The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P. (C) No. 29268 of 2019 An application under Sections 226 and 227 of the Constitution of India. -------------- Sasmita Das ...… Petitioner -Versus- State of Odisha and Others ..…. Opp. Parties Advocate(s) appeared in this case :- _______________________________________________________ For Petitioner : M/s. B. Pujari, B.K. Nayak & S.K. Pradhan-1, Advocates For Opp. Parties : Mr. Pattanaik, Addl. Government Advocate _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA J U D G M E N T 19th April, 2024 SASHIKANTA MISHRA, J. The petitioner has filed this writ petition with the following prayer:- “The petitioner therefore prays that, your Lordships may be graciously pleased to admit the petition, call upon the O.Ps to show cause as to why this petition shall not be allowed, and if they do not show just and appropriate Page 1 of 16 cause or show no cause, allow this petition with cost and issue appropriate nature of writs quashing the order/letter under Annexures-12 and 13 and further directing the Opp.parties to engage this petitioner as Shikhya Sahayak under O.P.No.4 effective the date Laxmipriya Biswal was from engaged as such; And/or pass such ‘other order as deemed just and proper; And for this act of kindness the petitioner shall as in duty bound ever pray.” 2. The facts of the case are that pursuant to an advertisement for engagement of Shikshya Sahayaks, the petitioner submitted her application under the physically handicapped category. She was provisionally selected under the unreserved category for engagement in Kalahandi district as per merit list published on 21.03.2016. The petitioner’s testimonials were verified by the District Project Coordinator, Kalahandi and she was assigned to Singhapur center under M. Rampur block. However, instead of issuing engagement order, she was referred to the Medical Board by the District Child Protection Officer on 13.04.2018 stating that she would be appointed later after approval of the Medical Board. The Page 2 of 16 Dean & Principal of MKCG Medical College asked the petitioner to appear before the Appellate Medical Board on 25.10.2018 pursuant to which she appeared and her disability was assessed as 40% permanent and communicated to the Government by the Dean & Principal by his letter dated 17.11.2018. Since no engagement order was issued, the petitioner submitted representation to the District Education Officer, Kalahandi on 24.11.2018 followed by representations to the Collector on 07.12.2018. She also submitted representation to the Director, OSEPA as a similarly placed candidate, namely Laxmipriya Biswal had already been engaged. The Director sought for clarification from the administrative department vide letter dated 25.01.2019, which was followed by series of correspondence. Ultimately, it was clarified that the petitioner’s disability was permanent in nature. Since no engagement order was issued, she sought information under the R.T.I. Act in response to which she was informed by the State Project Director, OSEPA by letter dated 20.08.2019 that the medical report Page 3 of 16 of disability after re-verification was received at a later time when the 1st round selection process had already been completed and her name had been placed in the reject list. The case of Laxmipriya Biswal was considered as by such time 1st round engagement was under process. The petitioner therefore approached this Court in W.P.(C) No. 14230 of 2019 praying for necessary direction to the authorities for her engagement. By order dated
Decision
16.08.2019, the writ application was disposed of directing the concerned authorities to take decision on the representations submitted by the petitioner. Pursuant to such order, the State Project Director by his order dated 27.09.2019, rejected the representation of the petitioner as being devoid of any merit on the same grounds as taken above. The petitioner claims to have been discriminated by the authorities since said Laxmipriya Biswal, who stands on the same footing was given engagement. Further, the petitioner and some other persons had moved the State Commission for Persons with Disabilities, (SCPD) Odisha, challenging the decision Page 4 of 16 of the authorities in not engaging them on the ground that nature of their disability had initially been assessed as temporary in nature by the Appellate Medical Board. The Commission, in its order dated 05.04.2019 held that the government cannot differentiate between the physically disabled persons having temporary and permanent nature of disabilities. In response to another application under the R.T.I. Act submitted by the petitioner, it was informed that the Government vide letter dated 13.01.2019 instructed the District Education Officer not to engage persons with temporary disabilities but to keep equal number of posts vacant until clarification is received from the government. Being thus aggrieved, the petitioner has approached this Court yet again. 3. Counter affidavit has been filed on behalf of the State-Opposite Party Nos.3, 4, 5 and 7. It is stated that pursuant to the advertisement issued by OSEPA on 26.12.2016 for filling up of 14087 posts of Sikshya Sahayks, 274 were meant for Kalahandi district for B.A. & B.Ed. posts. Out of said list, 196 candidates were called Page 5 of 16 for document verification, out of whom 21 candidates including the petitioner under U.R. category were physically handicapped. A total number of 34 candidates including 21 B.A. B.Ed. candidates were provisionally selected during 2016 under P.H. reservation category. They were referred to the Appellate Medical Board, Berhampur. 