Rinarani Kanhar vs State Of Odisha And Others
2023 Latest Caselaw 11134 Ori

                IN THE HIGH COURT OF ORISSA AT CUTTACK
                            W.P.(C) No. 23216 OF 2021
            Rinarani Kanhar                   ....         Petitioner(s)
                                                   Mr.R.Mohanty,Adv.

                                         -versus-

            State of Odisha and others              ....        Opposite Party(s)
                                                             Mr.S.P.Panda,AGA

                      CORAM:
                      JUSTICE SIBO SANKAR MISHRA
                                        ORDER

Order No. 12.09.2023

04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode).

2. Heard learned counsel for the Parties.

3. The present Writ Petition is filed by the Petitioner seeking quashment of order dated 07.07.2021 at Annexure-5 issued by the Opposite Parties whereby her representation seeking appointment on Rehabilitation Scheme under the O.C.S. (Rehabilitation Assistance) Rules, 1990 as amended in the year 2016 has been declined.

4. The Petitioner in the Writ Petition contended that her husband died on 07.05.2018 while working as Assistant Engineer (Civil) in the Water Resources Department. He was 46 years of age and had a long tenure of service to go. At that point of time the Petitioner was 33 years old. The mother-in-law of the Petitioner and two minor children were dependant on her. Therefore, on 01.11.2018, she applied for rehabilitation appointment under the Rehabilitation Assistance Rules, 1990. The Petitioner is Post Graduated in Political Science and qualified in DOEACC <O= Level Examination. Her application for compassionate appointment is pending since then. The said application

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dated 01.11.2018 along with required documents enclosed therein were forwarded to the Office of Opposite Party No.2 by Opposite Party No.4 vide letter No.1059 dated 07.05.2019. While the proposal of the appointment of the Petitioner was pending consideration in the Office of the Opposite Party No.2, the Opposite Party No.3 vide his letter dated 12.09.2019 requested the Opposite Party No.4 to submit the original RA application of the Petitioner along with all the documents, which appears to have been complied and served on 24.09.2019.

5. When the application was shuttling from one place to other in the Departments, the Opposite Party No.5 issued a notification on 17.02.2020 where under the OCS (Rehabilitation Assistance) Rules, 2020 introduced in place of OCS (RA) Rules, 1990. The said rule was published in the Official Gazette with effect from 17.02.2020. Since the application of the Petitioner has been pending consideration since 01.11.2018 and the Rule under operation has been superseded, the Petitioner out on anxiety made a representation on 22.06.2021 reiterating his prayer. The Opposite Party by relying upon the fresh Rules came after superciation of the earlier Rules rejected the representation made by the Petitioner vide letter dated 07.07.2021.

6. The Petitioner has now filed the present Writ Petition seeking quashing of Annexure-5 to the Writ Petition namely the communication dated 07.07.2021 whereby the representation of the Petitioner dated 22.06.2021 has been rejected on the sole ground that on the basis of newly introduced OCS (RA) Rules, 2020, the Petitioner is not entitled for appointment on rehabilitation.

7. The Petitioner also relied upon the judgments of learned Single Judges of this Court dated 22.07.2021 passed in W.P.(C) No.20394 of 2021 in the case of Srabani Swain Vrs. State of Odisha & Ors., order

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dated 20.07.2021 passed in W.P.(C) No.20014 of 2021 in the case of Sujit Kumar Khamari Vrs. State of Odisha and others and the order dated 19.03.2021 passed in W.P.(C) No.10168 of 2021 in the case of K. Shibaram Dora Vrs. State of Odisha and others and urged that she is also similarly situated like the Petitioners in those cases wherein the Hon'ble Single Judge of this Court have allowed the prayer of those Petitioners and under OCS (RA) Rules, 1990 as amended in the year 2016, have been pleased to direct for appointment under rehabilitation.

8. Mr. Panda, learned counsel for the State particularly relied upon paragraphs-4 & 8 of the counter affidavit, which reads as under:-

<4. That, in reply to the averments made by the petitioner against Para-2 of this W.P. as regards to compliance of the order of the Hon'ble Court, it is humbly submitted that the O.P. No.2 was constrained to consider the application of the applicant in terms of OSC(RA) Amendment Rules, 2016 in view of the OCS (RA) Rules, 2020 and subsequent clarification of Govt. in GA & PG Department lr.No.6999/Gen dt.02.03.2021.

8. That, in reply to the averments made by the petitioner against Para-9, it is humbly submitted that the O.P. No.1 received application of the applicant as per OCS(RA) Amendment Rules, 2016 through Panchayat Raj Department vide their lr.No.480 dt.08.01.2021 by the time of which the OCS(RA) Rules, 2020 had come in to force.=

Mr. Panda, learned counsel for the State contended that after the new OCS (RA) Rules, 2020 came into force, the claim of the Petitioner could not be considered under the earlier Rules. He relied upon Sub-Rule (9) of Rule 6 of the Odisha Civil Services (Rehabilitation Assistance) Rules, 2020, which reads as under:-

<(9) All pending cases as on the date of publication of these rules in the Odisha Gazette shall

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be dealt in accordance with the provision of these rules.=

9. Mr. Panda, learned counsel for the State further contended that the bare reading of the Rule indicates that the cases which are pending for consideration shall only be dealt with in accordance with the provisions of the new Rules, hence the prayer of the Petitioner in the Writ Petition could not be acceded to.

