Karna Naik vs State Of Odisha & Another
2023 Latest Caselaw 6269 Ori

                ORISSA HIGH COURT: CUTTACK

                     W.P.(C) No.675 OF 2016

     Karna Naik                      .....        Petitioner


                                    Vs.

     State of Odisha & another .....              Opposite Parties


          For Petitioner            : Mr. S.K. Dalai, Advocate

      For Opposite Parties          : Mr. S.N. Pattanaik, AGA


         CORAM: JUSTICE SANJAY KUMAR MISHRA
________________________________________________________________

          Date of Hearing and Judgment: 17.05.2023
________________________________________________________________

S.K. Mishra, J.

Though this matter was heard at length on 11.05.2023, it

was ordered to be listed today under the heading 'To be

Mentioned' directing the learned Counsel for the State to produce

the decisions of the State Government, based on which letters

appended to the Counter Affidavit filed by the State as Annexures

A/1 and B/1 were issued. Today, in response to the said order,

learned Counsel for the State produces the letter dated

17.05.2023 of the Under Secretary to Government, Housing &

Urban Development Department, Government of Odisha along with Finance Department Memorandum dated 26.09.2011 after

serving copy of the same on the learned Counsel for the Petitioner.

The matter is taken up for final disposal, on consent of the learned

Counsel for the parties.

2. Petitioner has filed this Writ Petition with a prayer to quash

the Order dated 30.07.2015, passed by the Opposite Party No.2-

Cuttack Municipal Corporation (CMC), Cuttack, wherein his

representation for appointment under the Rehabilitation

Assistance Scheme (RAS) has been rejected. The ground of

challenge is, the said rejection order is illegal, arbitrary and

contrary to the provisions of Orissa Civil Service (Rehabilitation

Assistance) Rules, 1990 (hereinafter referred to as '1990 Rules' for

brevity)

3. Brief facts of the case, in nutshell, are that the Petitioner is

the son of late Purna Naik, who was working as Sweeper in CMC.

After death of his father, he applied for appointment under the

RAS to the Commissioner-Cum-Executive Officer, CMC, Cuttack

under Rule-9(7) of the 1990 Rules with all required documents, he

being the son of deceased Purna Naik. He also gave an

undertaking that he will maintain the lively hood of family

members and is living with them jointly. As the Petitioner's

W.P.(C) No.675 of 2016 application was not considered by the CMC for appointment under

RSA, he approached the Opposite Party No.1 by giving a

representation to the said effect as he was eligible for appointment

in terms of the 1990 Rules and waited for consideration of his

representation.

Because of inaction of the Authority concerned, the

Petitioner was constrained to approach this Court in W.P.(C)

No.9221 of 2015, which was disposed of at the stage of admission

on 15.05.2015 directing Opposite Party No.2 to consider and

dispose of the representation of the Petitioner within a period of

three months from the date of communication of the said order.

Being so directed, the Opposite Party No.2-CMC, vide Order

dated 30.07.2015, instead of referring the matter to the State

Government for according necessary approval, rejected the

representation of the Petitioner relying on the communications

made by the Government in H & U.D. Department vide letter dated

17.06.2015, so also letter dated 08.06.2015. However, while

rejecting the said representation of the Petitioner, it was intimated

to him that, on his request, subject to readiness to work as

Sweeper, his name can be sponsored by any outsourcing Agency.

Accordingly, the Deputy Commissioner, CMC, Cuttack was

W.P.(C) No.675 of 2016 directed to forward the application of the Petitioner to the

outsourcing Agency to consider his case as per eligibility and

norms of the concerned Agency. Being aggrieved by such rejection

Order dated 30.07.2015, the present Writ Petition has been

preferred with a prayer to quash the said order, being contrary to

the provision of 1990 Rules.

