Orissa High Court
Jyoti Prasad Behera vs State Of Odisha & Others on 11 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.31686 of 2023
Jyoti Prasad Behera .... Petitioner
Mr. G.R. Sethi, Advocate
-versus-
State of Odisha & others .... Opposite Parties
Mr. N.K. Praharaj, A.G.A.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 11.10.2023
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:
"It is therefore prayed that the Hon'ble Court may
graciously be pleased to admit the case and call for the
records and after hearing both the parties pas the following
reliefs:
i) To quash the rejection order dtd.17.12.2022 under
Annexure-17.
ii) To direct the Opposite Parties to appoint the petitioner
as per OCS (Rehabilitation Assistance) Rules, 1990.
iii) To direct the Opposite Parties to grant all financial and
consequential benefits flowing from the date of
appointment.
iv) To pass such other order/orders as would be deemed fit
and proper."
4. At the outset, it is submitted by the learned counsel for the
Petitioner that the father of the Petitioner while working as S.I. of
Police died in harness on 11.04.2011. The Petitioner, who is one of the
legal heir of the deceased Government employee with the consent of
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other legal heirs applied for appointment under OCS(RA) Rule 1990 on
dtd.26.05.2012 the S.P., Gajapati issued a letter to the I.G. of Police,
Southern Range, Berhampur to issue appointment order in favour of the
petitioner and thereafter the documents were verified for appointment.
When the matter stood thus, the Opposite Party No.3 rejected the claim
for appointment 2020 Rehabilitation Assistance Scheme on 17.12.2022
vide Annexure-17. 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 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 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 9 of the new Rule 2020.
Learned Additional Government Advocate submitted that no fault can
be found in the order under Annexue-17 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
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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 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 2012. 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
2012 or subsequently must have been given appointment by following
the provision of 1990 Rules. 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 dtd.17.12.2022 under Annexure-17 is
unsustainable and the same is hereby quashed. Furthermore, the matter
is remanded back to Opposite Party No.2 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.
7. With the aforesaid observation, the writ application stands
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disposed of.
Issue urgent certified copy of this order as per Rules
( A.K. Mohapatra )
Judge
Anil
Signature Not Verified
Digitally Signed
Signed by: ANIL KUMAR SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 16-Oct-2023 12:11:13
