Orissa High Court
Ramakrishna Nayak vs State Of Odisha & Others on 5 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.29809 of 2023
Ramakrishna Nayak .... Petitioner
Mr.Achyutananda Pattnaik, Advocate
-versus-
State of Odisha & others .... Opposite Parties
Mr.Saswat Das, A.G.A.
CORAM:
JUSTICE A.K. MOHAPATRA
Order No. ORDER
05.10.2023
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 Government Advocate 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:
" In the above facts and circumstance, it is most
humbly and respectfully prayed that this Hon'ble Court
may graciously be pleased to admit the writ petition,
issue notice to the Opp.Parties and after hearing the
parties this Hon'ble Court may further be pleased
i) To set aside the order passed by the DG of Police
in Memo No.44431/pers-I, dated 04.11.2022 and
subsequent letter No.1456/Esst. Dated 1.08.2023
of SP, Bhadrak.
ii) To direct the Opp.Parties to give compassionate
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appointment to the Petitioner under Home
Department sympathetically taking into
consideration the retrospectively Rule i.e. OCS
(Rehabilitation Assistance) Rule, 1992 as per his
qualification on account of death of his father,
(who was working as Havildar under Bonta
Police station under Superintendent of Police,
Bhadrak and who was died on 23.11.2002 while
on his Govt. duty)
And, may pass any other order/orders as may
deem fit and proper;"
4. It is submitted by the learned counsel for the Petitioner that the
father of the Petitioner namely Pitambar Nayak while working as
Havildar in Odisha Police posted at Bonta Police Station died in
harness on 23.11.2002. Thereafter, on 14.10.2004 the Petitioner
being one of the legal heirs with the consent of the legal heirs
applied for appointment under compassionate ground under
OCS(RA) Rule, 1990. Such application of the Petitioner was again
taken up for verification after a long delay on 23.05.2016. An enquiry
report was submitted on 08.06.2016 before the Superintendent of
Police, Bhadrak by the I.I.C., Dhusuri P.S. Again no step was taken.
While the matter stood thus, on 25.03.2021 the Petitioner again
submitted a representation before the Director General of Police,
Odisha with a prayer to give him appointment under the
Rehabilitation Assistance Scheme. Since no action was taken, the
Petitioner earlier approached this Court by filing W.P.(C) No.32638
of 2021 challenging the inaction on the part of the Opposite Parties
and a coordinate Bench of this Court on 25.10.2021 disposed of the
said Writ Petition directing the authorities to consider the application
of the Petitioner for appointment on compassionate ground. Pursuant
to such order of the coordinate Bench, the application of the
Petitioner was taken up for consideration by the D.G. of Police and
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vide his memo dated 04.11.2022 the application of the Petitioner was
rejected on the ground of limitation. It has been specifically stated in
the rejection order that there is a delay of 10 months 21 days in
preferring the application for appointment on compassionate ground.
Further, the Petitioner was advised to make a fresh application under
the new Rule. Pursuant to such Memo dated 04.11.2022, the
Petitioner under compulsion made another application under the new
Rule of the year 2020 on 02.01.2023. The authorities vide order dated
01.08.2023
again rejected the prayer of the Petitioner for
appointment on compassionate ground on the ground that the
Petitioner has not obtained the required number of points under
OCS(RA) Rule, 2020.
5. Learned counsel for the Petitioner at this juncture referring to
the judgment of the Hon'ble Supreme Court in Malayaanda Sethi,
vrs.-State of Orissa and others reported in 2022(II) OLR (SC)-1
Suchitra Bal-vrs.- State of Odisha and others by a Division Bench
of this Court in W.P.(C) No.2081 of 2021 decided on 16.03.2023 as
well as Bindusagar Samantaray vs.-State of Odisha and others by
a Division Bench of this Court in W.A.No.810 of 2021 decided on
25.09.2023 submitted before this Court that so far as the present
Petitioner is concerned, the prayer for appointment on compassionate
ground should have been considered under OCS(RA) Rule, 1990 and
not under the new Rule 2020 as the father of the Petitioner died much
prior to the new Rule came into force i.e. in the year 2002. In such
view of the matter, learned counsel for the Petitioner submitted that
the impugned rejection order is unsustainable in law and the order is
liable to be quashed.
6. Learned Additional Standing Counsel on the other hand
contended that initially there was a delay of 10 months 21 days as
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has been mentioned in the impugned rejection order in filing the
application and the delay can only be condoned by the State
Government. However, the authorities considered the case of the
Petitioner as per the order passed by this Court in the earlier Writ
Petition subject to the Petitioner's eligibility the matter would have
been placed before the Government for condonation of delay.
However since the Petitioner could not secure the required points the
question of condonaton of delay does not arise. Accordingly it was
submitted by the learned Additional Government Advocate that the
Opposite Parties have not committed any illegality in rejecting the
application of the Petitioner for appointment on compassionate
ground. He further submitted that the Writ Petition is devoid of merit
and the same cannot be entertained. Mr.Das, learned Additional
Government Advocate refers to the law laid down by the Hon'ble
Supreme Court in State of West Bengal-v.-Debabrata Tiwari
reported in ((2023(3) SCALE 557.
7. Having heard learned counsel for the respective parties and on
a careful consideration of their submissions as well as background
facts of the case, this Court observes that factually there is no dispute
in the submissions of both sides. The only dispute is with regard to
the applicability of the Rule to the facts of the present case. In such
background, this Court further found that admittedly the father of the
Petitioner died on 23.11.2002. No-doubt, initially application was
made on 14.10.2004 after a delay of 10 months. The same was kept
pending for more than a decade and reactivated only in the year
2016. Such inaction on the part of the Opposite Parties is not
appreciated by this Court and the same goes against the principle of
justice. This Court on a careful analysis of the judgment referred to
herein above is of the considered view that the law is well settled
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that the application of the Petitioner should have been considered
under the OCS(RA) Rule, 1990. Accordingly, this Court has no
hesitation in setting aside the impugned rejection order under
Annexures-18 and 20. Accordingly the order under Annxures-18 and
20 are hereby quashed and the matter is remanded to consider the
matter afresh under the OCS(RA) Rule, 1990 and a final decision be
taken within a period of two months from the date of communication
of the certified copy of this order. It is directed that necessary steps
be taken by the authority for taking up the matter for condonation of
delay of 10 months 21 days in filing the application under the
OCS(RA) Rule 1990 and in such eventuality the competent authority
in the Government shall consider the matter and take a decision
within a period of six months and the matter be placed before such
competent authority. The final decision if any taken by the authority
be communicated to the Petitioner within two weeks. Learned
counsel for the Petitioner is directed to file an application for
condonation of delay which shall be forwarded to the competent
authority of the Government for consideration.
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
Signature Not Verified
Digitally Signed
Signed by: RAMESH KUMAR SINGH
Designation: Ex-A.R.-cum-Sr. Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 09-Oct-2023 10:40:33
