Pratyasha Parimita Acharya vs State Of Odisha & Others
2023 Latest Caselaw 4172 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                            W.P.(C) No.12516 of 2023
                 Pratyasha Parimita Acharya             ....            Petitioner
                                                          Mr. S. Jena, Advocate
                                             -versus-
                 State of Odisha & others               ....     Opposite Parties
                                                         Mr. T. Pattnaik, A.S.C.
                                          CORAM:
                            JUSTICE A.K. MOHAPATRA

                                           ORDER

Order No.                                 24.04.2023
    01.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).

2. Heard Mr. S. Jena, learned counsel appearing for the petitioner as well as Mr. T. Pattnaik, learned Addl. Standing Counsel appearing for the State-Opposite Parties.

3. The present writ application has been filed by the Petitioner with the following prayer:-

"It is therefore, most humbly prayed that this Hon'ble Court be graciously pleased to:

                          i)    Admit the writ application
                          ii)   Call for the records.

iii) Issue a writ in the nature of certiorari or any other appropriate writ to quash the impugned order passed by the Opp. Party No.3 dt.22.02.2023 under Annexure-20 so also the letter dt.02.09.2021 issued by the Opp. Party No.4 under Annexure-21, and declare the same are illegal, arbitrary, invalid and inoperative in the eye of law, and further to issue a writ in the nature of mandamus or any other appropriate writ(s), direction(s), directing the opposite parties, particularly Opp. Party Nos.2 to 4 to give appointment order in favor of the Petitioner against the vacant Group-C post as per Rule-5 of the Orissa Civil Service (Rehabilitation // 2 //

Assistance) Rules, 1990 in place of her late mother Soudamini Devi, by taking into consideration the Government letter dt.09.12.2019 and Collector, Angul letter dt.28.10.2021 under Annexure-13 and 17 respectively without any further delay, keeping in view the law laid down by the Hon'ble Apex Court in the case of Malaya Nanda Sethy vs. State of Odisha & others reported in 2022(II) OLR(SC) Page-1, within a reasonable time to be stipulated by this Hon'ble Court.

iv) And or pass any such other order/orders or direction/directions may be issued so as to give complete relief to the Petitioner."

4. It is submitted by learned counsel for the Petitioner that earlier the Petitioner approached this Court by filing W.P.(C) No.31257 of 2022 challenging the inaction of the Opposite Parties in not issuing appointment the order in favor of the Petitioner under the O.C.S. (RA) Rules, 1990 read with Amendment Rules, 2016 on the ground of death of her late mother namely, Soudamini Devi keeping in view the law laid down by the Hon'ble Supreme Court in the case of Malaya Nanda Sethy vs. State of Odisha & others reported in 2022(II) OLR(SC) Page-1. This Court considering the submission made by learned counsel for the petitioner as well as learned Counsel for the State vide order dated 23.11.2022 disposed of the said writ applications by taking note of contentions raised by both sides and with a direction to the Opposite Party No.3 Collector-cum-District Magistrate, Angul to consider the application of the Petitioner within a period of two months from the date of production of copy of that order in accordance with law. Further, the Opposite Party No.3 was also directed to consider the case of the Petitioner keeping in view the decision of the Government under Annexure-13 as well as the law laid down by the Hon'ble Supreme Court in the case of Malaya // 3 //

Nanda Sethy's case (supra) and pass necessary orders expeditiously.

5. Learned counsel for the petitioner further submitted that after disposal of the earlier writ application vide order dated 23.11.2022, the Petitioner approached the Opposite Party No.3. The Opposite Party No.3 without considering the case of the Petitioner in terms of the direction issued by this Court on 23.11.2022 had passed an order dated 22.02.2023 rejecting the claim of the Petitioner for appointment under the Rehabilitation Assistance Rules of the year 1990. On perusal of the impugned order dated 22.02.2023 this Court observed that although the Collector has taken note of the judgment of the Hon'ble Supreme Court in the case of Malaya Nanda Sethy's case (supra) and has come to a conclusion that the Hon'ble Apex Court in the case of Malaya Nanda Sethy's case (supra) has come to the following conclusion:-

"Gone through the orders of Hon'ble Apex Court in the Civil Appeal (supra) wherein on a threadbare discussion on the issue whether the policy prevalent at the time of the death of the deceased employee and date of application for compassionate ground for appointment or the policy prevalent at the time of consideration of the application, finally opined that the appellant shall be entitled for appointment on compassionate ground as per the O.C.S. (Rehabilitation Assistance) Rules, 1990, which were applicable at the time when the deceased employee died and the appellant made an application for appointment on the death of his father i.e. in the year 2010."

6. On further scrutiny of the impugned order it appears that despite coming to the aforesaid conclusion by taking note of the judgment of Malaya Nanda Sethy's case (supra) the Opposite Party No.3 further proceeded and examined the case of the Petitioner and by applying the rules of the year 2020 which was notified vide GA and PG Dept. Notification No.5651 dated 17.02.2020 evaluated the case of the Petitioner and awarded 31 points and on the basis of such awarded marks, the Opposite Party No.3 has come to a conclusion // 4 //

that the petitioner is not eligible for appointment under the Rehabilitation Assistance Scheme. Further, in the concluding part of the order it has been observed that "keeping in view the above, as the claim of the Petitioner has already been decided, this Court is not inclined to consider the case of the matter again on the similar issue". Learned counsel for the Petitioner argued that the concluding remark given by the Opposite Party No.3 is contemptuous and the Collector- cum-District Magistrate, Angul-Opposite Party No.3 has acted in a manner as if he is acting as an appellate authority of this Court.

