State Of Odisha And Others vs Kartik Chandra Behera
2021 Latest Caselaw 11502 Ori

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   W. A. No.694 of 2019


             State of Odisha and others           ....          Appellants
                        Mr. P. K. Muduli, Additional Government Advocate
                                         -versus-
             Kartik Chandra Behera                   ....          Respondent
                                                    Mr. Rajeet Roy, Advocate


                       CORAM:
                       THE CHIEF JUSTICE
                       JUSTICE A. K. MOHAPATRA


                                        ORDER

10.11.2021 Order No. Dr. S. Muralidhar, CJ.

06. I.A. No.1092 of 2019

1. For the reasons stated therein this application for condonation of delay of 164 days in filing the appeal is allowed and the delay in filing the appeal is condoned.

W.A. No.694 of 2019

2. The present appeal by the State of Odisha through the Health & Family Welfare Department (HFWD) and the Director, National Rural Health Mission (NRHM), Odisha, is directed against a judgment dated 23rd July, 2019 of the learned Single Judge allowing W.P. (C) No.26867 of 2013 filed by the Respondent herein directing the present Appellants to re-engage the Respondent as Laboratory

Technician (LT) against the vacant post of Rural Child Health-II (RCH-II) under the NRHM Programme.

3. On 9th April, 2021 while directing notice to issue in the present appeal, this Court stayed the operation of the impugned judgment of the learned Single Judge.

4. The background facts are that an advertisement was issued for engagement of LT on a contractual basis under the RCH-II Programme on a monthly remuneration of Rs.5040/- per month. The actual text of the advertisement issued reads thus:

"Advertisement Zilla Swasthya Samiti, Dhenkanal

No.27-E:-Z.S.S., Dhenkanal invites application from suitable candidates for engagement as Laboratory Technician on contractual basis under R.C.H-II at a monthly remuneration of Rs.5040 P.M.

Minimum Qualification: Must have passed in Lab. Tech course from any of 3 medical College of this State or from a recognized private institution. Candidates must be the domicile of Dhenkanal.

Last date of receipt of the application is dt.; 08.5.07.

CDMO-cum-Chief Executive, Z.S.S., Dhenkanal."

5. Thus it was made clear in the advertisement in the first place that in order to be engaged as an LT, the candidate had to possess a minimum qualification of having passed in an LT course from any of the three medical colleges in the State of Odisha or "from a

recognized private institution." A further condition was that the candidate must be a domicile of Dhenkanal District.

6. The Respondent applied pursuant to the advertisement. The Respondent had obtained his Diploma as a LT from 2 different institutions - one from the Bhava Institute of Medical Science & Research, Bhubaneswar (BIMSR) and another from the Institute of Medical & Technological Research (IMTR), Calcutta.

7. It appears that there were two sanctioned posts of LT for appointment in the Sub-Divisional Hospital, Hindol under RCH-II Programme as per the letter dated 13th April, 1999 of the Director Health Services (DHS), Orissa. Against the said two posts, contractual engagements were given by the Chief District Medical Officer (CDMO) to the following three persons:

(i) Smt. Sabitra Jena, who joined on 11th June, 2007

(ii) Ms. Sujata Bhutia, who joined on 11th June, 2007

(iii) Sri Kartik Chandra Behera, who joined on 12th June, 2007

8. The term of engagement of the Respondent was for a period of one year from 12th June, 2007 to 11th June, 2008. It was on contractual basis. As it transpired, since it was the 3rd appointment and there were only 2 sanctioned posts of LT, his appointment was not against a sanctioned post. It further transpired that during the process of recruitment at the time of verification of the documents on 26th May, 2007 by the CDMO, Dhenkanal, the Respondent initially submitted a certificate from the IMTR, Calcutta. He could not be selected since he was not in the merit list on the basis of the percentage of the marks

secured in the Diploma in Medical Laboratory Technology (DMLT). Subsequently, he submitted another certificate issued by the BIMSR, Bhubaneswar and was selected.

9. The HFWD issued a letter dated 28th March, 2007 clarifying that in order to be eligible for the post of LT in the State, a candidate must have passed a DMLT course from the "AICTE recognized Institutions." The HRD Manager, NRHM, Orissa addressed a letter dated 21st June, 2008 to the Director, Medical Education & Training (DMET) asking whether the certificate produced by the Respondent from the BIMSR, Bhubaneswar was a genuine one. In response thereto, on 28th July, 2008, the DMET informed the HRD Manager that while it was not possible to know whether the certificate issued by BIMSR was genuine "both the Institutions referred in your letter are not approved by AICTE."

