Orissa High Court

Jyotirmayee Nayak vs State Of Odisha And on 16 January, 2025

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                        W.P.(C) No.15799 of 2016


        Jyotirmayee Nayak                 ....                    Petitioner
                                               Mr. K.K. Swain, Advocate
                                       -versus-

        State of Odisha and
        Others
                                          ....             Opposite Parties
                                                         Mr. S.K. Jee, AGA


                           CORAM:
               JUSTICE BIRAJA PRASANNA SATAPATHY
                                      ORDER

16.01.2025 Order No.

05. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard Mr. K.K. Swain, learned counsel for the petitioner and Mr. S.K. Jee, learned Addl. Govt. Advocate for the State.

3. Petitioner has filed the present Writ Petition inter alia with the following prayer:-

"Under the above circumstances, it is humbly prayed that the writ petition may be allowed:

(a) a writ of mandamus or an appropriate writ may be issued quashing the impugned order dated 01.09.2016 passed by the Collector-cum-CEO, Zilla Parishad, Dhenkanal under Annexure-14 and the petitioner may be allowed to continue as Sikhya Sahayak under Kamakhyanagar Block with all // 2 //

consequential benefits within a time to be stipulated by this Hon'ble Court.

(b) Any other order/orders or direction/directions may be issued so as to give complete relief to the petitioner."

4. It is contended that pursuant to the advertisement issued by O.P. No.2 under Annexure-1, petitioner with having disability of 45% so available under Annexure-2 was found eligible to get the benefit of engagement as Sikshya Sahayak. It is contended that petitioner on being found eligible was provided with engagement vide Order dtd.01.04.2011, where petitioner joined on 02.04.2011 as found from Annexure-2 and 3 respectively. But petitioner was again sent for verification of her disability by the Appellate Board vide order dated 01.08.2011 and on such verification, disability of the petitioner was found at 40% as available under Annexure-5.

4.1. It is contended that basing on the fresh disability report submitted by the Appellate Board under Annexure-5, where the disability of the petitioner was found at 40%, petitioner was allowed to continue as a Sikhya Sahayak.

4.2. It is contended that while so continuing, when allegations were made that a number of candidates by submitting fake disability certificate including the petitioner, have got the benefit of engagement pursuant to Annexure-1, a Vigilance Enquiry was conducted. It is contended that in the Enquiry Report submitted by the

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Vigilance Department under Annexure-7, a clean chit was given to the petitioner and certificate produced by her at the time of her engagement was found to be genuine one.

4.3. However, on the face of such report submitted by the Vigilance Department, petitioner when once again was sent for verification of her disability and the same was found at less than 40%, which is the basic requirement to get the benefit of engagement, petitioner was dis-engaged vide order dated 10.06.2015 under Annexure-8.

4.4. It is contended that challenging the order of dis- engagement issued under Annexure-8 on 16.10.2015, petitioner approached this Court by filing W.P.(C) No.21334 of 2015. This Court vide order dated 01.12.2015, when directed O.P. No.2 to pass a fresh order by providing opportunity of hearing to the petitioner, in consideration of the same, petitioner was re-engaged vide order dated 18.04.2016 under Annexure-12 but with the condition that the same is subject to the instruction to be obtained from the Govt. as sought for.

4.5. It is contended that in terms of the order dated 18.04.2016 under Annexure-12, petitioner was re- engaged as a Sikshya Sahayak and he reported to her duty on 19.04.2016 as reflected under Annexure-13. It is contended that however while so continuing basing

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on the order issued under Annexure-12, petitioner was again dis-engaged with cancellation of the order of re-engagement issued on 18.04.2016 vide the impugned order dated 01.09.2016 under Annexure-14.

4.6. However, it is contended that by virtue of the interim order passed by this Court on 12.09.2016, petitioner is continuing in service as a Jr. Teacher (Contractual) as on date but without getting the benefit of regularization.

4.7. Learned counsel for the petitioner contended that petitioner at the time of making her application in terms of Annexure-1, submitted the disability certificate so obtained by her under Annexure-2. In the said disability certificate, disability of the petitioner was reflected at 45%. Basing on the said certificate, petitioner was not only engaged vide order dated 01.04.2011 under Annexure-3 but also she joined as such on 02.04.2011 as found from Annexure-4. Subsequently, petitioner was sent for fresh verification of her disability vide letter dated 01.08.2011 under Annexure-5 series and on such direction contained in letter dated 01.08.2011, petitioner was re-examined by the authorities of the SCB Medical College and Hospital, Cuttack. But in the report available under Annexure-5 series, disability of the petitioner was found at 40%.