4. Being noticed, the Opposite Party No.2-CMC has filed

Counter Affidavit stating therein that father of the Petitioner,

namely, Purna Naik was working as Sweeper, who died on

04.09.2001 while in service. Thereafter, the Petitioner submitted a

representation on 11.10.2001 to the CMC with recommendation of

Cuttack Mehentar Sangha on the body of the said representation,

praying for appointment against the post, in which his father was

performing his duty. It has further been stated that the Petitioner

did not submit any application in the prescribed form for

appointment under the RAS, as required in terms of the 1990

Rules. That apart, a stand has been taken by the CMC that at the

relevant time, the Government in H & U.D. Department in similar

cases, for which proposal for appointment under the RAS were

sent, rejected the said proposals of CMC on the ground that

Government decided to outsource the job of Sweepers (Group-D)

W.P.(C) No.675 of 2016 in Urban Local Bodies. However, as there is a reference to the

decision of the Government in the Counter of CMC, on being

directed, an Affidavit was filed by the CMC on 16.01.2023,

enclosing thereto earlier communications dated 08.06.2015 and

17.06.2015 made by the Under Secretary to Government, Housing

& Urban Development Department to the Municipal

Commissioner, CMC with regard to appointment under the RAS.

5. A Counter Affidavit has also been filed by the State-O.P. No.1

taking a similar stand and enclosing thereto the said

communications, as has been appended to the Affidavit filed by

the CMC dated 16.01.2023. In the said Affidavit, as there is a

reference to the Government decision, this Court, vide Order dated

11.05.2023, directed the learned Counsel for the State to produce

those decisions of the State Government, based on which letters

appended to the Counter Affidavit as Annexures A/1 and B/1

were issued.

6. As has been detailed above, pursuant to the said Order,

photocopy of the letter dated 17.05.2023 of the Under Secretary to

Government, addressed to the Advocate General, along with a

copy of the Office Memorandum dated 26.09.2011 of the

W.P.(C) No.675 of 2016 Government of Orissa, Finance Department i.e. Guidelines for

outsourcing of services, has been filed today before this Court.

7. Mr. Dalai, learned Counsel for the Petitioner, referring to the

said documents, submits that the said Office Memorandum is

pertaining to regulating conditions meant for engaging

outsourcing Agency and is not applicable to the cases under the

1990 Rules. No where under the said Office Memorandum, it has

been specifically mentioned as to creating any bar opposing to

RAS appointment under the 1990 Rules. That apart, Mr. Dalai,

relying on the judgment of the apex Court in Malaya Nanda Sethy

vs. State of Orissa, reported in AIR 2022 (SC) 2836, submits that

the Petitioner-applicant applied under the RAS in the year 2011

whereas, the said rejection orders appended to the Counter

Affidavit as Annexures A/1 and B/1, based on which the

Petitioner's application was rejected are of the year 2015 and were

not in existence. He further submits, the said communications

have been made to CMC misinterpreting the Office Memorandum

dated 26.09.2011 of the Finance Department, where there is no

such stipulation as to debarring the authority to consider the case

of an applicant for appointment under the RAS in terms of 1990

Rules in the post of Sweeper or in a Group-D post. Rather, the

W.P.(C) No.675 of 2016 said Office Memorandum is with regard to guidelines for

engagement of service providers for outsourcing of services in

Group-D posts and procedure to be followed before such

engagement. He further relies on a recent judgment passed by a

coordinate Bench in Roshan Kerketta vs. State of Odisha and

others (W.P.(C) No.11105 of 2021, decided on 13.01.2023) and

submits that the case of the Petitioner was kept pending for years

together and only on intervention of this Court, Petitioner's

representation was rejected by the CMC hastily, instead of

referring the matter to the State Government seeking approval for

appointment under the RAS in terms of the 1990 Rules, which

was in vogue then. Referring to the impugned Order, Mr. Dalai

further submits that the Petitioner was never communicated by

the CMC authority that he has not submitted his application in

the prescribed form, though the Authority concerned could have

asked the Petitioner to apply in the prescribed form instead of

keeping the Petitioner's application pending till a direction was

given by this Court for disposal of the representation of the

Petitioner. He further submits, the new Rule i.e. OCS (RA) Rules,

2020, though is not applicable to the Petitioner, in terms of the

said Rules, only a person can be appointed under the said Scheme

W.P.(C) No.675 of 2016 in a Group-D post. He further submits, the stand of the Opposite

Parties that Government have decided to outsource the job of

Sweepers (Group-D) in Urban Local Bodies and rejection of the

application of the Petitioner on that score along deserves

interference of this Court, the said rejection order being contrary

to the statutory Rules, 1990. The impugned Order of rejection

dated 30.07.2015 is per se illegal, arbitrary and production of

non-application of mind and the Authority concerned acted in an

illegal manner to rejection the representation of the Petitioner. Mr.

