Orissa High Court
Padmabati Majhi @ Bhoi vs State Of Odisha & Ors. ..... Opposite ... on 27 March, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.8732 of 2025
Padmabati Majhi @ Bhoi ..... Petitioner
Represented By Adv. -
Biswabihari Mohanty
-versus-
State Of Odisha & Ors. ..... Opposite Parties
Represented By Adv. -
S.K. Parhi, A.S.C.
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
27.03.2025
Order No.
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 Standing Counsel for the State-Opposite Parties. Perused
the Writ Petition as well as the documents annexed thereto.
3. The present Writ Petition has been filed by the Petitioner with
the following prayer :
"Under the above circumstances It is therefore
humbly prayed that this Hon'ble Court may graciously be
pleased to issue a writ in appropriate nature to quash the
order of rejection dated 22.05. 2023 under Annexure-6 and
may further be pleased to direct the respondents more
particularly Respondent No- 4 reconsider the matter and
issue order of appointment in favour of the Petitioner under
O.C.S (R.A) Rules 1990 read with the O.C.S (R.A)
Amendment Rules 2016 afresh without applying the Odisha
Subordinate Forest Service (M.R.C.&S of Forest Guard)
Rules 1998 by placing reliance upon the judgment of the
Hon'ble Apex Court in State of Madhya Pradesh V.s Ashish
Awasthi and also in Secretary to Govt of Education
(Primary) vs. Bheemesh Aliash Bheemapa reported in LL
2021 SC 755 forthwith or within a time to be stipulated by
this Hon'ble Court.
And pass any other order/orders or
direction/directions be issued so as to give complete relief
to the petitioner."
4. The factual background leading to filing of the present writ
application, in short, is that the husband of the present Petitioner,
died in harness, while he was working as a Jr. Accountant under the
D.F.O., Malakangiri Forest Division, Opposite Party No.4, on
19.05.2017 leaving behind the present Petitioner as one of the legal
heirs. The Petitioner after obtaining the legal heir certificate on
11.08.2017 submitted an application before the Competent Authority
claiming appointment under the OCS (RA) Rules, 1990 on
17.01.2018. The Opposite Parties initially rejected the application of
the Petitioner by applying the OCS (RA) Rules, 2020 vide order
dated 03.12.2021.
5. Being aggrieved by the rejection of his application for
appointment on compassionate ground, the Petitioner was compelled
to approach this Court earlier by filing W.P.(C) No.34117 of 2022.
This Court after hearing the learned counsels from both sides
disposed of the said matter vide order dated 21.12.2022 thereby
quashing the impugned rejection order dated 03.12.2021 and with a
further direction to the Opposite Parties to reconsider the case of the
Petitioner by applying the OCS (RA) Rules, 1990. Since the order
was not being implemented, a contempt application bearing CONTC
No.1617 of 2023 was filed at the instance of the Petitioner. This
Court vide order dated 24.03.2023 granted further two months' time
to implement the order dated 21.12.2022.
6. While the matter stood thus, the D.F.O., Malakangiri Forest
Division, Opposite Party No.4 vide his order dated 22.05.2023 once
again rejected the application for the Petitioner for appointment on
compassionate ground, on the ground that the Petitioner was unable
to pass the test for recruitment as has been provided in the
Recruitment Rules i.e. Odisha Subordinate Forest Service (Method of
Recruitment and condition of Service of Forest Guard) Rule, 1998.
Being aggrieved by such order dated 22.05.2023 under Annexure-6
to the writ application, the Petitioner has approached this Court by
filing the present writ application.
7. Learned Additional Standing Counsel on the other hand
contended that the Opposite Party No.4 has not committed any
illegality in passing the order under challenge in the present writ
application. He further contended that after disposal of the earlier
writ application vide order dated 21.12.2022, the case of the
petitioner was duly considered by the Opposite Party No.4.
Accordingly, the Petitioner was asked to appear in the test as has
been provided in the Recruitment Rules, 1998. Since the Petitioner
failed to qualify in the cycling test, her application for appointment
on compassionate ground has been rejected by the Opposite Party
No.4 by passing a reasoned and speaking order. In such view of the
matter, learned Additional Standing Counsel submitted that the
Opposite Parties have not committed any illegality in passing the
impugned order dated 22.05.2023 under Annexure-6, therefore, the
present writ application does not call for any interference by this
Court at this stage.
