Orissa High Court
Alekha Kumar Panigrahi vs State Of Odisha & Ors on 24 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.C.(OAC) No.2665 of 2016
In the matter of an application under Section 19 of the Administrative
Tribunal's Act, 1985.
..................
Alekha Kumar Panigrahi .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioner : M/s. J.K. Khuntia (Advocate)
H.S. Deo (Advocate)
For Opp. Parties : Mr. B. Panigrahi
Addl. Standing Counsel
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 12.07.2023 and Date of Judgment: 31.07.2023
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Biraja Prasanna Satapathy, J.
The present writ petition has been filed by the Petitioner
challenging the order dtd.28.10.2016 passed by the Collector -Cum-
Chairman, SSA, Bhadrak in Misc. Case No. 01/2016 arising out of
W.P.(C) No. 15497 of 2016. Vide the said order the Petitioner who
was continuing as a primary school teacher was terminated from his
service.
// 2 //
2. It is the case of the Petitioner that pursuant to the advertisement
issued by the Opp. Party No. 2 in the year 2003 for selection and
engagement of Sikshya Sahayak, the Petitioner made his application
and on being found suitable, he was issued with the order of
engagement vide order dtd.16.12.2003 under Annexure-1 series.
Pursuant to the order passed by this Court in W.P.(C) No. 11748 of
2003 though the Petitioner was disengaged, but once again vide office
order dtd.28.09.2005 under Annexure-1 series, he was reengaged as a
Sikshya Sahayak.
3. It is contended that while so continuing as a Junior Teacher the
Petitioner for the first time was issued with a show-cause notice on
17.04.2010 under Annexure-2 by the Opp. Party No. 3 asking him to
produce the original certificates and mark-sheets regarding his
educational qualification for verification. The Petitioner as directed
also produced his original certificates and mark-sheets in terms of
Annexure-2 and Opp. Party No. 4 vide letter dtd.05.05.2010 under
Annexure-3 requested Controller of Examination, Utkal University to
verify the genuineness of the certificates and mark-sheets so
submitted by the Petitioner of his +3 mark-sheet and B.Ed. mark-
sheet. Not only that vide letter dtd.29.05.2010 under Annexure-4 Opp.
Party No. 3 requested Opp. Party No. 4 to produce the advertisement
published for engagement of Sikshya Sahayak during the year 2004-
// 3 //
05 and other relevant information. In the said letter Opp. Party No. 4
was also requested to provide the marks secured by the present
Petitioner during the selection process.
3.1. It is contended that on receipt of Annexure-4 vide letter
dtd.24.06.2010 under Annexure-5, Opp. Party No. 4 intimated Opp.
Party No. 3 to the effect that the original application form and other
relevant documents may be available in his office. In the meantime
vide letter dtd.20.08.2010 Utkal University under Annexure-6
indicated that the result of the present Petitioner of his B.Ed.
Examination, 1994 has been withheld due to want of Registration
Number.
3.2. It is contended that while the matter stood thus, an allegation was
made against the Petitioner by one Dillip Kumar Nayak that the
Petitioner by producing fake B.A. and B.Ed. certificates along with
fake mark-sheets has managed to get appointment as Sikshya Sahayak
in the year 2005. On receipt of such complaint the Petitioner was
again issued with the show-cause by the Opp. Party No. 3 on
28.10.2010 directing him to submit his reply with regard to the
submission of fake B.A. and B.Ed. certificates by the Petitioner for
his selection as Sikshya Sahayak.
3.3. It is contended that the Petitioner on receipt of the show-cause
dtd.28.10.2010 under Annexure-8 submitted his reply on 15.11.2010
// 4 //
under Annexure-9 indicating that pursuant to the earlier notice issued
on 29.05.2010 under Annexure-4 the Petitioner since has already
submitted his original B.A. and B.Ed. certificates, the authenticity of
the said documents may be verified at his level.
