) Banita Rani Biswal vs ) State Of Odisha ..... Opposite Parties
2024 Latest Caselaw 5873 Ori

Orissa High Court

) Banita Rani Biswal vs ) State Of Odisha ..... Opposite Parties on 2 April, 2024

Author: Aditya Kumar Mohapatra

Bench: Aditya Kumar Mohapatra

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                        WP(C) No.7366 of 2024
    1) Banita Rani Biswal                                    .....                       Petitioner
                                                                         Represented By Adv. - Jiban
                                                                                       Ranjan Dash

                                                  -versus-
    1) State Of Odisha                                           .....            Opposite Parties

    2) Addl. Director, Land Records And Settlement,                           Represented By Adv. -
    Cuttack                                                                          S.Das, A.G.A.

    3) Collector, Jagatsinghpur

    4) Addl. Sub-collector(settlement) , Puri

    5) Settlement Officer, Cuttack Major Settlement




                                                CORAM:
          THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA

                                                         ORDER

Order No.                                              02.04.2024


    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-Opposite Parties. Perused the writ petition as well as documents annexed in the Writ Petition.

3. The present Writ Petition has been filed by the Petitioner with the following prayer :

"It is, therefore prayed that this Hon'ble Court may be graciously pleased to admit this writ application, issue notice of Rule-NISI calling upon the opposite parties to show cause as to why the order under Annexure-6 shall not be quashed and the petitioner shall not be given appointment under the Rehabilitation Assistance Rule 1990 and upon their showing no cause or insufficient cause make the said Rule absolute;

And pass any other appropriate order/orders for ends of justice."

4. It is submitted by learned counsel for the petitioner that the father of the petitioner, namely, late Ramachandra Biswal who was appointed as JC (IV) in the office of Charge Officer, Puri on 20.12.1977, died in harness on 15.06.1997 leaving behind his widow wife and four daughters in a distressful condition. The present Petitioner being one of the daughters, applied for appointment on compassionate ground to mitigate the distressful condition of the family left behind by the deceased govt. employee. Such application was submitted on 30.04.2014, thereafter, an application submitted by the Petitioner was returned vide letter dated 12.08.2015 of the Board of Revenue with a further request to file a fresh application in proper formant. Accordingly, the Petitioner submitted an application in the proper formant. Learned counsel for the Petitioner further contended that from time to time the authorities asked the petitioner to comply with their requirement and to produce certain additional documents which was duly complied by the Petitioner. Finally, the application submitted by the Petitioner for appointment on compassionate ground was rejected vide order dated 11.10.2021 under Annexure-6 to the writ application. Referring the rejection order under Annexure-6, learned counsel for the Petitioner submitted that the application of the Petitioner has been rejected on the ground that the petitioner is married daughter of the deceased govt. employee and as such she is not coming under of family member as defined under the Rule 2 (d) of the OCS (RA) Rules, 2020. In the aforesaid context, learned counsel for the Petitioner submitted that in view of the judgment of the Hon'ble Supreme Court in the case of Malaya Nanda Sethy vrs. State of Orissa and others : reported in 2022(II) OLR(SC)-1 and State of West Bengal-v.-Debabrata Tiwri passed in Civil Appeal No.8842 of 2022 decided on 3rd of March, 2023 reported in (2023 (3) SCALE-557 decided by the Hon'ble Supreme Court and the judgment of this Court in Suchitra Bal vs. State of Odisha & ors. 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 & ors. by a Division Bench of this Court in W.A. No.810 of 2021 decided on 25.09.2023, the application of the Petitioner is to be considered under the OCS (RA) Rules, 1990 by taking into consideration the date of death deceased govt. employee and date of application.

5. In the context of claim of a married daughter is concerned, learned counsel for the Petitioner referring the judgment of this Court in Urbashi Sahoo vs. State of Orissa & anr. reported in 2022 (II) CLR 64, Bibhuti Bhusan Patnaik vs. State & ors. reported in 2017 (II) ILR- CUT 896 & Minati Sahoo vs. State of Orissa & ors. reported in 2022 (II) OLR 691. By referring to the aforesaid judgment, learned counsel for the Petitioner submitted that the law is settled that the married cannot be excluded from the family members as defined in the OCS (RA) Rules. Learned counsel for the Petitioner submitted that the Opposite Parties have committed an illegality by rejecting the application of the Petitioner only on the ground that the Petitioner being the married daughter has no right to make an application for appointment on compassionate ground. In otherwise also this Court is of the view that such discrimination is unsustainable under the constitutional provisions.

6. Learned A.G.A. contended that an application was duly considered by the Opposite Parties and the case has been disposed of by passing a speaking and reasoned order dated 11.10.2021 under Annexure-6 to the writ application. He further contended that the Petitioner has approached this Court after 2 ½ years from the death of his father. On such ground delay, the writ application is liable to be dismissed. He further contended that in the event this Court is of the view that the grounds on which the application has been rejected is unsustainable in law, in view of the settled position of law, then the matter may be remanded back to the authorities for consideration in accordance with law within a stipulated period of time and he will have no objection to the same.

7. Having heard the submissions made by learned counsels appearing for the respective parties and on careful consideration of the background facts as well as materials on record further taking into consideration the judgments referred to hereinabove, this Court is of the considered view that it is undisputed fact that the father of the present Petitioner died prior to the new rule of the year 2020 came into force. An application was also made prior to such rule was in force. Therefore there is no dispute that the application submitted by the Petitioner is to be considered under the OCS (RA) Rules, 1990. Further taking into consideration the judgment referred to hereinabove, this Court has no hesitation in coming to a conclusion that the case of the petitioner could not have been rejected on the ground that she is a married daughter of the deceased govt. employee. Even on perusal of the background facts of the case it appears that the deceased govt. employee has left behind the widowed wife and four daughters. Therefore, there is no male member in the family to look after the family or make any such application for appointment on compassionate ground. Therefore, this Court is of the considered view the impugned rejection order is unsustainable in law and accordingly the same is hereby quashed. Further, the matter is remanded back to the Opposite Party Nos.2 to 5 to consider the matter afresh of the Petitioner in terms of the OCS (RA) Rules, 1990 within a period of two months from the date of certified copy of this order. It is further directed that any decision taken in the meantime be communicated to the Petitioner within two weeks from the date of taking such a decision.

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

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

( A.K. Mohapatra)

Judge Anil

Location: High Court of Orissa