Orissa High Court
Arup Kumar Jena vs State Of Odisha & Others on 21 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.12059 of 2023
Arup Kumar Jena .... Petitioner
Mr.Samarendra Mohanty, Advocate
-versus-
State of Odisha & others .... Opposite Parties
Mr.Saswat Das, A.G.A.
CORAM:
JUSTICE A.K. MOHAPATRA
Order No. ORDER
21.04.2023
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the Petitioner as well as the learned
Additional Government Advocate.
3. The present Writ Petition has been filed by the Petitioner with
the following prayer:
"The Petitioner, therefore humbly prays that this
Hon'ble Court may graciously be pleased to issue Rule
NISI calling upon the Opp.Parties to show cause, as to
why the Opp.Parties shall not be directed to consider the
case of the Petitioner for providing him employment on
compassionate grounds in any post under the
Rehabilitation Assistance Scheme within a stipulated
period and why the letter dated 28.04.2022 under
annexure-1 shall not be quashed.
And if the Opp.Parties fail to show cause or show
insufficient cause for the said Rule to be made absolute;
And any other appropriate writ(s)/ order(s)/
direction(s) may kindly be passed as the Hon'ble Court
consider fit and proper."
// 2 //
3. It is submitted by the earned counsel for the Petitioner that the
father of the Petitioner, who was working under the Superintendent
of Railway Police, Rourkela died in harness on 28.01.2015 leaving
behind the legal heirs i.e., the Petitioner and his mother. It is also
submitted by the learned counsel for the Petitioner that the mother of
the Petitioner is suffering from cancer, therefore she was not eligible
for the job. Finally, the Petitioner submitted an application under the
OCS(RA) Rules. 1990 on 09.04.2009 for appointment under
compassionate ground. Learned counsel for the Petitioner further
submitted that the said application has been rejected by the authority
vide its order dated 28.04.2022 on the ground that the Petitioner was
not eligible for compassionate appointment by applying the new Rule
i.e., OCS (RA) Rules, 2020.
4. It is further submitted by the learned counsel for the Petitioner
that since the father of the Petitioner died in the year 2015 and the
Petitioner has submitted an application much prior to the new Rule
came into force, the same should have been considered under the
OCS(RA) Rule, 1990. In the aforesaid context, referring to the
judgment of the Hon'ble Supreme Court in Malayananda Sethi-v.-
State of Odisha reported in 2022(II) OLR (SC)-1 as well as the
order of this Court in Tapan Kumar Nayak-v.- State of Odisha and
others reported in 2022(II) OCR 735. In course of argument,
learned counsel for the Petitioner referring to the judgment in Indian
Bank v.Promila reported in (2020) 2 SCC 729, State of Madhya
Pradesh v. Amit Shrivas, reported in (2020) 10 SCC 496, Hon'ble
Apex Court in the case of The Secretary to Govt. Department of
Education (Primary) & Ors-v.-Heemesh alias Bheemappa (Civil
Appeal No.7722 of 2021) as well as in the case of State of Madhya
Pradesh v. Ashish Awasthi, reported in 2021(II) OLR (SC) 1072,.
// 3 //
5. In view of the aforesaid submissions, learned counsel for the
Petitioner categorically submitted that the application of the
Petitioner should have been considered under the old Rule instead of
new Rule.
6. Learned Additional Government Advocate on the other hand
submitted that since new Rule came into force at the time of
consideration of application of the Petitioner, in view of Clause 6(9)
of 2020 Rules pending application has been considered by applying
the provisions of new Rules.
7. Learned Counsel for the Petitioner although does not dispute
to the submissions of the learned Additional Government Advocate,
however referring to the judgment of the Hon'ble Supreme Court in
the matter of State of West Bengal v. Debadutta Tewari in
C.A.No.8842 of 2022 decided on 03.03.2023 submitted that the
authorities while considering the application are required to consider
the sense of immediacy involved in such type of matter.
8. Having heard learned counsel for the respective parties and
upon a careful consideration of their respective contentions and
keeping in view the background facts of the present case, this Court
is of the considered view that the authorities should have considered
the case of the Petitioner by taking into consideration the aforesaid
judgment of the Hon'ble Supreme Court. However, rejection order
under Annexure-1 is devoid of any reason and the same has not
taken note of the legal position as has been enunciated by the
Hon'ble Supreme Court in the aforesaid judgments. In such view of
the matter, this Court has no hesitation to set aside the impugned
order under Annexure-1. Accordingly, the same is hereby set aside.
The matter is remanded back to the authority to consider the matter
afresh keeping in view the judgment referred to herein above and
// 4 //
pass necessary orders by due observance of the Rules within a period
of three months from the date of communication of the order. The
decision so taken be communicated to the Petitioner with a period of
two weeks from the date of taking such decision
9. With the aforesaid observation/direction, the Writ Petition
stands disposed of.
RKS ( A.K. Mohapatra )
Judge
