The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.42526 of 2023 In the matter of an application under Articles 226 and 227 of the Constitution of India. ……………… Sachipati Panda …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : Mr. S.B. Mohanty, Advocate For Opp. Parties : Mr. S.K. Jee, AGA PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- ---- Date of Hearing:20.01.2025 and Date of Judgment:20.01.2025 ----------------------------------------------------------------------------- --- Biraja Prasanna Satapathy, J.
Legal Reasoning
1. Heard Mr. S.B. Mohanty, learned counsel for the petitioner and Mr. S.K. Jee, learned Addl. Govt. Advocate for the State. 2. The present Writ Petition has been filed inter alia challenging order dated 01.11.2022 so passed by O.P. // 2 // No.1 under Annexure-16. Vide the said order, claim of the petitioner to get the benefit of appointment under the provisions of Rehabilitation Assistance Scheme was rejected. 3. It is contended that petitioner’s brother while in service died on 23.05.1997. On the death of his brother who was unmarried at the relevant point of time, petitioner made his application under Annexure-2 on 08.07.1999 with a prayer to provide him appointment under the provisions of Rehabilitation Assistance Scheme. It is contended that the said application was not only entertained but also referred to the Collector for issuance of the distress certificate vide letter dated 19.07.1999 under Annexure-4. 3.1. It is also contended that in the meantime Govt. in the General Administration Department issued a notification on 06.09.1999 under Annexure-5, holding therein that, brother of unmarried government servant who was fully dependent on such government servant at the time of death, is eligible and entitled to get the Page 2 of 12 // 3 // benefit of appointment under the Rehabilitation Assistance Scheme. 3.2. It is contended that on the face of the entertainment of the petitioner’s application and the notification issued under Annexure-5, claim of the petitioner when was not considered with passing of an appropriate order, he approached the Tribunal by filing O.A. No.2329(C) of 2010. The Tribunal vide order dated 02.08.2010 under Annexure-9, when held that claim of the petitioner is time barred and accordingly did not entertain the claim, challenging such order passed by the Tribunal, petitioner approached this Court by filing W.P.(C) No.13498 of 2010. 3.3 This Court vide order dated 03.01.2014 under Annexure-10, permitted the petitioner to make a fresh representation before O.P. No.3 for consideration of his grievance. It is contended that in terms of order dated 03.01.2014, though petitioner made a detailed grievance but the same when was not considered, petitioner approached this Court once again by filing Page 3 of 12 // 4 // W.P.(C) No.10602 of 2020. This Court vide order dated 04.06.2020 under Annexure-15, disposed of the Writ Petition directing the Opp. Party No.3 to take a decision on the representation made by the petitioner in terms of the earlier order passed by this Court on 03.01.2014 under Annexure-10. 3.4. Learned counsel for the petitioner contended that on the face of such successive orders passed by this Court under Annexure-10 and Annexure-15, claim of the petitioner was rejected relying on the amended provisions i.e. OCS(R.A.) Amended Rules, 2020 and on the other ground that, petitioner being the brother of the deceased employee, is not coming within the definition of family as provided under Rule-2(b) of the OCS(R.A.) Rules, 1990 and the Notification under Annexure-5 to that effect was only issued on 06.10.1999 i.e. after the death of the deceased employee. 3.5. Learned counsel for the petitioner contended that on the face of the order passed in the earlier Writ Page 4 of 12 // 5 // Petition and the fact that petitioner’s brother while in service died on 23.05.1997, the amended provisions under OCS(R.A.) Amended Rules, 2020, cannot be made applicable to the case of the petitioner in view of the decision rendered by the Hon’ble Apex Court in the case of Malaya Nanda Sethy v. State of Orissa, Civil
Decision
Appeal No. 4103 of 2022 disposed of on 20.05.2022. 3.6. It is also contended that even though by the time petitioner’s brother died on 23.05.1997, brother of such deceased employee was not eligible to get the benefit of appointment under Rehabilitation Assistant Scheme, but such right accrued to him in terms of the notification issued by the Govt. on 06.09.1999 under Annexure-5. 3.7. It is contended that in terms of the order passed under Annexure-10 and since by that time, the notification under Annexure-5 had already been issued, petitioner’s claim should have been considered in terms of Annexure-5 and the rules prevailing at the time of death of the deceased employee without relying Page 5 of 12 // 6 // on the Amended provisions so issued in the year 2020. It is also contended that since the notification under Annexure-5 is a beneficial one, same is having retrospective effect, in view of the decision of the Hon’ble Apex Court reported in the case of State of Andhra Pradesh and Others Vs. Ch. Gandhi, AIR 2013 SCC 2113. Hon’ble Apex Court in Para-50 of the said judgment has held as follows::- “50.At this juncture, we may state that an ex post facto law may be retrospective, if it is ameliorative. But in the present context, delineation on the said score is not warranted. We confine our analysis pertaining to the vested or accrued right and imposition of higher punishment that was not permissible at the time of initiation of departmental proceeding.” 