Orissa High Court
Pulin Kumar Behera vs State Of Odisha & Others on 4 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.30646 of 2023
Pulin Kumar Behera .... Petitioner
Mr.Kishore Chandra Pradhan, Advocate
-versus-
State of Odisha & others .... Opposite Parties
Mr.N.K.Praharaj, A.G.A.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 04.10.2023
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 Standing Counsel for the State. Perused the Writ Petition
as well as the documents annexed thereto.
3. The Petitioner has filed the present writ application with the
following prayer:
" It is therefore prayed that this Hon'ble Court may be
graciously pleased to admit this petition, call for the relevant
records from the Opp.Parties and after hearing both the parties
grant the following reliefs:-
i) To quash the order No5973/E dated 17.12.2022 passed
by Opp.Party No.3 under Annexure-8;
ii) To direct the Opp.Parties to consider the case of the
Petitioner and to pass an order of his employment
against Class-III post;
iii) To direct the Opp.Parties to appoint the Petitioner under
rehabilitation Assistance Scheme in accordance with the
decision of the Hon'ble Supreme Court;
iv) To direct the Opp.Paties to give compassionate
appointment to the Petitioner within a stipulated
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period;"
4. At the outset, it is submitted by the learned counsel for the
Petitioner that the father of the Petitioner while working as A.S.I. of
Police died in harness on 22.06.2016. The Petitioner, who is one of
the legal heir of the deceased Government employee with the
consent of other legal heirs applied for appointment under OCS(RA)
Rule 1990 as amended up to the year 2016 on 03.01.2017. Since the
authorities did not take a decision on the application of the Petitioner
for appointment under OCS(RA) Rule, 1990, the Petitioner
approached this Court by filing W.P.(C) No.25039 of 2022. A
coordinate Bench of this Court vide order dated 19.10.2022 disposed
of the said Writ Petition with a direction to Opposite Party No.3 to
take a final decision on the claim of the Petitioner within three
months from the date of receipt of the order. Learned counsel for the
Petitioner further contended that after disposal of the earlier Writ
Petition, the Petitioner approached the Opposite Party No.3 vide
letter 17.12.2022 under Annexure-8 to the Writ Petition
communicated to the Petitioner that his application for appointment
under OCS(RA) Rule, 1990 has been rejected on the ground that it
was found that the Petitioner has secured 14 points out of 85 points in
evaluation sheet in Form-D. A copy of the evaluation sheet has also
been attached to the letter dated 17.12.2022. Learned counsel for the
Petitioner at this juncture referring to the judgment of the Hon'ble
Supreme Court in Malaya Nanda Sethi-v.-State of Odisha
reported in 2022 (II) OLR (SC) 1 as well as the judgments rendered
by the Division Bench in Suchitra Bal-v.-State of Odisha in
W.P.(C) No.2081 of 2021, and Bindusagar Samantaray-v.State of
Odisha and others in W.A.No.810 of 2021 and batch decided on
25.09.2023 submitted before this Court that the application of the
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Petitioner should have been considered under OCS(RA) Rule, 1990
instead of Rule of the year 2020. In such view of the matter, learned
counsel for the Petitioner submitted that the conduct of the Opposite
Parties in rejecting the application of the Petitioner is illegal and
arbitrary.
5. Learned Additional Government Advocate on the other hand
submitted that pursuant to the order passed by this Court in the earlier
Writ Petition the application of the Petitioner for appointment under
OCS(RA) Rule, 2019 was considered since at the time of
consideration of the application the new Rule, 2020 was in force.
Accordingly, the Opposite Parties have not committed any illegality
in considering the case of the Petitioner under the new Rule in view
of the Rule 6 of the new Rule 2020. Learned Additional Government
Advocate submitted that no fault can be found in the order under
Annexue-8 to the Writ Petition as the application of the Petitioner is
faulted on the basis of the evaluation sheet under 2020 Rules and
since the Petitioner was not found suitable his case was not
considered for appointment under the OCS(RA) Rule, 2020.
6. Having heard learned counsel for the respective parties and
after careful examination of the materials on record, this Court
observes that there is no dispute with regard to the date of death of
the deceased Government employee and the date of application
submitted by the Petitioner for appointment under the OCS(RA)
Rule, 1990. The only dispute is with regard to the applicability of the
relevant Rules. This Court on a careful examination of the judgment
of the Hon'ble Supreme Court in Malaya Nanda Sethi-v.-State of
Odisha reported in 2022 (II) OLR (SC) 1 as well as the judgments
rendered by the Division Bench in Suchitra Bal-v.-State of Odisha
in W.P.(C) No.2081 of 2021, and Bindusagar Samantaray-v.State
// 4 //
of Odisha and others in W.A.No.810 of 2021 and batch decided on
25.09.2023 is of the considered view that since the death occurred
prior to the new Rule came into force, the application of the
Petitioner should have been considered under the Rule which was
existing at the time of death and the application was specifically
made before the authority. This Court also observes that the
application was made in the year 2017. The authorities sat over the
matter and no decision was taken for almost three years. Moreover,
similarly situated persons who have made application either in the
year 2017 or subsequently must have been given appointment by
following the provision of 1990 Rules and the amendment to the said
Rule in the year 2016. Therefore, taking a different stand in the case
of the Petitioner is grossly illegal and arbitrary. In such view of the
matter in view of the law laid down by the Hon'ble Supreme Court
and the Division Bench of this Court, this Court has no hesitation to
take a decision that the order is unsustainable and the same is hereby
quashed. Furthermore, the matter is remanded back to Opposite
Party No.3 to reconsider the matter in the light of the law laid down
in Malayananda Sethi's case, Suchitra Bal's case and Bindusagar
Samantaray's case (supra) and take a final decision within two
months from the date of receipt of certified copy of this order. The
decision so taken be communicated to the Petitioner within two
weeks thereafter.
8. With the aforesaid observation, the writ application stands
disposed of.
9. Issue urgent certified copy of this order as per Rules.
RKS ( A.K. Mohapatra )
Judge
// 5 //
Signature Not Verified
Digitally Signed
Signed by: RAMESH KUMAR SINGH
Designation: Ex-A.R.-cum-Sr. Secretary
Reason: Authentication
Location: Hgh Court of Orissa
Date: 07-Oct-2023 14:51:25
