Mahani Dei vs State Of Odisha And Others
2023 Latest Caselaw 8741 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 W.P.(C) No.23555 of 2023

                 Mahani Dei                              ....            Petitioner
                                                         Mr. P.C. Jena, Advocate
                                              -versus-
                 State of Odisha and others              ....      Opposite Parties

                                                               Mr. S. Das, A.G.A.
                                       CORAM:
                              JUSTICE A.K. MOHAPATRA

                                             ORDER

Order No.                                   08.08.2023
    01.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).

2. Heard learned counsel for the petitioner as well as learned counsel for the State. Perused the writ application as well as documents annexed thereto.

3. The present writ petition has been filed by the petitioner with the following prayers:

"It is, therefore prayed that this Hon'ble Court may be graciously pleased to admit this writ application, issue Rule Nisi in calling upon the Opposite Parties to file show cause as to why the impugned order under Annexure-6 shall not be quashed/set aside and as to why a direction shall not issued to made engagement of the petitioner for the post of Sweeper under Rehabilitation Assistance Scheme in place of her Late husband Gopal Naik @ Nayak in regularize her every financial benefits from the date of her original application under Annexure-2 with immediate effect.

And If the Opposite Parties are fail to show cause or show their insufficient cause let this Hon'ble Court make // 2 //

the said rule absolute and upon hearing the parties quash/set aside the impugned Order under Annexure-6 bearing No.27423, dated 2.6.2022 in vis-à-vis directing the opposite parties for engagement of the petitioner for the post of Sweeper under Rehabilitation Assistance Scheme as against her deceased husband Gopal Naik @ Nayak in making payment of her all financial benefits from the date of her original application dated 18.10.2014 under Annexure-2 with immediate effect for greater interest of justice.

And pass any other order/orders, writ/writs, direction/directions, as this Hon'ble Court deems fit and proper in the eye of law."

4. At the outset, learned counsel appearing for the petitioner submits that being aggrieved the conduct of the Opposite Parties in rejecting the application of the petitioner for appointment on compassionate ground by applying new rules of the year 2020, the petitioner approached this Court challenging the rejection order dated 18.10.2014 under Annexure-2 as well as for a direction to the Opposite Parties to consider the case of the petitioner old rule as has been decided by the Hon'ble Supreme Court in the case of Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1. Such application of the petitioner has been considered by the Municipal Corporation, in its meeting dated 30.11.2018 and accordingly recommendation by the corporation has been forwarded to the Opposite Party No.3. Further, learned counsel for the petitioner referring to the letter dated 02.06.2022 under Annexure-6 submitted before this Court that the application for appointment on compassionate ground has been considered by the evaluation committee of the Bhubaneswar Municipality Corporation and the same has been rejected by a cryptic order by applying new rules of the year 2020. In such view of the matter, learned counsel for the petitioner submits that the decision under Annexure-6 is unsustainable in law and the same may kindly be // 3 //

quashed.

5. Learned counsel for the petitioner, in course of argument, submits that the husband of the petitioner, namely, Late Gopal Naik @ Nayak, who was working as a Sweeper under the Opposite Parties, died in harness on 06.02.2014 leaving behind his legal heirs including the petitioner. It is also submitted by learned counsel for the petitioner that the Petitioner applied for compassionate appointment under Rehabilitation Assistance Rules with the consent of other legal heirs under OCS (R.A.) Rules, 1990 and the same was kept pending by the authorities unnecessarily.

6. Being aggrieved of such order, the petitioner approached this Court by this Court by filing the present writ application.

7. Learned Additional Government Advocate, on the other hand, submits that the case of the petitioner has been duly considered under OCS (RA) Rules. He further submits that in the meantime, OCS (RA) Rules has been amended and a new rule came into force in the year 2020. Pursuant to the same, the application of the petitioner was considered under the new rules of 2020. Therefore, it is submitted by learned counsel for the State that the authorities have not committed any illegality for rejecting the application of the petitioner by order No.27423 dated 02.06.2022 under Annexure-6 to the writ application.

8. Having heard learned counsels for the respective parties, on a careful consideration the submissions made by the parties and further on a careful examination of the background facts of the case and taking into consideration the death of the husband of the petitioner and further also taking into consideration the fact that the application made for appointment under rehabilitation Assistance Scheme kept pending for a long period indefinitely and final decision has been taken thereby rejecting the application of the petitioner vide order dated 02.06.2022 // 4 //

under Annexure-6. In this context, Hon'ble Supreme Court has taken a decision in the case of Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1 and various identical scenario Hon'ble Apex Court has concluded that the application of the appointment should been considered under old rules keeping in view the date of death of the husband of the petitioner in the reported judgment, this Court is of the considered view that the case of the petitioner is squarely covered by the decision of the Hon'ble Supreme Court in the case of Malaya Nanda Sethy vrs. State of Orissa and others (supra). Accordingly, the impugned rejection order dated 02.06.2022 under Annexure-6 is unsustainable in law and the same is hereby quashed. Further, the matter is remanded back to the Opposite Parties to consider the case keeping in view the judgment of the Hon'ble Supreme Court in the case of Malaya Nanda Sethy vrs. State of Orissa and others (supra) as well as State of West Bengal vrs. Debabrata Tiwari and Others. Etc. Etc., reported in (2023) (3) SCALE

557. Accordingly, the Opposite Parties are directed to consider the application of the petitioner as has been directed hereinabove and take a decision within a period of two months from the date of communication of this order. Any decision so taken shall be communicated to the petitioner within a period of two weeks thereafter.

9. With the aforesaid observation/direction, the writ petition stands disposed of.

Urgent certified copy of this order be granted on proper application.

Signature Not Verified                                                     ( A.K. Mohapatra )
Digitally Signed
Signed by: JAGABANDHU BEHERA                                                      Judge
Designation: Secretary-in-Charge
              Jagabandhu
Reason: Authentication
Location: OHC, CUTTACK
Date: 09-Aug-2023 10:32:26