Sraban Kumar Mukhi vs State Of Odisha And Others
2023 Latest Caselaw 5928 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  W.P.(C) No.15185 of 2023

                 Sraban Kumar Mukhi                       ....            Petitioner

                                                          Mr. P.K. Dash, Advocate
                                              -versus-
                 State of Odisha and others               ....     Opposite Parties

                                                          Mr. T. Pattanaik, A.S.C.


                                     CORAM:
                            JUSTICE A.K. MOHAPATRA

                                              ORDER

Order No.                                    15.05.2023
    01.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).

2. Heard learned counsel for the petitioner as well as learned counsel for the State. Perused the record.

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

"It is therefore, most humbly prayed that this Hon'ble Court may graciously be pleased to (1) Admit the Writ application, (2) Call for the record (3) Issue rule Nisi calling upon the Opp. Parties to show cause as to why the impugned Order dtd.28.04.2023 under Annexure-12 shall not be quashed.

                          (4)      If the Opp. Parties do not show cause or
                                show insufficient cause issue a writ of
                                certiorari in quashing the impugned Order
                                dtd.28.04.2023 under Annexure-12,
                              // 2 //




             (5)      Issue a Writ of mandamus or any other
                   appropriate     Writ/Writs,       Order/Orders,

Direction/ Direction, directing the Opp. Parties particularly the Opp. Party No.1 to give appointment to the present petitioner in accordance with OCS (Rehabilitation Assistance) Rule, 1990 within a time stipulated by this Hon'ble Court.

And/or pass any other Writ/writs, order/orders deem(s), direction/directions as this Hon'ble Court may think fit and proper for the ends of justice."

4. It is submitted by learned counsel for the petitioner that the father of the petitioner Late Sadananda Mukhi, who was working as a Peon under the Tahasildar, Boudh-Opposite Party No.3 died in harness on 28.10. 2010 leaving behind his legal heirs including the petitioner. It is also submitted by the learned counsel for the Petitioner that the Petitioner applied for compassionate appointment under Rehabilitation Assistance Rules. It is further contended that although the father of the Petitioner was expired in the year 2010 till December, 2021, the Opposite Parties have not considered the case of the Petitioner. Learned counsel for the petitioner further submitted that although the petitioner has submitted an application for appointment on compassionate grounds, due to lack of documents for rectification returned the same. The Opposite Party No.3 issued a letter dated 03.11.2014 to the petitioner and advised him to furnish medical certificate from the CDMO, Kandhamal regarding unfitness of the mother of the petitioner. Learned counsel for the petitioner further contended that accordingly, medical board was convened on 28.02.2015 and the mother of the petitioner is suffering from shizopherenia and the said certificate was produced for consideration. Finally, application along with documents forwarded to the office of the Collector, Kandhamal on 20.05.2015. On 19.06.2015, a direction was given to Tahasildar, Khajuripada to conduct an enquiry with regard to distress condition of the family and to // 3 //

ascertain their annual income. Accordingly, the Tahasildar submits his report after conducting an enquiry. It was also contended before this Court that on 17.10.2015 State Government issued letter to the A.D.M., Boudh to furnish the necessary documents for appointment of the petitioner and the petitioner furnish required documents for necessary consideration and also an affidavit was filed for non-engagement of other family members and no action has been taken on the same. Finally, the claim of the petitioner has been rejected by the Opposite Party No.1 vide order dated 28.04.2023. Accordingly, the grievance of the petitioner against non-appointment on compassionate ground has been rejected. Being aggrieved such action of the Opposite Party No.1, the petitioner approached this Court by filing the present writ application.

5. Lastly, the Opposite Parties illegally returned the claim of the Petitioner for appointment under R.A. Scheme and also without considering his claim as per prevalent Rule. In this context, learned counsel for the petitioner relies upon the judgment rendered by the Hon'ble Supreme Court in the case of Indian Bank vs. Promila, reported in (2020) 2 SCC 729, State of Madhya Pradesh vs. Amit Shrivas, reported in (2020) 10 SCC 496, Hon'ble Apex Court in the case of The Secretary to Govt., Department of Education (Primary) & Ors. vs. Bheemesh Alias Bheemappa (Civil Appeal No.7722 of 2021) as well as in the case of State of Madhya Pradesh vs. Ashish Awasthi, reported in 2021(II) OLR (SC) 1072 and also in the case of Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1. Relying the aforesaid judgment, learned counsel for the petitioner submits that the application of the petitioner needs to be considered in the light of the judgment rendered by the // 4 //

Hon'ble Supreme Court.

6. It is further submitted by learned counsel for the petitioner that initially, the application of the petitioner was returned with some defects to be rectified by the petitioner and to resubmit the form. Further drawing attention to the order, learned counsel for the petitioner that the authorities have denied the appointment of the petitioner on compassionate ground that the base level post is not available for appointment to the petitioner. Being aggrieved the action of the Opposite Parties, the present writ petition has been filed.

7. Learned Additional Government Advocate, on the other hand, submitted that in the meantime OCS (RA) Rules has been amended and a new rule came into force in the year 2020. Pursuant to the same, the application of the petitioner was considered under the new rules of 2020 and asked the petitioner. Therefore, the authorities have rightly asked the petitioner to explain the delay to examined the distress condition of the family and find out as same is still continuing or not. Therefore, learned counsel for the State submits that the writ petition is devoid of merit and the same should be dismissed at the threshold.

8. However, this Court is of the considered view, such delay cannot take away the valuable right of the petitioner approached this Court within a reasonable time.

9. Having heard the contentions raised by the learned counsels for the respective parties and upon conspectus background facts of the present case, this Court is of the considered view that the case of the petitioner should have been considered within a reasonable period from the date of submission of application and further it is not open for the Opposite Parties to sit over the matter for the years together without applying the law, which came into force subsequently. The // 5 //

Hon'ble Supreme Court has taken a decision in the case of Malaya Nanda Sethy vrs. State of Orissa and others (supra) and has also taken similar view many other cases. Accordingly, this Court disposed of the matter at the stage of admission by directing the Opposite Party No.1 to consider the case of the petitioner for appointment of compassionate ground under OCS(Rehabilitation Assistance) Scheme (1990) to consider the matter in the light of the law laid down by the Hon'ble Supreme Court of India in the case of Malaya Nanda Sethy vrs. State of Odisha (supra). Further, it is directed that while considering the application of the petitioner, the authorities shall also take into consideration the latest judgment in the case of State of West Bengal vrs. Debabrata Tiwari passed in Civil Appeal No.8842 of 2022 decided on 3rd of March, 2023 reported in (2023 (3) Scale-557). Accordingly, the Opposite Party No.1 is directed to consider the application of the petitioner as has been directed hereinabove and take a decision within a period of two months from the date of communication of this order. Any decision so taken on the same shall be communicated to the petitioner within a period of ten days thereafter.

10. With the aforesaid observation/direction, the writ petition stands disposed of.

Urgent certified copy of this order be granted on proper application.

( A.K. Mohapatra ) Judge Jagabandhu Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 18-May-2023 10:58:35