Laxman Rana vs State Of Odisha & Ors. ..... Opposite ...
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Orissa High Court

Laxman Rana vs State Of Odisha & Ors. ..... Opposite ... on 7 January, 2025

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

    IN THE HIGH COURT OF ORISSA AT CUTTACK
  WP(C) Nos. 5345, 5347, 5348, 5350, 5352, 5354, 5356, 5357 &
                         5359 of 2021
                   WP(C) No. 5345 of 2021
Laxman Rana                      .....             Petitioner
                                                   Mr. M. Mohanty, Sr. Advocate
                                                          along with
                                                   Ms. S. Mohanty, Advocate
                                -versus-
State of Odisha & Ors.             .....              Opposite Parties
                                                      Mr. C.K. Pradhan, AGA


                    CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
                     ORDER

07.01.2025

1. This matter is taken up through hybrid mode.

2. Since all these writ petitions involve similar issue, all were heard analogously and disposed of by the present common order.

3. Heard Mr. M. Mohanty, learned Sr. Counsel appearing for the Petitioners along with Ms. S. Mohanty and Mr. C.K. Pradhan, learned Addl. Govt. Advocate appearing for the Opp. Parties.

4. All the writ petitions have been filed inter alia challenging the order of termination passed on 18.01.2021 so passed by Opp. Party No. 3.

5. It is contended that Petitioners while continuing as Gana Sikshyak, Govt. in the Department of School & Mass Education

vide notification dtd.22.12.2016 under Annexure-2, framed the guideline for regularization of such Gana Sikshyak.

5.1. It is contended that as provided in the said notification Gana Sikshyak who have completed 8 years of regular and continuous engagement and have possessed the educational and training qualification will be regularized as Level V Asst. Teacher (Ex- Cadre) equivalent to Level V Teacher of Elementary Cadre. As further provided in the said notification a Gana Sikshya for the purpose of such regularization as Level V Asst. Teacher (Ex-Cadre) must be possessing educational and training qualification as given below:-

"2(a)(i) Higher Secondary (+2 or its equivalent) and 2 years Diploma in Elementary Education (C.T) or Higher Secondary (+2 or its equivalent) and 2 year Diploma in Education (Special Education) or Graduate in Arts/Science and 2 year Diploma in Elementary Education or Graduate in Arts/Science and 2 year Diploma in Education (Special Education); and must have Odia as MIL up to Class-VII or pass in Odia language test equivalent to M.E. standard conducted, or declared equivalent by BSE (Odisha), or

(ii) Graduation in Arts/Science and 1 year Bachelor in Education (B.Ed) or Graduation in Arts/Science and 1 year B.Ed. (Special Education); or Higher Secondary (+2 or its equivalent) and 4 years B.A./B.Sc. Ed. Or B.A. Ed/B.Sc. Ed., and must have Odia as MIL up to class-X or pass in Odia language test equivalent to Xth standard conducted, or declared equivalent, by BSE (Odisha).

5.2. It is further contended that a further stipulation was made in the notification under Annexure-2 that such Gana Sikshyak is required to pass OTET within 31.03.2019 if he has not passed the OTET earlier. If she/he does not pass the OTET by such date, she /he will not be eligible to get any further increment after 31.03.2019.

5.3. Learned counsel for the Petitioner contended that in terms of the notification issued under Annexure-2 though Petitioenrs were otherwise eligible to get the benefit of regularisation, but to get the benefit of increment after 31.03.2019, Petitioners herein produced OTET Pass certificates, so obtained by them from the Board of Secondary Education, Odisha. But it is contended that in absence of such OTET pass certificate being produced and in view of the stipulation contained in the notification under Annexure-2, Petitioners herein were otherwise eligible to get the benefit of regularization and passing of OTET is only to get the benefit of further increment after 31.03.2019. But by taking a plea that the Petitioners have produced fake OTET certificate for the purpose of getting the benefit of regularization, a show-cause was issued to all the Petitioners vide order dt.19.11.2020 of Opp. Party No. 3. The show-cause was so issued as on verification it is found that fake OTET pass certificates have been produced by the Petitioners to get the benefit of regularization. It is contended that along with the said show-cause no document was enclosed as to the source from which Opp. Party No. 3 could know that OTET pass certificates produced by the Petitioners are fake one.

