Santosh Kumar Padhi vs State Of Odisha & Others
2022 Latest Caselaw 2098 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                 W.P.C (OAC) NO.304 OF 2018

(An application under Section 19 of the Administrative Tribunal's Act)

       Santosh Kumar Padhi                     ...       Petitioner


                                -versus-

      State of Odisha & others                ...       Opposite Parties


       Advocates appeared in the case through hybrid mode:


      For Petitioner                 : Dr. J.K.Lenka, Advocate

                                  -versus-

     For Opposite Parties           : Mr.R.N.Acharya,
                                      Standing Counsel,
                                      School & Mass Education
                                      Department

                                        Mr. H.K.Panigrahi,
                                        Addl. Standing Counsel

  ---------------------------------------------------------------------------
      CORAM:

                   JUSTICE SASHIKANTA MISHRA

                             JUDGMENT

05 .04.2022.

Sashikanta Mishra,J. In the present Writ Petition, the Petitioner seeks to challenge

the order dated 5th February, 2018 passed by the Collector-cum-

CEO, Zilla Parishad, Nabarangpur (Opposite Party No.4) in

disengaging him from the post of Junior Teacher, Kokodaguda

PUPS, Dabugaon Block, District -Nabarangpur.

2. The brief facts of the case are that the Petitioner being a B.Sc.,

C.T. and Physically Handicapped candidate with 42% disability

had applied for and engaged as Sikshya Sahayak in the

aforementioned School on the basis of the proceeding of a

Selection committee held on 10th March, 2011 and 31st March,

2011. The Petitioner's monthly honorarium was fixed at Rs.3,500/-

consolidated and he joined on 29th April, 2011. At the time of

submitting his testimonials, the Petitioner had submitted a

disability certificate dated 21st May, 1999 issued by the District

Medical Board, Nabarangpur consisting of the CDMO and

Specialist in Orthopedics Department, District Headquarter

Hospital, Nabarangpur to the effect that he was disabled to the

extent of 42%. After three years continuous service as Sikshya

Sahayak, the Petitioner was appointed as Junior Teacher w.e.f. 28th

April, 2014 in the same School with monthly honorarium of

Rs.7,000/-. While he was serving as such the District Project

Co-ordinator RTE,SSA, Nabarangpur (Opposite Party No.5) issued

a letter dated 19th October, 2016 directing the Petitioner to appear

before the CDMO/Disability Medical Board of the District again

and to furnish a Disability Certificate after re-examination by the

said Board within one month. The Petitioner sought to challenge

the said communication before this Court in W.P.(C)

No.20042/2016 with prayer for quashing the said letter, but while

the said case was pending, the Petitioner appeared before the

Additional Director-cum-CDMO, Nabarangpur (Opposite Party

No.7) on 18th December, 2016 and was examined by the concerned

Specialist. Basing on such examination a Physical Disability

Certificate was issued in his favour showing 40% disability by the

Opposite Party no.7. As such, the Petitioner withdrew the

aforementioned Writ Petition pending before this Court. The

Petitioner produced the disability certificate before Opposite Party

No.5 and while he was expecting to be regularized in his service,

suddenly, Opposite Party No.5 issued an order of disengagement

dated 5th February, 2018 by order of the Opposite Party No.4 with

immediate effect. The said order was stated to have been issued

by holding that the Disability Certificate produced by the Petitioner

at the time of his engagement as Sikshya Sahayak was found to be

unauthentic. It is stated that the order dated 5th February, 2018,

which is enclosed as Annexure-9 to the Writ Petition, is bad in law

as the same was issued without giving any show cause notice or

personal hearing to the Petitioner. It is further stated that the

Disability Certificate, originally issued on 21st May, 1999 by the

CDMO, Nabarangpur was authentic as the Petitioner's disability

was also subsequently proved by the certificate issued on 18th

December, 2016. On such facts, the Petitioner has prayed to quash

the impugned order under Annexure-9 and to direct the concerned

authorities to allow him to continue as Jr. Teacher with immediate

effect.