7. Learned counsel for the State, on the other hand submitted that the pursuant to order passed by this Court in the earlier writ application bearing W.P.(C) No.31257 of 2022 dated 23.11.2022, the Opposite Party No.3 has again reconsidered the case of the Petitioner and upon such reconsideration it was found that the Petitioner is not eligible for appointment under the compassionate ground. He further submitted that the case of the Petitioner was evaluated in the light of the GA & PG Dept. Circular dated 17.02.2020 and since the Petitioner has secured 31 points which is below the required points i.e. less than 44 points. Therefore, the Opposite Party No.3 has taken a decision that the Petitioner is not eligible for appointment under the Rehabilitation Assistance Scheme. Accordingly, learned counsel for the State submitted that the Opposite Party No.3 has already considered and rejected the case of the petitioner.

8. Having heard the learned counsels for the respective parties and upon a careful consideration of the materials placed before this Court and on a perusal of the pleadings as well as documents placed before this court for consideration and on a careful scrutiny of the impugned order passed by the Collector-cum-District Magistrate, Angul-Opposite party No.3 on 22.02.2013 under Annexure-20, this // 5 //

Court is of the prima facie view that the said order is not in terms of the direction given by this Court in the earlier round of the litigation i.e. order dated 23.11.2022 passed in W.P.(C) No.31257 of 2022. On going through the impugned order this Court is surprised to see that although the Opposite Party No.3 has taken note of the judgment of the Hon'ble Supreme Court in Malaya Nanda Sethy's case (supra) and has come to a conclusion that the case is to be considered under the provisions of OCS (RA) Rules, 1990 by taking into consideration the fact that the Rules prevailing at the time of the death of the Government employee shall be taken into consideration while considering appointment under the Rehabilitation Assistance Scheme, however, the Opposite Party No.3 has rejected the application by applying the new rules of the year 2020 which was notified vide notification 17.02.2020.

9. Therefore, this Court is of the considered view that the rejection order passed by Opposite Party No.3 under Annexure-20 is unsustainable in law. Moreover, on further scrutiny this Court has also observed that the Government of Odisha has already passed an order to reconsider the case of the Petitioner and the Opposite Party No.3 was requested to take appropriate action for appointment of the petitioner as per Rule 5 of the OCS (RA) Rules, 1990 and the amendment thereto vide GA & PG Dept. notification. Pursuant to the said letter dated 09.12.2019 under Annexure-13, this Court in the earlier round of litigation also directed the Opposite Party No.3 to consider the case of the Petitioner in the light of said letter under Annexure-13.

10. At this juncture, learned counsel for the State drawing attention of this Court to letter dated 28.10.2021 under Annexure-17 submitted that pursuant to the order passed by the Government dated // 6 //

09.12.2019 under Annexure-13, the Opposite Party No.3 has written the above letter to the Government forwarding the application of the Petitioner along with supporting documents for consideration by the Government regarding appointment of the Petitioner under the OCS (RA) Rules, 1990 as amended up to the year 2016. Accordingly, learned counsel for the State submitted that the Government be directed to consider the case of the petitioner instead of the Opposite Party No.3.

11. Considering the aforesaid submission made by learned counsel for the State, this Court is of the view that the mother of the petitioner was working in the district office and the application was submitted before the District office under the OCS RA Rules, 1990 and that in the meantime the Collector has taken a decision by rejecting the application submitted by the Petitioner. Therefore, this Court is of the considered view that once the Government vide letter under Annexure-13 has requested the Opposite Party No.3 to take a decision and this Court in the earlier round of writ application directed to Opposite Party No.3 to take a decision keeping in view such request of the Government under Annexure-13, the opposite party No.3 is hereby directed to consider the matter afresh keeping in view the discussions made hereinabove.

11. In view of the aforesaid discussion and analysis of the factual background of the present case, this Court deems it proper to dispose of the writ application by quashing the impugned order dated 22.02.2023 under Annexure-20. Further, the Opposite Party No.3- Collector-cum-District Magistrate, Angul is hereby directed to consider the matter afresh in the light of the direction given by this Court in W.P.(C) No.31257 of 2022 disposed of on 23.11.2022 and consider the case of the Petitioner strictly in consonance with the law // 7 //

laid down by the Hon'ble Supreme Court in the case of Malaya Nanda Sethy's case (supra) and keeping in view the letter issued by the Government under Annexure-13 to the writ application. The Opposite party No.3 shall do well to consider the case in the light of the aforesaid direction and take a decision within a period of six weeks from the date of communication of certified copy of this order by the petitioner.

12. With the aforesaid observations/ directions, the writ application stands disposed of.

Issue urgent certified copy of this order as per Rules.

( A.K. Mohapatra ) Judge Anil