Orissa High Court
Bikram Gochhayat vs State Of Odisha & Others on 13 July, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No.19350 of 2021
Bikram Gochhayat ..... Petitioner
Mr.J.Nayak, Advocate
- Versus-
State of Odisha & Others ..... Opposite parties
Miss.Samapika Mishra,
Addl. Govt. Advocate.
CORAM:
JUSTICE BISWANATH RATH
ORDER
13.07.2021
Order No. This matter is taken up through video conferencing.
2. Heard learned counsel appearing for the parties.
3. Background involves in this case, pending
consideration of the application for appointment under
Rehabilitation Assistance Scheme there has been disposal
of W.P.(C) no.23381 of 2016 on 24.01.2017 with a
direction for considering the representation of the
petitioner.
4. It appears that after the disposal of the writ
application, since the case of the petitioner was not
considered, a contempt proceeding was undertaken vide
CONTC No.1423 of 2018 which also got disposed of giving
three months time to the opposite parties to take a
decision on the request of the petitioner. It also appears
there is another contempt petition vide CONTC no.2843 of
2019 where notice has been issued by an order of this
Court dated 13.11.2020. It is on issuing of contempt
notice, the representation of the petitioner in the matter of
Rehabilitation Assistance appointment was considered
and vide Annexure-11 the request of the petitioner has
been rejected on the premises that the petitioner could not
meet the contingencies under the Odisha Civil Services
(Rehabilitation Assistance) Rules, 2020. Taking this Court
to the date of death involved appearing to be 30.08.2013
and the date of application involved herein being
sometime in 2016, the contention is raised referring to the
Odisha Civil Services (Rehabilitation Assistance) Rule,
2020 having coming into play much subsequent to the
date of application even much after date of death involved
herein having no application to play, a request therefore is
made to this Court for interfering in the order at
Annexure-11 and setting aside the same.
5. Miss.Mishra, learned Additional Government
Advocate however, in her objection taking this Court to
the ground of rejection vide Annexure-11 attempted to
support the decision of the authority. She however has no
dispute to the legal position that the principle came into
existence subsequent to cause of action has no place to be
considered considering the case prior to such
development. Miss.Mishra, learned Additional Government
Advocate further taking this Court to the Notification
dated 17.02.2020 contended that for a clause affixed to
2020 Rule making way for consideration of all pending
cases under the new provisions, there appears there is no
mistake committed by the Director in passing the
impugned order.
6. This Court considering the rival contentions of the
parties, that there is no dispute about the date of death
and time of application seeking rehabilitation assistance
appointment. Admittedly, both the dates have taken place
in the year 2013 as well as 2016 respectively. Looking to
the grievance involved herein and the grounds rejecting
claim of the impugned order at Annexure-11 this Court
finds the impugned order also refers the date of death of
late Abhiram Gochhayat as on 30.08.2013 while serving in
the said college. There also remains no doubt that the
application for rehabilitation assistance appointment was
filed in 2016 in the continuance of the Odisha Civil
Services (Rehabilitation Assistance) Rule 1990 as existed
then. Odisha Civil Services (Rehabilitation Assistance)
Rule, 2020 had not existed either on the date of death of
the persons involved or even on the date of application
involved herein, for such Rule has not seen the light of the
day on the above causes of action, for the repeated
judgment of this Court and the judgment of the Hon'ble
Apex Court in the case of Canara Bank and another Vs.
M. Mahesh Kumar with two other matters reported in
(2015) 7 SCC 412, there was no room for considering the
case of the petitioner taking into consideration the Odisha
Civil Services (Rehabilitation Assistance) Rule, 2020 for
considering the case of the petitioner applying a wrong
Rule, this Court finds the impugned order at Annexure-11
is not sustainable.
It is now dealing with the further submission of
Miss Mishra, learned State counsel that for the
Notification having a clarificatory in the matter of
application of 2020 Rule, to all such pending cases, this
Court here observes mere observation in the Notification
notifying Rule 2020 and in absence of amendment to Rule
2020 such observation cannot override the Rule when the
Rule is a creature of a Statute. This Court, thus declining
any such observation in the Notification No.5651 (Gen)
dated 17.02.2020 as bad and unenforceable.
7. This Court accordingly sets aside the impugned
order at Annexure-11. But however, since the case of the
petitioner is required to be considered under the
provisions existed at the relevant point of time, the
Director, Higher Education is directed to consider the case
of the petitioner in the spirit of the provisions available
under the Orissa Civil Services (Rehabilitation Assistance)
Rule 1990 as existed on the date of death of the deceased.
The entire exercise shall be completed within a period of
one month considering there is sufficient delay involving
the consideration of a rehabilitation appointment case. If
the petitioner fits into the Rule, 1990, appointment order
in favour of the petitioner be issued within a period of one
week of such decision.
8. As the restrictions due to resurgence of COVID-19
situation are continuing, learned counsel for the parties
may utilize a printout of the order available in the High
Court's website, at par with certified copy, subject to
attestation by the concerned advocate, in the manner
prescribed vide Court's Notice No.4587, dated 25th March,
2020 as modified by Court's Notice No. 4798 dated 15th
April, 2021.
Susil Kumar Swain
(BISWANATH RATH)
JUDGE
