Partly allowed

Chandra Sekhar Pujhari v. State of Odisha

Orissa HC12 Dec 2023WP(C)/24498/2020

Case brief

AI extract

What is this about?

This writ petition challenged an order returning a compassionate ground appointment application with a direction to apply under new 2020 rules for a case initiated in 2011. The High Court quashed the order, holding the petitioner is entitled to consideration under the old 1990 rules based on a prior recommendation, and remanded the matter for final decision.

What did the court decide?

Quashed the letter of return dated 27.7.2020 and remanded the matter to reconsider the application under OCS (R.A.) Rules, 1990 within two months.

Chandra Sekhar Pujhari Vs State of Odisha — Service and Employment | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.24498 of 2020

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Chandra Sekhar Pujari

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…. Petitioner Mr. K.C. Sahu, Advocate

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-versus-

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State of Odisha and others

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…. Opp. Parties Mr. N.K. Praharaj, A.G.A.

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CORAM: JUSTICE A.K. MOHAPATRA

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Order No.

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ORDER 12.12.2023

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

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Heard learned counsel appearing for the Petitioner as well as learned Additional Government Advocate appearing for the State-Opposite Parties. Perused the pleadings of the respective parties as well as documents annexed thereto.

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The present writ petition has been filed by the Petitioner with the following prayers:-

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“It is, therefore, prayed that your Lordships may be graciously be pleased to allow this writ petition by quashing the impugned letters of return under Annexure-13 by further directing the opp. Parties for providing appointment of the petitioner under the R.A. Scheme in view of the recommendation letter under Annexure-12 as per the prevailing the then existing provisions/rules on the date submission of the application form by the petitioner without applying the provisions of the new rule i.e. O.C.S.

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(R.A.) Rules 2020 under Annexure-14 as the same shall not be applicable to the case of the petitioner within a time bound period for the interest of justice.

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And may further be pleased to pass any other order(s), direction(s) as deems fit and proper for the bona fide interest of justice.”

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The factual background leading to filing of the present writ petition, in short, is that the father of the present Petitioner, namely, late Motilal Pujhari, was working as a Head Clerk in the office of the Opposite Party No.6. While working as such, the Government employee died in harness on 12.06.2011. Thereafter, the present Petitioner, being the son and one of the legal heirs, applied for appointment on compassionate ground on 15.9.2011. Along with his application the Petitioner submitted a certificate, which was obtained from the Collector & District Magistrate, Kalahandi with regard to the distressful condition of the family, and which was forwarded to the Executive Engineer, Kalahandi, Investigation Division, Bhawanipatna under Annexure-6 to the writ petition. Thereafter, the proposal for appointment on compassionate ground was forwarded by the Superintending Engineer, Southern Investigation Circle, Berhampur (Opposite Party No.5) to the Chief Engineer, P.P. & F., Odisha, Bhubaneswar (Opposite Party No.4) vide letter dated 12.02.2023 under Annexure-7. While matter stood thus, the Opposite Parties did not take any action on the application of the Petitioner which was duly forwarded to the office of the Opposite Party No.4. Vide letter dated 22.09.2016, the Deputy Secretary to Government of Odisha, Department of Water

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Resources sought for information from the Opposite Party No.3Engineer-in-Chief, Water Resources Department, Bhubaneswar with regard to the death of the first wife of the deceased Government employee and to intimate regarding the status of the first wife of the father of the Petitioner. To enquire into the status of the first wife of the father of the Petitioner, several correspondences were made under Annexures-8, 9 and 10 to the writ petition. Finally, on 8.11.2016, the documents were produced regarding marriage of the deceased Government employee for the second time to one Smt. Ullasa Pujhari under Annexure-11 to the writ petition.

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It appears from the record that since 2016 upto 11.11.2019, i.e., for almost 3 years no action was taken by the Opposite Parties and simply sat over the matter. Finally, on 11.11.2019 the Opposite Party No.4 recommended 11 numbers of R.A. cases for appointment including the name of the Petitioner under Annexure-12 to the writ petition. While such recommendation was pending, the new rule of the year 2020 came into force. Accordingly, the Petitioner was requested to make a fresh application under the new rules. Since the Petitioner had no other alternative, he had to oblige for Opposite Parties for getting an appointment on compassionate ground and accordingly submitted the fresh application. Such fresh application of the Petitioner having been rejected by applying the provisions of new rules, the Petitioner has approached this Court by filing the present writ petition.

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Learned counsel for the Petitioner submitted that Opposite Parties have returned the application of the Petitioner with a direction to resubmit the application under the O.C.S. (R.A.) Rules, 2020 vide order dated 27.07.2020 under Annexue-13 to the writ petition. Being aggrieved by such order, the Petitioner has approached this Court by filing the present writ petition.