3. Opposite Party Nos.3 to 6 have filed a joint counter admitting

the basic facts averred in the Writ Petition. However, it is stated

that the Medical Certificate issued by the CDMO, Nabarangpur

during 1999 was subsequently revealed to be a fake. Reference has

also been made to the observation of the Opposite Party No.2 in

its order passed in case No.SCPD-356/2016, wherein the Opposite

Party No.4 was requested to initiate appropriate proceeding as to

why the Petitioner shall not be disengaged from his service and to

take further action accordingly as deemed proper for the cause of

PWDs. Condition Nos.14 and 15 of the order of engagement as

Sikshya Sahayak have also been referred to in the counter affidavit

by stating that the same shall stand automatically cancelled, if any

testimonial produced by the candidate is found to be forged.

The Petitioner has filed a rejoinder to the counter affidavit

filed by Opposite Party Nos.3 to 6 reiterating his averments that

the Disability Certificate issued on 21st May, 1999 is genuine

having been signed by the CDMO as well as the Orthopedic

Specialist of DHH, Nabarangpur. It is specifically pleaded that the

Petitioner was not impleaded as party in the case before the State

Commissioner for Persons with Disabilities, Government of

Odisha, Bhubaneswar (Opposite Party No.2) nor was given an

opportunity of hearing to defend his case and to prove his

Disability Certificate. Since there are materials on record to show

that the certificate in question was in fact issued from the Office of

the CDMO, Nabarangpur at the relevant time and disability of the

Petitioner was also subsequently proved on re-examination, the

contentions raised in the counter affidavit were sought to be

repelled.

An additional counter affidavit has been filed by Opposite

Party Nos.3 to 6 again taking the plea that the Disability Certificate

submitted by the Petitioner was not genuine as informed by the

CDMO, Nabarangpur in his letter dated 28th November, 2016,

enclosed as Annexure-D/6 to the additional affidavit, since

complaint was received regarding the genuineness of the Disability

Certificate, the Opposite Party No.5 asked the Petitioner to appear

before the District Medical Board, Nabarangpur. The order of the

Opposite Party No.2 as well as Condition Nos.14 and 15 of the

order of engagement have again been referred to.

4. Opposite Party no.7 has filed a separate counter affidavit stating

that the certificate dated 21st May, 1999 is not a Disability

Certificate within the meaning of Rule 4(1) of Persons with

Disability (Equal Opportunities, Protection of Rights, and Full

Participation) Rules, 1996, but is a Medical Certificate for

handicapped persons. Moreover, the said certificate does not

contain any remark regarding recommendation of jobs which

implies that the Petitioner is restricted from utilizing the said

certificate for obtaining a job. That apart, the said certificate was

not issued by the duly constituted Medical Board as per Rule 4(2)

of 1996 Rules nor does it carry a passport size photograph of the

Petitioner. Even the Identity Card issued by the Directorate of

Social Welfare reveals that the same is valid for only three years

from the date of issue and, hence, the certificate had lost its force

much before the year, 2011 when the recruitment process was

taken up. Since during the time of recruitment, the Petitioner had

not produced a valid and authentic Disability Certificate, he is not

entitled to appointment. Opposite Party No.7 has also referred to

Condition Nos.14 and 15 of the engagement order to justify its

other pleadings.

5. Heard Dr. J.K.Lenka, learned counsel for the Petitioner,

Mr. R.N.Acharya, learned Standing Counsel for the School and

Mass Education Department appearing for Opposite Party Nos.3 to

6 and Mr. H.K.Panigrahi, learned Addl. Standing Counsel

appearing for Opposite Party No.7.

