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2021 DIGILAW 102 (ORI)

Prakash Chandra Nayak v. State Of Odisha

2021-03-05

BISWANATH RATH

body2021
JUDGMENT Biswanath Rath, J. - This writ petition involves the following prayer :- In view of the above and settled position of law, it is prayed, therefore that this Hon ble Court may graciously be pleased to ; i) Admit the writ petition and; ii) Issue RULE NISI calling upon the Opp. Parties to show cause as to why the impugned order of rejection vide No.2317 dated 22.01.2021 at Annexure9 and order vide No.8553 dated 8.4.2016 at Annexure-6 so far as it relates to petitioner shall not be quashed and as to why the petitioner shall not be appointed in any post commensurate to his qualification under O.C.S.(R.A.), Rules, 1990 w.e.f. his due date; iii) And if the Opposite Parties fail to show cause or show insufficient cause, the rule may be made absolute against Opposite Parties and a writ of mandamus may be issued to the Opposite Parties in quashing the impugned order of rejection vide No.2317 dated 22.01.2021 at Annexure9 and order vide No.8553 dated 08.04.2016 at Annexure-6 so far as it relates to petitioner with direction upon the O.Ps. to appoint the petitioner in any post commensurate to his qualification under O.C.S.(R.A.), Rules, 1990 w.e.f. the due date within a stipulated period of time. iv) Pass such other order(s), direction(s) as deem fit and proper to the facts and circumstances of the case to give complete relief to the petitioner; 2. Undisputed fact involves death of the deceased employee taken place on 9.1.2014. Finding harness and the sole bread-earner dying in the family, the Petitioner being the only son put up an application for rehabilitation assistance appointment on 3.6.2014 appearing at Annexure-3. Further undisputed fact remains vide Annexure-4, on 3.3.2015 the Executive Engineer, Nimapara Irrigation Division forwarded the application of the Petitioner for consideration for rehabilitation assistance appointment. There also remains vide Annexure-5, there is already a recommendation in favour of the Petitioner by the competent authority for providing appointment since 25.3.2015. Further undisputed fact remains vide Annexure-4, on 3.3.2015 the Executive Engineer, Nimapara Irrigation Division forwarded the application of the Petitioner for consideration for rehabilitation assistance appointment. There also remains vide Annexure-5, there is already a recommendation in favour of the Petitioner by the competent authority for providing appointment since 25.3.2015. It is in the above view of the matter, while bringing to the notice of the Court that for coming to know that there has been rejection of the case of the Petitioner involving such appointment, the Petitioner approached this Court in W.P.(C) No.3563 of 2020, which matter appears to have been rejected on the ground of prematureness in the Writ Petition but however, in disposal of the Writ Petition this Court directed the competent authority, O.P.2 therein to take decision on the application of the Petitioner at least within a period of one and half months from the date of communication of the order. In the meantime, a Contempt Petition has also been filed. Based on repeated directions of this Court in W.P.(C) No.3563 of 2020 as well as CONTC No.3224 of 2020, pursuant to which ultimately there appears though the Competent Authority took a decision on the request of the Petitioner but with a rejection order, vide Annexure-9. 3. Taking this Court to the rejection order at Annexure-9, Sri P.K.Mishra, learned counsel for the Petitioner contended that there being no restriction to provide appointment under Rehabilitation Assistance Rules, 1990 to any of the family members requiring simply a no objection from the other legal heirs, rejection of the request of the Petitioner on the premises that in the availability of spouse in absence of valid reason, there is no scope for providing employment under such Scheme to anybody other than the spouse becomes bad. It is in this view of the matter, Sri Mishra prayed for setting aside the order at Annexure-9 and issuing suitable direction. 4. It is in this view of the matter, Sri Mishra prayed for setting aside the order at Annexure-9 and issuing suitable direction. 4. Sri H.M.Dhal, learned Additional Government Advocate appearing for the Opposite Parties while not disputing that the date of death of the deceased involved herein remaining 9.1.2014 admitted the fact that the Petitioner had filed an application for rehabilitation assistance appointment on 3.6.2014, further on the existence of forwarding the claim of the Petitioner, vide Annexure-4 as well as the recommendation, vide Annexure-5, Sri Dhal contended that for the rejection of the claim of the Petitioner on the premises of availability of spouse of the deceased, there appears, there is no wrong on the part of the competent authority in passing the impugned order and as such, the Writ Petition should be dismissed for having no ground. 