Orissa High Court
Abhijit Choudhury vs State Of Odisha & Ors on 8 October, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.31880 of 2021
Abhijit Choudhury .... Petitioner
Mr.B. Mohanty
-versus-
State of Odisha & Ors. .... Opposite Parties
Mr.D.Mohapatra,
Standing Counsel
CORAM:
JUSTICE BISWANATH RATH
ORDER
8.10.2021
Order No.
01. 1. The Writ Petition involves the following prayer :-
"Under the above circumstances it is,
therefore humbly prayed that this Hon'ble Court
may graciously be pleased to issue a writ in
appropriate nature to quash the decision as reflected
in Letter dated 7.10.2020 under Annexure-5 and
may further be pleased to direct the respondents
more particularly Respondent Nos.1, 3 & 4 to issue
order of appointment in favour of the Petitioner by
considering the case of the Petitioner for
appointment under Compassionate Ground by
Applying the OCS(R.A) Rules, 1990 read with the
O.CS(R.A.) Amendment Rules 2016 afresh by
declaring Rule 6(9) as not applicable of
O.C.S.(R.A.) Rules 2020 as not applicable and
inconsistent to Rule 1(2) of the said Rule and by
placing reliance upon the judgment of the Hon'ble
Apex Court in Indian Bank Vs. Promila reported
in 2020 (2) SCC 729 and LAW laid down in
2020(10) SCC 496 as well as orders passed by the
Hon'ble High Court in W.P.(C) No.22168/2021
under Annexure-6 forthwith or within a time to be
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stipulated by this Hon'ble Court. This Hon'ble Court
may be pleased to declare Rule 6(1) as not
applicable and
And pass any other order/ orders or direction/
directions be issued so as to give complete relief to
the Petitioner."
2. Undisputed facts involving the case are that death of the
employee took place on 1.2.2017 established through Annexure-1, a
death certificate. Application was made by the legal heirs for
appointment under Rehabilitation Assistance Appointment Scheme
on 08.11.2017. This Court finds surprise such matters are still
pending for consideration thereby defeating the purpose behind the
Rehabilitation Assistance Appointment Scheme. Based on
submissions of respective parties, this Court finds, through
Annexure-3, correspondence was issued by the District education
officer that upon decision of screening committee, the Petitioner was
directed to appear before the Committee personally on 05.03.2019 in
Ratnakal High School, Duhuria alongwith documents indicated
therein. From this letter, it is made clear that in consideration of the
case of the Petitioner had already commenced by March, 2019. From
Annexure-5, it appears that while considering the case of the
Petitioner based on production of document, the Petitoiner through
letter dated 07.10.2020 vide Annexure-5 has been asked to submit
the required information alongwith all documents duly self attested
in new format prescribed in Resolution dated 17.02.2020 by
19.10.2020. Sri Mohanty, learned counsel for the Petitioner referred
to this letter contends that when the application of the Petitioner
dated 8.11.2017 is taking into consideration and the matter is already
in the examination process of the screening committee, following
their letter dated 21.02.2019 the new Rule having come into
existence on 17.02.2020 has no application to the pending cases.
// 3 //
3. Sri Mohpatra, learned Standing Counsel for the School and
Mass Education Department objects to the claim of the Petitioner on
the premises that for the restriction in new Rule making it clear to
consider all pending cases under the provisions of new Rules, there is
no wrong in issuing the impugned letter vide Annexure-5. This Court
here considering the settled position of law on this score in the case
of India Bank and others Vs. Pramila and another reported in
2020(2) SCC 729 and State of Madhya Pradesh & Ors. Vrs. Amit
Shrivas as reported in 2020(10) SCC 496. Through both the
decisions, finds, claim of the Department does not get the support of
law, it has been made clear that in considering a case, the Rule
prevailing at the time of consideration shall prevail. For the
development through Annexures-4, 5 & 6, this Court observes, based
on the application dated 30.07.2018 the consideration process has
already commenced in 2018 itself. Immediately thereafter the matter
was even examined through a committee and from Annexure-3 it
appears that based on the decision of the screening committee the
Petitioner was directed to produce documents. In view of the law of
land and in the above circumstances, this Court is of the opinion that
the decision process involving the Petitioner's claim already
commenced sometime prior to February, 2019. For the decision of
the Hon'ble Apex Court taken note herein that once consideration
process starts Rule or Enactment prevailed at the relevant point of
time has to operate only. The 2020 Rule came into picture sometime
in February, 2020 has not seen the light of the day when the matter
was taken up for consideration. It is in the circumstances, this Court
finds, there is no reason to issue direction vide Annexure-5 asking
the Petitioner to file fresh format in terms of 2020 Rule. For the
settled position of law as discussed hereinabove, this Court declaring
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the direction vide Annexure-5 bad in law, sets aside the same and
remits the matter back to the D.E.O, Kendrapara to consider the case
of the Petitioner in the light of the decision of the Screening
Committee and on the basis of the direction to the Petitioner to
produce records vide Annexure-4. Decision as appropriate be taken
depending on the Rule existing at the time of commencement by
completing the entire exercise within two months from the date of
communication of the order. In the event the Petitioner is eligible to
be entitled to the appointment under Rehabilitation Assistance
Scheme appointment order in favour of the Petitioner be also issued,
within a further period of seven days.
4. With the aforesaid direction the writ petition stands disposed
of.
(Biswanath Rath)
Judge
A.K. Jena
