The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 22896 of 2015 Application under Articles 226 and 227 of the Constitution of India. AFR Sisir Kumar Sahoo and others ...… Petitioners --------------- -Versus- State of Odisha and others ...…. Opp.Parties Advocate(s) appeared in this case:- __________________________________________________________ For Petitioners : Mr. B. Routray, Sr. Advocate along with Mr. S.D. Das, R.P. Dalai, S. Jena, K. Mohanty, S.K. Samal, S.P. Nath & S.D.Routray, Advocates For Opp. Parties: Mr. B. Mohanty, Standing Counsel for School & Mass Education Department. __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 15th March, 2023 SASHIKANTA MISHRA, J. An advertisement was issued by the Collector, Dhenkanal on 21.01.2011 inviting applications for engagement to the post of Sikshya Sahayak in the district of Dhenkanal. 257 vacancies were notified for Dhenkanal Education District including 22 vacancies meant for Page 1 of 18 Physically Handicapped (PH) category. The petitioners being visually impaired persons, applied for the post on the basis of disability certificates issued in their favour by the concerned Medical Boards. They were found suitable in the selection process and were engaged in the post of Sikshya Sahayak by order dated 02.04.2011 being posted in different Schools. After completion of three years of continuous service as Sikshya Sahayak, they were engaged as Junior Teachers in the year 2014. In the meantime, one Basudeb Sahoo, an unsuccessful candidate in the selection process
Legal Reasoning
challenged the selection process before this Court in W.P.(C) No. 25903 of 2011, particularly alleging that the physically handicapped certificate of the candidates were forged and fabricated. By order dated 05.05.2015 passed in the aforementioned writ application, this Court directed the Director of Vigilance to cause an enquiry to be made in the matter by verifying the relevant records and registers of the concerned Medical and Appellate Medical Boards. Pursuant to such direction, the District Project Coordinator, Dhenkanal directed all the physically handicapped candidates including the petitioners to appear before the Page 2 of 18 Appellate Medical Board at SCB Medical College and Hospital, Cuttack on 30.06.2015. In the enquiry conducted by the Vigilance Department, the physically handicapped certificate issued in favour of the petitioners and submitted by them at the time of submitting applications in the year 2011 were held to be not genuine/ forged on different grounds. Basing on such report, the petitioners were directed to remain present in the office of the Collector on 09.10.2015 for personal hearing. However, by order dated 16.10.2015, the Collector issued order for disengagement of the candidates, which was served upon the petitioners by the Headmaster of the concerned Schools on 21.11.2015. As such, 13 Junior Teachers including the petitioners were disengaged. Alleging that the enquiry report is erroneous and based on misconception of the relevant facts, the petitioners have approached this Court in the instant writ petition seeking the following prayer.: “It is therefore, most humbly prayed that this Hon’ble Court be graciously pleased to: i) Admit the writ application. ii) Call for the record. iii) Issue Rule Nisi calling upon the opposite parties the impugned order dated 16.10.2015 under Annexure-6 shall not be quashed. to show cause as to why Page 3 of 18 the
Decision
order issue a writ any iv) if the opposite parties do not show cause or show insufficient cause, issue a writ in the nature of certiorari or any other appropriate writ/writs, order/orders, direction/directions quashing dated impugned 16.10.2015 under Annexure-6. in the nature of v) And other writ/writs mandamus or the opposite direction/directions directing parties to reinstate the petitioners with all service benefits with effect from the date they were illegally disengaged and direct the opposite parties to give all consequential service benefits to the petitioners including their salary and other service benefits. vi) And/or pass any other order/orders, direction/directions as this Hon’ble Court deems fit and proper for the ends of justice.” 2. Counter affidavit has been filed by District Project Officer, SSA, Dhenkanal (opposite party No.4). It is stated that all the candidates who were engaged as Sikshya Sahayak under PH category were asked to appear before the respective Medical Boards constituted by the Superintendent of SCB Medical College and Hospital, Cuttack on 18.05.2015, out of whom some did not appear. The percentage of physical disability of the candidates who appeared for re-examination was assessed. Further, as per direction of this Court, an enquiry was conducted by the Vigilance Police, wherein it was found that only 8 candidates out of 22 are actually eligible for the post of Sikshya Sahayak as physically handicapped candidates. In so far as Page 4 of 18 the other candidates are concerned, the physically handicapped certificate produced by them being forged, were considered ineligible and therefore, were rightly disengaged. 3. Heard Mr. B. Routray, learned Senior Counsel along with S.D. Routray, learned counsel for the petitioners and Mr. B. Mohanty, learned Standing Counsel for School and Mass Education Department. 