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4.8. It is contended that even though the disability of the petitioner was found at 40% which is the minimum requirement to get the benefit of engagement, but basing on allegations made by the other candidates that by producing fake disability certificate, petitioner and similarly situated persons have got the benefit of engagement in terms of Annexure-1, a Vigilance Enquiry was conducted. In the Vigilance Enquiry, a report was submitted under Annexure-7, wherein the certificate produced by the petitioner towards her disability was found to be a genuine one.

4.9. It is contended that on the face of such finding of the Vigilance Authority, petitioner was again sent for verification of her disability and when it was found at 28%, petitioner was dis-engaged vide order dated 16.10.2015 under Annexure-8. Pursuant to the order passed by this Court in W.P.(C) No.21334 of 2015, petitioner though was re-engaged vide order dated 18.04.2016 but basing on the so called instruction provided by the Department vide letter dated 11.03.2016, petitioner was dis-engaged once again with cancellation of the order dated 18.04.2016, vide the impugned order dated 01.09.2016 under Annexure-14.

4.10. But in view of the interim order, petitioner is continuing as on date but without getting the benefit of regularization. It is contended that since on enquiry certificate produced by the petitioner at the time of her initial engagement, was found to be a genuine one,

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there was no occasion to send the petitioner for further verification of her disability.

4.11. In support of the aforesaid submission, learned counsel for the petitioner relied on a decision of this Court passed in W.P.(C) No.792 of 2017. This Court in Para-8 of the said judgment has held as follows:-

"8. Therefore, the requirement as per the advertisement being 40% disability, a candidate who is assessed with disability to such extent has to be treated as eligible and only because his disability is reduced with passage of time shall not ipso facto nullify the earlier assessment and thereby be a ground to remove him from service. Moreover, it is the settled position of law that having once accepted the certificate furnished by a candidate and given him appointment, it is no longer open to the authorities/employer to turn around and question the same as was held by the Apex Court in the case of Union of India vs. Miss Pritilata Nanda, reported in 2010(11) SCC 674, otherwise it would lead to a fallacious situation thereby. A candidate found to be suffering from disability equal to or more than 40% at the time of his employment shall have to undergo re- assessment every now and then and if it is found from such re-assessment that his disability has fallen below 40%, he shall be removed from service. An absurd proposition certainly. Of course, this Court would hasten to add that if it is proved that original assessment was wrong/incorrect/erroneous or obtained by practicing fraud, the situation would be entirely different, for fraud unravels everything. In such a situation, punitive action taken against the candidate concerned would be fully justified. But for that, there has to be a definite finding of fraud committed by the candidate concerned. In other words, fraud has to be proved not merely suspected."

4.12. It is contended that once the certificate produced by the petitioner at the time of her initial engagement was found to be genuine one by the Vigilance Authority as found from Annexure-7 and the report submitted by the Appellate Board under Annexure-5 series where the disability of the petitioner was found at 40%, there was no occasion to send the petitioner for fresh verification

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of her disability basing on which order of dis- engagement was initially issued vide order dated 16.10.2015 under Annexure-8.

4.13. It is accordingly contended that the order of dis- engagement issued under Annexure-8, is not sustainable in the eye of law and so also the cancellation of the order dated 18.04.2016 vide the impugned order dated 01.09.2016 under Annexure-14. It is accordingly contended that the impugned order is not sustainable in the eye of law and requires interference of this Court.

5. Mr. S.K. Jee, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. Though it is not disputed that petitioner got the benefit of engagement as a Sikshya Sahayak basing on the disability certificate produced by her so available under Annexure-2 and after her engagement on being referred her disability was found at 40% as available under Annexure-5 series, but on subsequent verification of her disability when it was found that the disability of the petitioner is 28% and the minimum requirement to get the benefit of engagement being 40%, petitioner was initially dis- engaged vide order dated 16.10.2015 under Annexure-

5.1. Pursuant to the order passed by this Court in W.P.(C) No.21334 of 2015, petitioner though was re-

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engaged vide order dated 18.04.2016 under Annexure- 12 but the said order was a conditional one and subject to receipt of the clarification as sought for by O.P. No.2 from the Govt.. Govt. vide letter dated 13.03.2016 when opined that since the petitioner does not have the required disability percentage to get the benefit of engagement, the order issued under Annexure-12 was cancelled vide order dated 01.09.2016 under Annexure-14.