5.4. Be that as it may, on receipt of the show-cause so issued under Annexure-4 on 19.11.2020 all the Petitioners submitted their

respective reply under Annexure-5 with the stand that if the authority has any doubt about the OTET certificate, the matter be referred to the Board of Secondary Education for verification.

5.5. However, on the face of such reply submitted by the Petitioners under Annexure-5, order of termination was passed on 18.01.2021 by Opp. Party No. 3, terminating the services of the Petitioners inter alia on the ground that Petitioners have produced fake OTET certificates to get the benefit of regularization.

5.6. It is also contended that in the impugned order though it was reflected that verification of the OTET pass certificate by BSE, Odisha the certificates produced by the Petitioners were found to be fake one, but nothing was indicated about the basis of such report being issued by the Board. Not only that Petitioners were never provided with any such report being made by the Board.

5.7. It is contended that since for the purpose of regularization of services of the Petitioners, OTET pass certificate was not a requirement and such certificate is only required to get the benefit of increment after 31.03.2019, even if the certificates so produced by the Petitioners were found to be fake one, Petitioners on that ground could not have been terminated from their services. In the alternate they should have been regularized in terms of Annexure-2, but with the condition that they will not get the benefit of increment after 31.03.2019. But without providing copy of such report of the Board and opportunity to disprove the same, show-cause was issued under Annexure-4. Not only that without proper appreciation of the reply submitted by the Petitioners under Annexure-5, order of

termination was passed on 18.01.2021 under Annexure-6 in each of the case.

5.8. It is contended that since OTET pass certificate is not a requirement to get the benefit of regularization in terms of the notification issued by the Department on 22.12.2016 under Annexure-2, on the ground of submission of a fake OTET certificate, Petitioners could not have been terminated from their services.

5.9. It is also contended that in view of the letter issued by the Department on 16.12.2021 under Annexure-9, without initiation of a properly constituted proceeding in accordance with Rule 15 of OCS (CCA) Rules, 1962, no order of termination could have been issued.

5.10. In support of the submission that OTET is not a requirement to get the benefit of regularization, learned Sr. Counsel appearing for the Petitioners relied on a decision of this Court in the case of Balabhadra Majhi Vs. State of Odisha & Ors. (W.P.(C) No. 15345 of 2022) decided on 11.11.2022. This Court in Para 19 of the said Judgment has held as follows:-

"19. Taking into consideration the factual and legal aspects, as delineated above, this Court is of the considered view that the opposite parties cannot deny the benefit of regularization of service to the petitioner as Level-V Asst. Teacher, as the petitioner has got requisite academic qualification and has also acquired training qualification and otherwise also satisfies the eligibility criteria for regularization. Therefore, for non- acquisition of OTET qualification, he cannot be denied the

benefit of regularization. If the petitioner has not acquired the OTET qualification by 31th March 2019, he may not be entitled to incremental benefit, but that ipso facto cannot deny the benefit of regularization to him. Accordingly, this Court directs the opposite parties to regularize the service of the petitioner as Level-V Asst. Teacher on completion of eight years as Gana Sikhyaka, as per the notification dated 22.12.2016. As he has already retired from service, he should be extended such benefit notionally from the date of completion of eight years as Gana Sikhyaka by regularizing his service as Level-V Asst. Teacher. Since the petitioner has already retired, his pension be revised and he should be granted pensionary benefits in the revised scale of pay admissible to him by fixing the same notionally, as expeditiously as possible, preferably within a period of three months from the date of communication of this judgment."

5.11. It is also contended that placing reliance on the decision in the case of Balabhadra Majhi, this Court in its order dtd.06.11.2024 in W.P.(C) No. 5973 of 2021 & batch directed the Opp. Parties to regularize the services of the Petitioners therein, but with the condition that they will not get benefit of increment beyond 31.03.2019. It is accordingly contended that since on mere assumption that fake certificates have been submitted by the Petitioners to get the benefit of regularization, Petitioners were terminated from their services vide order dtd.18.01.2021 in all these cases, the said order is required to be interfered with by this Court.

