Orissa High Court
Arati Choudhury vs State Of Odisha And Others on 7 November, 2023
ORISSA HIGH COURT: CUTTACK
AFR
W.P.(C) NO. 8925 OF 2012
In the matter of an application under Articles 226 and 227
of the Constitution of India.
---------------
Arati Choudhury ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For petitioner : M/s. Susanta Kumar Dash,
A.K. Otta, S. Das, A. Sahoo
and Prabin Das, Advocates
For opposite parties : Mr. A.R. Dash
Addl. Government Advocate
P R E S E N T:
THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN
Date of Hearing: 02.11.2023:: Date of Judgment:07.11.2023
DR. B.R. SARANGI, ACJ The petitioner, who was the applicant in
O.A. No. 1552 of 1991 before the Odisha Administrative
Tribunal, Bhubaneswar, has filed this writ petition
challenging the order dated 04.05.2012 passed by the
Tribunal in the said Original Application.
2. The fact leading to the approach this Court, in a
nutshell, is that the petitioner, after passing her
graduation, had registered her name with the employment
exchange. An advertisement was floated by the Board of
Revenue to fill up the posts of Junior Assistant. As the
petitioner was fulfilling the eligibility criteria fixed in the
advertisement, applied for the said recruitment and was
allotted with Roll Number-1100874. Name of the petitioner
was sponsored by opposite party no.3 to the Deputy
Director Marketing and Ex-Officio Under Secretary to
Government, Industries Department on 09.08.1991 for
being appointed as a Junior Assistant, pursuant to the
requisition made by opposite party No.2, and it was further
pointed out that the order of appointment may be issued in
favour of the petitioner as per the address given.
Accordingly, on 22.08.1991, the petitioner was issued with
an order of appointment as Junior Assistant in the
establishment of opposite party no.2 in the scale of pay of
Rs. 950-1500/- with usual DA as admissible from time to
time. Pursuant to the said order of appointment, the
petitioner joined on 26.08.1991. While the petitioner was
discharging her duties, opposite party no.4 wrote a letter on
09.10.1991 to opposite party no.2 in pointing out that the
name of the petitioner was erroneously sponsored for the
post of Junior Assistant and in the said letter a request was
made to terminate the services of the petitioner as per the
terms and conditions of her appointment and on receipt of
the confirmation about the termination of the services of
the petitioner, steps would be taken to sponsor suitable
candidate.
2.1. Aggrieved by such action of the opposite parties,
petitioner approached the Odisha Administrative Tribunal,
Bhubaneswar by filing O.A. No. 1552 of 1991, in which it
was pointed out that the opposite parties are estopped
under law, by virtue of their own conduct, as the petitioner,
pursuant to the advertisement, had applied for the post of
Junior Assistant and appeared at the written test, her
name being sponsored by opposite party no.3, she was
issued with an order of appointment and, as such,
petitioner cannot be held responsible for the alleged
omission on the part of the opposite parties. After joining
the post of Junior Assistant, a right was accrued in her
favour to hold the post and, as such, she cannot be
terminated without following the principles of natural
justice. More so, it was pointed out that the action of the
opposite parties in terminating the services of the petitioner
is in violation of Articles 14, 16 & 311 of the Constitution of
India.
2.2. The Tribunal, while admitting the Original
Application, granted stay of the order dated 09.10.1991, by
which a request was made to terminate the services of the
petitioner as per the terms and conditions of her
appointment. Pursuant to the notices issued by the
Tribunal, the opposite parties filed their reply, in which it
was pointed out that the petitioner was not at all selected
and, as such, her name was not included in the select list
prepared by the Selection Committee and, as such, the
sponsoring of the name of the petitioner was erroneous. The
then Director of Examinations of the Board of Revenue, who
was the instrumentality in sponsoring the name of the
petitioner, was placed under suspension and a proceeding
was also initiated against him. Like the petitioner, three
more persons, who were issued with the order of
appointment pursuant to their names, being sponsored by
opposite party No.3, had approached the Tribunal
challenging the proposed action of the opposite parties in
terminating their services at the dictate of opposite party
No.4, who had made similar request to their appointing
authorities citing the identical reason, i.e. their names were
erroneously sponsored.
