The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 20904 of 2015 Application under Articles 226 and 227 of the Constitution of India. AFR Sujata Panda ...… Petitioner --------------- -Versus- State of Odisha and others ...…. Opp.Parties Advocate(s) appeared in this case:- __________________________________________________________ For Petitioner : Mr. Manoj Kumar Mohanty, T. Pradhan, M.M. Pradhan & S. Mishra, 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 15 Disability (PH) category. The petitioner being visually impaired person, applied for the post on the basis of disability certificates issued in her favour by the concerned Medical Board. She was found suitable in the selection process and was engaged in the post of Sikshya Sahayak by order dated 02.04.2011 being posted in Siarimalia Primary School. After completion of three years of continuous service as Sikshya Sahayak, she was engaged as Junior Teacher in the year 2014. In the meantime, one Basudeb Sahoo, an
Facts
unsuccessful candidate in the selection process challenged
Legal Reasoning
the selection process before this Court in W.P.(C) No. 25903 of 2011, particularly alleging that the disability certificate of the candidates were forged and fabricated in which the petitioner was not made a party. 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 Board. Pursuant to such direction, the District Project Coordinator, Dhenkanal directed all the disability Page 2 of 15 candidates including the petitioner to appear before the Appellate Medical Board at SCB Medical College and Hospital, Cuttack on 18.05.2015 and again on 30.06.2015, but she never received the same and hence, would not appear. In the enquiry conducted by the Vigilance Department, the disability certificate issued in favour of the petitioner and submitted by her at the time of submitting application in the year 2011 was held to be genuine but the date mentioned is different. Basing on such report, the candidates were directed to remain present in the office of the Collector on 15.10.2015 for personal hearing and the petitioner also appeared. However, by order dated 16.10.2015, the Collector issued order for disengagement of the candidates, which was not served upon the petitioner. Alleging that the enquiry report is erroneous and based on misconception of the relevant facts, the petitioner has approached this Court in the instant writ petition seeking the following prayer.: “The petitioner most respectfully prays that the Hon’ble Court may be graciously pleased to allow the writ petition, issue a writ or direction in the nature of certiorari or any other appropriate writ or direction questioning Office Order No. 1921 (13) Page 3 of 15 the Collector-cum-Chief dated 16.10.2015 of Executive Officer, Zilla Parishad, Dhenkanal under Annexure-6 and pass such order or further order or orders as are deemed just and proper.” 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, including the petitioner 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 disability candidates. In so far as the other candidates are concerned, the disability certificate produced by them being forged, were considered ineligible and therefore, were rightly disengaged. Page 4 of 15 3. Heard Mr. Manoj Kumar Mohanty, learned counsel for the petitioner and Mr. B. Mohanty, learned Standing Counsel for School and Mass Education Department. 4. Mr. Mohanty 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. Mohanty argues, there is absolutely no finding that certificate produced by the petitioner at the relevant time was forged or otherwise fake. On the contrary, the certificate has been stated to be genuine but only a difference in the date is noted, which does not make the certificate ingenuine. Mr. Mohanty further argues that the petitioner having been duly selected and engaged on the basis of the certificate issued in the year 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 Page 5 of 15 on his part has neither been pleaded nor proved. In any case, she never received the so-called letters directing her to appear for medical examination. 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 certificate produced by the petitioner was not genuine for specific reasons indicated therein. Since it is proved that the petitioner played fraud with the authorities only to gain employment, she has no right to continue in service and therefore, she was rightly disengaged. 6. From the facts of the case, which are mostly undisputed, the only question that arises 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 certificate by the petitioner. The petitioner 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 15 Government of India dated 06.08.1986. The disability is said to be visual, temporary and to the extent of 45%. 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 15 Sujata Panda 16/1769 dt.10.02.11 VI- 45% Result of verification about genuineness of Disability Certificate. Genuine- Mentioned in the issued Register of CDMO Mistake in the date noticed. Although notice letter was issued to the petitioner for further medical checkup in the SCB Medical College and Hospital, Cuttack, she did not turn up. 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 like Sangram candidates held on 30.06.2015, 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 7 of 15 “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 (VI) candidates in respect of Vision Impaired particularly Sangram Keshari Mohapatra, Pradipta Kumar Das, Mrunalini Tripathy, Sisir Kumar Sahoo, Jasmini Behera, Padmini Nayak, Narayan irregular. Their Jena, Suchilagna Kar 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, the name of the petitioner does not find place among other candidates whose certificates have been held to be not genuine. Some irregularities only have been pointed out, such as, mistake in date but then, the candidate can hardly be blamed for such mistake. It is obviously the responsibility of the office of the concerned CDMO to put the date on the certificate correctly. In any case, the enquiry by Vigilance has not been directed to determine whether such a certificate was issued or not by examining the concerned Page 8 of 15 doctors and the CDMOs. On the basis of the irregularity mentioned above an inference is sought to be drawn that the certificate is not genuine. 8. 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 there is some error/irregularity in the date of the certificate shall not ipso facto nullify the assessment and thereby be a ground to remove her 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. 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 Page 9 of 15 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, which in the instant case, it is not. 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 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 Page 10 of 15 of from specialist 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. (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. (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. (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. to him Page 11 of 15 (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.” 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 concerned and Governments/UTs. Ministries/Departments the undersigned is directed to convey the approval of the President to notify the definitions of the following categories of disability : 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 It has been decided that various profound/total. 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 Page 12 of 15 should be 40% concession/benefits.” in order to be eligible for any 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 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 the petitioner, the document is said to be genuine but mistake in the date is noticed. This court has already held that mistake in the date Page 13 of 15 noticed in the issue register is an irregularity that cannot be attributed to the applicant for the certificate. 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 certificate submitted by the petitioner at the time of his engagement was forged or fraudulent, the action taken by the authorities to disengage her from service only on the ground of mistakes in the date 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 petitioner against the posts advertised but also gave her further engagement as Junior Teacher after completion of three years of continuous service. In other words, the certificate having been accepted and duly acted upon by the authorities at the relevant time, it was no longer open to her to question its genuineness at Page 14 of 15 this distance of time, particularly when it has not been proved that the same was obtained fraudulently or is fake.
Decision
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 petitioner 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 15 of 15