3.8. It is also contended that dictionary meaning of the word ameliorative in the Oxford dictionary reads as follows:- “To make something better or reduce the severity of something negative.” 3.9. It is accordingly contended that petitioner’s application made under Annexure-2 on 08.07.1999 since was entertained and no decision was taken all through till the impugned order was passed on Page 6 of 12 // 7 // 01.11.2022 under Annexure-16, in view of the decision in the case of Ch. Gandhi and the decision in the case of Malaya Nanda Sethy as cited (supra), claim of the petitioner should not have been rejected on the grounds indicated in Annexure-16. It is accordingly contended that the impugned order is not sustainable in the eye of law. 4. Learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by O.P. No.3. It is contended that since by the time petitioner’s brother died while in service, there was no provisions under the OCS(R.A.) Rules, 1990 to extend the benefit in favour of the petitioner who happens to be the brother of the deceased government servant, claim of the petitioner is not at all entertainable. It is also contended that even though application of the petitioner was duly forwarded to the Collector for issuance of the distress certificate but no such distress certificate was ever issued in his favour. Page 7 of 12 // 8 // 4.1. However, learned Addl. Govt. Advocate does not dispute the orders passed by this Court in W.P.(C) No.13498 of 2010 under Annexure-10 and subsequent order passed in W.P.(C) No.10602 of 2020 under Annexure-15. It is however contended that since by the time the concerned employee died there was no provision under OCS(R.A.) Rules, 1990 to provide such benefit in favour of the brother of the deceased employee, petitioner is not eligible and entitled to get the benefit as he is not coming within the definition of Family as provided under Rule-2(b) of the aforesaid Rules. The notification issued under Annexure-5 having been issued after the death of the deceased employee, the same cannot be made applicable to the claim of the petitioner. 4.2. It is accordingly contended that no illegality or irregularity can be found with the impugned order. 5. Having heard learned counsel for the parties and considering the submissions made, it is found that petitioner’s brother while in service died on Page 8 of 12 // 9 // 23.05.1997. As found, petitioner’s application to get the benefit of appointment under Rehabilitation Assistance Scheme made on 08.07.1999 under Annexure-2 was duly entertained and Collector, Balasore was requested to issue distress certificate vide letter dated 19.07.1999 under Annexure-4. Thereafter, when no final decision was taken and in the meantime notification dated 06.09.1999 under Annexure-5 was issued making eligible brother of unmarried deceased govt. employee to get the benefit of rehabilitation appointment, petitioner approached the Tribunal in O.A. No.2329(C) of 2010. The Tribunal vide order dated 02.08.2010 under Annexure-9 when held that claim of the petitioner is time barred, challenging such order, petitioner approached this Court by filing W.P.(C) No.13890 of 2010. 5.1 This Court vide order dated 03.01.2014 under Annexure-10, permitted the petitioner to make a fresh application before O.P. No.3 for its consideration in the light of the Govt. Resolution governing the field. On the Page 9 of 12 // 10 // face of such order and filing of the representation, when no action was taken, petitioner again approached this Court by filing W.P.(C) No.10602 of 2020. This Court vide order dated 04.06.2020 under Annexure-15 when directed for consideration of the petitioner’s claim, the same on being considered, the order of rejection has been passed on 01.11.2022 under Annexure-16, which is impugned in the present Writ Petition. 5.2. As found, claim of the petitioner has been rejected on two grounds i.e. he is not coming within the definition of Family as provided under Rule 2(b) of the OCS(R.A.) Rules, 1990 and as per the amended Rules, 2020, brother of an unmarried government servant, is not coming within the purview of Family. This Court taking into account the notification issued under Annexure-5 and the decision in the case of Ch. Gandhi, is of the view that appointment under the Rehabilitation Assistance Scheme being a beneficial legislation, it has got retrospective effect. Therefore, Page 10 of 12 // 11 // even though petitioner’s brother died prior to issuance of the notification under Annexure-5, but in view of the aforesaid decision, petitioner is eligible to make his application to get the benefit. 5.3 Similarly, placing reliance on the decision in the case of Malaya Nanda Sethy as cited (supra), this Court is of the view that claim of the petitioner should not have been rejected relying on the OCS (R.A.) Amended Rules, 2020. 5.4. In view of the aforesaid analysis, this Court is inclined to quash order dated 01.11.2022, so passed by Govt.-O.P. No.1 under Annexure-16. While quashing the same, this Court while holding the petitioner eligible to make the application, directs O.P. No.1 to take a fresh decision on the claim of the petitioner as per the Rules prevailing at the time of death of the deceased employee. This Court directs O.P. No.1 to take a fresh decision as directed within a period of 2 (two) months from the date of receipt of this order with due communication to the petitioner. Page 11 of 12 // 12 // 6. With the aforesaid observation and direction, the Writ Petition stands disposed of. Orissa High Court, Cuttack Dated the 20th January, 2025/Basudev (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Jan-2025 17:55:51 Page 12 of 12