Orissa High Court
Manoj Kumar Behera vs State Of Odisha And Another .... Opp. ... on 5 December, 2023
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.3099 of 2020
Manoj Kumar Behera .... Petitioner
Mr. Sidheswar Mallik, Advocate
-versus-
State of Odisha and another .... Opp. Parties
Mr. Saswat Das, A.G.A.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 05.12.2023
05. 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 appearing counsel
for the State-Opposite Parties. Perused the pleadings of the
parties as well as the documents annexed thereto.
3. The present writ petition has been filed by the
Petitioner with the following prayers:-
"Under the aforesaid facts and circumstance
the petitioner humbly prays that this Hon'ble Court
may graciously be pleased to,
1. Quash the order No.99 dt. 10.01.2020 as at
Annexure-1 and the order rejecting the claim of
the petitioner for appointment on the plea that he
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is the 4th legal heir.
2. Direct/Order that the petitioner shall be
appointed under rehabilitation assistance scheme
and his case cannot be rejected on the ground
that his two elder brothers have not applied for
the service.
3. Pass such other order(s)/direction(s) as may be
deemed fit and proper in the bonafide interest of
justice."
4. The background facts leading to filing the present writ
petition is that the father of the present Petitioner, namely,
Narayan Behera, was working as Diarist-cum-Dispatcher in
the Odisha Sales Tax Tribunal, Cuttack. While working as
such, the father of the Petitioner died in harness on
19.12.2013 leaving behind his widow, three sons and a
married daughter. The Petitioner being one of the legal heirs
with the consent of other legal heirs submitted an application
for appointment on compassionate ground under the O.C.S.
(R.A.) Rules, 1990 along with other required documents on
1.5.2014. Such application of the Petitioner was kept
pending by the authorities. No final decision was taken
thereon or at least the same was never communicated to the
Petitioner till he filed an application under the R.T.I. Act. It
is further stated in the writ petition that when the Petitioner
went to the office of the Opposite Party No.2, he was
informed that the Finance Department, Government of
Odisha has rejected his application for appointment on
compassionate ground as the widow mother of the present
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Petitioner was available for appointment in preference to
other legal heirs. However, it has been emphatically stated in
the writ petition that no such order was ever communicated
to the Petitioner. Since no communication was received by
the Petitioner from the Opposite Parties, the Petitioner was
constrained to apply under the Right to Information Act by
filing an application on 13.12.2019. In reply to such R.T.I.
application, the Petitioner has been intimated that his
application has been rejected by the Government and in
view of the provisions contained in Rule-8(e)(v) of the
Amended Rules, 2016, the application once rejected by the
Government, the same cannot be reopened. However, no
specific reason whatsoever was intimated to the Petitioner.
5. Learned counsel for the Petitioner further contended
that taking into consideration the date of the death and the
application filed by the Petitioner, the case of the Petitioner
should have been considered promptly considering the
urgency and the immediacy of the need of the family and
keeping in view the objects of the rules as provided under
Rule-4 of the said rules. He further contended that the
Opposite Parties sat over the matter for several years and
finally when the Petitioner filed an application under the
R.T.I. Act, he was informed that his application has been
rejected without stating therein any valid ground on which
the application has been rejected. In course of his argument,
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learned counsel for the Petitioner referring to the judgment
of this Court in Prem Sagar Naik v. State of Orissa & Ors.,
reported in 2017(II) ILR - CUT-826, submitted before this
Court that the application by any one of the legal heirs is
admissible and the application cannot be rejected on the
ground that the applicant is 3rd or 4th legal heir. He further
submitted that it was also been held by this Court that no
preference is available to 1st, 2nd and 3rd legal heirs. With the
aforesaid submission, learned counsel for the Petitioner
submitted that the impugned rejection order dated
10.01.2020 under Annexure-7 be quashed and the Opposite
Parties be directed to consider the matter afresh in the light
of the law laid down by this Court as well as the Hon'ble
Supreme Court.
6. Learned Additional Government Advocate appearing
for the State-Opposite Parties, on the other hand, contended
that the application submitted by the Petitioner was duly
considered by the Government and such application having
been rejected at the Government level, the Opposite Party
No.2 is not more competent to reopen the same in view of
the provision contained in Rule-8(e)(v) of the Rules, 1990.
In such view of the matter, learned Additional Government
Advocate submitted that the Opposite Parties have not
committed any illegality in rejecting the application of the
Petitioner. Accordingly, it was contented that the writ
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petition is devoid of merit and the same should be dismissed.
In course of his argument, learned Additional Government
Advocate also referred to the counter affidavit filed by the
State-Opposite Parties. He also referred to the documents
annexed in the counter affidavit, particularly the letter dated
9.4.2018 under Annexure-C/2, submitted before this Court
that the application of the Petitioner having been rejected by
the Finance Department, Government of Odisha vide their
letter dated 02.04.2018, the case of the Petitioner was no
more open to be considered on merits by the Opposite Party
No.2.
7. Having heard the learned counsels appearing for the
respective parties and on a careful consideration of the
submissions made by the learned counsels as well as on
careful scrutiny of the pleadings from both the sides and
upon careful examination of the background facts of the
present case, further keeping in view the settled legal
position, this Court is of the considered view that the in fact
the death of the father of the present Petitioner and the
subsequent application has not been disputed by any of the
parties, however the application of the Petitioner, which is
stated to have been rejected by the State Government, is not
supported by any ground, on which, the same has been
rejected at least it was not demonstrated from the documents
annexed to the counter affidavit as to what ground the
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application has been rejected. The letter under Annexure-C/2
reveals that the Government has rejected the application of
the Petitioner, therefore, the same bears no merit for
consideration.
8. In such view of the matter, this Court is of the
considered view that the case of the Petitioner needs fresh
consideration by the authorities by applying the judgments
rendered by the Hon'ble Supreme Court in Malaya Nanda
Sethy vrs. State of Orissa and others, reported in 2022(II)
OLR(SC)-1 and State of West Bengal -v.- Debabrata Tiwri,
reported in 2023 (3) SCALE-557 as well as the judgments of
this Court in Suchitra Bal v. State of Odisha & Ors.
(W.P.(C) No.2081 of 2021 decided on 16.03.2023);
Bindusagar Samantaray v. State of Odisha & Ors. (W.A.
No.810 of 2021 decided on 25.09.2023) and Biswajit Swain
v. State of Odisha and others (W.P.(C) No.5214 of 2021
disposed of on 31.10.2023).
9. In view of the aforesaid analysis, this Court deems it
proper to quash the order dated 10.01.2020 under
Annexure-7 to the writ petition. Accordingly, the same is
hereby quashed. Accordingly, the matter is remanded back
to the Opposite Party No.2 to consider the matter afresh
without being influenced by any of the factor and being
guided by the law laid down by this Court as well as the
Hon'ble Supreme Court in the above noted judgments and
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take a final decision within a period of two months from the
date of communication of a copy of this order by the
Petitioner. The final decision so taken be also communicated
to the Petitioner within two weeks thereafter.
10. With the aforesaid observation and direction, the writ
petition is disposed of.
( A.K. Mohapatra)
Judge
Debasis