2.3. In one of such application filed by one Jaganath
Satpathy (O.A. No. 1548 of 1991), a Miscellaneous Petition
was filed to call for the records of the selection and the
Tribunal, vide order dated 16.01.1992, directed to the
following effect:-
"Under the circumstances, since the
controversy relates to the determination of a
question of fact we would like to see the relevant
file relating, to competitive examination held on 21-
10-90. The select list and other documents, if any,
including the answer paper of the petitioner to
enable us to arrive at a correct conclusion.
Let this case be listed on 17-02-92 for
further hearing. Government Advocate do tile the
documents as indicated above, with a list after
serving a copy of the list on the petitioners or his
counsel."
2.4. O.A. No. 1603 of 1991 was filed by one Pradeep
Kumar Nayak, challenging the proposed action of the
authorities in terminating his services on the ground that
his name was erroneously sponsored by opposite party
no.3, was taken up for hearing on 30.09.1993 and the
Tribunal quashed the order of termination on the ground
that the same was in violation or the rules of natural
justice.
2.5. In this background, the application filed by the
petitioner was taken up for hearing on 29.10.1998, along
with one filed by Jagannath Satpathy, and by order dated
11.03.1999 all the applications filed by different candidates,
including that of the petitioner, were dismissed. All the
petitioners during the course of argument pointed out that
they, being similarly placed like that of Sri Pradeep Kumar
Nayak, they are entitled to the same relief as has been
granted in favour of Sri Nayak. But the said point was not
considered by the Tribunal, while dismissing the application
filed by the petitioner. Even though the Tribunal had called
for the file relating to the selection to be produced before it
at the time of hearing, when that file was not produced, the
Tribunal, instead of asking the Government Advocate to
produce the said file, went on to dismiss the application.
2.6. The petitioner had approached this Court by
filing OJC No. 4220 of 1999 challenging the order of the
Tribunal dated 11.03.1999, by which her application was
dismissed by the Tribunal. This Court, vide order dated
13.01.2010, disposed of the said writ petition by passing
the following order:-
"Considering the submissions made by the learned
counsel for the parties and without expressing any
opinion on the merits or the case, the impugned
order is set aside and the matter is remitted back
to the learned Tribunal for fresh disposal alter
giving opportunity of hearing to the parties. The
respondent-opposite parties are directed to produce
the relevant records/ documents for perusal of the
learned Tribunal. It is open for the petitioners to
raise all such pleas available to them in law,
including the plea regarding the earlier decision of
the learned Tribunal dated 30-09-2003 passed in a
similar case i.e. O.A. 1503 of 1991, which shall be
considered by the learned Tribunal on its own merit
and in accordance with law."
2.7. This Court further directed that the services of
the petitioner shall not be terminated till the disposal of the
matter by the Tribunal. In compliance to the direction
issued by this Court, the petitioner appeared through her
counsel on 22.01.2010. Thereafter, on 03.03.2010, when
the matter was taken up, the Tribunal, taking note of the
order passed by this Court, was pleased to direct the
Standing Counsel to produce the file and at the same time
directed the Registry to list the O.A. No. 1603 of 1991 filed
by Pradeep Kumar Nayak, but the same was not produced
by the Standing Counsel till the last date of hearing and
only the approved select list prepared by the selection
committee was produced. In absence of the selection file,
the matter was finally heard on 15.02.2012, on which date,
after hearing the parties, the Tribunal formulated two
points for consideration, i.e. (a) whether in fact the
applicants have been selected; (b) if they have not been
selected, but got appointed as Junior Assistant, in the facts
and circumstances were they required to be given a chance
of hearing before termination of their services? Though
selection file was not produced, but the Tribunal at last
opined that the approved merit list is sufficient to decide the
matter and went on to decide the matter and vide common
order dated 04.05.2012 dismissed O.A. No. 1548 of 1991
(filed by Jagannath Satpathy), O.A. No. 1552 of 1991 (filed
by the writ petitioner) and O.A. No. 8 of 1992 (filed by
Prahallad Parida). Hence, this writ petition.