3.4. It is contended that in the meantime vide office order
dtd.13.06.2012 the Petitioner while continuing as a Junior Teacher, he
was appointed as a regular primary school teacher vide order
dtd.13.06.2012 w.e.f.28.09.2011 under Annexure-10. However, the
Petitioner was again issued with a show-cause notice by the Opp.
Party No. 2 on 29.08.2016 under Annexure-12 directing him to file
his reply as to why his services shall not be terminated for submitting
forged B.A. & B.Ed. certificates during the process of selection of
Sikshya Sahayak in the year 2004-05. The Petitioner challenging
issuance of such show-cause by the Opp. Party No. 2 approached this
Court in W.P.(C) No. 15497 of 2016. This Court vide order
dtd.12.09.2016 while disposing the writ petition, observed that if the
Petitioner files his show-cause within a period of 15 days, Opp. Party
No. 2 shall conduct an enquiry after affording opportunity of hearing
to the Petitioner and pass a reasonable order within a period of one
month thereafter. Till a decision is taken, the services of the Petitioner
shall not be dispensed with. Pursuant to the order passed by this
Court, the Petitioner submitted his reply to the show-cause on
// 5 //
27.09.2016 and the matter was registered as Misc. Case No. 01 of
2016 before the Opp. Party No. 2. But the Opp. Party No. 2 without
causing any enquiry passed the order of disengagement vide the
impugned order dtd.28.10.2016 under Annexure-13.
3.5. It is the contention o the learned counsel for the Petitioner that the
Petitioner pursuant to the selection process initiated by the Opp. Party
No. 2 was duly engaged as Sikshya Sahayak initially vide order
dtd.16.12.2003 and subsequently vide another order issued on
28.09.2005 under Annexure-1 series. The Petitioner thereafter was
engaged as a Junior Teacher on completion of 3 years of engagement
as a Sikshya Sahayak. While so continuing when the Petitioner was
issued with a show-cause and he was directed to produce the
certificates in support of his qualification vide Annexure-2, he
submitted all the original certificates in support of his qualification
including the mark-sheet of his B.A. and B.Ed. qualification. Even
though after due verification of his B.A. and B.Ed. certificates from
Utkal University nothing was found against him, but the Petitioner
when was issued with another show-cause on 28.10.2010 under
Annexure-8, he submitted his reply to the same on 15.11.2010 under
Annexure-9. On submission of such reply no further action was taken
and the Petitioner vide order dtd.13.06.2012 was appointed as a
regular primary school teacher w.e.f.28.09.2011 under Annexure-10.
// 6 //
But circularingly the Petitioner was again issued with a show-cause
by the Opp. Party No. 2 on 29.08.2016 under Annexure-12 and
without following the direction of this Court so issued in its order
dtd.12.09.2016 in W.P.(C) No. 15497 of 2016, the Petitioner was
terminated from his service vide order dtd.28.10.2016 under
Annexure-13.
3.5. It is accordingly contended that since while terminating the
services of the Petitioner vide the impugned order dtd.28.10.2016 the
direction of this Court in W.P.(C) No. 15497 of 2016 was not
followed, the impugned order is not sustainable in the eye of law. It is
also contended that since the Petitioner was duly selected and
appointed as a Sikshya Sahayak and was regularized as a junior
teacher and subsequently as a regular primary school teacher, Opp.
Parties basing on the principle of promissory estoppel are not
competent to terminate the services of the Petitioner. In support of
such submission learned counsel for the Petitioner relied on a decision
of this Court in the case of Prtima Sahoo Vs. State of Odisha & Ors.
(2021 (I) ILR-CUT-115) and another decision of this Court in the
case of Bikash Mahalik Vs. State of Odisha & Ors. (2022 (I) ILR-
CUT-108). Learned counsel for the Petitioner also relied on another
decision of this Court in the case of Bishnu Kishore Majhi Vs. State
of Odisha & Ors. (2023 (I) OLR - 162).
