Orissa High Court
Prasanna Parida vs State Of Odisha & Others .... Opp. ... on 4 December, 2023
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.38927 of 2023
Prasanna Parida .... Petitioner
Mr. S.P. Sarangi, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. N.K. Praharaj, A.G.A.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 04.12.2023
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 Government Advocate for the State-Opposite Parties.
Perused the writ petition as well as documents annexed thereto.
3. The present writ petition has been filed by the petitioners with
the following prayers:
"It is, therefore, humbly prayed that this Hon'ble
Court may graciously be pleased to issue Rule Nisi calling
upon the Opposite Parties to show cause so as to why the
impugned order dated 24.03.2023 passed by the AIG of
Police (Vigilance) Odisha, Cuttack under Annexure-17 shall
not be quashed and if the Opposite Parties fail to show cause
or show insufficient cause make the said Rule absolute.
AND
Further be pleased to direct the Opposite Parties to
give appointment to the Petitioner forthwith under the
Orissa Civil Service (Rehabilitation Assistance) Rules,
1990.
AND
Pass such other and further order/orders as this
Hon'ble Court may deem fit and proper;"
4. At the outset submitted by learned counsel for the Petitioner
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that the father of the Petitioner, who was in Government service died
in harness on 05.01.2016 living behind his widow, one daughter and
two sons as the survival being legal heirs. After death of the former
Government employee, the Petitioner with the consent of other legal
heirs applied for appointment on 29.02.2016 under Annexure-2 to the
writ application. While such application was pending for
consideration, the Petitioner was asked to produce the unfitness
certificate of his mother. Accordingly, a medical certificate from the
concerned Chief District Medical Officer was produced on
18.03.2016 under Annexure-4 to the writ application. Since the
mother of the Petitioner and the wife of the former Government
employee was ineligible to perform the job/ duty. The other legal
heirs were to be considered in view of the rule 2 (b) of the OCS (RA)
Rules, 1990. Accordingly, the Petitioner with the consent of other
legal heirs approached the authorities to consider his case for
appointment on compassionate ground. However, such application
was kept pending by the Opposite Parties for a long time.
5. It appears from the record that several communications have
been exchanged in the meantime, however, no final decision has been
taken on the application of the petitioner for appointment on
compassionate ground. While the application of the petitioner was
pending for consideration the Government of Odisha through the
G.A. and P.G. Dept. issued the notification dated 17.02.2020
introducing the OCS (RA) Rules, 2020. In view of 6 (9) of the
aforesaid rules all pending applications were to be considered under
the new rules. Learned counsel for the Petitioner further contended
that in view of the aforesaid 6 (9) rules, the Opposite Parties have
illegally and arbitrarily considered the case of the Petitioner under the
new rules although the death of the Government employee occurred
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and the application for appointment was submitted while the old rule
of the year 1990 was in force. Referring the judgment of this Court in
the case of Biswajit Swain vs. State of Odisha & others in W.P.(C)
No.5214 of 2021 decided on 31.10.2023 submitted that such
provision of rule 6 (9) of the OCS (RA) Rules, 2020 has been struck
down by this Court as the same was found to be ultra vires of the
provision of Article 14 of the Constitution of India. In such view of
the matter, learned counsel for the petitioner submitted that since the
Rule 6 (9) of the OCS (RA) Rules, 2020 has been struck down by
this Court, the order passed by the Opposite Parties which is a subject
matter of challenge in the present writ application is illegal and the
same is unsustainable in law. In course of his argument, learned
counsel for the petitioner also referred to the judgment 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 decided by the
Hon'ble Supreme Court and the judgment of this Court in Suchitra
Bal vs. State of Odisha & ors. by a Division Bench of this Court in
W.P.(C) No.2081 of 2021 decided on 16.03.2023 as well as Bindusagar
Samantaray vs. State of Odisha & ors. by a Division Bench of this
Court in W.A. No.810 of 2021 decided on 25.09.2023.
6. Learned Additional Government Advocate on the other hand
contended that the case of the Petitioner was considered much prior
to the judgment delivered in Biswajit Swain vs. State of Odisha and
others in W.P.(C) No.5214 of 2021 decided on 31.10.2023. He
further contended that at the relevant point of time, the rule 6 (9) of
the OCS (RA) Rules, 2020 was in force. Accordingly, the Opposite
Parties have considered the case of the Petitioner and it was found
that the petitioner was ineligible as he has secured 20 points which is
less than the minimum 44 points required to be considered for
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appointment on compassionate ground under the 2020 rules. In such
view of the matter, learned Additional Government Advocate
contended that the authorities have not committed any illegality in
rejecting the application of the Petitioner.
7. Having heard the learned counsels appearing for the respective
parties and on a careful examination of the materials on record as
well as the factual background of the present case, this Court
observed that the only issue that is involved in the present writ
application is with regard to the applicability of the rule 6 (9) of OCS
(RA) Rules, 2020. Moreover, on a careful scrutiny of the impugned
order it appears that the application of the Petitioner was rejected by
applying the provision of 2020 rules. This Court, at this juncture,
would like to refer the judgment in Biswajit Swain's case (supra)
wherein after taking into consideration the most of the judgments of
the Hon'ble Supreme Court as well as this Court, this Court has
categorically held that the provisions of Rule 6 (9) of OCS (RA)
Rules, 2020 is ultra vires the provisions of Article 14 of the
Constitution of India. Accordingly, the same has been struck down.
The ratio laid down in the aforesaid judgment the application of the
Petitioner is required to be considered under the OCS (RA) Rules,
1990 as amended up to the year 2016. In such view of the matter, this
Court is of the considered view that the impugned rejection order
under Annexure-17 dated 24.03.2023 is unsustainable in law and the
same is hereby quashed. Further, the matter is remanded back to the
Opposite Party No.3 to consider the matter afresh in the light of the
aforesaid observations and keeping in view the judgments referred to
hereinabove and take a final decision within a period of two months
from today by passing a speaking and reasoned order. Let the
Petitioner approach the Opposite Party No.3 along with a copy of
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today's order within a period of two weeks from today. Further, it is
directed that any final decision taken in the matter shall be
communicated to the petitioner within two weeks from the date of
taking such a decision.
8. With the aforesaid observation/direction, the writ petition is
disposed of.
Urgent certified copy of this order be granted on proper
application.
( A.K. Mohapatra)
Judge
Anil
Designation: Junior Stenographer
Location: High Court of Orissa
Date: 07-Dec-2023 12:51:39