5. Considering the rival contentions of the parties, this Court finds, admittedly the death of the deceased employee took place on 9.1.2014. There remains also no dispute that the application at the instance of the Petitioner under the Rehabilitation Assistance Scheme, as existed then, was made on 3.6.2014. There is also no dispute with regard to the forwarding case of the Petitioner at Annexure-4. Similarly there is also no dispute with regard to the fact that there has been also a recommendation of the case of the Petitioner by the competent authority, vide Annexure-5 on 25.3.2015. 6. It is at this stage, coming to scan the impugned order at Annexure-9, this Court finds, the application of the Petitioner has been rejected on the premises that at the time of submission of rehabilitation assistance application, the said application was not with medical unfitness certificate in respect of the spouse of the deceased-Government employee but however the Petitioner produced the same on 15.1.2015. Though it is also observed therein that submission of medical unfitness certificate of the first legal heir after the date of submission of rehabilitation assistance application is afterthought but for already submission of certificate, this issue became irrelevant. Further there appears also the ground of rejection of the application of the Petitioner on the premises that extension of benefit in the rehabilitation assistance application to the legal heir of the deceased-Government Servant other than the spouse without reasonable and proper justification violates the basic objective of the OCS (RA) Rules, 1990. Further there appears also the ground of rejection of the application of the Petitioner on the premises that extension of benefit in the rehabilitation assistance application to the legal heir of the deceased-Government Servant other than the spouse without reasonable and proper justification violates the basic objective of the OCS (RA) Rules, 1990. Coming to the grounds of rejection in Annexure-9, impugned herein, this Court finds, Rule 2(b) of the OCS (RA) Rules, 1990 as existing at the relevant point of time reads as follows :- Rule 2(b) states family member shall mean and 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 daughter; 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. Rule-3 stipulates that the assistance shall be applicable to a member of the family of the Government servant, who dies while in service. Similarly Rule-5 deals with appointment to be made in deserving cases, which reads as follows :- Rule-5- Appointment to be made in deserving cases - In deserving cases, a member of the family of the Government servant who dies while in service may be appointed to any Group-C or Group-D post 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 on the Government without following the procedure prescribed for recruitment Reading all these Rules, this Court finds, the 1990 Rules never restricted rehabilitation assistance employment only in favour of the spouse when family members consist of so many persons. In the circumstance, there is no question of ignoring other members as family members. Son also comes under the definition of family member. In the case at hand, admittedly mother is sick, for which her remaining unfit was claimed through medical certificate issued by the competent authority. Legal Heir Certificate at Page-20, vide Annexure-2 also contains names of only two persons; one being the spouse and the other one is a son, the present Petitioner. In the case at hand, admittedly mother is sick, for which her remaining unfit was claimed through medical certificate issued by the competent authority. Legal Heir Certificate at Page-20, vide Annexure-2 also contains names of only two persons; one being the spouse and the other one is a son, the present Petitioner. Admittedly, mother remaining sick did not apply for appointment and not only that mother had even given an affidavit in favour of the son available at Page-22 of the Brief. The application for rehabilitation assistance was filed in the year 2014. In the meantime, seven years have passed. Had there been any objection from the other family members, objection would have come in the meantime. The family involved here being the mother and son only. Mother has already given no objection in favour of the son by way of affidavit, as clearly seen at Page-22 of the Brief leaving no doubt that there is only one applicant remaining in fray. 7. From the above, this Court finds, there is mechanical rejection of the case of the Petitioner, vide Annexure-9, for which the order at Annexure-9 is interfered with and set aside. For setting aside of Annexure-9, this Court since finds, there is already sufficient delay in providing employment to the Petitioner under the Rehabilitation Assistance Scheme, further taking into consideration the recommendation of the competent authority already there at Annexure-5, this Court while allowing the Writ Petition directs that the recommendation at Annexure-5 made by the Superintending Engineer, Central Irrigation Circle, Bhubaneswar in favour of the Petitioner shall be worked out by issuing appointment order in favour of the Petitioner by O.Ps.1 & 3 within a period of ten days from the date of receipt of this order. 8. The Writ Petition succeeds. In the circumstances, however, there is no order as to cost.