6. It is argued by Dr. Lenka that having accepted the Medical

Certificate submitted by the Petitioner at the time of his

engagement in the year 2011 and having allowed the Petitioner to

serve initially as Sikshya Sahayak and thereafter as Junior Teacher

for a total period of five and half years, it is not open to the

authorities to question his eligibility for such engagement on the

basis of any error in the testimonials submitted by him. Even

otherwise, there is absolutely no proof or any acceptable material to

show that the Disability Certificate dated 21st May, 1999 submitted

by the Petitioner was in any manner forged or is a fake. Referring

to the correspondence made with the CDMO of Nabarangpur,

enclosed under Annexure-11, which was obtained under the RTI

Act as also the communication dated 26th April, 2018 issued under

Annexure-12 and dated 13th July, 2018, enclosed as Annexure-13

to the rejoinder filed by the Petitioner to counter affidavit filed by

Opposite Party Nos.3 to 6, it is argued by Dr. Lenka that the same

clearly proves that the certificate in question was in fact issued by

the Office of the CDMO at the relevant time indicating his

disability as 42%, but unfortunately, no records showing issuance

of such certificate was maintained in the Office. Obviously, the

Petitioner cannot be blamed for non-maintenance of records, but

fact remains that the certificate was in fact issued. It is further

argued by Dr. Lenka that the order of the Opposite Party No.2 is

not binding on the Petitioner for the reason that he was not

impleaded as party nor given an opportunity to defend himself or to

prove his stand regarding the Disability Certificate. It is also

contended that had the Petitioner continued in service, his services

would have been regularized as a Primary School Teacher as

evident from inclusion of his name in the Office Order dated 12th

June, 2018 issued by the District Education Officer, Nabarangpur

vide Annexure-14 to the rejoinder. It has also been argued on

behalf of the Petitioner that the Block Education Officer is the

Appointing Authority and Disciplinary Authority of Elementary

Teachers from Level-V to Level-III as clarified by the Government

in School and Mass Education Circular No.14220 dated 29th June,

2019. Therefore, the power to disengage the Petitioner if at all is

with the Block Education Officer and the Opposite Party No.4

could not have exercised such power. The final argument of Dr.

Lenka is that the order of the Opposite Party No.2 is merely

advisory in nature and not binding on the authority. In any case, the

fact that the Petitioner is actually a disabled person has been proved

subsequently on his re-examination by the Medical Board on 18th

December, 2016. Since no notice whatsoever was issued to the

Petitioner before issuance of the impugned order of disengagement,

the principles of natural justice having been grossly violated, the

same cannot be sustained in the eye of law.

7. Mr. R.N.Acharya, learned Standing Counsel for the School and

Mass Education Department, has argued that the certificate

produced by the Petitioner at the time of his engagement cannot be

treated as authentic in view of the clear assertion of the CDMO

that no documents or records in support of issuance of such

certificate was maintained in the Office. Referring to the conditions

enumerated in the engagement order, enclosed as Annexure-1, it is

submitted that as per Condition No.14 thereof, the engagement

order shall stand automatically cancelled on detection of any

forgery of testimonials produced by the candidate or mistake or

falsification of facts. It is similarly argued that as per Condition

No.15, the engagement being purely temporary can be disengaged

at any time without assigning any reasons thereof. In the case at

hand, the impugned order was issued clearly stating that the

Disability Certificate was found to be unauthentic and, therefore,

no illegality whatsoever was committed.

8. Mr. H.K.Panigrahi, learned Addl. Standing Counsel for

Opposite Party No.7, has argued that the so called Disability

Certificate submitted by the Petitioner is not actually Disability

Certificate within a meaning of Rule 4(1) of the 1996 Rules as it is

a mere medical certificate issued to handicapped persons. The

same cannot be equated with disability certificate as per Rules.

The Identity Card issued on the basis of such Disability Certificate

was meant to be valid for three years and, therefore, the certificate

could not have been utilized much after the said period, i.e. in the

year 2011. It is also argued that the Petitioner cannot raise the plea

of lack of opportunity of hearing before issuance of the impugned

order because the facts being clear and undisputed, the ultimate

outcome would not have been any different had any opportunity

being given.

