Mitu Dalei Vs State of Odisha — Orissa HC (2024) — LawSathi Research

Mitu Dalei Vs State of Odisha — Orissa HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Impugned rejection order dated 07.12.2023 (Annexure-1) quashed; matter remanded to Opposite Party No.2 for fresh consideration of the Petitioner's compassionate appointment claim under the OCS (RA) Rules, 1990, preferably within two months, with forwarding of the application to the concerned Administrative Department for condonation of delay under Rule 9 (11) and communication of the decision to the Petitioner within two weeks; urgent certified copy on proper application.

Issue for consideration

Whether the rejection of the Petitioner's application for compassionate appointment solely on the ground of delay under the 2020 regime was sustainable, and whether, taking into consideration the date of death of the ex-Government employee, the application ought to have been considered under the OCS (RA) Rules, 1990.

Court's answer

Taking into consideration the date of death of the ex-Government employee (father of the Petitioner) and the objective behind the OCS (RA) Rules, 1990, the Petitioner's application could have been considered under the 1990 Rules; the position on applicability of the rules stands clarified by the judgments of the Hon'ble Supreme Court and this Court referred to in the order.

Ratio / Principle

The rejection order dated 07.12.2023 (Annexure-1) is quashed.

Key takeaways

The matter is remanded to Opposite Party No.2 to consider the Petitioner's case for appointment on compassionate ground afresh by applying the provisions of the OCS (RA) Rules, 1990, expeditiously and preferably within two months from communication of a certified copy of the order; if eligible and no vacancy exists, the application is to be forwarded to the Head of Department as provided under the 1990 Rules.ratio¶32
Since the Court directed consideration under the OCS (RA) Rules, 1990, the Petitioner's application is to be forwarded to the concerned Administrative Department for condonation of delay, if any, invoking Rule 9 (11) of the OCS; any decision taken is to be communicated to the Petitioner within two weeks.ratio¶34

Detailed headnote1 paragraphs

Compassionate appointment — Rejection solely on ground of delay — Quashed and remanded. Petitioner's father, a Sweeper under the C.D.M.O., Nayagarh, died in harness on 13.06.2008; the elder brother's compassionate-appointment application lay pending for nearly a decade until his death on 28.04.2019; the Petitioner's subsequent application was rejected vide order dated 07.12.2023 (Annexure-1) by reference to the G.A. & P.G. Dept. Resolution dtd.17.02.2020 / OCS (RA) Rules, 2020. Held, taking into consideration the date of death of the ex-Government employee and the objective behind the OCS (RA) Rules, 1990, the application could have been considered under the 1990 Rules; Rule-6(9) of the 2020 Rules had already been struck down in Biswajit Swain (W.P.(C) No.5214 of 2021). Rejection order quashed; matter remanded to Opposite Party No.2 for fresh consideration under the OCS (RA) Rules, 1990, preferably within two months, with the application to be forwarded to the concerned Administrative Department for condonation of delay under Rule 9 (11) and the decision communicated within two weeks. Reliance placed on Malaya Nanda Sethy (SC), State of West Bengal v. Debabrata Tiwri (SC), Suchitra Bal (DB) and Bindusagar Samantaray (DB). Writ petition disposed of.

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.4827 of 2024

Mitu Dalei

…. Petitioner

Mr.P.K.Nayak, Advocate

-versus-

State of Odisha and others

…. Opp. Parties

Mr. D.Mohapatra, A.S.C.

CORAM:

JUSTICE A.K. MOHAPATRA

ORDER

Order No.

06.03.2024

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

Heard learned counsel for the petitioner as well as learned Additional Standing Counsel appearing for the State. Perused the writ petition as well as documents annexed in the Writ Petition.

The Petitioner has filed the present writ application with the following prayer:

“It is therefore prayed that this Hon’ble Court may graciously be pleased to issue Rule Nisi asking the Opp. Parties to submit show cause as to why the Rejecting the application of Annexxure-1 did. 07.12.2024 of the petitioner for appointment under the Rehabilitation Assistance Scheme shall not be consider and thereafter give appointment under the said Scheme and if the Opp. Parties fails to file show cause or file insufficient Show cause then the above Rule may kindly be made Absolute;

And pass any appropriate writ(s) order(s), direction(s) as think deem fit and proper.”

It is submitted by learned counsel for the petitioner that the father

of the present petitioner, namely Late Roul Dalei, while working as a Sweeper under the C.D.M.O., Nayagarh, Opposite Party No.2 died in harness on 13.06.2008 leaving behind his two sons and wife. As per the

// 2 //

list of preference, the elder brother of the Petitioner, namely, Jitendra Dalei applied for appointment on compassionate ground with regard to the distressful condition of the entire family. However, such application was kept pending for almost a decade. While the application of the elder brother of the Petitioner, namely Jitendra Dalei, was pending for a long time. On 28.04.2019, the above named brother of the Petitioner, namely Jitendra Dalei, passed away. Thereafter, the Petitioner approached the authorities to consider his case for appointment in case of his deceased father. Such application of the Petitioner having been rejected vide order dated 07.12.2023 under Annexure-1 to the writ application by referring to the G.A. & P.G. Dept. Resolution dtd.17.02.2020, the Petitioner has approached this Court by filing the present writ application.