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Mr. Sahu, learned counsel appearing for the Petitioner, at the outset, contended that considering the date of death of deceased Government employee and the date of application of the Petitioner, i.e., 12.6.2011 and 15.9.2011 respectively, the case of the Petitioner is to be considered under the O.C.S. (R.A.) Rules, 1990. In support of his contention, Mr. Sahoo, learned counsel for the Petitioner relied upon the judgment of the Hon’ble Supreme Court in Malaya Nanda Sethy vrs. State of Orissa and others, reported in 2022(II) OLR(SC)-1 as well as the judgments of this Court in Suchitra Bal v. State of Odisha & Ors. (W.P.(C) No.2081 of 2021 decided on 16.03.2023) and Bindusagar Samantaray v. State of Odisha & Ors. (W.A. No.810 of 2021 decided on 25.09.2023). He also relied upon the judgment of this Court in Biswajit Swain v. State of Odisha and others (W.P.(C) No.5214 of 2021 disposed of on 31.10.2023) wherein this Court has struck down the Rule-6(9) of the O.C.S. (R.A.) Rules, 2020. In such view of the matter, learned counsel for the Petitioner submitted that the application of the Petitioner needs to be considered under the O.C.S. (R.A.) Rules, 1990 and keeping in view the recommendation under Annexue-12 to the

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writ petition.

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Learned Additional Government Advocate appearing for the State-Opposite Parties, on the other hand, contended that no doubt there was a delay in considering the application of the Petitioner, however he tried to justify the same by submitting before this Court that the deceased Government servant has two wives. Therefore, the same was to be enquired into by the competent authority before making a final view in the matter. Learned Additional Government Advocate further contended that while the application of the Petitioner was pending for consideration, the O.C.S. (R.A.) Rules, 1990 was replaced by the O.C.S. (R.A.) Rule, 2020 and in view of the G.A.&P.G. Department Notification dated 17.2.2020 all the pending applications were to be considered under the new rules. Therefore, the Opposite Parties have not committed any illegality by asking the Petitioner to file fresh application under the 2020 Rules. Learned Additional Government Advocate further referring to the letter dated 20.9.2020 under AnnexureG/6 to the counter affidavit, submitted before this Court that the Executive Engineer, Kalahandi Investigation Division, Bhawanipatna, has specifically written a letter to the Petitioner requesting him to make an application under the new rules in view of the aforesaid G.A.&P.G. Department Notification dated 17.2.2020. In such view of the matter, learned Additional Government Advocate submitted that the writ petition is devoid of merit and, as such, the same should be dismissed.

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Having heard the learned counsels appearing for the respective parties, and on a careful consideration of the submissions made by the counsels, and upon examination of the background facts of the present case as well as the materials on record, this Court is of the considered view that the only question that is required to be adjudicated in the present writ petition is as to whether the application submitted by the Petitioner is to be considered under the O.C.S. (R.A.) Rules, 1990 or under the O.C.S. (R.A.) Rules, 2020. Further, the same is required to be adjudicated keeping in view the fact that the deceased Government employee had died in the year 2011 and the initial application was made in the very same year which was kept pending for different reasons till the same was returned in the year 2020 asking the Petitioner to resubmit the application under the new rules.

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In view of the facts and circumstances of the present case, this Court is of the considered view that the present case is squarely covered by the judgments delivered by this Court as well as the Hon’ble Supreme Court. It is needless to mention here that the case of the Petitioner is covered by the judgment of the Hon’ble Supreme Court in Malaya Nanda Sethy’s case (supra). Further, in the case of Biswajit Swain (supra), this Court had already declared the provisions of Rule-6(9) of the O.C.S. (R.A.) Rules, 2020 to be ultra vires and, accordingly, the same has been struck down.

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In such view of the matter, this Court has no hesitation to

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hold that the letter dated 27.7.2020 under Annexure-13 is unsustainable in law. Accordingly, the same is hereby quashed. Further, the matter is remanded back to the Opposite Party No.3 to reconsider the matter keeping in view the law laid down by this Court as well as the Hon’ble Supreme Court as has been discussed hereinabove, as well as by taking into consideration the recommendation made earlier in favour of the Petitioner under Annexure-12 to the writ petition, and take a final decision within two months from the date of communication of a certified copy of this order by the Petitioner. The final decision so taken be also communicated to the Petitioner within two weeks from the date of taking such a decision.

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

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

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( A.K. Mohapatra) Judge

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Debasis

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Signature Not Verified

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Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 18-Dec-2023 18:01:01

Chandra Sekhar Pujhari v. State of Odisha

Case brief

What is this about?

What did the court decide?

Chandra Sekhar Pujhari v. State of Odisha

Case brief

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