6. Mr. C.K. Pradhan, learned Addl. Govt. Advocate on the other hand placing reliance on the stand taken in the counter affidavit contended that in terms of the notification issued under Annexure-2 and to get the benefit of regularization, Petitioner produced OTET

pass certificate so obtained by them from Board of Secondary Education, Odisha. Basing on the direction issued by this Court in W.P.(C) No. 18752 of 2018, verification was called for with regard to such OTET pass certificate produced by the Petitioners along with others. Accordingly, vide letter dtd.04.06.2020, certificate produced by the Petitioners were sent to the Board of Secondary Education for verification. The Board vide letter dtd.04.11.2020 under Annexure-E/4, submitted that the certificate produced by the Petitioners appears to be fake and they have not qualified the OTET 2018-19. In the said list enclosed to letter dtd.04.11.2020 names of the present Petitioners were reflected.

6.1. It is contended that since on verification Board of Secondary Education, Odisha intimated that the OTET Pass certificates produced by the Petitioners appears to be fake, basing on such letter issued by the Board on 04.11.2020, show-causes were issued to the present Petitioners vide office order dtd.19.11.2020.

6.2. Even though replies were submitted by the Petitioners to the said show-cause, but since to get the benefit of regularization Petitioners produced fake OTET certificate, they were terminated from their services vide impugned order dtd.18.01.2021. Stand taken by the Opp. Parties in Para 6, 8 & 9 of the counter affidavit reads as follows:-

"6. That, it is needless to mention here that one Sanjay Kumar Moharana filed a PIL bearing W.P. (C) No. 18752 of 2018 alleging therein that both in elementary and secondary education fake teachers are taking plenty of funds from Government treasury allotted to the School & Mass Education

Department. In obedience to the order passed by this Hon'ble Court the Principal Secretary to Government, School & Mass Education Department, Odisha vide Letter No. 13216/SME dated 27.06.2019 indicating therein that in Para-7 that if any such fake certificate will be found to be submitted by any teachers immediate steps shall be taken against the teachers concerned, the said letter which was also communicated to the D.G. & I.G. of Police vide D.O. Letter No. 6869 dated 07.09.2019 by the Addl. Chief Secretary to Government, School & Mass Education Department, Odisha. The copy of the letter No. 13216/SME dated 27.06.2019 and D.O. Letter No. 6869 dated 07.09.2019 are filed herewith as Annexure-C/4 and D/4 respectively.

xxx xxx xxx

8. That, it is humbly submitted that while the petitioners were continuing as such the petitioner submitted their certificates along with the OTET certificate for regularisation of their service as Level-V Asst. Teacher (Ex-cadre). According to the Notification No. 25290/SME dated 22.12.2016, the certificate of the petitioners were sent to Board of Secondary Education, Odisha vide letter No. 821 dated 04.06.2020 of the District Project Co-ordinator, Samagra Sikshya, Boudh for verification. The Board of Secondary Education, Odisha, Cuttack vide letter No. 1053/CRR dated 04.11.2020 submitted verification report in respect of 78 candidates stating therein that 37 numbers of certificates do not tally with the Board's records and which appears to be fake and they have not qualified in the OTET 2018-19. In the said list of the Board of Secondary Education, Odisha, it is found that the Petitioner Chumki Dash bearing Roll No. 1810604035 has secured 34% and secured total 51 marks in the OTET examination held in the year 2018- 2019, hence not qualified in the OTET 2018-2019 examination and the said

certificate does not tally with the Board's record which appears to be fake. The copy of the letter No. 1053/CRR dated 04.11.2020 of the Board of Secondary Education, Odisha, Cuttack along with the list of candidates is filed herewith as Annexure-E/4.

9. That, it is humbly submitted that from the letter of the Board of Secondary Education, Odisha, Cuttack under annexure-E/4, it is crystal clear that the petitioner produced fabricated OTET certificate and basing upon the verification report of the Board of Secondary Education, Odisha the Collector-cum-Chief Executive Officer, Zilla Parishad, Boudh, issued show cause notice vide office order No. 1548 dated 19.11.2020 to the petitioner. Further the petitioner submitted his show cause reply. As the show cause replies was not satisfactory he was terminated from the contractual engagement as Gana Sikshyak vide office order No. 51 dated 18.01.2021 in respect of Petitioner. Copy of the office order No. 1548 dated 19.11.2020 and office order No. 51 dated 18.01.2021 are filed herewith as Annexure-F/4 and G/4 respectively."

6.3. Mr. Pradhan accordingly contended that since to get the benefit of regularization, Petitioners knowingly produced fake OTET certificate, which has been confirmed by the Board vide letter issued under Annexure-E/4, they have been rightly terminated from their services and it requires no interference.