8. Having heard the learned counsels appearing for the respective
parties as well as on a careful examination of the documents annexed
to the present writ application, further on a careful reading of the
impugned rejection order dated 22.05.2023 under Annexure-6, this
Court observes that the application of the Petitioner has been rejected
by the Opposite Party No.4 as the Petitioner has failed to pass in the
cycling test as provided under the Recruitment Rules, 1998. On
perusal of the order dated 21.12.2022 under Annexure-5, i.e. the
order passed in the earlier writ application the Petitioner, this Court
observes that the order dated 21.12.2022 reveals that the writ
application was disposed of by directing the Opposite Parties to
consider the case of the Petitioner in terms of the judgments referred
to therein and by applying the law applicable at the time of the death
of the govt. employee and at the time the application of the Petitioner
was submitted before the authorities. However, the Opposite Party
No.4, pursuant to the order dated 21.12.2022, although reconsidered
the case of the Petitioner, the same has been done by applying the
Recruitment Rules, 1998.
9. In the aforesaid context, it would be relevant to refer to the
provisions contained in Rule 5 of the OCS (RA) Rules, 1990. The
same rules provide as follows:-
5. 1[Appointment to be made basing on the
evaluation report of the committee] - 1[On receipt of the
report of the committee constituted under Rule 8], a member
of the family of the Government servant who dies while in
service may be appointed to any Group C of Group D posts
only by the appointing authority of that Deceased Government
servant provided he/she possesses requisite qualification
prescribed for the post in the relevant recruitment rules of
instructions of the Government without following the
procedure prescribed for the recruitment to the post either by
statutory rules or otherwise irrespective of the fact that
recruitment is made by notification of vacancies to the
Employment Exchange or through recruitment examination
under relevant recruitment rules. At the time of notifying such
vacancies to the Employment Exchange or the examining
authority, the employer shall clearly mention that the vacancy
is proposed to be filled up under rehabilitation assistance
scheme and so, sponsoring of candidates by Employment
Exchange or the examining authority is not necessary.
[Provided that a maximum of 10% of the total
vacancies in a year shall be remarked to be filled up by
applicants under Rehabilitation Assistance Scheme.]
On a careful analysis of the aforesaid Rule 5 of OCS (RA)
Rules, 1990 it appears that the same clearly provides that at the time
of consideration of the cases for appointment on compassionate
ground, the competent authority is required to examine the
educational qualification which is required for the post and without
following the procedure prescribed for the recruitment to the post
either by statutory rules or otherwise. Therefore, the Rule 5 leaves no
room for doubt with regard to the non-applicability of the statutory
recruitment rules to the cases of compassionate appointment.
Therefore, this Court observes that the Opposite Party No.4 has
committed an illegality by not following Rule 5 and by applying the
Recruitment Rules to the cases for compassionate appointment.
10. On a plain reading of Rule 15 of the OCS (RA) Rules, 1990 it
appears that the same provides that the 1990 Rules shall have effect
notwithstanding anything to the contrary in any other recruitment
rules made under the proviso to Article 309 of the Constitution of
India. In assuming that the Recruitment Rule of the 1990 is a
statutory rule framed under the proviso to Article 309, the OCS (RA)
Rules, 1990 will have an overriding effect on the same rule.
Therefore, there is no doubt in law that in view of the Rule 5, the
provisions contained in OCS (RA) Rules, 1990 will have an
overriding effect over the statutory recruitment Rules.
11. In view of aforesaid analysis, this Court is of the considered
view that the Opposite Party No.4 has committed an illegality in
rejecting the application of the Petitioner by applying the recruitment
rules and by subjecting the Petitioner to the recruitment procedure as
has been prescribed in Recruitment Rules, 1998. Moreover, this
Court further observes that the Rule 5 of the OCS (RA) Rules, 1990
has not been followed so far the present Petitioner is concerned. In
such view of the matter, this Court further holds that the impugned
order under Annexure-6 to the writ application is unsustainable in
law and accordingly the same is hereby set aside. Further, the matter
is remanded back to the Opposite Party No.4 to reconsider the case of
the Petitioner strictly in terms of the OCS (RA) Rules, 1990 by
taking into consideration the analysis made hereinabove. Let the
entire exercise be concluded within a period of three months from the
date of communication of certified copy of this order by the
Petitioner. The final decision so taken by the Opposite Party No.4 be
communicated to the Petitioner within a period of one week from the
date of taking such a decision.
12. With the aforesaid observations/ directions, the writ
application stands disposed of.
Issue urgent certified copy of this order as per Rules.
( A.K. Mohapatra )
Judge
Anil
Signed by: ANIL KUMAR Page 6 of 6.
Location: High Court of Orissa
Date: 28-Mar-2025 14:01:28
