Orissa High Court
Premananda Meher vs State Of Odisha And on 7 July, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAS) No.27 of 2017
Premananda Meher
.... Petitioner
Mr. S. Behera, Advocate
-versus-
State of Odisha and
Others .... Opposite Parties
Mr. M.K. Balabantaray, AGA
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
04.07.2023 Order No.
04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
2. Heard Mr. S. Behera, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Government Advocate for the State.
3. The present Writ Petition has been filed by the Petitioner inter alia with the following prayer:-
"i) Hon'ble Tribunal may kindly quash the letter No.28633HUD dated 6.12.2016 issued by the Resp. No.2 and quash the letter No.10712 dated 17.5.2017 issued by the Resp. NO.1 and direct the Respondents to consider the case of the applicant for his appointment under Rehabilitation Assistance Scheme to rehabilitate his family which is in distress after death of late Guru Meher who was working as Fitter Mistry under the Housing and Urban Development Department.
ii) Hon'ble Tribunal may kindly further direct the Respondents to effect appointment of the applicant with effect from 14.8.2015 when appointment letter was issued by the Resp. No.2 in favour of the mother of the applicant knowing fully well that she was ill // 2 // and not able to join Govt. service and applicant be paid his salary with effect from 14.8.2015.
iii) Any other relief to which applicant deserves to be granted on the facts of the case as Hon'ble Tribunal consider just and proper
iv) To kindly allow the application with cost".
4. Learned counsel for the Petitioner contended that on the death of the Petitioner's father on 29.06.2005 when the mother of the Petitioner made her application to extend the benefit of Rehabilitation appointment, the same was duly entertained and Collector, Samablpur issued the distress certificate on 30.01.2009.
4.1. It is contended that on the face of such distress certificate issued by the Collector on 30.01.2009, the matter was kept pending without taking a decision on the claim of the Petitioner's mother. Vide letter dated 14.08.2015, Opposite Party No.1 when requested Opposite Party No.3 to issue necessary order of appointment in favour of the mother of the Petitioner, Petitioner's mother made an application before the said Opposite Party No.3 on 22.08.2015 under Annexure-10 with a prayer to provide appointment to his son/ the present Petitioner as she is seriously ill and unable to join in the Government service. On receipt of such application from the Petitioner's mother under Annexure-10, she was referred to the Medical Board by Opposite Party No.4 as reflected in Annexure-12 and on such examination of the Petitioner's mother, the Medical Board under Annexure-13 issued the certificate by Page 2 of 7 // 3 // holding Petitioner's mother unfit to do any Govt. job. After receipt of the report of Medical Board, Opposite Party No.4 vide letter dated 11.03.2016 under Annexure-14 forwarded the matter to Opposite Party No.3 and Opposite Party No.3 in turn vide letter dated 4.4.2016 under Annexure-15 requested the Government to take a decision on the claim of the present Petitioner for his appointment under the Rehabilitation Assistance Scheme in place of her mother.
4.2. It is contended that without proper appreciation of the recommendations made by Opposite Party No.3 under Annexure-15, Govt.-Opposite Party No.1 rejected the Petitioner's claim vide the impugned communication dated 06.12.2016 under Annexure-16.
Learned counsel for the Petitioner vehemently contended that on the death of the Petitioner's father on 29.06.2005, Petitioner's mother made the application and in spite of issuance of distress certificate by the Collector on 30.01.2009, the matter was kept pending till Annexure-9 was issued on 14.8.2015 by the Government permitting Opposite Party No.3 to provide appointment to the Petitioner's mother. Because of such delayed action of the Opposite Party No.1 and since by that time Petitioner's mother was seriously ill and was unable to accept the offer of appointment issued under Annexure-9, she approached the authority concerned to provide such appointment to the present petitioner. On such approach Page 3 of 7 // 4 // being made, Petitioner's mother was referred to the Medical Board and Medical Board also found that Petitioner's mother is unfit to do any Govt. job. The report of the medical board along with the recommendation was also forwarded to the Government for consideration of the Petitioner's claim. But Opposite Party No.1 without assigning any justifiable reason rejected the claim vide Annexure-16. Accordingly, it is contended that the impugned rejection is not sustainable in the eye of law.
