Srabani Swain vs State Of Odisha And Others
2023 Latest Caselaw 9721 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 W.P.(C) No.22714 of 2023
                 Srabani Swain                      ....           Petitioner
                                           Mr.Bibekananda Bhuyan, Advocate
                                          -versus-
               State of Odisha and others           ....         Opp. Parties
                                                   Mr.Iswar Mohanty, A.S.C
                            CORAM:
                           JUSTICE A.K. MOHAPATRA
                                           ORDER

Order No.                                22.08.2023
    2.      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. Perused the Writ Petition as well as the documents annexed thereto.

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

" The Petitioner prays that your Lordship would be kind enough to admit the Writ Petition, issue Rule Nisi calling upon the Opposite Parties to show cause as to why the order dated 11.11.2021 vide Annexure-14 shall not be quashed and upon failure to sufficient show cause the Opp.Parties, this Hon'ble Court would quash the Annexure-14 and issue writ/writs directing the Opp.Parties to consider the prayer of the Petitioner strictly as per OCS(RA) Rules, 1990 within a short period of time taking into consideration the delay and hardship faced by present Petitioner since last 11 years.

And pass any order, writ/writs as this Hon'ble Court may think fit and proper for ends of justice."

4. It is submitted by the learned counsel for the Petitioner that the father of the Petitioner namely late Bijay Kumar Swain was initially appointed as A.C.O. in the OSCS cadre on 26.06.1978 under // 2 //

Opposite Party No.3. While working as such, the father of the Petitioner died in harness on 31.07.2007 leaving behind the Petitioner and other two legal heirs namely, Smt.Gouri Mohanty and Miss.Saswati Swain. After the death of the father of the Petitioner, the Petitioner submitted an application for appointment on compassionate ground under OCS(RA) Rule, 1990 on 06.06.2011. The said application was kept pending for a long time. Finally, the application for appointment on compassionate ground under Annexure-2 to the Writ Petition was initially rejected on 01.02.2021 under Annexure-12 to the Writ Petition as it was found that the Petitioner has secured less 44 points upon due evaluation under the OCS(RA) Rule, 2020. Such rejection order dated 01.02.2021 was assailed before this Court by the Petitioner by filing W.P.(C) No.20394 of 2021. A coordinate Bench of this Court on 22.07.20221 disposed of the Writ Petition by setting aside the impugned rejection order dated 01.02.2021 with a further direction to the Opposite Parties to consider the case of the Petitioner in the light of the law laid down in the case of Canara Bank and another

-v.- Mahesh Kumar reported in (2015) 7 SCC 412. Further, there was a specific direction to Opposite Party No.2 to consider the case of the Petitioner under OCS(RA) Rule, 1990 with amended Rule of 2016. After disposal of the previous Writ Petition as has been referred hereinabove, the Opposite Parties again considered the case of the Petitioner and vide order dated 11.11.2021 under Annexure-14 have again rejected the case of the Petitioner for appointment on compassionate ground. On perusal of the impugned order dated 11.11.2021 under Annexure-14, it appears that the petition of the Petitioner has been rejected by referring to the Notification No.5651 // 3 //

dated 17.02.2020 issued by the G.A. & P.G. Department, Government of Odisha and eventually holding that the Petitioner has failed to secure the qualifying point as is required in the afor3said Notification

5. Learned Additional Standing Counsel on the other hand submitted that the application of the Petitioner was considered by applying the OCS(RA) Rule, 1990 with amended Rule of the year 2016. He further contended that since the amended Rule of the year 2016 provides for evaluation of the application by awarding points, the same procedure has been followed in the case of the Petitioner and accordingly, it was found that the Petitioner has failed to secure the desired point. Accordingly, her application has been rightly rejected by the authority. It is submitted by the learned Additional Standing Counsel that there is no scope to interfere with the impugned order under Annexure-14 to the Writ Petition.

6. This Court on a careful examination of the impugned order found that although in the impugned order the Rules of the year 1990 has been referred with amended Rule 2016 in 2nd paragraph, however in 3rd Paragraph of the impugned order the authorities have referred to the Notification No.5651 dated 17.02.2020 of the G.A. & P.G. Department while evaluating the case of the Petitioner. This Court is of the view that the evaluation pursuant to the Notification dated 17.02.2020 is contrary to the direction of this Court dated 22.07.2021 in the earlier round of litigation. A coordinate Bench of this Court has specifically directed to consider the case of the Petitioner in terms of the provisions at OCS (RA) Rules, 1990 with amended Rules of the year 2016.

7. Having heard learned counsel for the respective parties, on a // 4 //

careful examination of the submissions made by the learned counsels for the respective parties and on examination of the background facts as well as the materials on record, this Court is of the view that the rejection order dated 11.11.2021 under Annexure-14 to the Writ Petition is not in terms of the direction dated 22.07.2021 in W.P.(C) No.20394 of 2021. Accordingly, the impugned order dated 11.11.2021 under Annexure-14 is hereby set aside. Further, the matter is remanded back to Opposite Party no.3 with a further direction to consider the case of the Petitioner as has been directed by this Court vide order dated 22.07.2021 and keeping in view the law laid down by 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. Deabrata Tiwari & Ors. Etc. Etc. (Civil Appeal Nos.8842-8855 of 2022 decided on 3rd March, 2023) and take a final decision in the matter within a period of two months from the date the Petitioner approaches the Opposite Party No.2 along with a certified copy of this order. The decision so taken be communicated to the Petitioner within two weeks thereafter.

8. With the aforesaid observation/direction, the Writ Petition stands disposed of .

9. Issue urgent certified copy of this order as per Rules.

( A.K. Mohapatra) Judge RKS

Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 25-Aug-2023 19:21:57