Learned counsel for the Petitioner further contended that on perusal of the impugned rejection order under Annexure-1 it appears that the authorities have rejected the application of the Petitioner on the ground of delay. In reply to the aforesaid ground, learned counsel for the Petitioner submitted that initially the elder brother of the Petitioner had applied, mislead with the application was kept pending for more than a decade, the Petitioner could not have applied. It is only after the untimely death of the elder brother of the present Petitioner, namely Jitendra Dalei, the Petitioner had applied for appointment on compassionate ground. He further contended that taking into consideration the death of the Government employee and the distressful condition of the family, the Opposite Parties should have considered the case of the Petitioner under the OCS (RA) Rules, 1990. In support of his contention, learned counsel for the Petitioner also referred to 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

// 3 //

Civil Appeal No.8842 of 2022 decided on 3^rd 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 and submitted before this Court that taking into consideration the date of death of deceased government employee and the date of application, the application of the Petitioner should have been considered in the OCS (RA) Rules, 1990.

Learned Additional Standing Counsel appearing for the State, on the other hand, contended that the father of the Petitioner died on 13.06.2008. Thereafter, the present Petitioner submitted an application 15 years after the death of his father. Therefore, the Opposite Parties have not committed any illegality in rejecting the application of the Petitioner only on the ground of delay as in view of the provisions contained in new rule of the year, 2020 and the application has been made within two years. Moreover, there is no power to confer the authorities to condone such delay. Therefore, in rejecting the application of the Petitioner under Annexure-1, no fault can be found with the Opposite Party No.2. In such view of the matter, learned Additional Standing Counsel submitted that the writ application is devoid of merit and accordingly, the same should be dismissed.

Having heard the submissions made by learned counsels appearing for the respective parties and on a careful considerations of the background facts and materials on record, this Court observed that the father of the Petitioner, ex-Government employee, died on 13.06.2008. Thereafter, the elder brother of the Petitioner namely, Jitendra Dalei, made an application for appointment on

// 4 //

compassionate ground. It appears from record that such application was kept pending for more than a decade till the above named Jitendra Dalei died on 28.04.2019. Thereafter, the petitioner approached the authorities to consider his case. Moreover, as per request of the Opposite Parties, the Petitioner submitted an application under the OCS (RA) Rules, 2020 on 25.06.2022. In the aforesaid background, the Opposite Parties have rejected the application of the Petitioner only on the ground of delay as provided under the new rule, 2020. There is no dispute with regard to the date of death of the ex-Government employee i.e. Roul Dalei. Therefore, taking into consideration the date of death of the ex-Government employee, the father of the present Petitioner, this Court is of the considered view that keeping in view the objective behind the OCS (RA) Rules, 1990, the application of the Petitioner could have been considered under the said rules. Moreover, the position with regard to applicability of the rule has already clarified by the judgment of the Hon’ble Supreme Court as well as this Court as has been referred to hereinabove. This Court in Biswajit Swain vs. State of Odisha and others in W.P.(C) No.5214 of 2021 decided on 31.10.2023 has already struck down the Rule-6 (9) of the OCS (RA) Rules, 2020 which provides that all pending applications should have been considered under the provisions of the new rules.

In view of the aforesaid analysis the facts as well as the legal position, this Court has no hesitation in quashing order dated 07.12.2023 under Annexure-1, accordingly, the same is hereby quashed. Further, the matter is remanded back to the Opposite Party No.2 to consider the case the Petitioner for appointment on compassionate ground afresh by applying the provisions of OCS (RA) Rules, 1990 and in the event it is found that the Petitioner is

// 5 //

otherwise eligible and there is no other legal impediment, then the Opposite Party No.2 shall do well to consider providing an employment to the Petitioner in any of the vacancies under him and in the event there is no vacancy, then such application be forwarded to the Head of Department as has been provided under the OCS (RA) Rules, 1990 as expeditiously as possible preferably within a period of two months from the date of communication of a certified copy of this order. Since, this Court directs the application of the Petitioner to be considered under the OCS (RA) Rules, 1990 in view of the provisions contained in Rule 9 (11) of the OCS the application of the Petitioner be forwarded to the concerned Administrative Dept. for condonation of delay if any. Any decision taken be also communicated to the Petitioner within two weeks from the date of taking such a decision.

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

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

( A.K. Mohapatra) Judge

Anil

Signature Not Verified

Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 11-Mar-2024 10:01:02