27 candidates appeared before the Board including the petitioner. After examination, the Board found the petitioner’s vision to be temporarily affected to the extent of 40% vide its report dated 06.06.2018. The petitioner therefore could not be considered as the nature of disability was temporary. Subsequently, one Laxmipriya Biswal, on her representation, was referred to the Appellate Medical Board for re-verification. This time the Board found that she has 50% permanent disability. Similarly the petitioner’s case was also considered by the Appellate Medical Board on 17.11.2018 and her disability was found to be 40% permanent as per report dated 17.11.2018. Laxmipriya Biswal was engaged as by the time of receipt of the revised report of Appellate Medical Page 6 of 16 Board, the 1st phase selection was under process whereas the revised report of the petitioner was received on 30.11.2018 by which time the 1st round selection process was completed. The earlier rejection letter in respect of the petitioner had already been submitted to OSEPA by letter dated 22.09.2018 and by then, the 2nd round merit list was also published. Under such circumstances, the petitioner’s candidature could not be considered. In the process no wrong has been committed by the OSEPA and therefore the petitioner’s representation was rightly rejected. The petitioner has filed a rejoinder refuting the averments made in the counter affidavit. It is stated that 1st phase selection was completed by 28.07.2018 and therefore if Laxmipriya Biswal would have been appointed thereafter and allowed to join on 06.10.2019, there is no reason as to why the petitioner could not have been so engaged. It is also stated that as per the opinion of the Law Department, the SCPD has observed that there can be no distinction between temporary and permanent Page 7 of 16 disability. In any case, once the petitioner has been certified by the Appellate Medical Board of having permanent disability, the authorities should not have deprived her from engagement. 4. Heard Mr. Basudev Pujari, learned counsel for the petitioner and Mr.S.N. Pattanaik, learned Addl. Government Advocate for the State. 5. Mr. Pujari would argue that there being no dispute that the petitioner is a physically disabled candidate with permanent disability to the extent of 40%, the authorities should have issued engagement order in her favour at the first instance. Even if her case was referred to the Appellate Medical Board, which certified the disability of the petitioner as 40% in view of the opinion of the Law Department referred to by the SCPD in its order, the authorities could not have made a distinction between permanent and temporary disability as the resolution dated 26.12.2016 laid down guidelines for engagement of Shiskhay Sahahaks does not provide so. In any case, the petitioner being again referred to the Page 8 of 16 Appellate Medical Board, her disability was assessed to be permanent in nature. The authorities having themselves referred the petitioner to the Appellate Medical Board after provisionally selecting her, have subsequently taken the plea of completion of the selection process. In fact, it is entirely for the inaction and delay caused by the authorities that the petitioner, despite being selected was deprived of her legitimate dues. 6. Mr. S.N. Pattanaik learned Addl. Government Advocate submits that the petitioner’s initial selection was provisional in nature. Since the Appellate Medical Board certified her disability as temporary in nature, her name was placed in the reject list in view of the guidelines dated 26.12.2016. Her case was again referred to the Appellate Medical Board, which re-assessed the disability and certified the same to be permanent in nature. But by such time, two rounds of selection process had been completed. Mr. Pattanaik further submits that merely being placed in the provisional select list does not confer any right on the petitioner to be engaged. Page 9 of 16 7. The facts of the case are not disputed inasmuch as the petitioner was provisionally selected and her case was referred to the Appellate Medical Board stating that she would be appointed later after approval of the Medical Board. As it appears, her disability was assessed by the Appellate Medical Board as 40% and temporary in nature by letter dated 06.06.2018. At the relevant time, the government had taken a decision that a candidate having temporary disability should not be considered for engagement as evident from letter dated 16.10.2012 of the Commissioner-cum-Secretary to the Government in School and Mass Educating Department addressed to all the Collectors (copy enclosed as Annexure –B/2 to the counter filed by the opposite parties). Clause-8.2 of the guidelines dated 26.12.2016 also provides that the P.H. candidates having temporary disability shall not be entertained for engagement. The said provision of the guidelines has never been challenged. The SCPD in its order dated 25.03.2019 passed in a batch of cases including the one filed by the petitioner (SCPD Case No. Page 10 of 16 362 of 2018), referring to the opinion tendered by the Law Department held that the government cannot make any distinction between temporary and permanent disability. The order of the SCPD however becomes redundant in the present context in view of the subsequent assessment of the petitioner’s disability by the Appellate Medical Board as permanent in its report dated 17.11.2018. It is not forth-coming from the records as to why the Appellate Medical Board had initially assessed the nature of disability of the petitioner as temporary initially. Be that as it may, a similarly placed candidate, namely, Laxmipriya Biswal was re-assessed as a permanently disabled