9. I have considered the rival contentions noted above and have

also perused the documents on record carefully. The basic facts of

the case are not disputed inasmuch as the Petitioner was engaged as

Sikshya Sahayak as a disabled candidate on the basis of the

Medical Certificate issued on 21st May, 1999. It is also not

disputed that the Petitioner served as Sikshya Sahayak for three

years, thereafter as Junior Teacher for a period of about two and

half years and after five and half years of such engagement, he was

asked to initially appear before the District Medical Board and

thereafter before the Appellate Medical Board at M.K.C.G.

Medical College and Hospital, Berhampur for reexamination of his

disability. It is borne out from the records that such a course was

undertaken because of a complaint purportedly received to the

effect that the disability certificate originally submitted by the

Petitioner was not genuine. It is also borne out from the records

that as directed, the Petitioner appeared before the District Medical

Board, Nabarangpur, which issued a Disability Certificate on 18th

December, 2016 showing 40% permanent disability. Thus, the fact

that emerges from the above discussion is, the Petitioner is in fact

a disabled person with the extent of his disability being certified as

40% permanent in the year 2016. To put it differently, it is not a

case where it has been proved that the Petitioner not being a

disabled person had applied and got through the selection process

as a disabled candidate. So, the first question that arises for

consideration is whether the medical certificate issued in the year,

1999 could have been acted upon since the same is purportedly not

in the form of a Disability Certificate as envisaged under 1996

Rules. A reference to the said certificate, which is enclosed as

Annexurte-2 to the Writ Petition, reveals that the same is a

"Medical Certificate for handicapped person" showing the type of

disability as locomotor, nature of disability as Post Traumatic

Healed Acetabular Fracture and Healed Fracture Ischeo-

Acetabular Junction of Lt Hip and Pelvis, (Lt) sided limp and

(Lt) sided Lumbosliatic Scoliosis and the percentage of disability as

42%. The said certificate has been signed by the Specialist in

Orthopedics of DHH, Nabarangpur and the CDMO of

Nabarangpur. Issuance of the said certificate has actually not been

denied, rather, as per the letters issued under Annexures-10 series,

11, 12 and 13 to the rejoinder filed by the Petitioner, it is evident

that the same was in fact issued from the office of the DCMO,

Nabarangpur though no record/register was maintained at that time.

The Disability Certificate issued subsequently i.e. on 18th

December, 2016, enclosed at Annexure-8 to the Writ Petition,

reveals that the disability is locomotor disability, affected part of

the body is left leg with diagnosis-Post Traumatic Healed

Acetabular Fracture and Healed Fracture-L and Permanent

Physical Impairment as 40%. Thus, there is no substantial

difference between the two certificates referred above, rather the

subsequent certificate only goes to prove the Petitioner's

contention of being disabled. Such being the factual position, the

question is, can the Petitioner be blamed for non-issuance of the

disability certificate in the proper form or using proper

nomenclature by the concerned authority? The answer would

obviously be in the negative. Similar is the case with non-

maintenance of registers/records showing issuance of the certificate

in favour of the Petitioner at the relevant time. Obviously, the

Petitioner cannot be blamed for the same. Thus, once it is

admitted that the certificate was in fact issued and there is

subsequent proof that the recitals of the said certificate are not in

any manner false, a hypertechnical view cannot be taken to deprive

the Petitioner from the benefits accrued to him on the basis of such

certificate.

10. Another point was raised by the Opposite Parties that the

Identify Card issued to the Petitioner on the strength of the

Disability Certificate issued on 25th April, 1999 is valid for a period

of three years and, therefore, the Petitioner could not have utilized

such certificate after the said period and in any case not for

recruitment in the year 2011. This argument is on the face of it

absurd for the simple decision that the Identity Card is never

intended to be a major of the card holders disability but serves as

an identification only. That apart, there is nothing in the certificate

dated 25th April, 1999 that the disability found in the Petitioner

shall exist for a period of three years only.