4. Mr. Routray, learned Senior Counsel has assailed the impugned order of disengagement on the ground that the same is entirely based on the enquiry report submitted by the Vigilance Police, which in turn is a product of erroneous appreciation of the relevant facts. Referring to the enquiry report, enclosed as Annexure-5 to the writ application, Mr. Routray argues, there is absolutely no finding that certificates produced by the petitioners at the relevant time were forged or otherwise fake. Adverse inference regarding genuineness of the certificate has been drawn purely on technical grounds. Mr. Routray further argues that the petitioners having been duly selected and engaged on the basis of the certificates issued in the year Page 5 of 18 2011 cannot be subjected to scrutiny time and again and that too at the instance of an unsuccessful candidate, particularly when the allegation of playing fraud on their part has neither been pleaded nor proved. 5. Mr. B. Mohanty, learned standing counsel on the other hand has supported the impugned order by submitting that the Vigilance enquiry clearly revealed that the certificates produced by the petitioners were not genuine for specific reasons indicated therein. Since it is proved that the petitioners played fraud with the authorities only to gain employment, they have no right to continue in service and therefore, they were rightly disengaged. 6. From the facts of the case, which are mostly undisputed, the only question that arise for consideration is the probative value of the enquiry report of the Vigilance Department vis-à-vis the allegations of submission of fake and forged physical disability certificates by the petitioners. The petitioner no.1 produced a disability certificate issued under Rule-4(2) of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 read with guidelines of the Ministry of Welfare, Page 6 of 18 Government of India dated 06.08.1986. The disability is said to be visual, temporary and to the extent of 40%. The petitioner No.2 was issued with similar disability certificate for visual disablement with 42% disability, which is likely to improve. Petitioner No.3 was issued with visual disability certificate to the extent of 45% without specifying the nature of disability, that is, temporary or permanent. In the enquiry report of the Vigilance Department, enclosed as Annexure-5 to the writ application it was found as follows: Sl. No. Name of PH candidate in the Merit List Disability Certificate ref. produced Category/ Percentage of PH 17 Sisir Kumar Sahu (Petitioner No.1) 5 Jasmini Behera (Petitioner No.2) Seal put but No. not put. Not found in the issue register. 190 dt. 19.01.2010 of Angul VI- 40% DT.6.7.10 Put. VI- 42% 21 Suchilagna Kar (Petitioner No.3) 504/1876 dt. 10.08.09 VI-45% Result of verification about genuineness of Disability Certificate. Not genuine as not mentioned in the issue Register of CDMO. Appears Genuine. Register of Angul CDMO office is to be verified. Not genuine as more than 5 yers old. The petitioners were again subjected to medical checkups in the SCB Medical College and Hospital, Cuttack. The following findings were given.: Sl. No Name and address of Candidates Disability Certificate ref. Category/ Percentage of PH as per CDMO Result of verification about genuineness of PH certificate received from SCB. Page 7 of 18 11 Jasmini Behera 5 Sisir Kumar Sahoo No. 332 dt.30.6.15 & 12740 dt.2.07.15 of HOD Opthal. with No.15127 dtd.2.07.165 of Supt. SCB Ctc. - do- 16 Suchilagna Kar -do- VI-45% VI- 42% Letter genuine VI < 20% (less than 20) VI- 40% Letter genuine VI < 20% (less than 20) Letter genuine VI < 20% (less than 20) Basing on the above report of the Medical, the documents and records were once again verified with the following findings. Sl. No. Name and address of Candidates Type of PH 9 Sisir Kumar Sahoo VI 11 Jasmini Behera 16 Suchilagna Kar VI -vi % of PH as per CDMO Certificate not issued from the Office as not mentioned in the register 42% 45% % of PH given by SCB Medical College on requisition by DPC, SSA. ------ % of PH given by present Medical Board < 20% Percentage status of engagement in SS Engaged in PH quota 40% 45% <20% 45% Engaged in PH quota Engaged in PH quota Basing on the above findings, it was held as follows: “All the medical certificates and opinion on percentage of disability received from SCB Medical College in respect of vision impaired (VI) category of candidates held on 30.06.2015, like Sangram Keshari Mohapatra, Pradipta Kumar Das, Mrunalini Tripathy, Sisir Kumar Sahoo, Jasmini Behera, Suman Behera, Padmini Nayak, Narayan Jena and Suchilagna Kar have also come down drastically from more than 40% to less than 20% which give rise to a strong suspicion on the certificate issued by the office of CDMO, Dhenkanal.” The following conclusions were thus drawn. Page 8 of 18 “In view of the Medical Examination Reports furnished by Suptd. SCB Medical College & Hospital, Cuttack engagement of Sony Mohapatra, Mrunalini Tripathy, Sisir Kumar Sahoo, Kandarp Swain, Mamina Sahoo are irregular and proves about the malafides of the Selection Committee, Marked differences in the percentage of disability in respect of Vision Impaired (VI) candidates particularly Sangram Keshari Mohapatra, Pradipta Kumar Das, Mrunalini Tripathy, Sisir Kumar Sahoo, Jasmini Behera, Padmini Nayak, Narayan Jena, Suchilagna Kar irregular. Their percentage of physical disability is less than forty percent as required under provisions of Sec.2(t) Chapter-I Preliminary of PWD Act, 1995 which requires further exhaustive enquiry.” is also 7. From a careful reading of the enquiry report, particularly with reference to the portions quoted in the preceding paragraphs, this Court is of the view that the report is at the very least, inconclusive. In any case, it does not definitely say that the certificates issued at the first instance and utilized by the candidates were forged or fake ones. Some irregularities only have been pointed out, such as, non-mentioning of the fact of issuance of the certificate in the issue register, non-mentioning of the number of the certificate etc. but then candidates can hardly be blamed for such omission. It is obviously