Madhab Bairagi vs State Of Odisha And Others
2023 Latest Caselaw 11044 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK


                         W.P.(C) No.19465 OF 2023

         (An application under Articles 226 and 227 of the Constitution
         of India)


           Madhab Bairagi                                ...       Petitioner
                                         -versus-

           State of Odisha and others
                                                            ... Opposite Parties


           Advocates appeared in the case through hybrid mode:

             For Petitioner                     : Mr.S. Mallik,
                                                  Advocate
                                         -versus-

             For Opposite Parties                   : Mr.I. Mohanty,
                                                      Addl. Govt. Advocate

             ---------------------------------------------------------------------------
             CORAM:

                           JUSTICE SASHIKANTA MISHRA

                                     JUDGMENT

11.9.2023.

Sashikanta Mishra,J. The Petitioner has approached this Court

seeking the following relief;

"In view of the facts mentioned above, the petitioner prays for the following relief(s);

(I) Quash the order dt.17.5.2023 as at Annexure-6.

(II) Direct/order that the petitioner shall be appointed to a suitable post under Rehabilitation Assistance in terms of OCS (R.A.) Rules, 1990.

(III) Pass any such orders a may be deemed fit in the interest of justice."

2. The facts of the case are that the father of the

Petitioner, Late Deba Bairagi, was a work charged

Khalasi under the administrative control of the Chief

Construction Engineer, Upper Kolab Project, Bariniput

in the District of Koraput (Opposite Party No.3). As per

order dated 1st October, 2010 passed by the Office of

the Engineering in Chief, Water Resources, Odisha,

Bhubaneswar (Opposite Party No.2) pursuant to the

decision of the Government vide Notification dated 28th

February, 2009, the NMR employees like the

Petitioner's father were brought over to the work

charged establishment w.e.f. 1st March, 2009 on

certain terms and conditions. Accordingly, the

Opposite Party No.3 was directed to take necessary

action. The matter was however kept pending, for

reasons unknown, in the office of the Opposite Party

No.3 till as late as 17th April, 2011 on which the date,

the formal order bringing over the Petitioner's father

(and other employees) to the work charged

establishment was issued. But as ill-luck would have

it, the Petitioner's father died just four days prior to

issuance of such order i.e. on 13th April, 2011. The

Petitioner being unemployed submitted an application

for appointment under the Rehabilitation Assistance

Scheme to the Opposite Party No.3. The same was

forwarded along the relevant documents to the

Opposite Party No.2 for necessary action. Since no

action was taken on the application, the Petitioner

approached the erstwhile Administrative Tribunal in

O.A. No.2470(C)/2016 which was transferred to this

Court and registered as W.P.C.(OAC) No.2470/2016.

By order dated 6th September, 2022, this Court

directed the concerned authority to consider the claim

of the Petitioner in the light of the order passed by the

Tribunal in another case being O.A. No.4619/2011. In

the said order passed in respect of the applicant,

Kalpana Aich, learned Tribunal under similar facts

directed the authorities to treat the deceased employee

as work charged employee as on 1st March, 2009 and

to extend all benefits as admissible to such employees

including appointment under the Rehabilitation

Assistance Scheme in favour of the applicant.

However, by order dated 17th May, 2023, which

is impugned in the present Writ Petition, the Opposite

Party No.2 rejected the application of the Petitioner for

appointment under the Rehabilitation Assistance

Scheme on the ground that the case of the Petitioner is

not similar to that of the applicant in O.A.

No.4619/2011.

3. Heard Mr. S. Mallik, learned counsel for the

Petitioner and Mr. I. Mohanty, learned Addl. Standing

Counsel for the State.

4. It is argued by Mr. Mallik that once the

Government took a policy decision to bring the NMR

employees like the Petitioner's father into the work

charged establishment and necessary orders were

passed by the competent authority being Engineer-in

Chief, Water Resources making it effective from 1st

March, 2009, the Office Order dated 17th April, 2011

passed by the Opposite Party No.2 in actually

conferring such benefit is only consequential and

formal. Had the Petitioner's father been alive the

effective date of coming over to the work charged

establishment would not have changed under any

circumstances and the same would have been treated

as on 1st March, 2009. The question of seeking

appointment under the Rehabilitation Assistance

Scheme arose only because the deceased employee

died unfortunately four days prior to issuance of the

Office order. The delay in issuing the order cannot be

attributed to either the deceased employee or the

Petitioner.

5. Mr. I. Mohanty, learned Addl. Standing Counsel,

has tried to justify the issuance of the impugned order.

But on query by the Court, he fairly submits that the

effective date of deceased employee coming over to the

work charged establishment has to be treated as 1st

March, 2009.

6. This Court has heard the rival contentions and

has also carefully perused the relevant documents

including the impugned order. As it appears, only

because this Court while disposing of the earlier Writ

Petition had directed the authority to consider the

claim of the Petitioner in the light of the order passed

by the Odisha Administrative Tribunal in O.A.

No.4619(C)/2011, the authority appears to have dwelt

more upon the facts of the said case, rather than

considering the aspect highlighted presently before this

Court. The sum and substance of the case of the

Petitioner is, once the decision was taken to bring the

deceased employee over to the work charged

establishment w.e.f. 1st March, 2009, for all practical

purposes he must be deemed to have been so brought

over from that date regardless of the date of issuance

of the consequential formal order. Despite service of a

copy of the Writ Petition on the State counsel, nothing

has been stated as regards the delay in issuance of the

Office order consequent upon the order passed on 1 st

January, 2010. In any case the delay in issuance of the

said order cannot under any circumstances be

attributed to the Petitioner. Further, the Opposite

Party No.2 while considering the application of the

Petitioner should also have taken note of the fact that

such application was filed by a member of the

distressed family and appointment sought for was

meant to provide much needed succor and support to

the family.

7. From what has been discussed hereinbefore,

this Court has no hesitation in holding that the

reasoning adopted by Opposite Party No.2 as reflected

in the impugned order cannot be sustained.

Resultantly, the Writ Petition is allowed. The impugned

order dated 17th May, 2023, is hereby quashed. The

Opposite Party No.2 shall take note of the observations

made in this order and issue necessary orders

appointing the Petitioner under the Rehabilitation

Assistance Scheme subject to satisfaction of the

required formalities. The entire exercise should be

completed within a period of four weeks from the date

of communication of this order.

.................................. Sashikanta Mishra, Judge

Ashok Kumar Behera

Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.R.-CUM-SR.SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Sep-2023 11:11:29