Dalai submits that as per instruction received from his client, the

Petitioner never approached the Commissioner requesting or

agreeing for his engagement through service provider. Rather, the

Commissioner on his own asked the Petitioner to accept the said

offer and indicated accordingly in the impugned Order, as if his

client had requested for such arrangement. As the said offer was

not applicable to the Petitioner, he has rightly preferred the

present Writ Petition.

8. Mr. Pattanaik, learned Counsel for the State reiterating the

stand taken in the Counter Affidavit submits that the Opposite

Party No.2 was justified to reject the application of the Petitioner

in view of the earlier communications made to it by the State-

W.P.(C) No.675 of 2016 Opposite Party No.1 pertaining to other similarly placed

applicants, who had applied for appointment under the RAS in

Group-D post. However, Mr. Pattanaik fairly admits before this

Court that before rejection of the application of the Petitioner, the

CMC Authority did not refer the case of the Petitioner to the State

Government seeking any kind of clarification or approval for

consideration of his case for appointment under RAS in terms of

1990 Rules.

9. When the matter was heard on 11.05.2023, the learned

Counsel for the CMC was absent. Today also the learned Counsel

for the CMC is absent. However, it is pertinent to mention that as

a similar stand has been taken in the Counter Affidavit filed by the

CMC, as has been taken by the State-Opposite Party No.1, this

matter being of the year 2019 pertaining to appointment under the

RAS is taken up for final disposal, in absence of the Counsel for

CMC.

10. Admittedly, the father of the Petitioner died on 04.09.2001

and immediately thereafter, the Petitioner applied for appointment

under the 1990 Rules along with all the documents and same was

duly recommended by the Cuttack Mehentar Sangha, a Registered

Trade Union, of which the father of the Petitioner was a member.

W.P.(C) No.675 of 2016 The said application was kept pending till 30.07.2015. Only on

being directed by this Court, the said application was dealt with

and rejected relying on communications made by the Government

to CMC with regard to some other applicants and no clarification

and approval were sought for, so far as Petitioner's case is

concerned.

11. Though a stand has been taken by the Opposite Party No.2-

CMC that the Petitioner did not apply in the prescribed form for

consideration of his case for appointment under the RAS in terms

of 1990 Rules, admittedly till rejection of his application on

30.07.2015, he was never communicated by the CMC advising

him to resubmit his application in the prescribed form or rejection

his application on the said ground. Rather, only after being

directed by this Court, mechanically his application for

appointment under the RAS was rejected on 30.07.2015 on the

ground of some earlier communications made by the State

Authority pertaining to some other applicants.

12. The text of the letter dated 17.05.2023 of the Under

Secretary to Government, Housing & Urban Development

Department, addressed to the Office of the learned Advocate

General, so also the relevant portion of Office Memorandum dated

W.P.(C) No.675 of 2016 26.09.2011, based on which the earlier communications were

made to the Opposite Party No.2-CMC, rejecting the application of

similarly placed applicants for consideration of their cases in

terms of 1990 Rules, are reproduced below.

"File No.:HUD-MUN-CASEOP-0074-2022 /Letter No.: 10053 Date 17.05.2023

From

Prashanta Kumar Mahapatra, Under Secretary to Govt.

To

Mr. Surya Narayan Pattnaik, AGA O/o the Advocate General, Odisha, Cuttack.

Sub: Information in connection with W.P.(C) No.675/ 2016 (Karna Naik vs. State of Odisha and others), pursuant to the query made by the Hon'ble Court in course of hearing on 12.05.2023.

Sir,

In inviting a reference to the subject cited above, I am directed to inform you good-self that the procedure adopted by Housing & Urban Development Department for engagement of Group-D posts on outsourcing basis is being carried out by following the Govt. of Odisha, Finance Dept. Office Memorandum No.42284/F dt.26.09.2011 in which under the heading Outsourcing of Services (ii) it has been clearly indicated that "The services to be outsourced may include routine jobs like cleaning and sweeping of the premises, watch & ward, horticultural work, housekeeping services, maintenance of buildings, transport services, courier services, information and communication technology related services, highly professional and technical services etc. which is illustrative but not exhaustive. Other kinds of services may also be

W.P.(C) No.675 of 2016 outsourced in case of the need for economy and efficiency in provision of services." A copy of the Finance Dept. Office Memorandum No.42284/F dt.26.09.2011 is enclosed for kind reference.

