Manash Pande vs State Of Odisha & Ors
2023 Latest Caselaw 1295 Ori

             ORISSA HIGH COURT : C U T T A C K

                         WPC(OAC) No.910 of 2018

                           An application U/s.19 of
                       the Administrative Tribunal Act


Manash Pande                                        : Petitioner/
                                                     Applicant(s)


                           -Versus-

State of Odisha & Ors.                           : Opposite Party/
                                                   Respondent(s)

For Petitioner                                : Mr. S. Roy

For Opposite Parties                          : Mr. S. Mishra,
                                                Addl. Standing Counsel


                                 JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of hearing & judgment : 07.02.2023

1. Heard the submissions of learned counsel for respective parties.

2. This Writ Petition involves the following relief:-

"RELIEF SOUGHT FOR:

It is therefore, prayed that this Hon'ble Court/Tribunal may graciously be pleased to admit the Original Application and after hearing the parties pass the following reliefs:

(i) Let the rejection of the applicant's claim for his appointment under the OCS (RA)

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Scheme made vide order dated 15.03.2018 under Annexure-11 in the facts and circumstances of the case be declared as illegal and as such liable to be set aside; and

(ii) Let the respondents be directed to provide appointment to the applicant under the Rehabilitation Assistance Scheme in any Class-III and/or Class-IV post forthwith; and

(iii) Let, any other relief / reliefs be passed to which the applicant entitled to;"

3. The ground of assailing the impugned order at Annexure-11 appears to be; rejection of claim for appointment of the Petitioner under the Rehabilitation Assistance Scheme is made on the premises that the application for such purpose was not made involving the spouse of the deceased employee as the first legal heir of the deceased person. Taking this Court to the rejection part at page 22 of the brief Mr. Roy, learned counsel for Petitioner attempted to satisfy that this position is already settled through a decision of this Court in the case of Prakash Chandra Nayak Vrs. State of Odisha & Ors. as reported in 2021 (I) OLR 756.

4. Mr. Mishra, learned State Counsel in his opposition, however, attempted to justify the impugned order on the premises that when the legal heir no.1 being spouse is surviving, there is no difficulty in considering the application at the instance of the spouse. Mr. Mishra, learned State Counsel accordingly submitted that rejection of such application made on the premises of survivability of the spouse of the deceased employee being the legal heir no.1 appears to be justified and thus the impugned order need not be interfered with.

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5. Considering the rival contentions of the parties and looking to the provision at Rule 5 read with rule 2(b) & 3 of the OCS (R.A.) Rules, 1990 this Court finds, this is only a mechanism asking for appointment under the Rehabilitation Assistance Scheme and making room for providing a job to any of the family member in consideration of application under the provisions of the Rehabilitation Assistance Scheme. In the case at hand there is already recommendation in favour of the Petitioner vide Annexure-3. In the entire reading of the rule, 1990 this Court finds, there is no restriction confining appointment to the spouse alone. Further here is also a case when the rest of the family members have also given their consent in favour of the Petitioner for being appointed under the Rehabilitation Assistance package. No doubt spouse of the deceased appearing at Sl.No.1 in the definition of family can apply for rehabilitation assistance appointment and it cannot be a case spouse if survives can only apply for the same. This Court here again finds, spouse and other family members have their consent in favour of the Petitioner and such request also involves unfitness of the spouse of the deceased to join any job. This Court finds, there is settling of the issue through the decision in the case of Prakash Chandra Nayak (supra), which is squarely applicable to the case at hand. In the process this Court interfering in the impugned order at Annexure-11, sets aside the same and directs Opposite Party No.1 to pass order providing employment to the Petitioner herein under the Rehabilitation Assistance package in lieu of death of the deceased employee, keeping in view the recommendation already made in favour of the Petitioner since 15.09.2014 vide Annexure- 3 and also the fact that mother of the Petitioner is unfit to hold any post. Direction herein shall be complied with within a period of one month

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from the date of communication of a certified copy of this judgment to the Opposite Party N.1.

6. WPC(OAC) succeeds to the extent indicated hereinabove. There is, however, no order as to costs.

...............................

(Biswanath Rath) Judge Orissa High Court, Cuttack.

The 07th day of February, 2023// Ayaskanta Jena, Senior Stenographer