Lokanath Behera vs State Of Odisha & Others
2023 Latest Caselaw 8469 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                W.P.(C) No.23467 of 2023

                 Lokanath Behera                       ....               Petitioner
                                                            Mr. K.C. Sahu, Advocate
                                            -versus-
                 State of Odisha & others              ....        Opposite Parties
                                                              Mr. I. Mohanty, A.S.C.

                                         CORAM:

                            JUSTICE A.K. MOHAPATRA

                                           ORDER

Order No.                                 03.08.2023
    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 Standing Counsel for the State. Perused the Writ Petition as well as the documents annexed thereto.

3. The present Writ Petition has been filed with the following prayer :

"It is, therefore, prayed that Hon'ble Court be graciously pleased to allow this writ petition to quash the impugned order of rejection dtd.07.07.2023 under Annexure- 10 by holding that the plea of rejecting the claim on the ground of new O.C.S. (R.A) Rules, 2020 is illegal with further directing the Opp. Parties for issuing order of appointment in favour of the Petitioner within a time bound period for the interest of justice.

And may further be pleased to pass any other order(s), direction(s) as deems fit & proper for the bona fide interest of justice."

4. The factual background of the present case is that the father of the Petitioner was serving as a Khalasi under Opposite Party No.4 died on harness on 10.02.2014 leaving behind the present petitioner and other legal heirs. After the death of the former Government Employee // 2 //

the Petitioner without consent of other legal heirs applied for appointment under the RA scheme on 13.07.2016 under the OCS (R.A.) Rules, 1990 as amended up to the year 2016. Initially the application of the Petitioner was rejected on the ground that when the mother of the petitioner is alive the Petitioner could not have applied for appointment on compassionate ground. Challenging such decision the Petitioner approached the learned Odisha Administrative Tribunal by filing O.A. No.2213(C) of 2017 which was the O.A. transferred to this Court after abolition of the learned Odisha Administrative Tribunal and finally on 06.09.2022 the same was disposed of with a direction to the Opposite Parties to consider the case of the Petitioner in the light of the direction issued in W.P.(C) No.18981 of 2016 under Annexure-9. Thereafter, the Petitioner approached the Opposite Party No.2. The said Opposite Party No.2 rejected the claim of the Petitioner vide order dated 07.07.2023 on the ground that the case of the Petitioner was to be considered under the new Rules, 2020 particularly in view of Rule 6 (9) of the said rule. Accordingly, the application of the Petitioner was rejected on the aforesaid ground. Challenging such rejection order the Petitioner has approached this Court by filing the present writ application.

5. Learned counsel for the Petitioner submitted that the Petitioner being one of the legal heirs of the deceased Government employee is eligible to be appointed under the RACP. He further contended that when the mother of the Petitioner was not fit to be appointed, in such eventuality any of the legal heirs may apply for appointment under the RACP and the same was required to be considered by the authorities. In the said context learned counsel for the Petitioner relied upon the order of this Court in Subash Chandra Khatua vs. State of Odisha & others in W.P.(C) No.22678 of 2020 decided on 05.11.2020. He further contended that the order passed in the Subash Chandra Khatua's case (supra) by a Division Bench was assailed before the Hon'ble Supreme // 3 //

by filing a Special Leave Appeal (C) No.13456 of 2021. The Hon'ble Supreme Court vide order dated 06.09.2021 has dismissed the SLP without interfering with the order passed by the Division Bench of this Court and accordingly, it was submitted by learned counsel for the Petitioner that the order passed by the learned Division Bench in Subash Chandra Khatua's case (supra) has attained finality. He further contended that the State-Opposite Parties has already implemented that the order passed in Subash Chandra Khatua's case dated 21.05.2022 under Annexure-13 to the writ application.

6. Learned Addl. Standing Counsel, on the other hand contended that the Opposite Party No.2 has directly rejected the application of the Petitioner under the new Rules, 2020. He further submitted that in view of the Rule 6 (9) of the OCS (R.A.) Rules, 2020 all pending applications are to be considered under the new Rules. Therefore, the Opposite Parties vide order dated 07.07.2023 under Annexure-10 to the writ application have rightly rejected the application of the Petitioner. Learned counsel for the Petitioner also contended that in view of the law laid down by the Hon'ble Supreme Court in N.C. Santoshi vs. State of Karnataka & others reported in (2020) 7 SCC 617. The rule prevailing at the time of consideration of the application shall be applied while considering the application for compassionate appointment and that no vested while approach in favour of the family member of the deceased Government employee to claim for appointment under the RA scheme. It was contended by learned counsel for the State that the when the mother and other legal heirs are available to the claim of the Petitioner as one of the legal heirs could not have considered by the authority, accordingly they have rejected the claim of the Petitioner. In view of the aforesaid submission, learned Addl. Standing Counsel submitted that the writ application filed by the Petitioner is devoid of merit and accordingly the same should be // 4 //

dismissed.

7. Having heard the learned counsels appearing for the parties and on a careful consideration of the factual background of the present case, this Court observed that vide the impugned order under Annexure-10 to the writ application the Opposite Party No.2 has rejected the claim of the Petitioner by holding that the case of the Petitioner is to be considered under the OCS (R.A.) Rules, 2020. In view of the law laid down by the Hon'ble Supreme Court in N.C. Santoshi's case (supra). Further, the application of the Petitioner has also been rejected on the ground that other legal heirs are available, the case of the Petitiner could not have considered by the authorities for appointment on compassionate ground. This Court on a careful scrutiny of the impugned order under Annexure-10 found that the Opposite Party No.2 while considering the application of the Petitioner has not taken 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. In Malaya Nanda Sethi's case the Hon'ble Supreme Court was dealing with an identical matter from this Court involving the OCS (RA) Rules, 1990. Accordingly, a direction was given to consider the application of the Petitioner in the said case under OCS(RA) Rules, 1990. In the present cases, it appears that the death of the deceased Government employee in the year 2014. Thereafter, the application of the Petitioner was rejected prior to coming into force, 1990 which compelled the Petitioner to approach the Tribunal by filing O.A. No.2213(C) of 2017. Therefore, it cannot be construed that the application was pending by the time the new rule came into force.

8. In such view of the matter, in view of the aforesaid analysis this Court is of the view that the impugned order under Annexure-10 // 5 //

is unsustainable in law and accordingly, the same is hereby set aside. Further, the matter is remanded back to the Opposite Party No.2 to consider the matter afresh within a period of two months from the date of Petitioner approaches before the Opposite Party No.2 along with a certified copy of this order and the Opposite Party No.2 is directed decide the issue by passing a speaking and reasoned order. Further, it is directed that while considering the case of the Petitioner the Opposite Party No.2 shall keep in mind the judgment of the Hon'ble Supreme Court in the case of Malaya Nanda Sethi vs. State of Odisha reported in 2022 (II) OLR (SC) 1 & another judgment of the Hon'ble Supreme Court in the case of The State of West Bengal v. Debabrata Tiwari & Ors. Etc. Etc. (Civil Appeal Nos.8842-8855 of 2022 decided on 3rd March, 2023) as well as the order of this Court in Subash Chandra Khatua's case rendered by a Division bench of this Court which was upheld by the Hon'ble Supreme Court. The decision so taken be communicated the Petitioner within two weeks thereafter.

9. 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

Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 04-Aug-2023 18:56:07