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2021 DIGILAW 123 (ORI)

Laxmipriya Tripathy v. State Of Orissa

2021-03-16

BISWANATH RATH

body2021
JUDGMENT Biswanath Rath, J. - This writ petition involves the following prayer: "Under the above circumstance, it is therefore, humbly prayed that this Hon'ble Court may be graciously pleased to issue a writ in the nature of writ of mandamus or any other appropriate writ, direction or order by quashing the communication made by the opposite party no.4 dated 19.05.2020 vide Annexure-13 to the writ application and directing the opposite parties to issue appointment order in favour of the petitioner pursuant to the approval of appointment made by the appointing authority on 27.11.2019 in the post of Jr.Clerk/Jr. Asst. under Rehabilitation Assistance Scheme within a stipulated period. And for this act of kindness, as in duty bound, the petitioner shall ever pray." 2. Sri D.N.Rath, learned counsel appearing for the petitioner challenging the impugned order at Annexufe-13 on the premises that when the petitioner being an applicant made application for appointment under Rehabilitation Assistance Scheme vide Annexure-3 on 30.12.2015 involving death of her husband on 06.09.2015 and her application was forwarded for consideration under Annexure-6 in the year 2016 further there is also recommendation of the case of the petitioner after due verification for appointment under Rehabilitation Assistance Scheme at Annexure-11, under the provision of Rehabilitation Assistance Scheme, as amended in 2016, there was no question of asking the petitioner again to apply under Rule 2020, a rule which was not even in existence when the death of the employee occurred and also when the application was made for the particular purpose. It is in the circumstance, a claim is made for interfering in the letter at Annexure-13 and setting aside the same. Sri Rath, learned counsel for the petitioner also relied on a judgment of this Court in the case of Damodar Jena Vs. Chairman-cum- M.D., Grid Co.Ltd. and Ors, (2015) 2 ILR(Cut) 569 being confirmed by a Division Bench of this Court in Writ Appeal No.11 of 2015. 3. Sri H.M.Dhal, learned Additional Government Advocate appearing for the State however in his opposition submitted that even though the case of the petitioner was considered depending on the rule existed in the year 2019 but, however, for the introduction of new rule in the meantime, there might be application of new rule and thereby justifies the action of authority asking the petitioner to apply under the new rule i.e. OCS (RA) Rules, 2020. 4. 4. Considering the rival contentions of the parties, this Court finds there is no dispute that the deceased employee died on 06.09.2015. There cannot be also no doubt that for the availability of Annexure-3, that being the legal heir, the application for Rehabilitation Assistance appointment was made on 13.12.2015 being forwarded by the Collector, Puri on 21.3.2016 as clearly borne in page-23 of the brief. There is also no dispute that at the time of death of the deceased employee involved herein, the amended Rule, 2016 was in vogue. Further it goes to make it clear that after entering into necessary inquiry, the case of the petitioner has already been forwarded by competent authority for taking appropriate action at the level of A.I.G. of Police as clearly borne from Annexure-11 at page-39 of the brief. The application for Rehabilitation Assistance appointment having been made in the existence of particular set up rule, for the settled position of law, application involving the petitioner ought to have been considered under the provisions of 2016 Rules alone. Applying a subsequent rule, 2020 which has not seen in the light of the day on the date of application and for the entire process undertaken in the meantime has no place. This Court also finds the support of the judgment in the case of Deodar Jena Vs. Chairman-cumM.D., Grid Co.Ltd. and Ors. (supra) to the case of the petitioner. 5. It is in this view of the matter, this Court while interfering in the impugned order at Aannexure-13, sets aside the same. For the recommendation already there in favour of the petitioner, the opposite party no.2 is directed to take decision on issuing appointment order in favour of the petitioner in the post of Junior Clerk/ Junior Assistant following the approval and recommendation of the competent appointing authority vide enclosures from page 45 of the brief by undertaking the entire exercise within a period of one month. 6. In result, the writ petition succeeds. No order as to cost.