person and given appointment. It has been stated in the counter affidavit that the re-assessment of the disability of Laxmipriya Biswal by the Appellate Medical Board was received on 07.08.2018 by which time, the 1st round selection was under process. The petitioner’s re- assessment report was received by 30.11.2018. The State has not specifically clarified as to when exactly the 1st and 2nd round merit lists were published. But fact remains Page 11 of 16 that the petitioner was provisionally selected initially but her case was forwarded to the Appellate Medicate Board with the rider that she would be appointed after receipt of the report. For reasons best known to the Appellate Medical Board, her disability was initially assessed as temporary. This is what appears to have caused the problem. In view of the extant guidelines and instructions of the government, the concerned authority obviously cannot be blamed for not engaging the petitioner. But then her nature of disability having been revised as permanent subsequently by the Appellate Medical Board, she does acquire a right of being considered for appointment. This is being said for all the more reason as it is nobody’s case that the nature of her disability had undergone a change between the first and second assessments by the Appellate Medical Board. It was not disability but its assessment that had changed. This also implies that the initial assessment was wrong. Under such circumstances, how can the petitioner be blamed for erroneous assessment of the nature of her disability by Page 12 of 16 the Appellate Medical Board, which it is to be remembered, is an expert body. Thus, had her disability been correctly assessed at the relevant time, she would have been issued with order of appointment in view of inclusion of her name in the provisional select list. This Court therefore finds that the blame, if at all, in this regard can only be laid at the doors of the Appellate Medical Board. 8. Having held as above, this Court is conscious of the argument advanced that both rounds of selection as per the guidelines having been completed the petitioner cannot be engaged. But in view of the specific finding of this Court that the petitioner was deprived of engagement at the relevant time not because of any fault of her own or want of eligibility, but entirely for the mistake committed by the Appellate Medical Board, she cannot be depressed of her legitimate due. The State being a model employer has to consider the matter from a broader perspective and take a view that serves to protect the right of livelihood of one of its citizens guaranteed under Article 21 of Page 13 of 16 Constitution than in thwarting it banking upon technicalities. The citizen, in this case, it must be kept in mind, is a visually impaired person disabled to the extent of 40% permanently. The State should therefore consider her case as a special case by rising above technical considerations of completion of process of selection. 9. It has been argued by Mr. Pujari that but for the delay caused in taking a decision, the petitioner would have got the appointment during the 1st round selection itself, i.e., in the year 2016. Even otherwise, she would have been appointed after re-assessment of her disability like Laxmipriya Biswal. On the contrary, she has had to run after the authorities on multiple occasions and also approached this Court earlier. Mr. Pujari therefore submits that petitioner should be directed to be appointed from the date Laxmipriya Biswal was given appointment with all financial and service benefits. 10. In response, Mr. Pattanaik submits that the petitioner was not given appointment not because of any malafides but because of the genuine reason of the Page 14 of 16 assessment of the nature of her disability being temporary. 11. This Court has already held that the mistake appears to have been committed by the Appellate Medical Board, which ultimately deprived her from her legitimate right of being appointed. Admittedly, the petitioner has submitted multiple representations to the authorities for consideration of her case even after re-assessment of her disability as per report dated 17.11.2018. She also had to approach the SCPD and this Court. It cannot be denied that the moment her disability was re-assessed as permanent, she acquired the right of being appointed in view of the acknowledgement of the District Child Protection Officer on 13.04.2018 that she would be appointed after approval of the Medical Board. This Court is therefore, of the view that the petitioner, though may not be entitled to any salary for the period during which she actually did not render any work yet, ends of justice would be best served if 50% of the salary that she would have drawn during the period is paid to her as Page 15 of 16 compensation along with notional seniority from the date her disability was re-assessed as permanent in nature, i.e. from 17.11.2018. 12. For the foregoing reasons therefore, the writ petition is disposed of with direction to the Opposite Parties-Authorities to issue order of appointment to the petitioner against any available equivalent post notionally with effect from 17.11.2018 and to pay 50% of the salary that would have been admissible from such date till the date of her actual joining without any further delay and in any case within four months from the date of production of certified copy of this order by the petitioner. Consequently, the orders under Annexures-12 and 13 are stand quashed. ……..………………….. Sashikanta Mishra, Judge Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 23-Apr-2024 11:26:55 Orissa High Court, Cuttack, The 19th April , 2024/ B.C. Tudu Page 16 of 16