10. Consequently, an order was issued on 3rd August, 2009 by the Mission Director, NRHM, Orissa terminating the services of the Respondent with effect from 11th June, 2008 on two grounds: (i) that his engagement was against a non-sanctioned post and (ii) that he had not passed the requisite course from an AICTE recognized/approved institution. The order concluded as under:

"In view of the grounds discussed above, it is not possible to allow Sri Kartik Chandra Behera, L.T. to continue as such in service in Dhenkanal district beyond 11.06.2008. His service therefore, shall be terminated with immediate effect by the CDMO and report compliance. However as Sri Behera has been allowed by the CDMO to continue in the post beyond 11.06.2008 and if he has actually been working in the

post till date, the CDMO shall pay the remuneration for the period he has actually worked in the post from the Mission flexible additional requirement fund."

11. Since his salary had stopped being paid after 11th June, 2008, the Petitioner initially filed W.P.(C) No.11854 of 2009. By the time the said writ petition was finally heard, the salary for the aforementioned period of work had been paid. Therefore, no orders were passed by the learned Single Judge in regard to the prayers in the said petition.

12. Challenging the order dated 31st August, 2009 passed by the CDMO, Dhenkanal terminating his services with retrospective effect from 12th June, 2008, the Respondent filed a second W.P.(C) No.26867 of 2013. While allowing the said petition by the impugned order, the learned Single Judge observed that the Selection Committee had been satisfied with the qualifications of the Respondent and the Selection Committee constituted six responsible officials of the Government headed by the Collector of the District as Chairperson. The Respondent had stood first in that selection process. The ground that the qualification acquired by the Respondent was from an institution not recognized/approved by the AICTE was termed by the learned Single Judge as an 'afterthought'. The declaration of his engagement as illegal, according to the learned Single Judge, was done "behind the back" of the Respondent and unless the materials gathered were confronted to him, the termination of his services would be unsustainable in law.

13. Further, according to the learned Single Judge since the resignation of one L. Sahoo, LT, who was continuing against a sanctioned post had fallen vacant due to his resignation, the Respondent could well have been adjusted against the said post. It was held that there was no justification for not continuing the engagement of the Respondent. Thirdly, it was noted that some of the candidates, who had passed the LT course from a private institution like that of the Respondent had been allowed to continue as LT and the fact was not denied by the present Appellants in their counter affidavit filed on 24th June, 2019.

14. For all of the aforementioned reasons, the learned Single Judge set aside the order terminating the services of the Respondent and directed that he be re-engaged as LT against the vacant sanctioned post in the RCH-II under the NRHM.

15. This Court has heard the submissions of Mr. P. K. Muduli, learned Additional Government Advocate (AGA) for the Appellants and Mr. Rajeet Roy, learned counsel appearing for the Respondent.

Submissions on behalf of the Appellants:

16. Appearing for the Appellants, Mr. Muduli, learned AGA, submitted as under:

(i) The Respondent had claimed to have passed the DMLT from two institutions i.e. the IMTR, Calcutta and the BIMSR, Bhubaneswar. Neither of the institutions was recognized by the AICTE. This was also clarified by the DMET in its letter dated 28th July, 2008. Since

the Respondent did not satisfy the basic eligibility criteria, he could not have been engaged as LT pursuant to the advertisement issued;

(ii) The engagement of the Respondent as LT was a bona fide mistake and it was not in consonance with the terms and conditions of the advertisement. Such bona fide mistake can be rectified by cancelling the order of appointment. In the present case it was rectified by not renewing contractual engagement beyond 11th June, 2008. In support of his contention, Mr. Muduli relies on the judgments of the Supreme Court and this Court in Amol v. State of Maharashtra (2018) 1 SCC 134, Chandra Sekhar Swain v. State of Odisha 2017 (I) OLR 666, Giridharilal Agrawal v. State of Odisha 2021 (I) ILR-CUT-274 and State of Odisha v. Subha Naryan Mishra (decision dated 26th October, 2021 of this Court in W.P.(C) No.6632 of 2019);

(iii) The Court should not pass an order, which will result in the perpetuation of an illegality. Reliance is placed on the decisions in State of Uttaranchal v. Ajit Singh Bhola (2004) 6 SCC 800 and State of Orissa v. Mamata Mohant, (2011) 3 SCC 436;

(iv) The engagement of Respondent on contractual basis was not against any sanctioned post and, therefore, on that ground also he was not entitled to continue;

(v) There was no violation of the principles of natural justice. Even if notice had been issued prior to non-extension of the contractual period, the case of the Respondent could not have improved with the fact that neither of the institutions from where he obtained DMLT

being recognized by AICTE. Therefore, a prior notice and procedure of hearing would have been a futile exercise. In effect, therefore, no prejudice was caused to the Respondent on account of not being issued with prior notice.