// 7 //
This Court in Para 10 of the Judgment in the case of Prtima
Sahoo has held as follows:-
"10. Thus, in this case, the district administration,
being an integral part of the State of Orissa, by its
declaration i.e. act of issuing order of appointment
intentionally caused the petitioner to believe that she is found
to be eligible on comparison of the marks secured by all the
candidates and she acted upon such belief, thereby resigned
from the post of Anganwadi Worker and joined the post of
Sikshya Sahayak under Bhapur Block. In such situation,
neither the State of Orissa nor its representatives i.e. the
district administration or the Director of the OPEPA, in any
proceeding between it and the petitioner deny the truth of
that thing. Once the State Government has allowed the
petitioner to believe that she has qualified in the selection
process and is being appointed as Sikshya Sahayak in
pursuance of which she resigned from the post of Anganwadi
Worker and worked for almost six to eight months as Sikshya
Sahayak, the district administration/ State Government
cannot deny that she does not qualify for the post of Sikshya
Sahayak."
Similarly, this Court in Para 27 of the Judgment in the case of
Bikash Mahalik has held as follows:-
"27. In Pratima Sahoo (supra), this Court held that
the order of disengagement of the petitioner from the post of
Sikshya Sahayak, pursuant to decision of the district
administration, having found qualified in the selection
process and appointed after resigning from her erstwhile post
of Anganwadi Worker and having worked for six to eight
months, amounts to putting the petitioner in prejudical and
disadvantageous position and the reason assigned for later
// 8 //
finding the petitioner not suitable for securing less marks
than other meritorious candidates do holds good, the
petitioner cannot be found faulted by the mistake committed
by the appointing authority in calculating the percentage.
Consequentially, direction was given to absorb the petitioner
forthwith applying the doctrine of promissory estoppel in the
said case."
Similarly, this Court in Para 9 to 15 of the Judgment in the case
of Bishnu Kishore Majhi has held as follows:-
"In the case of Miss Reeta Lenka v. Berhampur
University. 1992 (11) OLR 341, where the petitioner had
been admitted in Rama Devi Women's College in 1985 and
completed her B.Sc. from that College and thereafter
obtained Diploma in Pharmacy from V.S.S. Medical College,
Burla, but on cancellation of her result because of mass
copying she had approached this Court, it was observed by
this Court that in cases of mass copying, natural justice is not
required to be complied with and, as such, it is apparent that
the candidate in question does not get an opportunity to have
his say in the matter. Therefore, after thorough discussion on
the principle of promissory estoppels under Section 115 of
the Evidence Act, the Division Bench of this Court held that
the said case was a fit case, where the petitioner should be
protected by applying the principles of promissory estoppel.
Similar view was taken in the case of David C. Jhan
v. Principal Ispat College, Rourkela and others, 1984 (1)
OLR 564, where the petitioner was admitted to the College
after being declared to have passed the High School
Certificate Examination conducted by the Board of
Secondary Education, but subsequently the Board notified
that the candidate was wrongly declared to have passed and
on the basis of such notification, the College Authorities
// 9 //
cancelled the admission of the petitioner. But due to
interference of this Court, referring to the judgment of this
Court in the case of Gita Mishra v. Utkal University, ILR
1971 CUT-24, the said notification was quashed and the
petitioner in the said case was
permitted to continue his studies.
10. In Ambika Prasad Mohanty v. Orissa
Engineering College and another, 1989 (1) OLR 440, this
Court, applying the principle of estoppel, observed that once
a student is admitted after satisfying all the qualification,
subsequent cancellation of admission cannot be made since
he/she would be deprived of pursuing his/her studies in any
other institution.
11. The principles of promissory estoppel has been
considered by the apex Court in Union of India and others v.
M/s Anglo Afghan. Agencies etc., AIR 1968 SC 718,
Chowgule & Company (Hind) Pvt. Ltd. v. Union of India
and others, AIR 1971 SC 2021, M/s Motilal Padampat
Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and
others, AIR 1979 SC 621, Union of India and others v.
Godfrey Philips India Ltd., AIR 1986 SC 806, Delihi Cloth
& General Mills Ltd. v. Union of India and others, AIR
1987 SC 2424, Bharat Singh and others v. State of Haryana
and others, AIR 1988 SC 2181 and many other subsequent
decisions also.
