Orissa High Court
Jitendra Behera vs State Of Odisha & Others .... Opposite ... on 12 October, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P(C) (OAPC) No.54 of 2015
In the matter of an application under Section 19 of the
State Administrative Tribunal's Act, 1985.
..................
Jitendra Behera .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. S. Patra, A. Tripathy, S.
Rath, D.D.Sahu, S.N.Biswal &
N. Sarkar.
For Opp. Parties : M/s. Mr M.K.Balabantaray.
Addl. Government Advocate
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:06.01.2023 and Date of Order: 31.01.2023
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Biraja Prasanna Satapathy, J.
1. Heard Mr. S. Patra, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Government Advocate appearing for the State-Opposite Parties.
2. The present Writ Petition has been filed with the following prayer:-
"In view of the facts mentioned in Para-6 above, the applicant prays for the following relief:
// 2 // The order dated 17.08.2012 under Annexure-6 be quashed and the Respondents be directed to appoint he applicant under rehabilitation assistance scheme as driver".
3. It is submitted that the father of the Petitioner while working as a Driver in the Office of Opposite Party No.2, he died on 12.08.2009. After the death of his father, the Petitioner made the application for his appointment under the provisions of Rehabilitation Assistance Scheme on 08.10.2009 under Annexure-1. On receipt of the application, Opposite Party No.2 forwarded the same to the Collector, Nayagarh vide letter dated 24.09.2009 for considering the financial condition of the petitioner and issue the distress certificate in the format enclosed to the application submitted by the Petitioner under Annexure-1.
4. It is contended that the Collector, Nayagarh vide his letter dated 06.08.2010 forwarded the distress certificate and along with the application to Opposite Party No.2 for taking further action in the matter vide Annexure-2- Series. On receipt of the application along with the distress certificate so forwarded to Opposite Party No.2, he in turn forwarded the application of the Petitioner to Opposite Party No.1 vide his letter dated 12.11.2010 under Annexure-3. On receipt of the application so forwarded under Annexure-3, Opposite Party No.1 vide his letter dated 07.12.2010 when sought for certain further clarification to consider the case of the Petitioner, the same was also complied with. Thereafter again vide letter dated 21.03.2011 under Annexure-4-Series, the Opposite Party No.2 was further directed to furnish certain further document for consideration of the Petitioner's claim.
Page 2 of 6// 3 //
5. On receipt of the subsequent letter issued by the Government on 21.03.2011, Opposite Party No.2 when directed the Petitioner to furnish the documents as desired by the Opposite Party No.1, the Petitioner submitted the copy of the registered separation deed dated 27.10.2010 and the earlier agreement executed on 19.03.2008 showing the separation of the deceased employee from his fourth son Padmalochan Behera. But Opposite Party No.1 without considering the claim of the Petitioner in its proper perspective, rejected the same vide order impugned dated 17.08.2012 under Annexure-6. Thereafter, the Petitioner approached the Opposite Party Nos.1 and 2 under Annexure-7-Series seeking reconsideration of the matter. But when no action was taken, the present Writ Petition was filed with the prayer as indicated hereinabove.
6. Learned counsel for the Petitioner vehemently contended that the Petitioner not only made the application in time but also Collector, Nayagarh issued the distress certificate in his favour vide letter issued under Annexure-2-Series. Thereafter when the matter was recommended to the Government- Opposite Party No.1 vide Annexure-3, sought for certain further clarification and even though all those clarifications were duly complied with, but claim of the petitioner was illegally rejected vide order dated 17.08.2012 under Annexure-6. It is further contended that the claim of the Petitioner was rejected only on the ground that the Petitioner is the 5th legal heir of the deceased of the employee and accordingly his claim is not acceptable.
Page 3 of 6// 4 //
7. It is contended that "Family Members" as defined under Rule-2(b) of the OCS (R.A) Rules, 1990 includes the wife, son and unmarried daughters of the deceased employee. Therefore, as provided under Rule-2(b) of 1990 Rules, the Petitioner is also eligible to make his application.
8. It is further submitted that in view of the decision of this Court in the case of Ajit Kumar Barik vs. State of Orissa & Others reported in 2018(II) OLR-10, the ground on which the claim of the Petitioner has been rejected is no more res- intergra.
9. It is contended that in the reported decision as cited (supra) it has been held that "Family Members" as defined under Rules-2(b) of the OCS (R.A) Rules, 1990 are eligible to make their application and there is no hard and first rule that only wife/husband of the deceased Govt. employee is eligible to make such application. It is also submitted that since the Petitioner complied with all the requirements and the distress certificate was issued in his favour along with the medical certificate declaring the wife of the deceased employee as not fit for Govt. Job, the claim of the Petitioner should not have been rejected on the ground indicated in the impugned communication at Annexure-6.
10. Mr. M.K. Balabantaray, learned Addl. Government Advocate on the other hand submitted that since the wife of the deceased employee was very much available, the claim of the Petitioner being the 5th legal heirs of the deceased employee is not entertainable and accordingly no Page 4 of 6 // 5 // illegally has been committed by Opposite Party No.1 in rejecting the same.
11. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that on the death of the deceased employee, Petitioner as the son made the application within time for providing him appointment under the provisions of Rehabilitation Assistance Scheme. After receipt of distress certificate, Opposite Party No.2 forwarded the application to Opposite Party No.1 for consideration also not only that the request to provide further information by Opposite Party No.1, was also duly complied with by the Opposite Party No.2 as well as the Petitioner by providing the deed of separation showing the separation of the deceased employee from his 4th son prior to his death on 19.03.2008. But the fact remains, the claim of the Petitioner as reflected in the impugned order was rejected only on the ground that the Petitioner is the 5th legal heir of the deceased employee.
12. Therefore, in view of the decision of this Court as cited (supra), the ground on which the Petitioner's claim has been rejected is not legally sustainable. Therefore, this Court is inclined to quash the order dated 17.08.2012 under Annexure-6. While quashing the same, this Court directs the Opposite Party No.1 to reconsider the matter and take a decision on the claim of the Petitioner in terms of the provision prevalent at the time of the death of the deceased employee by following the decision of the Hon'ble Apex Court in the case of Malayananda Sethi vs. State of Odisha & Others. If on such consideration, it is found Page 5 of 6 // 6 // that the Petitioner is otherwise eligible, then consequential action in providing him appointment shall also be taken up. The entire exercise be completed within a period of 3(Three) months from the date of receipt of this order.
13. The Writ Petition stands disposed of with the aforesaid observations and directions.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 31st of January, 2023/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Oct-2023 18:00:34 Page 6 of 6