Waheeda Khanam vs State Of Odisha And Others
2023 Latest Caselaw 7281 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                W.P.(C) No.20539 of 2023


                 Waheeda Khanam                         ....            Petitioner
                                                   Mr. S.K. Bhanjadeo, Advocate

                                              -versus-

                 State of Odisha and others              ....            Opp. Parties
                                                              Mr. N.K. Praharaj, A.G.A.



                             CORAM:
                            JUSTICE A.K. MOHAPATRA
                                        ORDER

Order No.                              05.07.2023
    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 appearing for the State- Opposite Parties.

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

"Under the aforesaid facts and circumstances of the case it is therefore, prayed that this Hon'ble court my kindly issue writ in the nature of mandamus or any other writ applicable and direct to quash the order dated 01.07.2021, for rejecting the grievance of the petitioner by the Opp. Parties for giving appointment to the petitioner under Rehabilitation Assistance Scheme, as deemed just and proper.

And further direct to the Opp. Parties for // 2 //

reconsideration of the grievance of the petitioner for giving appointment under Rehabilitation Assistance Scheme for the death the father of the petitioner namely Late Rahim Khan, who was expired on 19.01.1999, while continuing his service as a Grade- II, Book Binder, as deemed just and proper.

And further direct to declare the action of the opposite parties are complete illegal and unsustainable in the eye of law.

And pass such other order(s)/direction(s) as may be deemed fit proper in the bonafide interest of justice."

4. On perusal of the writ petition, it appears that the father of the Petitioner, who was working as Book Binder under Opposite Party No.2, died in harness on 19.1.1999. After the death of the Government employee, the elder daughter of the deceased Government employee, who happens to the elder sister of the Petitioner, applied for a job under the O.C.S. (R.A.) Rules, 1990. The elder sister of the Petitioner got married and thereafter going to her matrimonial home. In the year 2004, i.e. on 12.1.2004, the Petitioner, who is unmarried daughter of the deceased Government employee, applied for a job on compassionate ground to provide support to her mother and other members of her family.

5. Learned counsel for the Petitioner in course of his argument submitted that the Petitioner is a disabled daughter of the deceased Government employee. In the said context, he also referred to a certificate issued by the competent Medical Board on 24.01.2009. However, it is also contended that Opposite Party No.4 without making any proper inquiry sat over the mater for // 3 //

years together, as a result of which, the family of the deceased Government employee suffered immense financial difficulties. Finally, the Opposite Party No.4 vide order dated 27.12.2019 without conducting an inquiry issued an income certificate. Thereafter, on 10.08.2020 another income certificate was issued after conducting proper inquiry and provided an income certificate to the Petitioner indicating therein that the annual income of the family of the Petitioner is Rs.36,000/-. Learned counsel for the Petitioner also contended that the other legal heirs have given an affidavit that they have no objection in the event the Petitioner is given appointment under the O.C.S. (R.A.) Rules. While the matter stood thus, finally vide letter/order dated 01.07.2021 passed by the Opposite Party No.2- Director, Text Book Production and Marketing in Orissa, Text Book Press, Bhubaneswar rejected the application of the Petitioner for appointment under the O.C.S. (R.A.) Rules, 1990 solely on the ground that the application for such appointment was filed 4 years 11 months and 23 days after the death of the Government employee, which is barred by limitation as prescribed in Rule-9(6) of the O.C.S. (R.A.) Rules, 1990. Further, the impugned rejection letter/order also reveals that the case of the Petitioner also assessed by applying the provisions of O.C.S. (R.A.) Rules, 2020 and it was found that she has secured 44 points thereby she is ineligible to such appointment. Accordingly, her application for appointment on compassion ground has been rejected by the Opposite Party No.2. Finally, the Petitioner having no alternative has approached this Court by // 4 //

filing the present writ petition.