10. To the counter of the aforementioned submission made by learned counsel for the State, learned counsel for the Petitioner relied upon the judgment of Hon'ble Supreme Court passed in Civil Appeal No.7752 of 2021 dated 20.05.2022 in the case of the Secretary to Govt. Department of Education (Primary) &Ors. Vrs. Bheemesh Alias Bheemappa. He has relied upon paragraph-19 of the judgment, which reads as under:-

<19. The important aspect about the conflict of opinion is that it revolves around two dates, namely, (i) date of death of the employee; and (ii) date of consideration of the application of the dependant. Out of these two dates, only one, namely, the date of death alone is a fixed factor that does not change. The next date namely the date of consideration of the claim, is something that depends upon many variables such as the date of filing of application, the date of attaining of majority of the claimant and the date on which the file is put up to the competent authority. There is no principle of statutory interpretation which permits a decision on the applicability of a rule, to be based upon an indeterminate or variable factor. Let us take for instance a hypothetical case where 2 Government servants die in harness on January 01, 2020. Let us assume that the dependants of these 2 deceased Government servants make applications for appointment on 2 different dates say 29.05.2020 and 02.06.2020 and a modified Scheme comes into force on June 01, 2020. If the date of consideration of the claim is taken to be the criteria for

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determining whether the modified Scheme applies or not, it will lead to two different results, one in respect of the person who made the application before June 1, 2020 and another in respect of the person who applied after June 01, 2020. In other words, if two employees die on the same date and the dependants of those employees apply on two different dates, one before the modified Scheme comes into force and another thereafter, they will come in for differential treatment if the date of application and the date of consideration of the same are taken to be the deciding factor. A rule of interpretation which produces different results, depending upon what the individuals do or do not do, is inconceivable. This is why, the managements of a few banks, in the cases tabulated above, have introduced a rule in the modified scheme itself, which provides for all pending applications to be decided under the new/modified scheme. Therefore, we are of the considered view that the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor.=

As per the law settled by the Hon'ble Supreme Court, to determine the eligibility for rehabilitation appointment, the date of death of the employee is the reckoning date, but not the date of consideration of the application.

11. Moreover Section 5(b) & (c) of the Orissa General Clauses Act, 1937 deal with the effect of the Repeal under the General Rules of Construction, which provides as under:-

<5. Effect of repeal:- Where any Orissa Act repeals any enactment hitherto made, or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(a) Xxxxxxxxxxxxxxxxx

(b) Affect the previous operation of any enactment so repealed or anything duly done or suffered there under; or

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(c) Affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed.=

12. Therefore, the repeal provision shall not affect any right which has already accrued or incurred to a person under any enactment so repealed. Under the command of the said provision it could fairly inferred that the right in favour of the Petitioner has already accrued on the death of the husband of the Petitioner i.e. on 07.05.2018 and when she applied for the rehabilitation appointment on 01.11.2018. Therefore applying the provision of Orissa General Clauses Act, 1937, the right of the Petitioner could be protected as it has accrued under OCS (RA) Rules, 1990 as amended in 2016. That's precisely is the prayer made by the Petitioner in the instant Writ Petition, which reads as under:-

<It is, therefore, most humbly prayed that this Hon'ble Court may graciously be pleased to issue RULE NISI calling upon the opp. parties to show cause as to why appropriate writ/writs shall not be issued setting aside the impugned order dated 07.07.2021, annexure-5, and further to show cause as to why direction shall not be issued to the opp. parties in particular the opp. party no.1 to 3, to consider the case of the petitioner for appointment under RA Scheme under the OCS (Rehabilitation Assistance) Rules, 1990 with the amended rules 2016 and to complete the process of appointment within a time stipulated period as this Hon'ble Court pleases to fix and upon perusal of the causes shown, make the said RULE absolute and may pass such other order/orders as deemed just and proper;

And for this act of kindness the petitioner shall as in duty bound ever pray.=

13. In view of the foregoing, I am of the considered view that the prayer made by the Petitioner as reproduced above, deserves to be

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allowed. Therefore, the Writ Petition is disposed of with a direction to the Opposite Party No.1 to 3 to consider the case of the Petitioner for giving appointment under RA Scheme under OCS (RA) Rules, 1990 as amended in 2016. Since the matter is pending since 01.11.2018, it is essential that the process is completed as expeditiously as possible preferably within a period of one month but in any case not exceeding two months from today.

14. The Writ Petition is allowed accordingly.

(S. S. Mishra) Judge Swarna

Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 15-Sep-2023 18:02:20