Orissa High Court
Swadhin Mahalik vs State Of Odisha & Others on 3 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.9714 of 2022
Swadhin Mahalik .... Petitioner
Mr. Sushanta Kumar Pradhan, Advocate
-Versus-
State of Odisha & Others .... Opposite Parties
Mr. Swayambhu Mishra, ASC
CORAM:
MR. JUSTICE K.R. MOHAPATRA
MR. JUSTICE R.K. PATTANAIK
ORDER
Order No. 03.10.2023
06. 1. This writ petition has been filed assailing the validity of
Sub-Rules 9 and 10 of Rule 6 of Odisha Civil Services
(Rehabilitation Assistant) Rules, 2020 (for short "the RA Rules,
2020") and to declare the said provisions ultra vires of the
Constitution. The Petitioner also prays to set aside the order of
rejection of his application for appointment under Odisha Civil
Services (Rehabilitation Assistance) Rules, 1990 (for short 'RA
Rules, 1990) under Annexure-7.
2. In course of hearing, Mr. Mishra, learned Additional
Standing Counsel brings notice of this Court to the decision in
W.P. (C) No. 2081 of 2021 (Suchitra Bal Vrs. State of Odisha
& Others) and batch of writ petitions disposed of on 27th June,
2023, wherein, it is held as under:-
"82. In Malaya Nanda Sethy (supra), the apex
court did not make any comment on the correctness
of the decision of N.C. Santosh (supra), but it has
been clearly laid down that the delay in making the
decision on the rehabilitation assistance/
appointment shall not give any premium to the
authorities. As such, if the delay is attributable to
the opposite parties, the application of the
petitioners for rehabilitation assistance/
appointment should not be frustrated by bringing
them under the new Rehabilitation assistance
Rules, 2020. Such application shall be considered,
if filed before the Odisha Civil Services
(Rehabilitation Assistance) Rules, 2020 came into
force under the provisions of the Odisha Civil
Services (Rehabilitation Assistance) Rules, 1990.
83. The apex court thus in effect, read down the
Rule-9(6) of the Odisha Civil Services
(Rehabilitation Assistance) Rules, 2020.
84. In view of the above decision, we are of the
view that the application for the petitioners shall
be considered under the Odisha Civil Services
(Rehabilitation Assistance) Rules, 1990 in as much
as on scrutiny, it is found that all the applications
were filed before 17.02.2020 and the delay in
considering the applications in time is entirely
attributable to the opposite parties. Such exercise
shall be completed within a period of three months
from the day when a copy of the judgment/order
shall be placed before the opposite parties by the
petitioners.
85. That apart, while dealing with the
applications in which the petitioners have sought
the rehabilitation assistance/appointment against a
direct payment/GIA Rules at the Government aided
educational institution, the applicability of the
rehabilitation scheme in those institutions shall be
separately determined by the opposite parties on
the basis of the policy of the Government as
discussed by us. If it is found that the Odisha Civil
Services (Rehabilitation Assistance) Rules, 1990
was applicable on the date of death of the deceased
employee, the petitioner shall be considered for
rehabilitation assistance/appointment. So far as the
retrospective operation of the rehabilitation
assistance/appointment is concerned, this Court
cannot direct the opposite parties to give the
appointment retrospectively under the
Rehabilitation Assistance /Appointment Scheme in
as much as it is no more res integra, the petitioner
does not have any vested right of appointment
under such rehabilitation assistance/appointment
scheme. They are only entitled to be considered
under the scheme for that purpose."
3. It is submitted at the Bar that the application for
Rehabilitation Assistance appointment of the Petitioner was
considered under the Provisions of RA Rules, 2020. But in
view of the ratio in Suchitra Bal (supra), the said application
should be considered under RA Rules, 1990. As such, it is
submitted that the application of the Petitioner should be
considered afresh.
4. It is submitted by the learned counsel for the Petitioner
that father of the Petitioner died on 30th August, 2016, when the
Petitioner was a minor. On attaining the age of majority, the
Petitioner made an application on 30th May, 2019 for
appointment under Rehabilitation Assistance Scheme. At the
time of submitting application for appointment, Government
Notification No. 23345 dated 5th November, 2016 was in force.
Thus, the application of the Petitioner was considered in the
light of the said notification and was rejected. As such, the
Petitioner filed another application on 8th June, 2020, which
was rejected vide order under Annexure-7.
5. In view of the observations of this Court in Suchitra
Bal (supra) as quoted above, the application of the Petitioner is
required to be considered under the RA Rules, 1990, as it was
filed prior to commencement of RA Rules, 2020.
6. Accordingly, the order under Annexure-7 is set aside
and the Executive Engineer, National Highways Division,
Bolangir- Opposite Party No.4 is directed to consider the
application of the Petitioner for appointment under
Rehabilitation Assistance Scheme afresh in terms of the
observation made by this Court as quoted above within a period
of six months from the date of receipt of a certified copy of this
order and to communicate the decision thereof to the Petitioner
forthwith.
7. With the aforesaid observation and direction, the writ
petition is disposed of.
(K.R. Mohapatra)
Judge
Balaram (R.K. Pattanaik)
Judge
Signature Not Verified
Digitally Signed
Signed by: BALARAM BEHERA
Designation: Personal Assistant
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 05-Oct-2023 11:10:07