3. Mr. S.K. Dash, learned counsel appearing for the
petitioner vehemently contended that though this Court,
vide order dated 13.01.2010, while disposing of OJC No.
4220 of 1999, directed the opposite party-authorities to
produce the relevant files and took note of the earlier order
passed by it in O.A. No. 1603 of 1991 (filed by Pradeep
Kumar Nayak), who stands on the same footing as that of
the petitioner, as he challenged the order of termination
passed at the behest of opposite party no.4, who directed
the appointing authority to terminate his service as his
name was erroneously sponsored, but the same was not
taken into consideration by the Tribunal, while passing the
order impugned. Therefore, the order passed by the
Tribunal in O.A. No. 1603 of 1991 (filed by Pradeep Kumar
Nayak) has got a precedenctiary value and has to be applied
to the present case. It has been further contended that the
Tribunal relied upon the judgment of the apex Court in the
case of Regional Manager, Central Bank of India v.
Madhulika Guruprasad Dahir, (2009) 1 SCC (L&S) and in
the case of Arunima Baruah v. Union of India, AISLJ-
2008 (1) SC 80 and Indian Bank v. Satyam Fibers, AIR
1996 SC 2590 to come to a finding that the petitioner
obtained the appointment order fraudulently, but those
decisions cannot have any application to the present case
and those cases are distinguishable to the present facts of
the case itself. He further contended that the termination
having been done without following the principle of natural
justice, the same cannot be sustained. Without appreciating
the same, the Tribunal dismissed the Original Application
which is the outcome of non-application of mind. According
to him, the applicant in O.A. No. 8891 of 2012, i.e.,
Jagannath Satapathy had also approached this Court
challenging the very common order dated 04.05.2012
passed by the Tribunal by filing W.P.(C) No. 8891 of 2012.
The said writ petition was disposed of, vide order dated
23.02.2022, by observing that "In view of the above
submission, since the petitioner has already retired from
service on attaining the age of superannuation and till then
he was discharging his duty on being protected by the
interim orders passed by the tribunal as well as by this
Court, nothing remains to be adjudicated as against him.
Thus, this Court, without expressing any opinion with regard
to the legality and propriety of the order passed by the
tribunal, disposes of the writ petition directing the opposite
parties to extend the benefits, as due and admissible to the
petitioner, after his retirement. To substantiate his
contention, reliance has been placed on the cases of Vikas
Pratap Singh v. State of Chhattisgarh, (2013) 14 SCC
494 and Anmol Kumar Tiwari v State of Jharkhand,
(2021) 5 SCC 424.
4. Mr. A.R. Dash, learned Addl. Government
Advocate appearing for the State opposite parties
vehemently contended that though the name of the
petitioner was not found place in the select list, but she
obtained fraudulent order of sponsoring her name and
basing on such order, she was appointed. Therefore, her
appointment is illegal and arbitrary. Further, the person,
who had issued the order of appointment, i.e., the then
Director, Board of Examinations has been proceeded
against for misconduct of issuance of the fraudulent letters
of sponsoring the name of the petitioner and others.
Therefore, the petitioner cannot be allowed to continue in
the post. As a consequence thereof, he seeks for dismissal
of the writ petition filed by the petitioner. The Tribunal, vide
order dated 04.05.2012, has observed that the applicants
having entered into service basing on fraudulent and
manufactured letters and their entries having been made on
deceitful means, they have committed perjury and their
hands are not clean. Therefore, the order passed by the
Tribunal is well justified and does not require interference
at this stage.
5. This Court, vide order dated 03.07.2023, directed
the State Counsel to file an affidavit. In compliance thereof,
an affidavit has also been filed on 05.09.2023 by the
opposite party no.2, where he has reiterated the same fact
that soon after receipt of communication in letter no.
1235/exam dated 09.10.1991 of the Board of Revenue,
Cuttack, the petitioner was terminated with immediate
effect on 10.10.1991. Against which order, the petitioner
approached the Tribunal and the Tribunal, vide order dated
11.10.1991, directed to withdraw the termination order and
allow the petitioner to join in duty. The Tribunal, however,
vide order dated 11.03.1999, vacated the previous order
regarding not to terminate the services of the petitioner.