While it is admitted the disability issued on 18th December,

2016 (Annexure-8) proves that the Petitioner was disabled to the

extent of 40%. The Opposite Parties have, however, taken the

stand the same being based on medical examination of the

petitioner in the year, 2016, can only have a perspective value.

This argument is also fallacious and absurd because the Disability

Certificate issued on 18th December, 2016 only proves the

correctness of the certificate issued on 25th April, 1999.

11. Even otherwise, it was for the authorities concerned to call

upon the Petitioner at the relevant time to prove the authenticity of

the certificate if they entertained any doubts at that time. However,

having accepted the certificate and by acting upon it, the authorities

concerned have issued engagement order in favour of the Petitioner

and allowed him to continue as such for a long period i.e. for five

and half years. It is, therefore, no longer open to them to turn

around at such a belated stage and question the genuineness of the

testimonials submitted by the Petitioner. In any event, as per the

discussion made in the preceding paragraphs, the Petitioner's

claim of being disabled has been subsequently proved to be correct.

12. It must be kept in mind that the State is supposed to be a model

employer and as such, cannot be allowed to take actions that are

arbitrary and not countenanced in law. In the instant case, the

Opposite Party-authorities are guilty of approbation and

reprobation, i.e. of blowing hot and cold at the same in the manner

as described above thereby adversely affecting the right to

livelihood of the Petitioner included under Article 21 of the

Constitution of India.

13. In the case of Union of India and others v. Miss Pritilata

Nanda; reported in (2010) 11 SCC 674, the Apex Court held that

once the candidature of a person is accepted by the concerned

authorities and he/she is allowed to participate in the process of

selection, it is not open to them to turn around and question his or

her entitlement to be considered for engagement. The case at hand

stands on an even better footing inasmuch as not only was the

candidature of the Petitioner considered but also he was engaged

and allowed to work for five and half years. The action of the

authorities, therefore, cannot be countenanced in law.

14. Coming to the so called proceedings initiated by the Opposite

Party No.2, it is not forthcoming from records that the Petitioner

was ever impleaded as a party or otherwise given an opportunity to

defend himself. It is also not forthcoming as to who was the

complainant and what was the basis of such complaint, which was

entertained and ultimately allowed. Be that as it may, a reference

at this stage to Sections 80 and 81 of the Rights of Persons with

Disabilities Act, 2016 would be in order:-

"80.Functions of State Commissioner.- The State Commissioner shall-

(a) identify, suo motu or otherwise, provision of any law or policy, programme and procedures, which are in consistent with this Act, and recommend necessary corrective steps;

(b) inquire, suo motu or otherwise deprivation of rights of persons with disabilities and safeguards available to them in respect of matters for which the State Government is the appropriate Government and take up the matter with appropriate authorities for corrective action;

(c) review the safeguards provided by or under this Act or any other law for the time being in force for the protection of rights of persons with disabilities and recommend measures for their effective implementation;

(d) review the factors that inhibit the enjoyment of rights of persons with disabilities and recommend appropriate remedial measures;

(e) undertake and promote research in the field of the rights of persons with disabilities;

(f) promote awareness of the rights of persons with disabilities and the safeguards available for their protection;

(g) monitor implementation of the provisions of this Act and schemes, programmes meant for persons with disabilities;

(h) monitor utilization of funds disbursed by the State Government for the benefits of persons with disabilities; and

(i) perform such other funds as the State Government may assign.

81. Action by appropriate authorities on recommendation of State Commissioner.- Whenever the State Commissioner makes a recommendation to an authority in pursuance of clause (b) of Section 80, that authority shall take necessary action on it, and inform the State Commissioner of the action taken within three months from the date receipt of the recommendation:

Provided that where an authority does not accept a recommendation, it shall convey reasons for non- acceptance to the State Commissioner for Persons with Disabilities within the period of three months, and shall also inform the aggrieved person."

