect for the interest of justice; AND Further prays to pass any other order/orders, direction/ directions as would be deemed fit and proper.” 4. The factual background leading to the filing of the present writ application is that, the father of the present petitioner was appointed // 2 // as a Road Collie under the Berhampur Municipal Corporation initially in the year 1995. While working as such, the father of the petitioner died in harness on 15.02.2015. Thereafter, the present petitioner, after obtaining death certificate of his father, applied for appointment on compassionate ground, on 20.09.2015, before the Opposite Party No.3, by submitting a proper application under the O.C.S. (RA) Rules, 1990. Such application submitted by the petitioner was kept pending until recently. Berhampur Municipal Corporation wrote a letter, on 06.08.2022 under Annexure-3 to the writ, to the Tahasildar, Berhampur, calling for a report from the Tahasildar’s office, with regard to the properties of the petitioner. Further, said letter reveals that the petitioner’s application is being considered under the O.C.S. (RA) Amendment Rules, 2020 and in view of the GA & PG Department notification dated 17.02.2020. A copy thereof was forwarded to the present petitioner, who, from the said letter came to learn that his application for appointment under compassionate grounds is being considered under the O.C.S. (RA) Rules, 2020. Thereafter, the petitioner received another communication; dated 16.12.2022 under Annexure-4, i.e. a letter written by the Tahasildar to the Commissioner, Berhampur Municipal Corporation, wherein the Tahasildar submitted his inquiry report. While the matter stood thus, the petitioner, being aggrieved by the decision of the authorities to consider his application under the new rules, submitted a representation on 09.05.2023, under Annexure-5 to the writ application, to the Opposite Party No.3. However, no final decision taken on such representation as of now. 5. Learned counsel for the petitioner at the outset submitted that, taking into consideration the fact that the father of the petitioner died // 3 // on 15.02.2015 and the petitioner submitted his application on 20.09.2015, the application of the petitioner for appointment under the RA Scheme should be considered under the O.C.S. (RA) Rules of the year 1990. However, the Opposite parties are considering the case of the petitioner by applying the rules of the year 2020. In the aforesaid context, learned counsel for the petitioner referred to the 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 and Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023. Learned Counsel for the Petitioner further contended that the provision contained in Rule 6(9) of the O.C.S. (RA) Rules, 2020, having been declared ultra vires by this Court, is no more in existence. Therefore, the application of the petitioner should be considered under the O.C.S. (RA) Rules, 1990. 6. Learned Additional Government Advocate on the other hand contended that, as it appears from the letter under Annexure-3 & 4, the application of the petitioner for appointment under the RA Scheme was being considered under the 2020 rules, in view of the provision contained in Rule 6(9) of the O.C.S. (RA) Rules, 2020. He further contended that the judgments, which are being referred by the petitioner, were not in existence when the application of the petitioner was being considered by the Opposite Parties. Learned Additional Government Advocate further contended that the State Opposite parties have no role in the present matter, and it is the // 4 // Berhampur Municipal Corporation, which is competent authority to take a decision in the matter. Therefore, the State Opposite Parties are in no way responsible, and the petitioner has also not prayed against the State Opposite parties. 7. Considering the submissions made by the learned counsels appearing for the respective parties, and on a careful examination of the background materials on record, this Court deems it proper to dispose of the application at the stage of admission, by directing the authorities to consider the case of the petitioner by applying the principle laid down by the Hon’ble Supreme Court in Malaya Nanda Sethy’s case supra, 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. Further, this Court directs that, while considering the case of the petitioner, the Opposite Parties shall also consider the law laid down by this Court in Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10., wherein it was specifically held that the applications filed before the new Rules, 2020 came into force shall be considered according to the old Rules, 1990. In such view of the matter, liberty is granted to the petitioner to approach the opposite parties along with a certified copy of this order. In the event the petitioner approaches the opposite party No.3, within a period of three weeks from today, the Opposite Party No.3 shall do well consider the case of the petitioner under the O.C.S. (RA) Rules, 1990, and take a final decision in the matter within two months of communication of certified copy of this order. Any final decision so taken be // 5 // communicated to the petitioner within two weeks thereafter. 8. With the aforesaid observations/ directions, the writ application stands disposed of. Issue urgent certified copy of this order as per Rules. Rubi ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: Orissa High Court Date: 02-Jan-2024 10:24:11