6. Learned Additional Government Advocate, on the other hand, submitted that the initially the application for appointment under the O.C.S. (R.A.) Rules, 1990 was filed on 12.01.2004, i.e., after 4 years 11 months and 23 days from the death of the Government employee. As such, the application is grossly barred by limitation as prescribed under Rule-9(6) of the O.C.S. (R.A.) Rules, 1990. Further, the said letter reveals that the application of the elder sister of the Petitioner, namely, Farida Jalal, who had applied within time, has not been accepted on the ground of delay in submitting the application under the O.C.S. (R.A.) Rules, 1990. He further submitted that although the application of the Petitioner was considered under the O.C.S. (R.A.) Rules, 2020, however, it was found that the Petitioner has secured 44 points. Therefore, she was not eligible for appointment on compassionate ground. Accordingly, learned Additional Government Advocate submitted that the Petitioner is not eligible to be appointed on compassionate ground under the relevant rules.

7. Having heard the learned counsels appearing for the respective parties and upon a careful consideration of their submissions as well as on careful scrutiny of the background facts of the present case and the writ petition as well as the documents annexed thereto, this Court is of the view that the application for appointment under the O.C.S. (R.A.) Rules, 1990 has been primarily rejected on the ground of limitation. On a // 5 //

careful consideration of the ground taken in the writ petition that the elder sister of the Petitioner was initially the applicant and thereafter she got married after which the Petitioner applied for appointment to provide support to her family. Further, it appears that the Petitioner is also otherwise eligible to be considered for such appointment taking into consideration the relevant rules as well as the income of the family. Moreover, by applying the law laid down by 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, the application of the Petitioner has not been considered in its proper perspective and under the proper rules. In view of the law laid down by the Hon'ble Supreme Court in Malaya Nanda Sethy's case (supra), the case of the Petitioner should have been considered under the O.C.S. (R.A.) Rules, 1990. However, the authorities have considered the case of the Petitioner under the O.C.S. (R.A.) Rules, 2020 and, accordingly, her application has been rejected.

8. On a careful analysis of legal position, this Court is also of the considered view that the law has progressed in the meantime by virtue of certain judgments, particularly in Malaya Nanda Sethy's case (supra) and in the case of The State of West Bengal v. Debabrata Tiwari & Ors. Etc. Etc., reported in (2023) (3) SCALE 557. Thus, this Court is of the opinion that the application submitted by the Petitioner has not been considered in its proper perspective and in the law laid down by the Hon'ble Supreme Court in the above noted two judgments.

// 6 //

9. In view of the aforesaid analysis and facts as well as the legal position, this Court has no hesitation in setting aside the impugned letter/order dated 01.07.2021 passed by the Opposite Party No.2-Director, Text Book Production and Marketing in Orissa, Text Book Press, Bhubaneswar under Annexure-13 to the writ petition and, accordingly, the same is hereby set aside. Further, the matter is remanded back to the Opposite Party No.2 to consider the matter afresh keeping in view the law laid down by the Hon'ble Supreme Court in Malaya Nanda Sethy's case (supra) as well as in Malaya Debabrata Tiwari's case (supra). Accordingly, the Petitioner is directed to approach the Opposite Party No.2 along with a certified copy of this order within three weeks from today. In the event the Petitioner approaches the Opposite Party No.2, the Opposite Party No.2 shall do well to consider the case of the Petitioner afresh keeping in view the aforesaid two judgments of the Hon'ble Supreme Court and pass necessary orders within a period of two months from the date of production of a certified copy of this order. The decision so taken thereon be also communicated to the Petitioner within two weeks thereafter.

10. With the aforesaid observations and directions, this writ petition stands disposed of.

Signature Not Verified                                          ( A.K. Mohapatra)
Digitally Signed
Signed by: DEBASIS AECH
                                                                       Judge
Designation: PADebasis
Reason: Authentication
Location: OHC CUTTACK
Date: 07-Jul-2023 11:02:27