Orissa High Court
Mukesh Bag vs State Of Odisha & Others on 25 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No.27403 of 2023
Mukesh Bag .... Petitioner
Mr. Lalit Sahu, Advocate
-versus-
State of Odisha & others .... Opposite Parties
Mr. Saswat Das, A.G.A.
CORAM:
JUSTICE A.K.MOHAPATRA
ORDER
25.08.2023
Order No.
01. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical Mode).
2. Heard learned Counsel for the petitioner as well as learned
Additional Government Advocate appearing for the State-Opposite
Parties. Perused the writ petition as well as the documents annexed
thereto.
3. The present writ application has been filed with the
following prayer:
"It is therefore humbly prayed that this Hon'ble Court
may be graciously pleased to admit the Writ
Application, issue notice, rule NISI in the nature of writ
of mandamus or any other Writ/Writs as deem fit and
proper, calling upon the opposite parties why the
impugned order dated 4.11.2022 vide Annexure-4
passed by the opposite party No.3-Superintendent of
Police, shall not be quashed and why appointment shall
not be given to the petitioner under the R.A. Scheme
Rules governing the field and if the opposite parties to
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fail to show cause or shows insufficient cause to make
the said rule be absolute;
And may further be pleased to pass such
other/further writ/writs, direction/directions,
order/orders as deem fit and proper in fact and
circumstances of the case for the interest of justice and
equity."
4. It is submitted by learned counsel for the petitioner that the
father of the petitioner one Miniketan Bag who was working as F.O.
against the regular post under the Superintendent of Police, Home
Department in the office of Superintendent of Police Office,
Balangir. The father of the petitioner died in harness on 27.12.2007
leaving behind his legal heirs including the present petitioner. At the
relevant point of time the petitioner was a minor. On attaining the
age of majority, the petitioner applied for a job under the OCS (RA)
Rules, 1990 with the support of other legal heirs in the year, 2015.
However, such application has not been considered by the
authorities and the same has been pending for years together
although similarly placed persons have been given appointment
under the OCS RA rules, 1990. Accordingly, the learned counsel for
the petitioner prays that the case of the petitioner should have been
considered under the OCS RA Rules, 1990 in view of the judgment
of the Hon'ble Supreme Court in Malaya Nanda Sethi vs. State of
Odisha reported in 2022 (II) OLR (SC) 1.
5. Learned Additional Government Advocate, on the other
hand, submits that the application of the petitioner was duly
considered under the new rules and the petitioner also participated in
the new selection process, and it was further contended that since the
petitioner did not get the adequate numbers his case has been
rejected on merits. Accordingly, learned Additional Government
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Advocate appearing for the State-Opposite Parties submitted that the
writ application has no merit and the same be dismissed at the
threshold.
6. Having heard the rival contentions raised by learned
counsels for the respective parties, further taking into consideration
the OCS (RA) Rules, 1990 and the new rules and further keeping in
view the law laid down by the Hon'ble Supreme Court in Malaya
Nanda Sethi vs. State of Odisha reported in 2022 (II) OLR (SC) 1;
and other judgments of Indian Bank Vs. Promila, reported in
(2020) 2 SCC 729; State of Madhya Pradesh Vs. Ashish Awasthi,
reported in 2021 (II) OLR (SC) 1072; and State of West Bengal -
v.- Debabrata Tiwri, reported in 2023 (3) SCALE-557, the case of
the petitioner should have been considered under the old rules,
therefore, on the ground taken by learned Addl. Government
Advocate for the State having participated in the selection process
under the new rules, the petitioner is estopped to take a ground that
the new rule is not applicable is unsustainable in law. Accordingly,
the impugned order dated 4.11.2022 under Annexure-4 is hereby set
aside. The matter is remanded back to the opposite party No.4 to
consider the case of the Petitioner afresh in the light of law laid
down by the Hon'ble Supreme Court in Malaya Nanda Sethi vs.
State of Odisha reported in 2022 (II) OLR (SC) 1; and other
judgments in Indian Bank Vs. Promila, reported in (2020) 2 SCC
729; and State of Madhya Pradesh Vs. Ashish Awasthi, reported in
2021 (II) OLR (SC) 1072 as well as in the case of State of West
Bengal -v.- Debabrata Tiwri, reported in 2023 (3) SCALE-557 and
take a decision thereon within a period of three months from today.
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The authorities are further directed to act upon production of a
certified copy of this order.
7. With the aforesaid observations/ directions the writ
application stands disposed of.
Urgent certified copy of this order be granted on proper
application.
(A.K. Mohapatra)
Judge
Debasis
Signature Not Verified
Digitally Signed
Signed by: DEBASIS AECH
Designation: Secretary
Reason: Authentication
Location: OHC CUTTACK
Date: 29-Aug-2023 16:59:04
