Orissa High Court
Rabindra Kumar Behera vs State Of Odisha Others .... Opp. Parties on 23 July, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.C (OAC) No. 1260 OF 2018
Rabindra Kumar Behera .... Petitioner
Mr. Sidharth Prasad Mishra,
Advocate
-versus-
State of Odisha others .... Opp. Parties
Mr. S.K. Panigrahi,
Additional Standing Counsel (OAT)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 23.07.2021
02. 1. This matter is taken up through video conferencing mode.
2. On the request of Mr. Siddharth Prasad Mishra, learned counsel for the Petitioner, Dr. J.K. Lenka, learned counsel argued the matter on behalf of the Petitioner.
3. The Petitioner filed O.A. No.1260 (C) of 2018 before the State Administration Tribunal, Cuttack Bench, Cuttack under Section 19 of the Orissa Administrative Tribunal Act, 1985 assailing the orders dated 12.07.2013 (Annexure-6) and 28.04.2016 (Annexures-8) in this writ petition, whereby the claim for appointment under the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 (for short, 'the Rules') was refused to the Petitioner. After abolition of the Orissa Administrative Tribunal, the matter has been transferred to this Court for adjudication.
4. Dr. Lenka, learned counsel for the Petitioner submits that the mother of the Petitioner, namely, Smt. Dulani Dei, w/o. Paramananda Behera, while working as a Sweeper in S.C.B. Page 1 of 3 // 2 // Medical College and Hospital, Cuttack (for short 'SCB'), breathed her last on 27.06.2006. The Petitioner being the dependant and legal heir of the deceased employee made an application on 14.08.2007 under Annexure-2 for appointment under the Rules. The Administrative Officer of SCB forwarded the application of the Petitioner along with required documents for consideration of his case vide his letter dated 08.07.2010. On receipt of such application, the Government, vide its letter dated 26.07.2011 (Annexure-4), sought for some clarification from the Superintendent of SCB for consideration of the application of the Petitioner under the Rules. For compliance of the clarification sought for the Petitioner was asked to and submitted the affidavits (Annexure-5 Series) of all other legal heirs of the deceased employee expressing their 'no objection' for appointment of the Petitioner under the Rules. All other necessary documents, as required, were also submitted by the Petitioner. However, the Government vide order dated 12.07.2013 under Annexure-6 rejected the claim of the Petitioner holding that the Petitioner is the 5th legal heir of the deceased employee. Assailing the same, the Petitioner filed O.A. No.1266(C) of 2015 before Odisha Administrative Tribunal, Cuttack Bench, Cuttack (for short 'the Tribunal'), which was disposed of on 23.02.2016 (Annexure-7) directing the State Government to reconsider the case of the Petitioner taking into consideration the affidavits submitted by the other legal heirs of the deceased employee. However, the State Government vide order dated 28.04.2016 (Annexure-8) rejected the claim of the Petitioner on the pretext that as per Rule 2(b) of the Rules the Petitioner being the 5th legal heir of the deceased Page 2 of 5 // 3 // employee his case did not deserve consideration in order of preference. Further, the Petitioner cannot claim appointment as a matter of right in view of Rule 4 of the Rules. It is submitted by Dr. Lenka, learned counsel for the Petitioner that this Court in the case of Prem Sagar Naik -v- State of Orissa and others in W.P.(C) No.18981 of 2016 disposed of on 21.08.2017, wherein at paragraph 8 it has been held as follows:-
"8 "Family members" has been defined under Rule 2(b) of the aforesaid Rules. It means and include the following members in order of preference:-
(i) Wife/Husband;
(ii) Sons or step sons or sons legally adopted through a registered deed:
(iii) Unmarried daughters and unmarried step daughters;
(iv) Widowed daughter or daughter-in-law residing permanently with the affected family.
(vi) brother or unmarried Government servant who was wholly dependent on such Government servant at the time of death.
A plain reading of the aforesaid provision reveals that Rehabilitation Assistance to the family members, who are eligible for appointment under Rehabilitation Assistance Scheme, should be provided in order of preference as indicated above. Thus, a plain reading of the provisions means that a person who is entitled to any appointment under the Rehabilitation Assistance Scheme, the authority has to see if the spouse of the deceased employee is alive and intends to avail the benefit under the Rehabilitation Assistance Scheme. If he/she is ineligible for over age, ailment or cannot be given appointment under the Rehabilitation Assistance Scheme, as per the scheme, the second preference will be given to the sons. The Rules do not provide that a younger son should not be treated in a preferential manner and the elder son should be given appointment. There is no provision in the said Rules that while considering the second category of persons, the elder son should be given appointment and the younger son cannot be appointed. However, the State government has devised an expression namely "transferable right" and has taken a stand that since the spouse of the deceased is alive, elder son is living there, right cannot be transferred in favour of the petitioner. The decision taken by the opposite Page 3 of 5 // 4 // parties 1 and 2 is illegal and contrary to the basic Scheme of the aforesaid Rules."
5. He, therefore, contended that the Petitioner although is the 5th legal heir of the deceased employee cannot be denied appointment under the Rules, more particularly, when other legal heirs have given consent and no objection for appointment of the Petitioner under the Rules. He further submitted that the Petitioner never claimed appointment as a matter of right. He only made application for consideration of his appointment under the Rules.
6. Mr. S.K. Panigrahi, learned Additional Standing Counsel (OAT) submits and prays for further time to file counter affidavit in the matter.
7. On perusal of the order sheet, it appears that on 08.05.2018, the Tribunal while issuing notice in the matter directed counter affidavit to be filed within four weeks from the said date. But, till date, neither the counter affidavit is filed nor any prayer for time to file counter affidavit has been filed. Today, when the matter is taken up for hearing, Mr. Panigrahi, learned Additional Standing Counsel (OAT) prays for more time to file the counter affidavit. Hence, I am not inclined to grant the prayer for adjournment of learned State Counsel.
7. Heard learned counsel for the parties.
8. On perusal of the impugned orders under Annexures- 6 and 8, it is apparent that the claim of the Petitioner has been rejected only on the ground that he is the 5th legal heir of the deceased employee. In view of the ratio decided in the case of Prem Sagar Naik (supra), it is clear that Rules does not prohibit appointment of any of the legal heirs of a deceased-employee Page 4 of 5 // 5 // when the family is in distress. Further, the Rules also does not give any preferential treatment to any of the legal heirs of a deceased-employee. Thus, rejection of the appointment on the said ground is illegal and unsustainable. It is further submitted by Dr. Lenka, learned counsel for the Petitioner that person similarly placed with that of the Petitioner has already been given appointment and the Petitioner is suffering due to non- consideration of his case.
9. In that view of the matter, this Court has no hesitation to set aside the order under Annexures-6 and 8 and so directs. The Respondent-Opposite Party No.1 is directed to consider the case of the Petitioner for appointment under the Rules without taking a plea that he is the 5th legal heir of the deceased-employee. The exercise shall be completed, as expeditiously as possible preferably within a period of three months from the date of production of an authenticated copy of this order.
10. Accordingly, the writ petition is disposed of.
11. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.
(K.R.Mohapatra) Judge jm Page 5 of 5