The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.41297 of 2023 Hemalata Mohanty …. Petitioner Mr.Bijaya Kumar Behera-1,Advocate -versus- State of Odisha & others …. Opp. Parties Mr.N.K.Praharaj, A.G.A.. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 20.12.2023 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. Perused the Writ Petition as well as he documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer: “ It is therefore most respectfully prayed that this Hon’ble court may graciously be pleased to :- A. Admit this writ application. B. As to why the rejection of the application of the Petitioner under Rehabilitation Assistance Scheme dated 29.11.2023 under Annexure-6 shall not be quashed, and, C. As to why the Opp.Parties more particularly the // 2 // Settlement Officer Opposite Party No.4 shall not be directed to give an appointment order to the Petitioner under Rehabilitation Assistance Scheme, a per provisions of Odisha Civil Service (Rehabilitation Assistance) Rues-1990 being the appointing Authority, as per the judgment passed by the Hon’ble Apex Court in Malaya Nanda Sethi vrs. State of Orissa and others, in Civil Appeal No.4103 of 2022, and D. And as to pass such other order or orders as this Hon’ble Court deem fit and proper. And on their failure to show cause or showing in sufficient cause, this Hon’ble Court be pleased to make the said RULE absolute by way of issuing appropriate writ or writs, order or orders in the facts and circumstances of the present case. and the learned Additional Standing Counsel. Perused the records. 4. The factual background leading to filing of the present Writ Petition in nutshell is that the father-in-law of the present Petitioner was initially appointed as Amin in the Settlement Office, Phulbani on 18.03.1975. While working as such, the father-in-law of the present Petitioner died in harness on 24.09.2007. After the death of the Ex- Government employee, the son of the Government employee i.e. the husband of the present Petitioner applied for appointment on compassionate ground on 02.06.2009 under the OCS(RA) Rules, 1990. Further, such application was kept pending by the authorities for a long time. The pleadings in the Writ Petition reveals that on 05.01.2017 the Settlement Officer, Opposite Party no.4 has issued a reminder to the Government regarding appointment of the husband of the Petitioner under the OCS(RA) Rule, 1990. Thereafter a letter dated 13.07.2017 of the Government reveals that Opposite Party No.4 was requested to furnish required information as well as the documents to consider the case of the husband of the Petitioner for // 3 // appointment on compassionate ground. Thereafter, while the matter was pending with the Government for consideration of the husband of the Petitioner for appointment on compassionate ground, the husband of the Petitioner passed way on 05.04.2023 in view of the death certificate issued by the competent authority under Annexure-4 series to the Writ Petition. 5. While the matter stood thus, the present Petitioner i.e the widowed daughter-in-law of the deceased Government employee, with the consent and nomination of the spouse of the Ex-Government employee, applied for compassionate appointment on 01.11.2023. However, vide letter dated 29.11.2023 issued by the Settlement Officer, Opposite Party No.4. rejected such application of the Petitioner for appointment on compassionate ground by applying the new Rule. Being aggrieved by such rejection order dated 29.11.2023 under Annexure-6 the Petitioner has approached this Court by filing the present Writ Petition. 6. Learned Additional Government Advocate on the other hand contended that the application submitted by the Petitioner is a fresh one which was filed in the year 2023. Therefore, the Opposite Parties have not committed any illegality in considering the same under OCS(RA) Rule, 2020 of the G.A. Department Notification dated 17.02.2020. In such view of the matter, learned Additional Government Advocate submitted that the Opposite Parties have not committed any illegality in considering the application of the Petitioner, thereby rejecting the application of the Petitioner on the ground that she is unable to earn required number of marks. In view of the aforesaid submissions learned Additional Government // 4 // Advocate submitted that the Writ Petition is devoid of merit and the same should not be entertained by this Court. 7. Having heard learned counsel for the respective parties, on a careful examination of the background facts of the present case, this Court observes that the factual aspect are not disputed by either side. Further it is observed that the deceased Government employee died in harness on 04.09.2007. After his death, one of his legal heirs applied for appointment on compassionate ground, which was kept pending for a long time for reasons best known to the Opposite Parties. Keeping such application pending for a long time defeats the objective of the OCS(RA) Rule, 1990 as has been stated in Rule 4 of the said Rule. Moreover, while the application of the Petitioner was pending for consideration for more than one and half decades, the applicant, i.e. husband of the present Petitioner, who is the daughter in law of the deceased Government employee unfortunately died on 05.04.2023. The legal heir certificate annexed to the Writ Petition reveals that there are several members in the family, however in view of the provisions contained in Rule-2(b) of OCS(RA) Rule, 1990 has correctly conferred upon the spouse of the Government employee. On perusal of the record, it appears that the spouse of the Ex-Government Employee has nominated the present Petitioner who is the daughter in law. Nomination vide letter dated 01.11.2023 has been annexed to the Writ Petition as Annexure-4 series. In the aforesaid background, this Court is of the view that the application submitted by the Petitioner should have been treated as continuation of the application filed by her husband, which was kept pending for almost one and half decade. Further, in the aforesaid background this // 5 // Court has no hesitation that the application submitted by the Petitioner on 01.11.2023 should have been considered under the OCS(RA) Rule, 1990 in view of 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.. Further, in the case of Biswajit Swain v. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023 this Court has struck down the Rule 6(9) of the OCS(RA) Rule 2020 holding that the same is to be treated as ultra vires. The application of the Petitioner under Annexue-5 which is ending before the authority should have been considered by applying he provisions of OCS(RA) Rule, 1990.] 8. In view of the aforesaid analysis, factual position and legal position, this Court is of the considered view that the impugned order is not sustainable in law and accordingly the matter is remanded to the authority, Opposite Party No.4 to consider the same in the light of the judgments of the Hon’ble Supreme Court as well this Court and take a final decision within two months from the date of communication of the order. The final decision be communicated to the Petitioner witi4hn a period of 10 days thereafter. 10 The Opposite parties are directed also to take into consideration the judgment of the Hon’ble Supreme Court in State of West Bengal-v.-Debabrata Tiwri reported in (2023 (3) SCALE-557 while considering the application of the Petitioner as directed // 6 // hereinabove. 11 The Writ Petition stands disposed of. 12. Issue urgent certified copy of this order as per Rules. RKS ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 02-Jan-2024 11:05:28