5.2. It is accordingly contended that since on subsequent verification of the disability of the petitioner, the same was found at 28%, petitioner is not eligible and entitled to continue with her engagement which was issued vide order dated 01.04.2011 under Annexure-3. It is accordingly contended that no illegality or irregularity can be found with the impugned order.

6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that basing on the advertisement issued by O.P. No.2 under Annexure-1 on 10.01.2011, petitioner made her application to get the benefit of engagement as Sikshya Sahayak as a disable candidate. As found, petitioner along with her application produced the disability certificate obtained by her from District Medical Board, Dhenkanal under Annexure-2, where the disability was shown at 45%. Basing on the said certificate and on being found eligible, petitioner was engaged as a

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Sikshya Sahayak vide order dated 01.04.2011 under Annexure-3, where she joined on 02.04.2011. Subsequent to such engagement of the petitioner and on being referred once again, petitioner's disability was found at 40% by the authorities of SCB Medical College and Hospital, Cuttack so available under Annexure-5 series.

6.1. It is also found that subsequent to submission of a fresh disability certificate so available under Annexure-5 series, when allegations were received that petitioner and similarly situated candidates have got the benefit of engagement by producing a fake disability certificate, a Vigilance Enquiry was conducted to ascertain the truth with regard to submission of disability certificate by the petitioner and similarly situated other candidates.

6.2. As found from Annexure-7, the Vigilance authority after completing the enquiry, submitted the report and in the said report a clean chit was given to the petitioner and the certificate produced by the petitioner at the time of her engagement, was found to be a genuine one. However, on the face of such report submitted by the Vigilance authority and the disability certificate produced by the petitioner under Annexure- 2 and further disability reflected by the SCB Medical College and Hospital under Annexure-5 series, petitioner was again sent for fresh verification of her disability. When on such fresh verification, it was

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found that disability of the petitioner is 28% temporary, she was dis-engaged vide order dated 16.10.2015 under Annexure-8.

6.3. Pursuant to the order passed by this Court in W.P.(C) No.21334 of 2015 though the petitioner was re- engaged vide order dated 18.04.2016 under Annexure- 12, but the same was a conditional one as after disposal of the Writ Petition, O.P. No.2 sought for certain instruction from the Govt. and prior to receipt of such instruction, the order of re-engagement was passed.

6.4. As found, after receipt of the instruction from the Govt. vide letter dated 11.03.2016, order of re- engagement issued in favour of the petitioner on 18.04.2016 under Annexure-12 was cancelled and petitioner was again dis-engaged from her services. It is found that by virtue of the interim order passed by this Court on 12.09.2016, petitioner is continuing as a Sikshya Sahayak now re-designated as Junior Teacher (Contractual) as on date.

6.5. Placing reliance on the decision as cited (supra) and the fact that on enquiry by the Vigilance Authority, disability certificate produced by the petitioner under Annexure-2 was found to be a genuine one, it is the view of this Court that petitioner should not have been asked for fresh verification of her disability where it was found at 28%. Since basing on Annexure-2,

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petitioner was engaged as a disable candidate and the said certificate was found to be a genuine one, placing reliance on the above noted case, it is the view of this Court that petitioner should have been allowed to continue without issuance of any order of dis- engagement.

6.5. In view of the aforesaid analysis, this Court is inclined to quash order dated 01.09.2016 so issued by O.P. No.2 under Annexure-14 so also the initial order of dis-engagement on 16.10.2015 issued under Annexure-8, so far as it relates to the petitioner. While quashing both the orders so far as it relates to the petitioner, this Court directs O.P. No.2 to allow the petitioner to continue as before.

7. With the aforesaid observation and direction, the Writ Petition stands disposed of.

(Biraja Prasanna Satapathy) Judge

Basudev

Location: High Court of Orissa, Cuttack