Orissa High Court
Krupasindhu Balabantaray vs ) State Of Odisha ..... Opposite Parties on 30 April, 2024
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.5498 of 2023
Krupasindhu Balabantaray ..... Petitioner
Represented By Adv. -
Saswati Mohapatra
-versus-
1) State Of Odisha ..... Opposite Parties
2) Collector, Khordha Represented By Adv. -
Mr. Saswat Das, AGA
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
30.04.2024 Order No.
02. 1. This matter is taken up through Hybrid mode.
2. Heard learned counsel for the Petitioner as well as learned counsel for the State-Opposite Parties. Perused the writ petition as well as documents annexed thereto.
3. The present writ petition has been filed by the Petitioner with the following prayers:-
"Under the aforesaid facts and circumstances of the case, it is therefore, prayed that this Hon'ble Court may graciously be pleased to:
(i) quash the impugned Order, dated 03.02.2022, passed by the Opp.Party No.2 under Annexure-8, by concurrently holding the same as bad, illegal, arbitrary and non-est in the eye of law and further be pleased to direct the Opp.Party No.2 to appoint the Petitioner under Rehabilitation Assistance Page 1 of 5. Rules, 1990, within a stipulated period as may be prescribed by this Hon'ble Court;
(ii) pass such other order(s) or issue direction(s) as may be deemed fit and proper in the bona fide interest of justice."
4. The factual background involved in the present writ application in short, is that the father of the Petitioner, who was working as a Peon in the Khordha Collectorate died in harness on 14.11.2019. Immediately thereafter, the present Petitioner being one of the legal heirs applied for appointment on compassionate ground on 16.12.2019. It appears that after the death of the deceased government employee, the family was in a distressful financial condition. Since no action was taken promptly, the Petitioner was compelled to approach this Court by filing the W.P.(C) No.15123 of 2021. A Coordinate Bench of this Court disposed of the writ application vide order dated 28.06.2021 was granting liberty to the Petitioner to file a fresh representation before the authority concerned with further direction to such authorities to consider the representation of the Petitioner within three months from the date of receipt of such representation by taking into consideration the judgment of the Hon'ble Supreme Court in Canara Bank case reported in 2015 7 SCC 412 and Indian Bank and others v. Pramila and another reported in 2020 (2) SCC 729.
5. Learned counsel for the Petitioner submitted that after disposal of the earlier writ application, the Petitioner approached the Opposite Parties by filing a representation on 14.07.2021 under Annexure-7 to the writ application. He further contended that the representation of the Petitioner was kept pending for several months and finally the Collector, Khordha-Opposite Party No.2 rejected the same on 03.02.2022 under Annexure-8 to the writ application. Further referring Page 2 of 5. to the aforesaid rejection order, learned counsel for the Petitioner submitted that the application of the Petitioner for appointment on compassionate ground has been considered by applying the OCS(RA) Rules, 2020. Since the Petitioner has secured less mark than the required mark for appointment on compassionate ground under the OCS (RA) Rules, 2020, the case of the Petitioner has been rejected on such ground.
6. In course of his argument, learned counsel for the Petitioner further referring to the judgment of Hon'ble Supreme Court in Malayananda Sethi v. State of Odisha as well as the judgments of Suchitra Bal v. State of Odisha & others by a Division Bench of this Court in W.P.(C) No.2081 of 2021 decided on 16.03.2021 as well as Bindusagar Samantaray v. State of Odisha and others by a Division Bench of this Court in W.A. No.810 of 2021 decided on 25.09.2023 submitted before this Court that the law is well settled that the rule which was in force at the time of death shall be applicable to the cases including the case of the present Petitioner. She further specifically referred to the judgment of this Court in Biswajit Swain v. State of Odisha and others. It is further contended that in the judgment of Biswajit Swain (supra), this Court has declared that Rule-6 (9) of the OCS (RA) Rules, 2020 which required that all pending applications to be considered under the 2020 Rules, to be ultra vires of Article 14 of the Constitution of India. In such view of the matter, learned counsel for the Petitioner submitted that the impugned order under Annexure-8 which is unsustainable in law and accordingly, the same should be quashed.
7. Learned Additional Government Advocate on the other hand contended that after disposal of the earlier writ application, the Page 3 of 5. authorities have considered the case of the Petitioner. He further contended that in view of the provisions contained under Rule-6 (9) of the OCS (RA) Rules, 2020, the application of the Petitioner which was pending at the time of new Rule of the year 2020 came into force, was considered under the new Rules, 2020. Since the Petitioner has failed to secure the required marks for being considered and appointed on compassionate ground, the Opposite Party No.2 has rejected the application vide order dated 03.02.2022 under Annexure-8 to the writ application. In such view of the matter, learned Additional Government Advocate submitted that the Opposite Party No.2 has not committed any illegality, accordingly, it was submitted that the present writ application is devoid of merit and as such the same should be dismissed at threshold.
8. Having heard the learned counsels appearing for the respective parties on a careful examination of the background facts as well as materials on record, this Court at the outset observed that no issue involving factual aspects are required to be adjudicated in the present writ application with regard to the applicability of the relevant Rules to the facts of the present Petitioner's case. On perusal of the record, it appears that it is not disputed by the parties that the father of the Petitioner died on 14.11.2019 and the application for appointment on compassionate ground was submitted by the Petitioner on 16.12.2019. Thereafter, the new Rules i.e., OCS (RA) Rules, 2020 came into force w.e.f. 17.02.2020. This Court further observed that the law in the aforesaid regard is no more res integra the aforesaid issue was directly and substantially in issue in Biswajit Swain v. State of Odisha and others. After considering all contentions raised in the above noted writ application, this Court has held that Rule-6 (9) of the OCS (RA) Rules, 2020 is ultra vires of Article 14 of the Constitution of India. Therefore, Page 4 of 5. the Opposite Parties have committed an illegality by considering the case of the Petitioner under the new Rules of the year 2020.
9. In view of the aforesaid factual as well as the legal scenario, this Court is of the considered view that the conduct of the Opposite Party No.2 in rejecting the application of the Petitioner vide impugned order dated 03.02.2022 under Annexure-8 is unsustainable in law. Accordingly, the impugned order under Annexure-8 is hereby quashed, further the matter is remanded back to the Opposite Party No.2 to consider the case of the Petitioner strictly in terms of the principle laid down in the above noted judgments within a period of two months. It is further directed that while considering the application of the Petitioner, the Opposite Parties shall also take into consideration the law laid down by the Hon'ble Supreme Court in State of West Bengal v. Debabrata Tiwari. The Opposite Party No.2 shall take a final decision within the aforesaid time stipulated by passing a speaking and reasoned order. The final decision so taken be communicated to the Petitioner within two weeks from the date taking such decision.
10. With the aforesaid observation/direction, the writ petition is disposed of.
Urgent certified copy of this order be granted on proper application.
( A.K. Mohapatra ) Judge S.K. Rout Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Page 5 of 5.
Date: 08-May-2024 09:28:27