Orissa High Court
Rakesh Ranjan Mishra vs State Of Odisha & Others .... Opposite ... on 27 June, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C )(OA) No.6 of 2018
Rakesh Ranjan Mishra .... Petitioner
Mr.K.C. Sahu, Advocate
-versus-
State of Odisha & Others .... Opposite Parties
Mr.S.K. Samal, AGA
COROM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
27.06.2024
Order No
02. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical) Mode.
2. Heard Mr. K.C. Sahu, learned counsel for the Petitioner and Mr.
S.K. Samal, learned Addl. Government Advocate for the State-Opp.
Parties.
3. The present writ Petition has been filed with the following
prayer:-
"In view of the facts mentioned in Paragraph-6 above,
the applicant prays for the following reliefs:
(i) The Hon'ble Tribunal be pleased to admit &
allow the Original Application;
(ii) The Hon'ble Tribunal be pleased to allow the
case by quashing the impugned order of
rejection dtd.08.04.2016 under Annexure-6 in
respect of the applicant with further directing
for appointment of the applicant as a Jr. Clerk
under the R.A. Scheme in commensurating to
his qualification as the vacancy of Jr. Clerk are
available under Annexure-4-(Series) within a
time bound period for the interest.
(iii) The Hon'ble Tribunal may be pleased to pass
any order (s) / direction(s) as deems fit ad
proper for the interest of justice".
4. It is submitted that the Petitioner's father while working as a
Section Officer under Opposite Party No.3, he died in harness on
27.08.2014.
4.1. It is submitted that on such death of the deceased Govt.
employee, Petitioner made an application on 09.04.2015 under the
provision of OCS (R.A) Scheme and the said application was duly
forwarded to O.P. No. 2 by Opposite Party No.3 after receipt of the
distress certificate vide letter dtd.21.08.2015 under Annexure-4
(Series).
4.2. It is submitted that O.P. No. 2 vide letter dt.24.09.2015 under
Annexure-5 forwarded the application along with relevant
documents to Opposite Party No.1 for consideration of the claim of
the Petitioner.
4.3. It is further submitted that while making his initial application
on 09.04.2015, other legal heirs of the deceased employee gave
their no objection in favour of the present Petitioner for his
appointment under Rehabilitation Assistance Scheme. But it is
submitted that O.P. No. 1 without proper appreciation of his claim
vis-a-vis the Rules governing the field rejected the claim as
reflected in the impugned communication dtd. 08.04.2016 under
Annexure-6, inter alia holding that since the Petitioner's mother
was alive at the time of the death of the Govt. employee, his case
cannot be considered.
4.4. Learned counsel for the Petitioner submitted that under the
provision of OCS (R.A.) Rules, 1990 family is defined under Rule
2(b) of the said Rules. "Family Members" as defined under Rule
2(b) is as follows:-
"(i) Wife/Husband;
(ii) Sons or step sons or sons legally adopted through
a registered deed;
(iii) Unmarried daughters and unmarried step
daughters;
(iv) Widowed daughter or daughter-in-law residing
permanently with the affected family;
(v) Unmarried or widowed sister permanently
residing with the affected family;
(vi) Brother of unmarried Government servant who
was wholly dependent on such Government servant at
the time of death."
4.5. Learned counsel for the Petitioner accordingly submitted that
as the other legal heirs gave their no objection in favour of the
Petitioner, Petitioner when made his application within the time, the
same was recommended favourably by O.P. No. 3 vide letter
dtd.21.08.2015 under Annexure-4 and by Opposite Party No.2 vide
letter dtd.24.09.2015 under Annexure-5. But O.P. No. 1 by
misinterpreting the provision of Rule 2(b) of the Rules held that
since the Petitioner was not the sole member of the deceased family
and the spouse was alive, his claim cannot be entertained.
4.6. Learned counsel for the Petitioner further submitted that this
Court while considering the provision contained under Rule 2(b) of
the Rules has held that Rule 2(b) only prescribes the order of
preference of the family members of the deceased employee and
there is no stipulation that wife/husband of the deceased employee
is to make the application only. Learned counsel for the Petitioner
in support of his aforesaid submission relied on a decision of this
Court reported in 2018(II) OLR 10 (Ajit Kumar Barik vs. State of
Orissa & Others). This Court in Para 6 & 7 of the said Judgment
held as follows:-
"6. The Rules as contended in the above paragraph nowhere
restricted the jurisdiction of the appointing authority to consider
the application for appointment in a suitable available vacancy
under his control. The Rules also define "Family Members"
means include the following members in order of preference-
(i) Wife/Husband;
(ii) Sons or step sons or sons legally adopted through a
registered deed
(iii) Unmarried daughters and unmarried step daughters;
(iv) Widowed daughter or daughter-in-law residing permanently
with the affected family;
(v) Unmarried or widowed sister permanently residing with the
affected family;
(vi) Brother of unmarried Government servant who was wholly
dependent on such Government servant at the time of death.
