Orissa High Court
Raju Sunar vs State Of Odisha And Another .... ... on 25 August, 2023
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.26577 of 2023
Raju Sunar .... Petitioner
Mr.S.B.Jena, Advocate
-versus-
State of Odisha and another .... Opposite Parties
Mr.Iswar Mohanty, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
25.08.2023 Order No.
01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).
2. Heard learned counsel for the Petitioner as well as the learned Additional Standing Counsel for the State-Opposite Parties. Perused the Writ Petition as well as the documents annexed thereto.
3. The present Writ Petition has been filed with the following prayer :
"Under the abovementioned facts and circumstances of the case, this Hon'ble Court may graciously be pleased to quash the order No.1372 dated 21.03.2023 under Annexure-11.
And further be pleased to direct the Opp.PartyNo.1 to consider the case of the Petitioner as per Rehabilitation Assistance Rule, 1990 and appoint the Petitioner in any group-D post taking into consideration the fact that Petitioner's father died on 30.12.2016 and he applied for appointment under R.A. Scheme on 10.10.2017.
Or pass any other order/orders as this Hon'ble Court may deem think fit and proper."
4. It is submitted by the learned counsel for the Petitioner that the // 2 // father of the Petitioner namely late Than Bahadur Sunar died in harness on 30.12.2016 while he was serving as Darwan under Opposite Party No.2. Initially, the Petitioner applied for appointment under R.A. Scheme on 10.10.2017 under Annexure-3 to the Writ Petition. Learned counsel for the Petitioner further contended that since the wife of the deceased Government employee i.e. the mother of the Petitioner was alive at the time of first application for appointment under R.A. scheme, the authorities by applying the Rule 2(b) of OCS(RA) Rules, 1990 rejected the application of the Petitioner on the ground that the mother is alive. Thereafter, the Petitioner again submitted another application on the ground that the wife of the deceased Government employee is unfit for Government job. The certificate dated 04.01.2019 issued by the CDMO, Cuttack stating therein that the wife of the deceased Government employee was unfit for Government job. Initially the Opposite Parties did not consider the application of the Petitioner on the ground that there is a delay. Accordingly, the Petitioner filed an application requesting the authority to condone the delay vide his letter under Annexure-9 series. Learned counsel for the Petitioner also alleged that the application for condonation of delay has not been considered by the authority in its proper perspective. He further contended that taking into consideration the fact that the Petitioner initially applied on 10.10.2017 i.e. under Annexure-3 to the Writ Petition, there is no delay in filing the R.A. application by the Petitioner. However, he further submitted that in the event the authority comes to a conclusion that there is a delay in submitting second application after rejection of the 1st application, the authority should have considered the ground of condonation of delay and accordingly the delay should have been condoned as prayed by the Petitioner in his application under Annexue- 9 to the Writ Petition. In such view of the matter, learned counsel for the Petitioner submitted that the impugned rejection order under // 3 // Annexure-11 rejecting the application of the Petitioner on the ground of delay is unsustainable in law. Accordingly, the Petitioner has prayed for quashing of the impugned order dated 21.03.2023 under Annexure-11 to the Writ Petition.
5. Learned Additional Standing Counsel for the State on the other hand contended that after initial application dated 10.10.2017, the Petitioner applied again in the year 2018. By the time the second application was made before the authority, there was a delay of almost two years. Therefore, learned Additional Standing Counsel submitted that keeping in view the provision of Rule that the application has to be made within one year, the authority has not committed any illegality in rejecting the application of the Petitioner on the ground of delay. Accordingly, it was submitted that the Writ Petition is devoid of merit and the same should be dismissed.
6. Having heard learned counsel appearing for the parties, careful consideration of the documents as well as the materials on record, this Court is of the considered view that initially the Petitioner submitted an application under OCS(RA) Rule 1990 on 10.10.2017. Therefore, it cannot be said that there is a delay in approaching the authorities for appointment on compassionate ground. The first application having been rejected on the ground of availability of preferable legal heir as provided under the Rule, the Petitioner applied again by filing a fresh application in the year 2018. Although this Court is of the considered view that there is no necessity of filing such fresh application as the first application is pending and in the said application the authorities should have asked the Petitioner to produce the fitness certificate of his mother before rejecting the same, however, the Opposite Parties have rejected the subsequent application on the ground of delay. However, this Rule provides that the authorities have the power to condone the delay in appropriate case. Keeping in view the background facts of the present // 4 // case, this Court is of the considered view that the authorities should have considered the condonation of delay application made by the Petitioner under Annexure-9 and accordingly they should be considered liberally. Accordingly condone the delay and the application of the Petitioner should have been considered on its own merit. In such view of the matter, this Court has no hesitation in setting aside the Annexu-11 dated 21.03.2023. Accordingly, the same is hereby set aside. Further, the matter is remanded back to Opposite Party No.2 to consider the matter afresh keeping in view the law laid down by the Hon'ble Supreme Court in Malayananda Sethi v. State of Odisha reported in 2022 (II) OLR (SC) 1 within a period of two months from the date of production of certified copy of this order by the Petitioner. The decision so taken be communicated to the Petitioner within two weeks thereafter
7. With the aforesaid observation, the writ application stands disposed of.
8 Issue urgent certified copy of this order as per Rules.
RKS ( A.K. Mohapatra )
Judge
Signature Not Verified
Digitally Signed
Signed by: RAMESH KUMAR SINGH
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 30-Aug-2023 19:03:10