the responsibility of the office of the concerned CDMO to maintain its registers and/or to issue certificates with numbers etc. In any case, the enquiry by Vigilance has not been directed to determine whether Page 9 of 18 such a certificate was issued or not by examining the concerned doctors and the CDMOs. On the basis of the irregularities mentioned above an inference is sought to be drawn that the certificates are not genuine. Moreover, the fact that the percentage of the disability has been reduced in case of some candidates has also been treated as a ground to doubt its authenticity. Be it noted here that the first disability certificate was issued in the year 2010. The candidates were subjected to re-examination five years later, i.e. in 2015. At least two of the petitioners had temporary nature of disabilities. Therefore, the possibility that their physical impairment may have improved by efflux of time, which is medically possible, cannot be ruled out. Even if the disability is found to have reduced drastically at a subsequent stage, it cannot always be held that the original assessment of disability was erroneous. This is more so when it is not shown or proved that the original assessment made by the Board was actuated with malafides or issued only to help the applicant gain employment. 8. Therefore, the requirement as per the advertisement being 40% disability, a candidate who is Page 10 of 18 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 Page 11 of 18 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. 9. At this stage it would be proper to refer to the relevant statutory provisions and guidelines issued in this regard. Rule-3, 4 and 5 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Orissa Rules, 2003 provides as under: “3.Application for issue of Disability Certificate: (1) A person with disability desirous of getting a certificate in his favour shall submit an application in Form I which shall be accompanied by proof of residence of the applicant along with two recent passport size photographs. (2) The application shall be submitted to the medical authority competent to issue such a certificate in the district of the applicant’s residence as mentioned in the proof of residence submitted by him with the application: Provided that where a person with disability is a minor or suffering from mental retardation or any other disability which renders him unfit or unable to make such an application himself, the application on his behalf may be made by his parents/legal guardian. 4. Issue of Disability Certificate: (1) On receipt of the application under Rule 3, the medical authority shall, after satisfying himself that the applicant is a person with disability as defined in sub-clause (t) of Section 2 of the Act, issue a disability certificate in his favour in Form II, Form III or Form IV as the case may be. (2) The certificate shall be issued within a week from the date of receipt of the same by the Medical Authority Page 12 of 18 but in any case, not later than fifteen days from such date. (3) Medical Officer in-charge of Community Health Centre/primary Health Centre/Hospital shall be notified as Medical Authority in respect of issuance of certificate for obvious disability, (4) For multiple disability, Chief District Medical officer shall be notified as Medical Authority assisted by concerned specialist if required for issuance of disability certificate. (5) The Medical Authority, after due examination- (i) shall give a permanent disability certificate in case where there are no chances of variation, over time, in the degree of disability, (ii) shall indicate the period of validity in the certificate in cases where there is any chance of variation, over time, in the degree of disability; and (iii) shall issue multiple disability certificate as per sub- rule (4) of Rule 4 of the said rules. (6) In case of non-availability of specific specialist, the chief District Medical Officer can utilize the services of specialist from nearby Medical college/District. If the nearby Medical services college/District are not available the services of specialist private practitioner may be hired. specialist from of (7) The remuneration of such specialists will be paid at the rate fixed by the Government from time to time. (8) If an applicant is found ineligible for issue of disability certificate, the Medicalm Authority shall explain the reasons for rejection of his application, and shall also convey the reasons to him in writing in Form V. to him (9) The Medical Authority shall remain two registers, one for disposal of the application in Form No. VI and another for issue of disability certificate in Form No. VII. (10) A copy of every disability certificate issued under these rules by a Medical Authority other than the chief Medical officer shall be simultaneously sent by such Medical Authority to the Chief Medical Officer of the district. Page 13 of 18 (11) the chief District Medical officer shall maintain a data has on persons with disability on the basis of certificates issued in the district. 