12. Sanatan Gauda (supra) is a case where the
petitioner, while securing his admission in the Law College,
had admittedly submitted his mark sheet along with the
application for admission, the law college had admitted him
and he had pursued his studies for two years, the University
had also granted him the admission cards for the Pre-Law
and Inter-Law Examinations, he was also permitted to
appear in the said Examinations and was admitted to the
Final Year of the course and it was only at the stage of the
// 10 //
declaration of his results of the Pre-Law and Inter-Law
Examinations, the University raised objection to his so called
ineligibility to be admitted to the law course. Therefore, in
the said case, this Court held that the University is clearly
estoppel from refusing to declare the results of the appellant's
examination or preventing him from pursuing his Final Year
course.
13. The ratio decided by this Court as well as the
apex Court, as discussed above, is fully applicable to the
present case and any other plea advanced by opposite parties
no.2 and 3-BPUT, cannot sustain in the eye of law.
14. In the case of P.V. Mahadevan v. Md. T.N.
Housing Board, (2005) 6 SCC 636, the apex Court, in
paragraphs-8, 10 and 11 of the judgment held that for the
mistake committed by the Department in the procedure for
initiating a disciplinary proceeding, the appellant should not
be made to suffer. Similar view has also been taken in
Secretary Ministry of Defence v. Prabhash Chandra
Mishra, (2012) 11 SCC 565.
15. In the above premises, the stand taken by the
BPUT, that inadvertently the result was published and
subsequently the mistake having been detected the same was
withdrawn, cannot have any justification, in view of the law
laid down by the apex Court, as mentioned supra."
4. Mr. B. Panigrahi, learned Addl. Standing Counsel on the other
hand made his submission basing on the stand taken in the counter
affidavit so filed by the Opp. Party No. 3. Though it is not disputed
that pursuant to the advertisement issued by the Opp. Party No. 2, the
Petitioner was selected and engaged as a Sikshya Sahayak vide order
dtd.16.12.2003 and subsequent orderdtd.28.09.2005 under Annexure-
// 11 //
1 series and he was also regularized as a junior teacher and as a
regular primary school teacher, but at the time of his initial selection
the Petitioner had submitted forged mark-sheet of B.A. and B.Ed.
examination. Basing on the show-cause issued by the Opp. Party No.
3 on 17.04.2010 under Annexure-2 when the Petitioner submitted his
mark-sheet of both B.A. and B.Ed. examination, it was found that the
Petitioner has secured 503 out of 1200 marks in B.A. and 406 out of
900 in his B.Ed. examination. But in the calculation sheet prepared on
the basis of mark-sheet submitted by the petitioner at this time of
submission of his application, his B.A. mark was reflected in the
calculation sheet as 714 marks out of 1200 and 526 marks out of 900
in the B.Ed. examination. Since in the calculation-sheet prepared at
the time of initiation selection basing on the mark-sheet produced by
the Petitioner, his marks in the B.A. examination was included as 745
out of 1200 and in the B.Ed. examination his mark was calculated as
526 out of 900, but on verifying the original mark-sheet so produced
by the Petitioner pursuant to Annexure-2 it was found that the
Petitioner has in fact secured 503 out of 1200 in his B.A. examination
and 406 out of 900 in his B.Ed. examination.
4.1. Not only that in the selection conducted by the Opp. Party No. 2
for the year 2003 the Petitioner having belonged to UR Category and
taking into account his original mark so produced by him, he should
// 12 //
not have been selected. In the selection conducted in the year 2003 the
cut-off mark in UR category was 55.31%. Taking into account the
mark submitted by the petitioner in his B.A. i.e. 503 out of 1200 and
in the B.Ed. i.e. 406 out of 900, his percentage comes to 41.91% in
the B.A. examination and 45.11 in his B.Ed. examination, which
comes to average percentage of 43.51%. But since the Petitioner at
the time of his selection produced the fake mark-sheet showing his
mark in B.A. as 714 out of 1200 and 526 out of 900 in the B.Ed., his
percentage was calculated at 59.50 in the B/A. examination and 58.44
in the B.Ed. examination, average of which comes to 58.99%. Since
the cut-off mark in UR category in B/Ed. Was 55.31%, taking into
account the average mark at 58.97% as the Petitioner was selected
and engaged, but in fact in the original mark-sheet so produced by the
Petitioner his percentage of mark in the B.A. examination is 41.91%
in the B.A. and in the B.Ed. it is 38.4%, the average of which comes
to 43.51%.
