Orissa High Court
Aswini Kumar Senapati vs State Of Odisha & Others .... Opposite ... on 28 June, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C )(OAC) No.229 of 2019
Aswini Kumar Senapati .... Petitioner
Mr.M.K. Mohanty, Advocate
-versus-
State of Odisha & Others .... Opposite Parties
Mr.S.K. Samal, AGA
COROM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
28.06.2024
Order No
07. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical) Mode.
2. Heard Mr. M.K. Mohanty, 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:
The Hon'ble Tribunal may be graciously pleased to
allow the Original Application, quash the order
No.8553 dated 08.04.2016 in respect of the applicant at
Sl. No.13 under Annexure-5 and further direct the
respondents to give appointment to the applicant under
the Provisions of Orissa Civil Service (Rehabilitation
Assistance) Rules, 1990 and pass such other further
order / orders as are deemed just and proper".
4. It is submitted that the Petitioner's father while working as a
Security Guard in the main dam of Hirakud, he died in harness on
22.07.2001.
4.1. It is submitted that on the death of the deceased Govt.
employee, his wife initially made the application within the time to
get the benefit of appointment under the provisions of
Rehabilitation Assistance Scheme. The said application was also
favourably considered after issuance of the distress certificate by
the Collector of the District. But on the face of the favourable
recommendation, the wife of the deceased employee was never
provided with the appointment and in the meantime Petitioner on
attaining his majority raised his claim to get the benefit in lieu of
his mother. The application submitted by the Petitioner was duly
entertained and forwarded by Opposite Party No.2 for
consideration. But Engineer-in-Chief, Water Resources vide letter
dtd.18.10.2012 requested Opposite Party No.2 to comply some
objection and to submit a fresh proposal in favour of the Petitioner
as desired by the Government in the Department of Water
Resources.
4.2. It is submitted that O.P. No. 3 vide letter dt.30.04.2013 under
Annexure-4 forwarded the required information/materials for
further action to O.P. No. 2. But in spite of submission of all the
documents as desired by the concerned Authority, Petitioner was
not provided with the benefit under R.A. Scheme.
4.3. It is further submitted that Petitioner while making his
application, 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, passed the impugned order on
08.04.2016 under Annexure-5 inter alia holding that since
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
other legal heirs when gave their no objection in favour of the
Petitioner, Petitioner made his application within the time on his
attaining the age of 18 years and the same was recommended
favourably by O.P. No. 2. But O.P. No. 1 by misinterpreting the
provision of Rule 2(b) 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. 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. Similarly Learned counsel for the Petitioner submitted that the
order passed in the above noted reported decision of this Court was
also been confirmed by the Hon'ble Apex Court vide its order
dtd.26.10.2018. Accordingly he 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, claim of the Petitioner
was required to be reconsidered by the O.P. No. 1, with due
quashing of the rejection available under Annexure-5.
5. Mr. S.K. Samal, learned Addl. Government Advocate for the
State 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. Learned Addl. Govt. 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-5 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 on his attaining majority was not only accepted but
also it was considered with various communication made in that
regard. But ultimately his claim was rejected vide order
dt.08.04.2016 under Annexure-5 on the ground that since wife of
the deceased employee was very much available, Petitioner is not
eligible to get the benefit.
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.
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-5.
Therefore, this Court while quashing the same directs O.P. No. 1 to
take a fresh decision in terms of the decision in the case of State of
Odisha & Ors. Vs. Malayananda Sethi (Civil Appeal No.4103
of 2022 disposed of on 20.05.2022). This Court directs O.P.
No. 1 to take a fresh decision as directed 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
Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