(vi) Reliance is placed on the decision in Dharampal Satyapal Limited v. Deputy Commissioner of Central Excise Gauhat, (2015) 8 SCC 519 and of this Court in Subha Naryan Mishra (supra). Lastly, it is submitted that it was not open to the Respondent to claim negative equality merely because some other persons holding DMLT from non-recognized institutions may have been engaged as LT. Reliance is placed on the decision in Kerala State Electricity Board v. Saratchandran P. (2008) 9 SCC 396;

Submissions on behalf of the Respondent

17. Mr. Rajeet Roy, learned counsel for the Respondent submitted as under:

(i) The advertisement only indicated that the candidate should have passed from a recognized private institution. Since the Respondent had the requisite qualification as prescribed in the advertisement and his name had been shortlisted for selection after his original certificates were verified, and he was in the top of the merit list prepared by the Selection Committee, it could not have been said that the Respondent did not possess the requisites qualification;

(ii) The appellants were all along aware of the documents submitted by the Respondent. His letter of engagement was a deliberated decision and not a mistake;

(iii) It's only when the Respondent approached this Court regarding non-payment of salary that the Appellants on 31st August, 2009 terminated his services retrospectively with effect from 12th June, 2008. It is submitted that once the Selection Committee found the Respondent to have completed the LT course from the BIMSR, which was "registered under the Government of Odisha" and with the Respondent having secured the highest percentage of 81.7 % in comparison with other shortlisted candidates, the Appellants could not turn around and declare that his engagement was illegal.

(iv) Nowhere in the advertisement had the Appellants prescribed that the DMLT certificates had to be issued by institutions which are AICTE approved. Once BIMSR was registered with the Government of Odisha, the DMLT issued by it cannot be said to be from an unrecognized institution;

(v) It is submitted that the Respondent was disengaged from service solely to accommodate one Sujata Bhutia, who had not been selected through due process. The direction to re-engage the Respondent against the sanctioned post, which had fallen vacant, was made pursuant to the disclosure made by the Appellants in an affidavit filed on 24th June, 2019. Therefore, no fault could be found with the learned Single Judge in issuing such direction.

(vi) There have been other instances where candidates having similar qualifications as the Respondent were given appointments and those were not cancelled. Therefore, the Respondent cannot be singled out for discriminatory treatment;

(vii) Reliance is placed on the decision of the Supreme Court in GRIDCO v. Sadananda Doloi AIR 2012 SC 729. It is stated that the Court in exercise of its writ jurisdiction cannot sit in appeal over the decision of the Selection Committee. As long as the action taken by the authority is not shown to be vitiated by infirmity, it should not be interfered with. Reliance is placed in the decision of the Supreme Court in Ashok Kumar Sharma v. Chandra Shekhar (1997) 4 SCC 18 to argue that the advertisement published calling for applications "constitutes a representation to the public" and the Appellants are bound by such representation. They cannot act contrary to it;

(viii) Lastly, reliance is placed on the decision of the Supreme Court in State of Tamil Nadu v. G. Hemalathaa MANU/SC/1171/2019; It is submitted that the instructions issued by the authority had to be strictly complied with.

Analysis and reasons

18. The above submissions have been considered.

19. At the outset, it requires to be noted that it was clearly mentioned in the advertisement that the candidate, who was applying to be engaged as LT, had to possess the requisite qualification i.e. LT course "from any of 3 Medical College" in Orissa or "from a recognized private institution." The word 'recognized' is different

from the word 'registered.' While an institution could be registered with the State Government under any law for the time being in force which requires such registration, this is not the same thing as stating that such institution is 'recognized.' Usually, recognition of an educational institution which offers degrees and diplomas is by a Body regulating the functions of such institution or by a Body which has experts in the field accredited with the task of certifying such courses. Therefore, the term 'recognized', which precedes the expression 'private institution' is not the same thing as 'registered.'