7. To the submission made by the learned Addl. Govt. Advocate basing on the counter affidavit, learned Sr. Counsel appearing for the Petitioners contended that even in absence of OTET pass certificate being produced, Petitioners could have been regularized in terms of the notification issued under Annexure-2, but with the

condition that they will not get the benefit of increment after 31.03.2019. But without following the guideline issued vide Notification under Annexure-2 in letter and spirit, Petitioners when were asked to produce the OTET certificate, they produced the same after obtaining the certificates from the Board.

7.1. It is contended that if at all the Board vide letter under Annexure-E/4 intimated that the certificate so produced by the Petitioners are fake one, Petitioners should have been provided an opportunity to disprove such contention of the Board. However, while issuing the impugned show-cause on 19.11.2020 nothing was indicated that the Board has opined so nor such report submitted by the Board under Annexure-E/4 was enclosed to the show-cause.

7.2. It is also contended that as reflected in Annexure-E/4, the Board come to a conclusion that the certificates produced by the Petitioners appear to be fake. It is accordingly contended that since Board never came to a definite finding that the certificates produced by the Petitioners are fake, basing on such report of the Board, Petitioners could not have been terminated. It is accordingly contended that since without communications issued by the Board vide Annexure-E/4 was never enclosed to the show-cause dt.19.11.2020, no such order of termination could have been passed basing on such show-cause.

7.3. It is also contended that in view of the stipulation contained in Annexure-9 letter issued by the Department, no such order of termination could have been passed without initiation of properly constituted proceeding in accordance with OCS (CCA) Rules, 1962. Making all these submissions learned Sr. Counsel appearing for the

Petitioners contended that the impugned order of termination dt.18.01.2021 are not sustainable in the eye of law.

8. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioners while continuing as Gana Sikshyak, Govt. in School & Mass Education Department issued the notification on 22.10.2016 under Annexure-2 prescribing the modalities for regularization of Gana Sikshyak as Level V Asst. Teacher (Ex. Cadre). As found from the said notification a Gana Sikshyak became eligible to get the benefit of regularization, if he does have the required qualification and training.

8.1. It is not the case of the Opp. Parties that Petitioners don't have the required qualification and the training. The only ground on which Petitioners have been terminated from their services is that they have produced fake OTET pass certificate to get the benefit of regularization. This Court after going through the notification issued under Annexure-2 is of the view that production of OTET certificate is not a requirement to get the benefit of regularization. Such certificate is only required to get the benefit of increment after 31.03.2019.

8.2. It is also found that even though pursuant to the letter issued by the Opp. Parties, the Board vide letter dtd.04.11.2020 under Annexure-E/4, intimated that the certificates produced by the Petitioners appears to be fake one, but the said communication with the report of the Board was never provided to the Petitioners along with the show-cause issued under Annexure-4. Nothing was also

indicated in the impugned order that basing on the letter issued by the Board under Annexure-E/4, Petitioners are being terminated.

8.3. In view of the modalities issued under Annexure-2 and the decision in the case of Balabhadra Majhi as cited (supra) and the illegalities committed by the Opp. Parties in issuing the impugned show-cause without enclosing the letter issued by the Board under Annexure-E/4, this Court is of the view that the ground on which Petitioners have been terminated, is not sustainable in the eye of law. Therefore, this Court is inclined to quash office order dtd.18.01.2021 so issued by Opp. Party No. 3 in each of the cases. While quashing order dtd.18.01.2021 in all these batch of case, this Court directs Opp. Party No. 3 to pass an order of reinstatement by allowing the Petitioners to continue as Gana Sikshyak within a period of two (2) weeks from the date of receipt of this order. On such reinstatement of the Petitioners as Gana Sikshyak, steps be taken to regularize their services in terms of the notification issued by the Govt. on 22.12.2016 under Annexure-2. However, such regularization will not entail the Petitioners to get the benefit of increment unless and until they qualify the OTET Examination.

9. With the aforesaid observation and direction, all the writ petitions stand disposed of.

Photocopy of the order be placed in the connected case records.

                                                                (BIRAJA PRASANNA SATAPATHY)

Digitally Signed               Sneha



Location: High Court of Orissa, Cuttack
Date: 09-Jan-2025 19:25:45