Bikash Behera vs State Of Odisha And Another
2023 Latest Caselaw 9020 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 W.P.(C) No.25741 of 2023

                 Bikash Behera                          ....             Petitioner

                                                      Mr. A.K. Chhatoi, Advocate
                                           -versus-
                 State of Odisha and another            ....      Opposite Parties

                                                           Mr. A. Pr. Das, A.S.C.
                                     CORAM:
                            JUSTICE A.K. MOHAPATRA

                                            ORDER

Order No.                                  10.08.2023
    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:

"In view of the facts stated above the petitioner prays that this Hon'ble Court may graciously be pleased to issue a writ in the nature of writ of mandamus or any other appropriate writ/ writs, direction/ directions, order/orders, issue appropriate order by quashing the impugned order dated 13.08.2022 under Annexure-11 and direct the Opp.Parties to consider the appointment of the petitioner under the Odisha Civil Service (Rehabilitation Assistance) Rules, 1990 taking into consideration the date of death of the father of the petitioner i.e. on 21.10.2014 against the existing vacancies of Group-D/Group-C post within a stipulated // 2 //

period.

And further be pleased to issue pass any other order/orders as the Hon'ble Court deems fit and proper."

4. Learned counsel appearing for the petitioner, at the outset, 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 13.08.2022 under Annexure-11 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.

5. Learned counsel for the petitioner, in course of argument, submits that the father of the petitioner, namely, Late Anirudh Behera, who was working as a Constable under the Opposite Party No.2, died in harness on 21.10.2014 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 // 3 //

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 dated 13.08.2022 under Annexure-11 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 father 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 13.08.2022 under Annexure-11. 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 father 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 13.08.2022 under Annexure-11 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 // 4 //

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.

( A.K. Mohapatra ) Judge Jagabandhu

Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 10-Aug-2023 18:03:39