This is for your kind information to appraise the Hon'ble Court, when the matter would be taken up.

Yours faithfully, Sd/-

Under Secretary to Govt."

               " GOVERNMENT OF ORISSA
                 FINANCE DEPARTMENT

             No.42284/F    Date 26.09.2011
               Codes-27/11

                  OFFICE MEMORANDUM

Subject: Guidelines for outsourcing of services.

In order to reduce operating cost and provide more effective delivery of public services a number of auxiliary and support services are now being outsourced by the State Government and its various agencies. Pending revision of Orissa General Financial Rules on the lines of General Financial Rules-2005, there is a need to outline the basic policy framework for outsourcing of services.

Outsourcing of Services:

(i) Authority competent to outsource services: The competent authority i.e. Administrative Departments and Heads of Departments may allow outsourcing certain services in the interest of economy and efficiency.

(ii) Conditions precedent to outsourcing: Outsourcing of services may be resorted to if adequate man-power is not available in the Organization for providing the required services. The services to be outsourced may include routine jobs like cleaning and

W.P.(C) No.675 of 2016 sweeping of the premises, watch and ward, horticultural work, housekeeping services, maintenance of buildings, transport services, courier services, information and communication technology related services, highly professional and technical services etc. which is illustrative but not exhaustive. Other kinds of services may also be outsourced in case of the need for economy and efficiency in provision of services.

(iii) Identification of the service to be outsourced: The identification of the service to be outsourced is to be finalised by the Administrative Department and Head of Department in respect of its own Office or any attached or subordinate Office (s).

        xxx     xxx     xxx"
                                              (Emphasis supplied)

From the said Office Memorandum dated 26.09.2011, it is

amply clear that a detailed guidelines have been prescribed by the

Finance Department in order to reduce the operating cost and

provide more effective delivery of public services through various

agencies and for such outsourcing, one of the condition precedent

is, if adequate man-power is not available in the Organization for

providing the required services, then only the services are to be

outsourced, including routine jobs like cleaning, sweeping of the

premises, watch & ward, horticultural work, housekeeping

services, maintenance of buildings, transport services etc. and

there is no such restriction under the said Office Memorandum as

to considering case of an applicant in terms of 1990 Rules, for his

or her appointment under the RAS.

W.P.(C) No.675 of 2016

13. It may not be out of place to mention that in Malaya Nanda

Sethy (supra), the Apex Court, vide Paragraphs 7 and 9, observed

as follows:

"7. Thus, from the aforesaid, it can be seen that there was no fault and/or delay and/or negligence on the part of the appellant at all. He was fulfilling all the conditions for appointment on compassionate grounds under the 1990 Rules. For no reason, his application was kept pending and/or no order was passed on one ground or the other. Therefore, when there was no fault and/or delay on the part of the appellant and all throughout there was a delay on the part of the department/authorities, the appellant should not be made to suffer. Not appointing the appellant under the 1990 Rules would be giving a premium to the delay and/or inaction on the part of the department/authorities. There was an absolute callousness on the part of the department/ authorities. The facts are conspicuous and manifest the grave delay in entertaining the application submitted by the appellant in seeking employment which is indisputably attributable to the department/authorities. In fact, the appellant has been deprived of seeking compassionate appointment, which he was otherwise entitled to under the 1990 Rules. The appellant has become a victim of the delay and/or inaction on the part of the department/authorities which may be deliberate or for reasons best known to the authorities concerned. Therefore, in the peculiar facts and circumstances of the case, keeping the larger question open and aside, as observed hereinabove, we are of the opinion that the appellant herein shall not be denied appointment under the 1990 Rules."

"9. Before parting with the present order, we are constrained to observe that considering the object and purpose of appointment on compassionate grounds, i.e., a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service and the basis or policy is immediacy in rendering of financial assistance to the family of the deceased consequent

W.P.(C) No.675 of 2016 upon his untimely death, the authorities must consider and decide such applications for appointment on compassionate grounds as per the policy prevalent, at the earliest, but not beyond a period of six months from the date of submission of such completed applications.

