Orissa High Court
Laxmipriya Tripathy vs State Of Orissa on 16 March, 2021
Equivalent citations: AIRONLINE 2021 ORI 87
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT: CUTTACK
W.P.(C). No.9231 of 2021
In the matter of an application under Articles 226 and 227 of the Constitution
of India.
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Laxmipriya Tripathy Petitioner
-versus-
State of Orissa, represented through the
Secretary to Government, Home Department
& others Opp. Parties
For Petitioner : Sri D.N.Rath.
For Opp.Parties : Mr. H.M.Dhal, Addl. Govt. Advocate.
Date of Hearing & Judgment: 16.03.2021.
P R E S E N T:
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Biswanath Rath,J. This writ petition involves the following prayer:
"Under the above circumstance, it is therefore, humbly prayed that this
Hon'ble Court may be graciously pleased to issue a writ in the nature of writ
of mandamus or any other appropriate writ, direction or order by quashing
the communication made by the opposite party no.4 dated 19.05.2020 vide
Annexure-13 to the writ application and directing the opposite parties to
issue appointment order in favour of the petitioner pursuant to the approval of
appointment made by the appointing authority on 27.11.2019 in the post of
Jr.Clerk/Jr. Asst. under Rehabilitation Assistance Scheme within a stipulated
period.
And for this act of kindness, as in duty bound, the petitioner shall
ever pray."
2 Sri D.N.Rath, learned counsel appearing for the petitioner challenging
the impugned order at Annexufe-13 on the premises that when the petitioner
being an applicant made application for appointment under Rehabilitation
Assistance Scheme vide Annexure-3 on 30.12.2015 involving death of her
husband on 06.09.2015 and her application was forwarded for consideration
2
under Annexure-6 in the year 2016 further there is also recommendation of
the case of the petitioner after due verification for appointment under
Rehabilitation Assistance Scheme at Annexure-11, under the provision of
Rehabilitation Assistance Scheme, as amended in 2016, there was no
question of asking the petitioner again to apply under Rule 2020, a rule
which was not even in existence when the death of the employee occurred
and also when the application was made for the particular purpose. It is in
the circumstance, a claim is made for interfering in the letter at Annexure-13
and setting aside the same. Sri Rath, learned counsel for the petitioner also
relied on a judgment of this Court in the case of Damodar Jena Vs.
Chairman-cum- M.D., Grid Co.Ltd. and Ors, reported in 2015 (II) ILR Cutt.
569 being confirmed by a Division Bench of this Court in Writ Appeal No.11
of 2015.
3. Sri H.M.Dhal, learned Additional Government Advocate appearing
for the State however in his opposition submitted that even though the case
of the petitioner was considered depending on the rule existed in the year
2019 but, however, for the introduction of new rule in the meantime, there
might be application of new rule and thereby justifies the action of authority
asking the petitioner to apply under the new rule i.e. OCS (RA) Rules, 2020.
4. Considering the rival contentions of the parties, this Court finds
there is no dispute that the deceased employee died on 06.09.2015. There
cannot be also no doubt that for the availability of Annexure-3, that being the
legal heir, the application for Rehabilitation Assistance appointment was
made on 13.12.2015 being forwarded by the Collector, Puri on 21.3.2016 as
clearly borne in page-23 of the brief. There is also no dispute that at the time
of death of the deceased employee involved herein, the amended Rule,
3
2016 was in vogue. Further it goes to make it clear that after entering into
necessary inquiry, the case of the petitioner has already been forwarded by
competent authority for taking appropriate action at the level of A.I.G. of
Police as clearly borne from Annexure-11 at page-39 of the brief. The
application for Rehabilitation Assistance appointment having been made in
the existence of particular set up rule, for the settled position of law,
application involving the petitioner ought to have been considered under the
provisions of 2016 Rules alone. Applying a subsequent rule, 2020 which has
not seen in the light of the day on the date of application and for the entire
process undertaken in the meantime has no place. This Court also finds the
support of the judgment in the case of Deodar Jena Vs. Chairman-cum-
M.D., Grid Co.Ltd. and Ors. (supra) to the case of the petitioner.
5. It is in this view of the matter, this Court while interfering in the
impugned order at Aannexure-13, sets aside the same. For the
recommendation already there in favour of the petitioner, the opposite party
no.2 is directed to take decision on issuing appointment order in favour of the
petitioner in the post of Junior Clerk/ Junior Assistant following the approval
and recommendation of the competent appointing authority vide enclosures
from page 45 of the brief by undertaking the entire exercise within a period
of one month.
6. In result, the writ petition succeeds. No order as to cost.
!!!!!!!!!!!!
Biswanath Rath,J.
Orissa High Court, Cuttack The 16th Day of March,2021sks