Orissa High Court
2 19.03.2021 Heard Miss. ... vs Government Advocate For The on 19 March, 2021
W.P.( C.M.P.
W.P.(C).
No.1360
No.10168
of 2015
of 2021
2 19.03.2021 Heard Miss. Mohapatra, learned counsel
for Petitioner and Sri Tripathy, learned Additional
Government Advocate for the Opposite Parties.
This writ petition involves the following prayer:
"Under the facts and circumstances as narrated
above, this Hon'ble Court may graciously be pleased to
admit this writ petition, issue Rule Nisi to the opposite
parties and if the opposite parties will fail to show cause
or shown insufficient cause made the said rule absolute
by directing the opposite parties to provide employment
to the petitioner as per prevalent Rules and further be
pleased to quash the letter dated 09.03.2021 under
Annexure-7;
And further be pleased to pass any other
order/orders as may be deemed fit and proper.
And for this act of kindness, the humble
petitioner as in duty bound shall ever pray."
Taking this Court to the pleadings, the death of
the deceased taking place on 20.06.2016 and application
for Rehabilitation Assistance was filed by the mother
requiring service in favour of her son by way of
Rehabilitation Assistance appointment, it is contended
that the application being filed on 6.1.2017 and death
having taking place in the year 2016, the OCS (RA)
Amendment Rule,2016 prevailing at the relevant point
of time, should have been considered instead the public
authority has applied (OCS) RA Rules, 2020 and rejected
the claim of the petitioner. It is on this premises,
application of non-existing rule to the case of the
petitioner, prayer is made to allow the writ petition in
setting aside of Annexure-7. To substantiate the request
involved herein, learned counsel for the petitioner refers a
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decision of this Court dated 05.03.2021 in
W.P.(C).No.8486 of 2021.
To the contrary, Sri Tripathy, learned Additional
Government Advocate appearing for the State submits
that at the time of consideration of the application the
Rule 2016 was already in vogue, the authority was
constrained to consider the rule already taken place in the
meantime and thus claimed that there is no illegality in
Annexure-7. Sri Tripathy, however did not dispute
applicability of decision of this Court in W.P.(C).No.8486
of 2021 to the case at hand.
Considering the rival contentions of the parties, this
Court finds for the settled position of law through the
Hon'ble Apex Court, a rule which has not seen the light of
the day, has no application to the cases taking place
prior to such rule come into existence. Admittedly, the
death involved herein took place in the year 2016,
consequently, the application for Rehabilitation Assistance
appointment was also filed in 2017 when Rule 2016 was
in place and Rule 2020 had not come into existence even.
Petitioner claim for application of judgment in
W.P.(C).No.8486 of 2021 to the case at hand finds
justified.
In view of the settled position of law, this Court
sets aside the order at Annexure-7 and directs the
opposite party no.2 to issue appointment order in favour
of the petitioner following the recommendation already
there in favour of petitioner by completing the entire
exercise within a period of four weeks.
-3-
The writ petition stands disposed of with the
observation and direction made hereinabove.
............................
Biswanath Rath,J.
sks
