The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.42888 of 2023 Gangadhar Rout …. Petitioner Mr. G.P. Jena, Advocate Principal Secretary to Govt., S. & M.E. Department, BBSR and Others -versus- …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 06.02.2024 Order No. 03. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Instruction provided by DEO, Balasore vide letter dated 25.01.2024 so produced in Court be kept in record. 3. Heard Mr. G.P. Jena, learned counsel for the Petitioner and Mr. S.K. Samal, learned Addl. Govt. Advocate for the State. 4. The Petitioner has filed the present Writ Petition inter alia with the following prayer: - <In the aforesaid facts and circumstances, it is humbly therefore prayed that the Hon’ble Court may graciously be pleased to admit the writ application and issue Rule NISI calling upon the opposite parties to show cause as to why the appropriate writ/writs of Mandamus or any other suitable writs should not be issued directing the Opp. Parties to consider the nature in // 2 // the case of the petitioner under the OCS (RA) Rules, 1990 as father of petitioner expired on 06.04.2013 and at that point of time the OCS(RA) Rules, 1990 was applicable to the petitioner and the amended Rule 2016 and Rehabilitation Assistance Rule 2020 are not applicable to petitioner. And in case, the Opp. Parties fails to show cause or show insufficient cause, the said Rule Nisi may be made absolute and upon hearing the parties through their counsel, this Hon’ble Court be further pleased to issue appropriate writ/writs in the nature of mandamus or any other suitable writs directing the Opp. Parties to consider the case of the petitioner under the OCS (RA) Rules father of petitioner expired on 1990 as 06.04.2013 and at that point of time the OCS(RA) Rules, 1990 was applicable to the petitioner and the amended Rule, 2016 and Rehabilitation Assistance Rules, 2020 are not applicable to petitioner.= 5. It is contended that on the death of the petitioner’s father on 06.04.2013, petitioner’s mother made the application to get the benefit of appointment under OCS(RA) Rules, 1990 with relevant documents on 22.03.2014. After verification of the documents and after issuance of distress certificate by the Collector, Balasore, matter was forwarded to the office of O.P. No.2 vide letter dated 21.06.2016 of O.P. No.3. 5.1. When the proposal so submitted by the DEO was returned by the Director to re-examine the claim vide letter dated 28.09.2016, petitioner’s mother made an application inter alia contending that she is unable to perform duty and requested for engagement of the present petitioner under the provisions of Rehabilitation Assistance Scheme. Accordingly, the claim of the petitioner though was considered, but it was not in Page 2 of 5 // 3 // accordance with the rules prevalent at the time of death of deceased employee. By considering the claim of the petitioner under the OCS(R.A.) Amended Rules, 2016 and subsequently under OCS (R.A.) Rules, 2020, petitioner has been found ineligible to get the benefit of appointment. 5.2. Learned counsel for the petitioner contended that since petitioner’s father died on 06.04.2013, rules prevalent at the time of death of deceased employee was required to be taken into consideration in view of the decision of the Hon’ble Apex Court in the case of Malaya Nanda Sethy v. State of Orissa, Civil Appeal No. 4103 of 2022 disposed of on 20.05.2022. 5.3. It is accordingly contended that consideration of the claim of the petitioner under the OCS(R.A.) Rules, 2016 and thereafter OCS(R.A.) Rules, 2020 is not sustainable in the eye of law. 6. Basing on the instruction so provided, learned Addl. Govt. Advocate also contended that after the death of the deceased employee, petitioner’s mother made the application to get the benefit of appointment and distress certificate was issued by the Collector in her favour. But during pendency of her claim, petitioner moved the application and that was entertained by the Opp. Parties. However, the application of the present petitioner was considered initially under OCS(R.A) Amended Rules, 2016 and subsequently under OCS(R.A.) Amended Rules, 2020. Since the petitioner as per the amended provision was not Page 3 of 5 // 4 // found eligible to get the benefit, his claim was not considered, though no formal order of rejection has been issued. 7. Having heard learned counsel for the parties and considering the submissions made, this Court finds that petitioner’s father while in service died on 06.04.2013. On the death of the petitioner’s father, his mother made an application to get the benefit of appointment under OCS(R.A.) Scheme on 22.03.2014. As further found from the instruction so provided by the learned State Counsel, distress certificate was issued by the Collector in favour of the petitioner’s mother on 10.05.2016. But thereafter when petitioner’s mother expressed her inability to perform government duty, the claim of the petitioner was entertained. But instead of considering the claim of the petitioner under the relevant rules which was prevalent at the time of death of the deceased employee, petitioner’s claim was considered initially under OCS(R.A.) Amended Rules, 2016 and thereafter under OCS(R.A.) Amended Rules, 2020. 7.1. Basing on the provisions contained under the Amended Rules, petitioner was found ineligible to get the benefit. However, placing reliance on the decision of the Hon’ble Apex Court in the case of Malaya Nanda Sethy as cited (supra), this Court is of the view that since petitioner’s father died on 06.04.2013, the provisions contained under OCS(R.A.) Rules, 1990 was required to be followed while considering the claim of the petitioner. Page 4 of 5 // 5 // Consideration of the claim of the petitioner under the Amended Rules, 2016 and/or 2020 is not permissible in view of the decision of the Hon’ble Apex Court in the case of Malaya Nanda Sethy as cited (supra). 7.2. In view of the same, this Court while disposing the Writ Petition directs O.P. No.3 to consider the claim of the petitioner under the relevant rules prevalent at the time of death of the deceased employee and take a fresh decision in the light of the decision in the case of Malaya Nanda Sethy as cited (supra), within a period of 2(two) months from the date of receipt of this order and communicate the result thereof to the petitioner. 8. The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication of order Location: High Court of Orissa, Cuttack Date: 13-Feb-2024 19:15:38 Page 5 of 5