The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.42511 of 2023 Sasmita Jena …. Petitioner Mr.Samir Mishra, Sr. Advocate State of Odisha and others -versus- ….
Legal Reasoning
Opposite Parties Mr. S. Das, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 08.01.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned Senior counsel for the Petitioner as well as learned Additional Government Advocate. 3. The Petitioner has filed the present writ application with the following prayer: “It is, therefore, prayed that this Hon’ble Court may graciously be pleased to admit this writ application, issue notice to the opposite parties, call for the relevant records and after hearing the counsel for the parties, the impugned decision dated 19.11.2015 be declared illegal and quashed and the opposite party no.1 and 2 be directed to consider for appointment under the claim of Rehabilitation Assistance Scheme afresh on the basis of recommendation of opposite party no.2 vide letter no.609 dt.07.02.2023 and give appointment to the petitioner in any suitable post at an early date; the petitioner And further be pleased to pass any other order/order(s), direction/direction(s) as would be deemed fit and proper;” 4. The factual background reading to filing the present writ application, in short, is that the father of the present petitioner, who was working as a Government employee died in harness on // 2 // 19.05.2011 while he was working as Grade-IV helper. After the death of the deceased Government employee, his wife, namely, Golap Jena, who is eligible to be appointed in view of provision contained in Rule 2(b). She was eligible to be considered for appointment under OCS (RA) Rules, 1990. It appears from the pleadings that the wife of the deceased government employee is suffering from mental ailments. Therefore, she was unfit to discharge any duties. In the aforesaid factual position, the daughter of the deceased government employee submitted an application along with his legal heir certificate and a certificate from the C.D.M.O., Puri regarding the illness and unfitness of the mother of the present petitioner before the competent authority on 31.10.2011. Such application was accepted by the Opposite Parties and necessary enquiry was conducted with regard to the financial condition of the family and to ascertain the distressful condition of the family for consideration under the OCS (RA) Rules, 1990. Learned Senior counsel for the Petitioner contended that the application of the Petitioner was kept pending for a long time, for which the Petitioner was compelled to file several representations before the authorities to remind them that they have not taken any final decision on her application under the OCS (RA) Rules, 1990. However, the Opposite Parties remain unmoved on such representations and no decision was taken for a long time. Finally, vide order dated 07.02.2023 the application of the Petitioner for appointment on compassionate ground under the OCS (RA) Rules was rejected on the ground that the spouse of the deceased government is alive and available for appointment. Further, the Opposite Parties in the concluding paragraph of the impugned order under Annexure-7 dated 07.02.2023 by referring the provision contained in rule 2(b) of OCS (RA) Rules, // 3 // 1990 have rejected the application of the Petitioner for appointment on compassionate ground. 5. A perusal of the impugned order dated 07.02.2023 passed by the office of the Opposite Part No.3 has recorded the fact that Smt. Golap Jena-wife of the deceased government employee submitted an application on 20.08.2014 to consider the case of the Petitioner for appointment under the RA Scheme on the ground of her illness with medical unfit certificate from C.D.M.O., Puri. It is further reveals that after receipt of such unfit medical certificate of the wife of the deceased government employee, the office of the Opposite Party No.3 has sought for clarification from the Commerce and Transport Department, Govt. of Odisha. However, no such clarification has been received by the office of the Opposite Party No.3. Awaiting such clarification from the Commerce and Transport Department sought for vide letter dated 10.10.2014, the office of the Opposite Party No.3 has been pleased to reject the application of the Petitioner by referring the rule 2(b) of the OCS (RA) Rules and further taking a plea that after lapse of 7 years, the Petitioner has requested to reconsider her case under the RA Scheme. 6. Learned Additional Government Advocate contended that at the time of making an application the Petitioner was a married daughter of the deceased government employee, therefore, in view of the law prevailing at the relevant point of time the Petitioner was not eligible to be appointed. Subsequently, by virtue of a judgment of this Court, the law has been amended and the married daughters have been allowed to make an application for appointment on compassionate ground. Learned Additional Government Advocate submitted that in view of the aforesaid anomaly in law, the office of the Opposite Party No.3 sought for a clarification from the // 4 // Commerce and Transport Dept., Govt. of Odisha vide letter dated 10.10.2014. He further contended that awaiting such clarification from the Government, the Opposite Party No.3 had no other alternative granting abide by the provisions contained in rule 2(b) of the OCS RA Rules, 1990 and accordingly the application of the Petitioner has not been considered for appointment on compassionate ground. In view of such submission, learned Additional Government Advocate submitted that the writ application is devoid of merit and accordingly, the same should not be entertained at this stage. 7. Having heard the learned counsels for the parties and such analysis of the submission made by the learned counsels appearing for the respective parties and on a certain examination of the background facts of the present case as well as materials on record, this Court observed that in the impugned order dated 07.02.2023 under Annexure-7, the Office of the Opposite Party No.3 has recorded that the wife of the deceased government employee is medically unfit and such unfitness has been supported by her certificate issued by none other than the C.D.M.O., Puri. Moreover, it is also indicates that the wife of the deceased government employee has made a request vide letter dated 20.08.2014 to consider the case of the present Petitioner. In view of the aforesaid background, this Court is of the considered view that the Section 2 (b) of the OCS (RA) Rules, 1990 could not be applicable to the facts of the present case. The law in the aforesaid context has been discussed in a judgment of this court in Ajit Kumar Barik vs. State of Odisha reported in 2018 (II) OLR 10. Therefore, this Court is also of the considered view that the ground taken in the impugned order dated under Annexure-7 is unsustainable in law. Accordingly, while disposing of the writ application at the stage of admission, this Court // 5 // deems it proper to quash the impugned order dated 07.02.2023 under Annexure-7, accordingly the same is hereby quashed. As a consequence of quashing of Annexure-7 the order communicated vide letter No.5864 dated 30.10.2015 is also quashed. Further, the matter is remanded back to the Opposite Parties to reconsider the case of the Petitioner in the light of the aforesaid analysis, dispose of the grievance of the Petitioner within a period of eight weeks from the date of production of certified copy of this order. Further, it is directed that any final decision taken by the authorities, be communicated to the Petitioner within ten days from the date of taking such decision. 8. With the aforesaid observation, the writ application stands disposed of. 9. 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: 11-Jan-2024 14:47:49