Basanta Kumar Panda vs State Of Odisha And Others
2023 Latest Caselaw 12278 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 W.P.(C) No.31975 of 2023

                 Basanta Kumar Panda                  ....            Petitioner
                                              Ms.Baijayanti Mohanty, Advocate
                                            -versus-
                 State of Odisha and others           ....         Opp. Parties
                                                       Mr. Saswat Das,A.G.A.
                                         CORAM:

                             JUSTICE A.K. MOHAPATRA
                                         ORDER

Order No.                               10.10.2023
    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 appearing for the State. Perused the writ petition as well as documents annexed to thereto.

4. The present writ petition has been filed by the petitioner with the following prayer :

" It is therefore prayed that this Hon'ble Court may graciously be pleased to admit the Writ Petition, issue notice to the Opp.Parties to show cause as to why the impugned order dated 09.05.2023 will not be quashed and further why the Petitioner will not be appointed as a Junior Clerk as per the then existing rules in 2015 e.g. Rule-1990;

And in the event the opposite Parties fail to show cause or shows insufficient cause then the said Rule e made absolute and the Writ Petition be allowed directing the Opposite Parties to appoint the Petitioner in Group-C post, And may further be pleased to pass any other order(s)/direction(s) as this Hon'ble Court deems fit and proper;"

4. It is submitted by the learned counsel for the Petitioner that earlier the Petitioner approached this Court in W.P.(C) No.6031 of // 2 //

2023. This Court vide order dated 16.03.2023. This Court vide order dated 16.03.2023 directed the Opposite Party No.2 to consider the case of the Petitioner in the light of the law laid down by the Hon'ble Supreme Court in Malaya Nanda Sethy-v.- State of Orissa and others : reported in 2022(II) OLR (SC)-1. Learned counsel for the Petitioner further contended that after disposal of the earlier Writ Petition, the Petitioner approached Opposite Party No.2. The Opposite Party No.2 vide order dated 09.05.2023 under annexure-35 to the Writ Petition rejected the prayer of the Petitioner by taking a stand that the judgment in Malaya Nanda Sethy-v.- State of Orissa and others is not applicable to the fact of the Petitioner's case. On the contrary, it is stated that the judgment delivered by N.C.Santhosh v. State of Karnataka (2020) 7 SCC 617 is applicable to the facts of the present case. Being aggrieved by such rejection order, the Petitioner has approached this Court again by filing the present Writ Petition.

5. Learned Additional Government Advocate on the other hand contended that the prayer of the Petitioner was rejected on the ground that there exist adequate number of vacancy in RWS&S to accommodate appointment under R.A. scheme as many work charged employees who are appointed prior to 12.04.1993 have not been regularized in the meantime. Therefore, by referring to the rejection order, learned Additional Government Advocate submitted that the application of the Petitioner has been rejected on the ground that there are adequate vacancy to accommodate the appointment under the R.A.Scheme. Learned Additional Government Advocate further submitted that though the judgment in Malaya Nanda Sethy-v.- State of Orissa and others has been referred to by the authorities, however, the application has been rejected on the ground that there are no adequate number of vacancy. In such view of the matter, learned Additional Government Advocate submitted that there exist no ground // 3 //

to interfere with the case of the Petitioner involved in the present Writ Petition by this Court.

6. On careful consideration of the submissions of the learned counsel appearing for the respective parties as well as the materials on record, this Court at the outset observes that the impugned rejection order specifically refers to the aforesaid two judgments of the Hon'ble Supreme Court. In the 1st part of the order, the Opposite party No.2 has referred to the judgment and has come to a conclusion that the judgment of N.C.Santhosh shall have application to the fact of the present case. Moreover in concluding paragraph of the order under Annexure-35 it is specifically stated that there are inadequate vacancy to accommodate appointment on compassionate ground under 1990 Rule Therefore, it is clear that the authority proceeded under 2022 and not under the old Rule. In the instant case, the father of the Petitioner died on 24.10.2015 This Court in the earlier Writ Petition has categorically held that the case of the Petitoner is covered by the law laid down by the Hon'ble Supreme Court in Malaya Nanda Sethy-v.- State of Orissa and others. Subsequently in the judgment delivered by this Court in Suchitra Bal-v.-State of Odisha & 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 v. State of Odisha & others by a Division Bench of this Court in W.A.No.810 of 2021 decided on 25.09.2023 This Court has also held that the application which was filed prior to the new Rule came into force are to be considered under the Old Rule. Therefore, there is no dispute with regard to 1990 Rule to the fact of the present case. Accordingly, this Court has no hesitation in setting aside the impugned order dated 09.05.2023 under Annexure-35 to the Writ Petition and the same is hereby set aside. Further, the matter is remanded Opposite Party No.2 to consider the same strictly in accordance with law laid down by the Hon'ble Supreme Court in // 4 //

Malaya Nanda Sethy-v.- State of Orissa and others as well as Suchitra Bal-v.-State of Odisha & others and Bindusagar Samantaray v. State of Odisha & others and pass a final order within two months fro the date of communication of certified copy of this order. It is further made clear that if there is no vacancy in RWS&S organisation then effective steps be taken as has been prescribed under 1990 Rules to find out the vacancy to consider the case of the Petitioner for appointment on compassionate ground under 1990 Rules.

7. With the aforesaid observation/direction, the writ petition is disposed of.

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

( A.K. Mohapatra) Judge RKS

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: 16-Oct-2023 10:42:10