Challenging the order, the petitioner filed OJC No. 4220 of
1999 before this Court and this Court passed an interim
order on 08.04.1999 that the services of the petitioner shall
not be terminated. Ultimately, this Court disposed of the
writ petition by remanding the matter to the Tribunal to
dispose the case at their level. Thereafter, the Tribunal
dismissed O.A. No. 1552 of 1991, being devoid of merit, on
04.05.2012, against which the present writ petition has
been filed. It is contended that since the petitioner was
appointed by fraudulent means, she cannot claim equity to
get the benefit of continuation in service. Accordingly,
prayed for dismissal of the writ petition.
6. This Court heard Mr. S.K. Dash, learned counsel
appearing for the petitioner and Mr. A.R. Dash, learned
Addl. Government Advocate appearing for State opposite
parties by hybrid mode, and perused the record. Pleadings
have been exchanged between the parties and with their
consent, the writ petition is being disposed of finally at the
stage of admission.
7. The facts narrated above are not in dispute. The
only stand taken by the opposite parties is that the
petitioner, having been appointed as a Junior Assistant by
virtue of a fraudulent appointment order and the same
having been detected subsequently, the order of termination
was issued and, thereby, no illegality or irregularity has
been committed by the authority in terminating the services
of the petitioner. But fact remains, nothing has been
indicated in the order of termination that any fraud was
played by the petitioner, rather, the admitted case of the
opposite parties is that the then Director, Board of
Examinations, who was in the helm of affairs for issuance of
the letter, had issued the letter of appointment to the
petitioner to join in the post and the same was worked out.
It is also the admitted case that pursuant to the
advertisement issued, the petitioner appeared in the
selection test, basing upon which the order of appointment
was issued and the same was worked out by joining the
post. Consequentially, a right was accrued in favour of the
petitioner. But, subsequently, at the behest of opposite
party no.4 action was taken and services of the petitioner
were terminated. Needless to say, such order of termination
was issued without giving opportunity of hearing or without
complying with the principle of natural justice. This fact has
not been denied by the opposite parties expressly in their
counter affidavit.
8. On the other hand, one similarly situated person,
namely, Pradeep Kumar Nayak had approached the
Tribunal by filing O.A. No. 1603 of 1991 challenging his
order of termination. The said order of termination was
quashed by the Tribunal, vide order dated 30.09.2003. As
such, there is no denial of such fact. The petitioner stands
in the same footing, inasmuch as, without complying with
the principles of natural justice she having been terminated
from service had approached the Tribunal. Though a
specific stand was taken by the petitioner that in case of a
similarly situated person the order of termination has
already been quashed because of non-compliance of the
principle of natural justice and the said benefit should have
been extended in her favour in O.A. No. 1552 of 1991, but
the same was not adhered to. It is also the admitted fact
that three Original Applications were heard together. The
petitioners in the said three Original Applications stand in
the same footing with that of the applicant in O.A. No. 1603
of 1991, in which the order of termination was quashed by
the Tribunal vide order dated 30.09.2003. Even though
such fact was brought to the notice of the Tribunal, the
same was not taken note of and mechanically the order of
termination issued by the authority was confirmed by
dismissing the Original Application filed by the petitioner
taking a view that fraudulently the petitioner was appointed
and, therefore, the termination order was well justified. But
fact remains, nothing has been placed on record to indicate
that the petitioner has played fraud to get the appointment.
Therefore, nothing can be attributable to the petitioner so
far as issuance of the appointment letter in her favour is
concerned. Once such attribution is not available against
the petitioner, the action so taken against the petitioner
cannot have any justification.
9. No doubt, the power has been vested with the
authority to take action against its employees in the event
any error is committed by him/her, but nothing is made
available on record to show that any error has been
committed by the petitioner so as to take action against her.