4.2. Accordingly, since at enquiry it was found that the Petitioner by
producing forge certificate of his B.A. and B.Ed. qualification was
elected and appointed as a Sikshya Sahayak in UR Category, basing
on the order passed by this Court in W.P.(C) No. 15497 of 2016 Opp.
Party No. 2 after due enquiry came to the aforesaid finding with
regard to percentage of mark secured by the Petitioner originally as
// 13 //
per his certificate and the inclusion made because of the forged mark-
sheet produced by the Petitioner. Since the Petitioner by producing
forged mark-sheet of his B.A. and B.Ed. examination managed to be
selected in UR Category, Opp. Party No. 2 rightly terminated the
Petitioner from his services vide order dtd.28.10.2016 under
Annexure-13.
4.3. It is also contended by the learned ASC that in the calculation-
sheet so prepared at the time of enquiry, the Petitioner has do the
signature in the scrutiny-cum-mark calculation register by agreeing to
the said inclusion. Therefore, it is to be held that the Petitioner
knowingly submitted forged and manipulated mark-sheet of his B.A.
and B.Ed. examination and basing on the excluded mark he was
selected and appointed as a Sikshya Sahayak. Accordingly, it is
contended that no illegality or irregularity has been committed by the
Opp. Party No. 2 in terminating the services of the Petitioner vide
order dtd.28.10.2016 under Annexure-13. Learned ASC in support of
his submission relied on the decision of the Hon'ble Apex Court in
the case reported in
i) AIR 1994 SC 853
ii) AIR 1956 SC 593
iii) 2012(2) CLR (SC) 312
// 14 //
5. To the stand taken in the counter affidavit the Petitioner while
filing the rejoinder affidavit, produced the mark-sheet of his B.A. and
B.Ed. examination vide Annexure-15 series and contended that since
taking into account the mark-sheet available under Annexure-15
series which was produced by the Petitioner at the time of his
selection, he was selected and appointed, no fault can be attributed as
against the Petitioner for such selection and appointment. Taking into
account his selection and appointment and long continuance the order
of termination passed under Annexure-13 is liable for interference of
this Court.
6. I have heard Mr. J.K. Khuntia, learned counsel for the Petitioner
and Mr. B. Panigrahi, learned Addl. Standing Counsel appearing for
the Opp. Parties. On the consent of both the Parties, the matter was
heard at the stage of admission and dispose of by the present common
order.
7. Having heard learned counsel appearing for the Parties and after
going through the materials available on record, it is found that the
Petitioner pursuant to the selection process initiated by the Opp. Party
No. 2 for the year 2003 was appointed as a Sikshya Sahayak vide
order dtd.16.12.2003 and subsequently vide order dtd.28.09.2005
under Annexure-1 series. It is also found from the record that placing
on the engagement order issued on 28.01.2005 under Annexure-1
// 15 //
series, the Petitioner was appointed as a junior teacher for the year
2008. But for the first time when a show-cause was issued to the
Petitioner by the Opp. Party No. 3 on 17.04.2010 under Annexure-2
the Petitioner as directed submitted his original certificates and mark-
sheets with regard to his educational qualification. Even though the
Petitioner in terms of Annexure-2 submitted his original certificates in
support of his educational qualification, but when another show-cause
was issued by the Opp. Party No. 3 on 28.10.2010 under Annexure-8,
the Petitioner challenging the said show-cause in W.P.(C) No. 22419
of 2011. Pursuant to the order passed by this Court by the Opp. Party
No. 2 initiated Misc. Case No. 13 of 2011 and in the said Misc. Case
the following order was passed:-
"xxx In the above scenario of facts, the District
Project Co-ordinator,SSA,Bhadrak is directed to
look into the allegation against the petitioner if there
is prima-facie materials on record against the
petitioner. Merely on simply allegation petition
against the petitioner, the District Project Co-
ordinator,SSA,Bhadrak must cause an enquiry and
thereafter can issue further show cause notice to the
petitioner. Accordingly, the Misc. Case is disposed
of."