20. AICTE is certainly a Body that grants accreditation to institutions and among the many of its tasks is one which 'recognizes' courses. The fact remains that neither of the institutions from which Respondent obtained his DMLT was 'recognized' by the AICTE. This has not been able to be disputed by the Respondent.

21. This requirement of having to possess the DMLT from a 'recognized' private institution was mandatory and could not have been diluted. It indeed went to the root of the matter. The Court is therefore unable to accept the plea of the Respondent that merely because the Selection Committee comprising of Government servants and experts have 'selected' the Respondent on the basis of merit, it should be construed that they have approved the qualification obtained by him from the BIMSR, Bhubaneswar.

22. Clearly, the Selection Committee was not aware of that the said DMLT was not from a recognized institution. Therefore, the Respondent's engagement as LT even to begin with was a mistake.

The Court is inclined to accept that this mistake by the Appellants was a bona fide one in the circumstances explained by them.

23. There could not have been any dilution in the standard and, therefore, learned Single Judge could not have been issued a mandamus to the Appellants to re-engage the Respondent despite he was not possessing the requisite qualifications as required by the advertisement. In Ajit Singh Bhola (supra), the Supreme Court explained that no Court should pass an order that would have the effect of reviving an illegality. It was explained as under:

"9. It is well-settled that this Court will not exercise its discretion and quash an order which appears to be illegal, if its effect is to revive another illegal order."

24. To the same effect, is the decision in Mamata Mohanty (supra). There it was held:

"It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin."

25. There also merit on the contention that it was always open to the authority to correct the bona fide mistake. In Amol (supra), the Supreme Court explained that even if the appointment of the

Appellant in that case was taken to be under the Scheduled Caste category since he had obtained marks less than the last successful candidate, the authorities were entitled to correct that mistake made by them.

26. The learned Single Judge appears to have erred in observing that materials were collected "behind the back" of the Respondent and that he had to be confronted to the materials so gathered if his services had to be terminated. This was not an instance of the services were being terminated on account of any misconduct by Respondent but because of basic lack of qualification. It is not in each and every case that an action taken to correct the bona fide mistake after discovery the making of such mistake by the authority, would require compliance of the principles of natural justice.

27. In Dharampal Satyapal Limited (supra), it was observed by the Supreme Court, after noticing the decision in ECIL v. B. Karunakar, (1993) 4 SCC 727, as under:

"45. Keeping in view the aforesaid principles in mind, even when we find that there is an infraction of principles of natural justice, we have to address a further question as to whether any purpose would be served in remitting the case to the authority to make fresh demand of amount recoverable, only after issuing notice to show cause to the appellant."

28. On the facts of that case, it was held that it would be futile to have issued a prior notice to the Petitioners.

29. In the present case too the Respondent would not be able to alter the fact that the DMLT obtained by him was from an institution not

recognized by the AICTE. That fact underwent no change even during the hearing of the writ petition by the learned Single Judge. The exercise of prior notice being issued to the Respondent before terminating his services would have been a futile. This has been recently reiterated by this Court in Subha Narayan Mishra (supra).

30. Consequently, this Court is unable to concur with the view expressed by the learned Single Judge that in the instant case there was a violation of the principles of natural justice.

31. The Appellants are right in contending that there cannot be any negative equality. In other words, merely because some others may have continued as LT despite obtaining the DMLT from an institution not recognized by AICTE, it was not incumbent on the Appellants to continue with engagement of the Respondent. In Saratchandran P. (supra), the Supreme Court explained thus:

"(17) Article 14 as is well known is a positive concept. The provisions of Article 14 cannot be invoked only because some illegality has been committed by an employer as a result whereof some employee has obtained benefit. The Constitutional Scheme of the equality clause would apply only in a case where the parties are similarly situated. No equity can be claimed on the basis of an illegality.

32. Lastly, the Respondent has not been able to dispute the fact that his initial engagement was against a non-sanctioned post. With he not being qualified to be engaged, the question of Appellants being issued a mandamus to re-engage him against a vacancy in the sanctioned post, would not arise.

33. For all of the aforementioned reasons, the Court sets aside the impugned judgment of the learned Single Judge. The appeal is accordingly allowed, but in the circumstances, with no order as to costs.

34. An urgent certified copy of this order be issued as per Rules.

(Dr. S. Muralidhar) Chief Justice

(A. K. Mohapatra) Judge

M. Panda