5. Review of decision regarding issue of or refusal to issue of a Disability certificate : (1)(a) Any applicant for disability certificate, if aggrieved by the nature of certificate issued to him by the Medical Authority at community Health centre/primary Health centre Hospital or by refusal to issue such a certificate in his favour by the above authority, as the case may be, may represent against such a decision to the Chief District Medical Officer of the concerned district. (b) the application shall be accompanied by a copy of the certificate or letter of rejection being appealed against. (c) After receipt of appeal petition chief District Medical officer shall dispose of the appeal petition after due examination of the disability taking assistance of the concerned specialist (s) within a period of one month. (2) on representation by the applicant, the Chief District Medical Officer may review its own decision taking assistance of concerned specialist and pass such order in the matter, as it deems fit. (3) Any specialist for a disability certificate if aggrieved by the orders of the District Medical authority may represent against such a decision to the appellate Medical Board. (4) All such appeal petitions/recommendations may be sent to convener, Appellate Medical Board office of the Director for welfare of persons with Disabilities, Odisha. (5) On receipt of an application, the District Medical Authority or Appellate Medical Board, as the case may be, shall after due examination of the disability, pass such orders on it as it may deem appropriate within a period of two months from the date of receipt of application. (6) Where a person with disability is a minor or suffering from mental retardation nor any other disability which renders him unfit or unable to make such an application himself, the application on his behalf may be made by his parents/legal guardian. (7) Decision of the Appellate Medical Board shall be final.” Page 14 of 18 In the guidelines appended to the Rules it is provided under Paragraphs 2 & 3 as follows: “2. After having considered the reports of these committees and with the concurrence of the State Governments/UTs. concerned and Ministries/Departments the undersigned is directed to convey the approval of the President to notify the definitions of the following categories of physically handicapped : the Visually handicaps Locomotor handicaps Speech & hearing handicaps – Mental handicaps 1. 2. 3. 4. Report of the Committee as indicated in the Annexure G. 3. Each category of handicapped persons has been divided into four groups viz. mild, moderate, severe and profound/total. It has been decided that various concessions/benefits would in future be available only to the moderate, severe and profound/total groups, and not to the mild groups. The minimum degree of disability should be 40% in order to be eligible for any concession/benefits.” Thus, from a conjoint reading of the provisions quoted above, it is clear that disability can be either permanent or temporary. There is nothing in the Rules or Guidelines to show that the extent of disability required to be eligible for any concession/benefits i.e., 40% shall have to be of permanent nature. The expression used is “the minimum degree of disability should be 40%” in order to be eligible for any concession/benefits. From this, the intention of the legislature/Executive Authority is very clear and in acknowledgement of the scientific fact that in case of Page 15 of 18 temporary disability, the extent of disability may change in future. Thus, it is the extent of disability at the time of engagement which is relevant. 10. It is noted at the cost of repetition that in none of the cases verified by the vigilance police in course of its enquiry it could be proved that the document used for obtaining engagement is fake. In case of Jasmini Behera (Petitioner No.2), the document is said to be genuine. In case of Sisir Kumar Sahoo (Petitioner no.1) it is said to be not genuine as it is not mentioned in the issue Register of CDMO. This court has already held that mere non-mention in the issue register is an irregularity that cannot be attributed to the applicant for the certificate. In case of Suchilagna Kar (Petitioner No.3), the certificate is held to be not genuine because the same is more than five years old. It is not understood as to on what basis the above view was taken by the enquiring officer. In any case, as per paragraph-6 of the guidelines dated 06.08.1986, it is stated that the certificate would be valid for a period of three years. In case of Suchilagna Kar, the certificate appears to have been issued on 03.08.2009. She utilized the same while Page 16 of 18 submitting her application in the year 2011. Thus, it was well within the period of its validity. This Court therefore, finds that the enquiry report is based on erroneous premises and hence, not acceptable. 11. From a conspectus of the analysis of facts and materials on record and the discussion made hereinbefore, this Court is of the considered view that there being no clear cut or conclusive finding that the certificates submitted by the candidates (petitioners) at the time of their engagement were forged or fraudulent, the action taken by the authorities to disengage them from service is totally unconscionable in the eye of law. This is more so for the reason that the concerned authorities never questioned the genuineness of the certificates at the initial stage and not only engaged the petitioners against the posts advertised but also gave them further engagement as Junior Teacher after completion of three years of continuous service. In other words, the certificates having been accepted and duly acted upon by the authorities at the relevant time, it was no longer open to them to question their genuineness at this distance of time, particularly when it has not been proved Page 17 of 18 that the same were obtained fraudulently or are fakes. In such view of the matter, the impugned order is rendered unsustainable in the eye of law. 12. For the foregoing reasons therefore, the writ petition succeeds and is therefore, allowed. The impugned order dated 16.10.2015 under Annexure-6 is hereby quashed. The authorities are directed to reinstate the petitioners in service forthwith and in any case, within a period of six weeks. ……..…………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 15th March, 2023/ A.K. Rana, P.A. Page 18 of 18