7. Of course the first preference is to be given wife/husband of
the deceased employee then son and unmarried daughter.
However no where it was stated that in the case a family
member in order of preference in the hierarchy is unfit and a
medical certificate furnished to that effect, claim shall not be
considered for engagement of the other eligible members in case
of distress condition of the family. Therefore, the finding given
by the Tribunal in the impugned order that she is not prepared
to accept Group-'D' post and offered it to her son in ignoring the
material on records is not sustainable."
4.7. Learned counsel for the Petitioner submitted that order passed
in the above noted reported decision of this Court was also
confirmed by the Hon'ble Apex Court vide its order
dtd.26.10.2018. Accordingly it is submitted that in view of the ratio
decided in the above noted reported case of this Court, which has
been confirmed by the Hon'ble Apex Court, the claim of the
Petitioner was required to be reconsidered by the O.P. No. 1 taking
into account the recommendation made under Annexure-5.
4.8. It is also submitted that in view of the no objection given by the
other legal heirs of the deceased employee and the reported
decision of this Court, the rejection of Petitioner's claim made by
O.P. No. 1 vide order dtd.08.04.2016 under Annexure-6 is illegal
and liable to be interfered with by this Court.
5. Mr. S.K. Samal, learned Addl. Government Advocate while
supporting the impugned rejection submitted that since other legal
heirs were available at the relevant point of time, Petitioner's
application has been rightly rejected vide the impugned order
dtd.08.04.2016. Mr. Samal, learned Addl. Government Advocate
further submitted that there is no illegality or irregularity in
rejecting the Petitioner's claim by O.P. No. 1 vide Order under
Anneuxre-6 and it requires no interference.
6. Heard learned counsel appearing for the Parties. Perused the
materials available on record. This Court after going through the
same finds that the Petitioner's application for compassionate
appointment was not only accepted but also it was considered with
recommendation made by Opposite Party No.3 vide letter
dtd.21.08.2015 under Annexure-4-Series after receipt of the distress
certificate from Collector on 11.08.2015. Opposite Party NO.2 on
receipt of the recommendation under Annexure-4-Series forwarded
the same to Opposite Party No.1 for consideration vide letter
dtd.24.09.2015 under Annexure-5. But ultimately his claim was
rejected vide order dt.08.04.2016 under Annexure-6 on the ground
indicated hereinabove.
6.1. This Court in view of the decision of this Court reported in the
case of Ajit Kumar Barik Vs. State of Odisha & Ors. reported in
2018 (II) OLR 10 is of the view that there is no bar on the part of
the Petitioner to make his application for extension of the benefit
under the provision of OCS (R.A.) Scheme.
6.2. Therefore, in view of the grounds taken in the writ Petition and
the decision reported in the case of Ajit Kumar Barik, this Court is
of the opinion that O.P. No. 1 has illegally rejected Petitioner's
claim vide order dtd.08.04.2016 under Annexure-6. Therefore, this
Court while quashing the same so far as it relates to the Petitioner
directs O.P. No. 1 to take a fresh decision on the claim of the
Petitioner as recommended on 21.08.2015 vide Annexure-4-Series.
6.3. Since the deceased employee died in harness on 27.08.2014,
this Court basing on the recent decision of the Hon'ble Apex Court
in the case of Malayananda Sethi Vs. State of Odisha & Ors Civil
Appeal No.4103 of 2022 disposed of on 20.05.2022 also
directs O.P. No. 1 to take decision on the Petitioner's claim in terms
of the rules prevalent at the time of the death of the deceased
employee. This Court directs O.P. No. 1 to complete the entire
exercise within a period of two (2) months from the date of receipt
of this Order with due intimation to the Petitioner.
7. The writ Petition is disposed of with the aforesaid observation
and directions.
(Biraja Prasanna Satapathy)
Judge
Signed by: SUBRAT KUMAR BARIK Subrat
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 09-Jul-2024 12:44:15