5. Mr. M.K. Balabantaray, learned Addl. Government Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that even though the concerned employee died on 29.06.2005, but Petitioner's mother made the application only on 09.05.2008 and after receipt of the district certificate from the Collector on 30.01.2009 the matter was submitted to Opposite Party No.3 vide letter dated 17.04.2010. On receipt of the letter dated 17.04.2010, Government-Opposite Party No.1 vide letter dated 28.09.2011 directed for submission of some further documents and on receipt of the same from the Opposite Party No.4 vide letter dated 30.03.2013, Petitioner's mother was provided with the appointment vide letter dated 14.08.2015.
5.1. It is accordingly contended that since the claim of the Petitioner's mother was rightly allowed vide letter Page 4 of 7 // 5 // dated 14.08.2015 under Annexure-9, she should have accepted the said offer, instead of making a prayer to provide such appointment to the present Petitioner who happens to be the son of the deceased employee.
5.2. It is also contended by learned Addl. Government Advocate that since after due consideration, Petitioner's mother was provided with the appointment and she refused to accept the said officer, Petitioner's claim has been rightly rejected vide Annexure-16.
6. Having heard learned counsel for the Parties and taking into account the materials available on record, it is found that the Petitioner's mother though made the application for her appointment under the provisions of R.A Scheme on 09.05.2008 and distress certificate was issued by the Collector on 30.01.2009, but because of the inaction of the Opposite Parties, the matter was kept pending till Annexure-9 was issued on 14.08.2015. It is also found from the record that on being communicated with the offer of appointment on 14.08.2015, when Petitioner's mother expressed her inability to accept the Govt. job on the ground of her illness, she was referred to the Medical Board basing on the letter issued by Opposite Party No.4 under Annexure-12. On due examination, Medical Board vide Annexure-13 also opined that Petitioner's mother is not fit to do any Govt. job. The said report of the Medical Board along with the claim of the present Petitioner though was recommended by the Page 5 of 7 // 6 // Opposite Party Nos.3 and 4, but Opposite Party No.1 without considering the matter in its proper perspective rejected the same vide the impugned communication under Annexure-16. Thereafter, Petitioner when moved the Government seeking recalling of his rejection available at Annexure-16 vide Annexure-19, the same was also rejected vide Annexure-20 communication dated 10.05.2017.
6.1. This Court is of the view that since the Opposite Party took around 10 years to consider the claim of Petitioner's mother and by the time she was provided with the appointment vide letter dated 14.08.2015 under Annexure-9, she was not medically fit to accept the offer. On being referred, Medical Board also opined that Petitioner's mother is not fit to do Govt. Job. On the face of such report submitted by the Medical Board, it is the view of this Court that the action of the Petitioner's mother in refusing to accept the offer at Annexure-9 is a genuine one. On the face of the report by the Medical Board, Opposite Party No.1 should have considered the claim of the Petitioner by providing him appointment under the provisions of Rehabilitation Assistance Scheme. Since the matter was kept pending at the level of State Government for 10 years, and in the meantime Petitioner's mother became overage and because of her illness she could not accept the job, the ground on which the claim of the petitioner has been rejected vide Annexures-16 and 20 is not sustainable in the eye of law.
Page 6 of 7// 7 // 6.2. Therefore, this Court is inclined to quash the rejection of the Petitioner's claim so available at Annexures-16 and 20. While quashing both the rejection, this Court remits the matter to Opposite Party No.1 to take a fresh decision on the Petitioner's claim for his appointment under the provisions of Rehabilitation Assistance Scheme. It is observed that while taking a fresh decision, the view expressed by the Hon'ble Apex Court in the case of Malaya Nanda Sethy vs. State of Orissa, Civil Appeal No. 4103 of 2022 disposed of on 20.05.2022 shall be followed. Such a fresh decision shall be taken within a period of three (3) months from the date of receipt of this order.
7. With the aforesaid observations and directions, the Writ Petition stands disposed of.
(Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Designation: Senior Stenographer Reason: .. Location: HIGH COURT OF ORISSA, CUTTACK Date: 07-Jul-2023 15:42:45 Page 7 of 7