8. Subsequently, basing on the enquiry conducted by the Opp. Party
No. 3 and on being satisfied that fraud has been committed by the
Petitioner by submitting fake B.A. and B.Ed. certificates, Opp. Party
// 16 //
No. 2 when issued a show-cause on 29.08.2016 under Annexure-12
proposing therein to terminate the services of the Petitioner on the
ground that the Petitioner has submitted fake B.A. and B.Ed.
certificates for the purpose of his selection as Sikshya Sahayak, the
Petitioner challenging the said show-cause approached this Court in
W.P.(C) No. 15497 of 2016. This Court vide order dtd.12.09.2016
when directed the Opp. Party No. 2 to conduct and enquiry and pass a
reasonable order without affording any opportunity of hearing to the
Petitioner, Opp. Party No. 2 initiated Misc. Case No. 01 of 2016.
This Court finds that in the said Misc. Case the Petitioner was not
only challenged the personal hearing through his cancel, but also the
Opp. Party No. 2 conducted due enquiry by verifying the mark-sheet
produced by the Petitioner of his B.Ed. examination with the mark-
sheet indicated in the scrutiny-cum-mark calculation register which
was countersign by the Petitioner by agreeing to said calculation. On
proper verification of the mark-sheet so produced by the Petitioner on
his B.A. & B.Ed. examination with that of the mark engaged in the
scrutiny-cum-calculation register. Opp. Party No. 2 clearly found that
the Petitioner by producing B.A. & B.Ed. certificate was managed to
be appointed as Sikshya Sahayak.
8.1. This Court after going through the materials available on record
also finds that vide Annexure-15 series the Petitioner has produced
// 17 //
his original B.A. & B.Ed. mark-sheet. While in the mark sheet issued
by the Urkal University the petitioner has secured 503 in his B.A.
examination out of 1200 and 406 in his B.Ed. examination out of 900,
but the Petitioner was selected as Sikshya Sahayak by continuing as
714 out of 1200 in B.A. and 526 out of 900 in his B.Ed. examination.
The Petitioner has also not disputed that cut-off mark of the selection
conducted in the year 2003 in UR category was fixed at 55.31%.
Since in spite of opportunity and while filing the writ petition as well
as the rejoinder the Petitioner has failed to produce the mark-sheet of
his B.A. and B.Ed. examination showing he was secured 714 out of
1200 in B.A. and 503 out of 900 in is B.Ed., this Court is of the view
that the Petitioner by producing fake B.A. and B.Ed. mark-sheet has
managed to be selected and appointed for the year 2003.
8.2. In view of such finding of this Court and since it is the view of
this Court that the Petitioner by coming fraud has managed to be
selected and appointed, placing reliance on the decision cited by the
learned ASC, this Court is not inclined to interfere with the impugned
order so passed by the Opp. Party No. 4 on 28.10.2016 under
Annexure-13. The decisions relied on by the learned counsel for the
Petitioner with regard to promissory estoppel is not maintainable to
this Court as it is found that the Petitioner has committed fraud by
producing fake mark-sheet of his B.A. and B.Ed. examination. In any
// 18 //
view of the matter, this Court finds that no illegality or irregularity
with the impugned order at Anexure-13 and accordingly, this Court is
not inclined to entertain the writ petition and dismiss the same.
9. The writ petition is disposed of accordingly.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 31st of July, 2023/Sneha
Signature Not Verified
Digitally Signed
Signed by: SNEHANJALI PARIDA
Designation: Jr. Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 25-Jul-2023 11:09:22