15. From a conjoint reading of the aforequoted provisions and

particularly the proviso to Section 81 of the Act, it is clear that the

recommendation of the Opposite Party No.2 is not mandatory but

only advisory in nature. Therefore, for the opposite party-

authorities to contend that they had acted in pursuance of the order

passed by the Opposite Party No.2 cannot be accepted. Rather, it

shows a complete non-application of mind by the authority to the

facts and circumstances of the case. In short, the recommendation

was accepted mechanically.

16. Be it noted here that the Opposite Party No.2 vide its order

dated 15th September, 2017, enclosed as Annexure-6, had only

requested the Opposite Party No.4 to initiate appropriate

proceeding as to why the Petitioner shall not be disengaged from

his service. Assuming that the Opposite Party No.4 deemed it

proper to accept such recommendation fully, then a proceeding

ought to have been drawn up in keeping with the principles of

natural justice to enable the Petitioner to put forth his views in the

matter. However, as it appears, acting on the recommendations of

the Opposite Party No.2, the Opposite Party No.5 issued the

impugned order purportedly by order of the Opposite Party No.4 to

disengage the Petitioner from his post with immediate effect.

Such order was not preceded by any show cause notice nor any

opportunity of hearing to the Petitioner. Moreover, the said order

was issued by referring to the observation of the Opposite party

No.7 regarding "non-issue" of Disability Certificate by the

concerned office and that basing on the said Disability Certificate

the appointment order for the post of Sikshya Sahayak was issued

is found to be un authentic. As has already been discussed in detail

hereinbefore, the very basis of the impugned order is factually

incorrect as not only was the certificate admitted to have been

issued by the concerned authority, but also is proved to be

authentic. The only objection that could be raised against the

certificate is that the same is not in the proper statutory form, but

then when the content of the said certificate has been proved to be

correct, mere technicality cannot stand on the way of conferring

appropriate benefits on the person concerned. It must also be kept

in mind that the Right of Persons with Disabilities Act, 2016 has

been enacted with the pious objective of providing and protecting

the rights of the disabled persons in line with the United Nations

Convention on the Rights of Persons with Disabilities to which

India is a signatory. Therefore, this Court is constrained to hold that

the concerned authorities have dealt with the matter in a most

haphazard and somewhat reckless manner, as a result of which, a

disabled person has been thrown out of employment entirely on

erroneous perception of the relevant facts. This Court is also

constrained to hold that the Opposite Party No.2, who is statutorily

duty bound to ensure protection of the rights of persons with

disabilities has, in the case at hand, acted entirely contrary to the

legislature in fact. By entertaining a complaint submitted by a

person apparently having no locus standi and, who in all

probability, was a busy-body and in allowing the same without

granting an opportunity to the Petitioner against whom the

complaint was made, the Opposite Party No.2 has given a

complete go-bye to the principles of natural justice. Moreover,

by overlooking the fundamental fact that the disability of the

Petitioner was otherwise proved from the materials on record, the

Opposite Party No.2, who is supposed to work for the protection of

rights of persons with disabilities, has made a recommendation

which has ultimately gone on to deprive a disabled person of his

right to livelihood, which is also ingrained in part of Article 21 of

the Constitution of India.

17. For the foregoing reasons therefore, this Court finds that the

impugned order of disengagement of the Petitioner from service is

unsustainable in the eye of law. Resultantly, the Writ Petition is

allowed. The impugned order under Annexure-9 is hereby quashed.

The Opposite Parties are directed to re-instate the Petitioner in

service with full back wages and all other service benefits with

effect from the date of his disengagement by passing necessary

orders to such effect within a period of four weeks from the date of

communication of this order or on production of certified copy

thereof by the Petitioner.

................................

                                        Sashikanta Mishra,
Ashok Kumar Behera                            Judge