Durgamadhab Palei vs The State Of Odisha And Others
2023 Latest Caselaw 9933 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                W.P.(C) No.27364 of 2023


                 Durgamadhab Palei                      ....               Petitioner
                                                     Mr. S.C. Puspalaka, Advocate

                                            -versus-

                 The State of Odisha and others         ....            Opp. Parties
                                                              Mr. Iswar Mohanty, A.S.C.




                             CORAM:
                            JUSTICE A.K. MOHAPATRA
                                        ORDER

Order No.                              24.08.2023
    01.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).

2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel appearing for the State-Opposite Parties.

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

"The petitioner therefore prays that your Lordships may be pleased to consider the facts stated above, admit the writ application, call for the records and after hearing the parties, the order dtd. 20.07.2023 issued by the opp. Parties may kindly be quashed and necessary direction may kindly be issued directing the opp. Parties to reconsider the case of the petitioner for appointment under the rehabilitation assistance scheme within a stipulated time period or else the petitioner will be seriously prejudiced and shall suffer irreparable loss.

// 2 //

And other order/orders may kindly be pass as this Hon'ble Court would deem just and proper."

4. It is submitted by learned counsel for the Petitioner that the father of the Petitioner is working as a Cook under the Home Department, Government of Odisha. While he was working as such, the father of the Petitioner has died in harness on 27.05.2006. At the time of death of the deceased Government employee, the present Petitioner, who is the son of the deceased Government employee, was a minor. On attaining the age of major in the year 2009, the Petitioner with the consent of other legal heirs submitted an application for appointment under the OCS (R.A.) Rules, 1990. The application of the Petitioner was kept pending by the authorities for several years on the ground that the mother of the Petitioner was available for Government service under the OCS (R.A.) Rules on the basis of the preferential order. Accordingly, the Petitioner was asked to submit medical certificate of the mother of the Petitioner. On 20.06.2012, a medical certificate was submitted indicating that the mother of the Petitioner is unfit of any Government job. Thereafter, the matter was kept pending for almost five years. On 14.12.2017 under Annexure-11, a letter was issued to the Petitioner by the Superintendent of Police, Mayurbhanj to submit the relevant documents for consideration of his application for appointment under the OCS (R.A.) Rules, 1990. Again he was given intimation on 7.6.2018 under Annexure-12 to remain present in the Police Headquarter of Mayurbhanj at Baripada in connection with his appointment under the Rehabilitation Assistance Scheme. Learned counsel for the Petitioner, at this juncture, contended that till that date, the Opposite Parries never raised the question of limitation. He further contended that the application of the Petitioner was accepted // 3 //

without raising any issue with regard to delay. Although he submitted that the delay in approaching in submitting the application in the year 2009 was due to the fact that the Petitioner was a minor at the time of death of his father. Finally, vide order dated 20.7.2023 under Annexure-3 the application of the Petitioner has been rejected on the ground that the application was submitted after two years of the death of the deceased Government employee, therefore, the same is not entertainable by the Appointing Authority and that the application does not comply with the provisions of O.C.S. (R.A.) Rules, 2020. Accordingly, the case of the Petitioner is unfit for consideration under the Rehabilitation Assistance Scheme.

5. Learned Additional Standing Counsel, on the other hand, contended that the father of the Petitioner expired on 27.5.2006 while he was working as a Cook. Thereafter, the Petitioner admittedly applied on 22.06.2009. Therefore, the learned Additional Standing Counsel submitted that in view of the limitation provided in the rules, the application should have been made within one year from the date of death. However, in the present case, there is a delay of almost two years taking into consideration the date of the death of Government employee. In such view of the matter, learned Additional Standing Counsel submitted that no fault can be found in the order dated 20.07.2023 under Annexure-3 to the writ petition. Accordingly, it is submitted that the writ petition of the Petitioner is devoid of merit and the same should be dismissed.

6. Having heard the learned counsels appearing for the respective parties and on a careful consideration of the materials on record as well as the submissions made by the learned counsels, this Court is of the considered view that the factual position as involved in the // 4 //

present case is almost admitted by both the sides. In the present case, it is admitted that the father of the Petitioner died on 27.5.2006. However, the Petitioner submitted his application on 22.6.2009. No doubt, the law permits the application should be made within a period of one year from the date of death. In the present case, the Petitioner submitted his application two years beyond the period of limitation stipulated under the Rules, 1990. On perusal of the application under Annexure-4, it appears that the Petitioner date of birth has been given as 2.4.1988. Therefore, he is aged about 18 years at the time of death of the deceased Government employee. Further, the rule also provides for condonation of delay, if any, in submitting the application by the applicant beyond the prescribed time. Further, taking into consideration the conduct of the Opposite Parties in the present case, i.e., initially they accepted the application without any objection and finally keeping the same pending for almost a decade, the application has been rejected by the impugned order on the ground of limitation appears to this Court is a very vague and flimsy ground and the same is legally unsustainable. Further, this Court has every reason to believe that the Opposite Parties by their conduct deemed to have condoned the delay, if any, in such application.

7. In such view of the matter, this Court has no hesitation in setting aside the order dated 20.07.2023 under Annexue-3 to the writ petition. Accordingly, the same is hereby set aside. Further, the matter is remanded back to the Opposite Party No.3 to reconsider the matter afresh keeping in view the judgments of 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 by applying the OCS (R.A.) Rules, 1990 as well as State of West Bengal -v.- Debabrata Tiwri, reported in 2023 (3) SCALE-557. Accordingly, the Opposite Party // 5 //

No.3 shall take a decision by passing a speaking and reasoned order within a period of two months from the date of communication of a certified copy of this order by the Petitioner.

8. With the aforesaid observation and direction the writ petition is disposed of.

( 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 16:56:35