The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 1621 of 2021 Srutidhar Nayak State of Odisha and others CORAM: ….. Vs. ….. Petitioner Mr. L.K. Mohanty, Advocate Opposite Parties Mr. B. Mohanty, AGA
Legal Reasoning
ACTING CHIEF JUSTICE DR. B.R. SARANGI MR. JUSTICE MURAHARI SRI RAMAN
Decision
ORDER 24.01.2024 Order No. 05. These matters are taken up through hybrid mode. 2. Heard Mr. L.K. Mohanty, learned counsel appearing for the petitioner and Mr. B. Mohanty, learned Additional Government Advocate appearing for the State opposite parties. 3. The petitioner has filed this writ petition seeking modification of the order dated 25.04.2018 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 2081 (C) of 2015 to the effect of directing the opposite parties to grant all consequential service benefits with effect from 16.07.2015. 4. Mr. L.K. Mohanty, learned counsel appearing for the petitioner contended that pursuant to the advertisement issued on 24.03.2011 for engagement of contract teachers, the petitioner submitted his application under Physically Handicapped category in the district of Balasore. After due selection, the final select list was published wherein the name of the petitioner appears at Sl.No.115 whereas name of one Sanat Kumar Nayak appears at SI.No.61. There Page 1 of 5 is no other candidate in the said category, other than the Sanat Kumar Nayak, whose position was at SI.No.61 as indicated above. Sanat Kumar Nayak got selected on the basis of forged certificate, for which the petitioner filed complaint before the State Commission for Persons with Disability. The Commission after consideration of the complaint held that said Sanat Kumar Nayak has obtained fake disability certificate to obtain appointment and accordingly directed to take appropriate action as per Section 69 of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the DEO, Balasore was directed to apprise the Collector for consideration of appointment of the petitioner who is a genuine and meritorious persons with disability for the post of contract teacher. Accordingly, the name of Sanat Kumar Nayak was cancelled. But no appointment was issued in favour of the petitioner. On the other hand, the claim of the petitioner was rejected as per the order passed in Annexure-5 to the Original Application, which was without any basis. Therefore, the Tribunal vide order dated 16.07.2015 directed to keep one post vacant in the Physically Handicapped category till filing of the counter and its adjudication. Since the post belonging to Physically Handicapped category was lying vacant, the same has not been filled up by virtue of the interim order passed by the Tribunal. In any case, the State Opposite Parties in their counter affidavit have indicated that due to non joining of Sanat Kumar Nayak, the vacancy was carried to next recruitment as per the advertisement of the year 2012-13. The claim for appointment of the petitioner has also been rejected. Therefore, the petitioner approached the Tribunal. The Tribunal came to a definite conclusion that the rejection of the claim of the petitioner Page 2 of 5 vide Annexure-4 to the Original Application cannot be sustained and accordingly quashed the same. However the Tribunal directed that the petitioner will be entitled to service and financial benefits only from the date of his appointment. According to learned counsel for the petitioner, though the Tribunal directed the opposite parties to give appointment, but the Tribunal has extended the benefit prospectively. Therefore, learned counsel for the petitioner only confined his relief to the extent that it should have been extended from the date the similarly situated persons received the benefit. Therefore, the petitioner prays for extension of notional benefit and no actual financial benefit from the previous date. According to him, if it will be considered notionally retrospectively with effect from the date other selected employees got the benefit, then the petitioner may get his seniority and other benefits, which is admissible to him in accordance with law. Therefore, the Tribunal has committed gross error to this extent, while passing the order impugned by giving effect from the date of his appointment instead of giving retrospective effect from the date similarly situated persons got the benefit in the year 2015. 5. Mr. B. Mohanty, learned Additional Government Advocate contended that even though the petitioner claims for appointment under Physically Handicapped category post retrospectively, but since one Sanat Kumar Nayak, was holding the post and subsequently he was removed having not found suitable, in that event, the question of extending the benefit to the petitioner at this point of time retrospectively, does not arise. Therefore, the claim of the petitioner cannot be sustained in the eye of law. It is further contented that since the Tribunal has considered all the facts and Page 3 of 5 passed the order which is well justified, the same should not be interfered with. 6. Having heard learned counsel for the parties and after going through the factual matrix narrated above, it is clear the petitioner applied under Physically Handicapped category. When the select list was published, the petitioner’s name found place at Sl. No. 115, whereas the name of one Sanat Kumar Nayak found place at Sl. No. 61. Alleging forgery made by Sanat Kumar Nayak, the petitioner approached the competent authority, who held that said Sanat Kumar Nayak obtained fake disability certificate and accordingly the name of Sanat Kumar Nayak was cancelled. Even though the vacancy was made available owing to removal of Sanat Kumar Nayak, due to laches on the part of the authority the case of the petitioner was not considered. Therefore, the petitioner approached the Tribunal, but the Tribunal directed for extension of benefit prospectively. If these difficulties would not have been there, then he would have got the benefit of appointment from the date other similarly selected candidates got. Therefore, extension of prospective benefit to the petitioner cannot be sustained. In the case of Union of India v. Miss. Pritilata Nanda, AIR 2010 SC 2821 this Court observed that if a selected candidate has been denied his rightful order of appointment to the post and ultimately it is found that he is the right person to be appointed, the employee is entitled for retrospective appointment. 7. In view of the above, this Court observes that since the petitioner has already got employment in compliance to the order passed by the Tribunal, it should be treated retrospectively with effect from 16.07.2015, i.e. the date when similarly situated persons Page 4 of 5 have been appointed. It is made clear that the petitioner will not be entitled to get any financial benefit retrospectively, but he will only get the seniority and other consequential service benefits as due and admissible to him. 8. In view of the above, the order dated passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 2081 (C) of 2015 is modified to the extent as indicated above. 9. The writ petition stands disposed of accordingly. (DR. B.R. SARANGI) ACTING CHIEF JUSTICE Arun (M.S. RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa Date: 24-Jan-2024 16:55:56 Page 5 of 5