But fact remains, if the petitioner was appointed by
issuance of a valid appointment letter, it cannot be
construed to be fraudulent appointment letter and even if
the opposite parties have taken action against the authority
who has issued such letter and the petitioner may be the
beneficiary thereof, but that cannot ipso facto be said that
the appointment was made fraudulently at the instance of
the petitioner. If fraud has not been established against the
petitioner, merely because he was appointed, may be
erroneously, but that itself cannot call for termination of
service of the petitioner. At best it can be construed that the
appointment made to the petitioner may be improper, but it
cannot be construed that any fraud has been played by the
petitioner to get such appointment.
10. In Vikas Pratap Singh (supra), referring to the
decision rendered in the case of Buddhi Nath Chaudhary
and others v. Akhil Kumar and others, (2001) 2 SCR 18,
the apex Court at paragraphs-24 and 25 of the judgment
stated as follows:-
"24. In Buddhi Nath Chaudhary and Ors. v.
Akhil Kumar and Ors., (2001) 2 SCR 18, even
though the appointments were held to be improper,
this Court did not disturb the appointments on the
ground that the incumbents had worked for several
years and had gained experience and observed:
"We have extended equitable
considerations to such selected
candidates who have worked on the
posts for a long period."
(See: M.S. Mudhol (Dr.) and Anr. v. S.D. Halegkar and
Ors., (1993) II LLJ 1159 SC and Tridip Kumar Dingal
and Ors. v. State of West Bengal and Ors., (2009) 1
SCC 768)
25. Admittedly, in the instant case the error
committed by the respondent-Board in the matter of
evaluation of the answer scripts could not be
attributed to the appellants as they have neither been
found to have committed any fraud or
misrepresentation in being appointed qua the first
merit list nor has the preparation of the erroneous
model answer key or the specious result contributed
to them. Had the contrary been the case, it would
have justified their ouster upon re-evaluation and
deprived them of any sympathy from this Court
irrespective of their length of service."
11. In Anmol Kumar Tiwari (supra), the apex Court
observed that the writ petitioners were not responsible for
the irregularities committed by the authorities in
preparation of the select list. Moreover, the writ petitioners
were appointed after completion of training and worked for
some time. Therefore, the High Court was of the opinion
that the writ petitioners ought to be considered for
reinstatement without affecting the rights of other
candidates, who have already been selected. In the said
decision, the apex Court had taken note of the judgment in
the case of Vikas Pratap Singh (supra), where the apex
Court had opined that the appellants therein were
appointed due to an error committed by the respondents in
the matter of valuation of answer scripts. As there was no
allegation of fraud or misrepresentation committed by the
appellants therein, the termination of their services was set
aside as it would adversely affect their career. The
appellants therein had successfully undergone training and
were serving the State for more than 3 years was another
reason that was given by the apex Court for setting aside
the orders passed by the High Court. Therefore, the present
petitioners, having stood on the same footing with the
appellants in Vikas Pratap Singh (supra), are to be
extended with the same benefit.
12. The ratios decided by the apex Court, as
mentioned above, in Vikas Pratap Singh and Anmol
Kumar Tiwari (supra), are fully applicable to the present
case. Apart from the same, if a similarly situated person
namely, Pradeep Kumar Nayak, the applicant in O.A. No.
1603 of 1991, has been allowed to continue and another
person, namely, Jagannath Satapathy, who was the
petitioner in W.P.(C) No. 8891 of 2012, which was preferred
against the common order dated 04.05.2012 passed in O.A.
No. 1548 of 1991 and batch, was allowed to continue and
retired from service on attaining the age of superannuation,
the petitioner cannot be discriminated.
13. In view of the above, the order dated 04.05.2012
passed by the Odisha Administrative Tribunal,
Bhubaneswar in O.A. No. 1548 of 1991, out of which this
writ petition arises, cannot be sustained in the eye of law
and is liable to be quashed and is hereby quashed.
Accordingly, the petitioner is entitled to get all the benefits
as due and admissible to her including grant of revised
scale of pay, increments and other service benefits, as due
and admissible to her in accordance with law.
14. Thus, the writ petition is allowed. However, there
shall be no order as to costs.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 7th November, 2023, Arun
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 07-Nov-2023 17:25:39