We are constrained to direct as above as we have found that in several cases, applications for appointment on compassionate grounds are not attended in time and are kept pending for years together. As a result, the applicants in several cases have to approach the concerned High Courts seeking a writ of Mandamus for the consideration of their applications. Even after such a direction is issued, frivolous or vexatious reasons are given for rejecting the applications. Once again, the applicants have to challenge the order of rejection before the High Court which leads to pendency of litigation and passage of time, leaving the family of the employee who died in harness in the lurch and in financial difficulty. Further, for reasons best known to the authorities and on irrelevant considerations, applications made for compassionate appointment are rejected. After several years or are not considered at all as in the instant case.

If the object and purpose of appointment on compassionate grounds as envisaged under the relevant policies or the rules have to be achieved then it is just and necessary that such applications are considered well in time and not in a tardy way. We have come across cases where for nearly two decades the controversy regarding the application made for compassionate appointment is not resolved. This consequently leads to the frustration of the very policy of granting compassionate appointment on the death of the employee while in service. We have, therefore, directed that such applications must be considered at an earliest point of time. The consideration must be fair, reasonable and based on relevant consideration. The application cannot be rejected on the basis of frivolous and for reasons extraneous to the facts of the case. Then and then only the object and purpose of appointment on compassionate grounds can be achieved."

(Emphasis supplied)

W.P.(C) No.675 of 2016

14. Similarly, one of the coordinate Bench, relying on the case

of Malaya Nanda Sethy (supra), in Roshan Kerketta vs. State

of Odisha and Others, (W.P.(C) No.11105 of 2021, decided on

13.01.2023), at Paragraph-20, held as follows:

" 20. Reverting back to the issue involved in the present writ petition, this Court after careful analysis of the legal position, is of the considered view that though there exists rule in shape of Rule-6(9) in the Rules, 2020 to consider all pending applications under the new Rules, 2020, the case of the Petitioner is peculiar and stands in a different footing. In the context of the present case, this Court would like to refer to the judgment of the Hon'ble Supreme Court in the matter of Malaya Nanda Sehty vs. State of Odisha and others, reported in AIR 2022 SC 2836 wherein the Hon'ble Apex Court while considering the peculiar facts and circumstances of the case presented before it for adjudication, decided that the rule prevalent at the time of death of the deceased employee shall be applicable to the claim made by the dependent family members. After going through the judgment in the case of Malaya Nanda Sethy (supra), this Court observed that the said case was decided in the background of OCS Rehabilitation Rules of the State of Odisha and the facts of that case are somewhat similar to the facts of the present case."

15. Admittedly, the Opposite Party No.2-CMC was negligent to

consider the case of the Petitioner for his appointment under the

RAS and it was also not justified to reject the representation of

the Petitioner relying on the communications made to it by the

State-Opposite Party No.1 dated 08.06.2015 and 17.06.2015 on

the plea of decision of the Finance Department to outsource the

job of Sweepers in Urban Local Bodies when actually there is no

W.P.(C) No.675 of 2016 such restriction vide the said Memorandum of the Finance

Department dated 26.09.2011, as has been quoted above. That

apart, the said Memorandum cannot override the statutory

Rules, 1990 for appointment under the RAS.

16. Hence, this Court is of the view that the impugned rejection

Order dated 30.07.2015 is illegal, unjustified and deserves to be

quashed. Accordingly, impugned Order dated 30.07.2015, as at

Annexure-3, is hereby set aside, being unsustainable in the eye

of law.

17. Since one of the reason assigned in the impugned Order that

the Petitioner never applied in prescribed form but before rejecting

his representation of the year 2011, in the year 2015 the Authority

concerned never made any communication to the said effect, the

Petitioner is at liberty to file a fresh application in the prescribed

form with relevant documents, along with certified copy of this

judgment within four weeks hence, enabling the Authority

concerned to do the needful for consideration of his case in terms

of the 1990 Rules.

18. On submission of such application, the Opposite Parties are

directed to consider the case of the Petitioner for appointment

under the RAS in terms of the 1990 Rules and take a decision

W.P.(C) No.675 of 2016 thereon within a period of three months from the date of

production of certified copy of the judgment, so also application,

as observed above. In the event the Petitioner is found eligible, he

may be appointed within the stipulated period, as directed above.

19. With the aforesaid direction, the Writ Petition stands

disposed of. However, there shall be no order as to cost.

(S.K. MISHRA) JUDGE

Orissa High Court, Cuttack Dated, 17th May, 2023/Padma

Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Secretary In-Charge Reason: Authentication Location: ORISSA HIGH COURT Date: 23-May-2023 12:02:55

W.P.(C) No.675 of 2016