Orissa High Court
Ramani Mahapatra vs A. State Of Odisha & Others ... Opp. ... on 18 April, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAC ) No.1901 of 2016
Ramani Mahapatra .... Petitioner
Mr. R.N. Parija, Adv.
-versus-
A. State of Odisha & Others ... Opp. Parties
Mr. M.K. Balabantaray,
Addl. Govt. Advocate
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
Order ORDER
No 18.04.2024
6. 1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Instruction provided by Opp. Party No.2 vide letter
No.7648 dt.18.03.2024, so produced by the learned State
Counsel be kept on record.
3. Heard learned counsel for the parties.
4. Petitioner has filed the present Writ Petition inter alia with
the following prayer:
"The applicants, therefore, pray that this Hon'ble Tribunal
may graciously be pleased to admit this O.A., call for the
records and after hearing the parties allow the
same and quash Annexure-1 and Annexure-7, so
far as applicant is concerned and be further
pleased to direct the respondents to include the
name of the applicant in the Merit list at its right place and issue engagement order in favour of the applicant within a stipulated period with all benefits."
4. It is contended that pursuant to the resolution issued by the School and Mass Education Deptt. On 27.10.2014 under 1 Annexure-2, Petitioner made her application as against the post of TGT (Arts) as a P.W.D category candidate.
4.1. It is contended that Petitioner along with her application submitted the disability certificate issued by the District Medical Board, Nayagarh, showing her disability at 57% permanent. It is contended that after completion of selection process in the provisional merit list published under Annexure-5, Petitioner's name was reflected at Sl. No.1367 as a PWD category candidate.
4.2. After due verification of the documents, Petitioner though was issued with the order of engagement on 12.06.2015 vide Annexure-6, but with the condition that such engagement is subject to final outcome of various cases pending before the Tribunal at the relevant point of time, which includes OA No.1674( C ) of 2015.
4.3. It is contended that after being so provided with the order of engagement on 12.06.2015 under Annexure-6, the same was cancelled vide the impugned order dt.28.08.2015 under Annexure-7, inter alia on the ground that order dt.14.05.2015 so passed by the Tribunal in OA No.1674(C) of 2015 and batch, basing on which petitioner was so appointed, since was kept in abeyance by this Court in its order dt.11.06.2015 in W.P.(C ) No.10758 and 10765 of 2015, the order of engagement issued in favour of the Petitioner on 12.06.2015 is accordingly cancelled.
4.4. Learned Counsel for the Petitioner contended that since Petitioner was selected as a P.W.D category candidate as against the post of TGT (Arts), her claim was neither covered as per order dt.14.05.2015 so passed in O.A. NO.1674(C ) of 2015 and batch or the order passed by this Court on 11.06.2015 in W.P.(C ) No.10758 and 10765 of 2015. Order dt.14.05.2015 passed in O.A. NO.1674(C ) of 2015 & batch and order 2 dt.11.06.2015 of this Court in W.P.(C ) No.10758 and 10765 of 2015 are reproduced hereunder.
O.A. No.1674(C ) of 2015 & batch.
14.05.2015.
Heard Sri K.K. Swain, learned counsel for the applicants and Mr. S.K. Jee, learned Standing Counsel for SME.
The case is admitted. Notice be issued, returnable within four weeks and rejoinder, if any, be filed within two weeks thereafter.
List this matter after six weeks.
So far as the interim prayer is concerned, for the appointment of contract teachers in various disciplines an advertisement was issued on 28.10.2014 by OPEPA, Orissa. As far as overage is concerned, the applicants were given relaxation of 10 years i.e. from 32 to 42. So far as Hindi teachers concerned, the eligibility criteria is Bachelor's degree with Hindi as one of the optional/Hons. Subject with minimum 50% of marks in aggregate (45% for SC/ST/PH/OBC/SEBC candidates) and M.A in Hindi with minimum 50% marks in aggregate from a recognized University. But there were certain cases who have fulfilled alternative qualification i.e. Rastrabhasa Ratna from Rastrabhasa Prachar Samiti, Wardha or with Sastri from Orissa Rastrabhasa Parishad, Puri or with Snataka (acquired by June, 2005, the date up to which the temporary recognition has been granted) from Hindi Sikshya Samiti, Orissa, Cuttack, or an equivalent degree from a recognized institution with at least 50% marks in aggregate (45% for SC/ST/PH/OBC/SEBC candidates) and Hindi Sikshyan Parangat from Kendriya Hindi Sansthan, Agra/PHED. (a course prescribed by NCTE) from a institution recognized by NCTE and affiliated to a recognized University/B.Ed in Hindi ( a course prescribed by NCTE) from Dakhin Bharat Hindi Prachar Sabha,Madras, a institution recognized by NCTE and affiliated to a recognized university. Their candidatures have been rejected and put in the draft reject list. Further as far as contract teachers in the category of Physical Teacher is concerned, the minimum qualification prescribed is +2 of its equivalent examination with minimum 50% marks in aggregate (45% for SC/ST/OBC/SEBC candidates) and CPED from recognized Board/University.
It was subsequently decided that the stipulation of 50% marks was not there in the earlier advertisement for the contract teachers. Therefore, it was 50% marks in +2 examination, have been rejected and put in the reject list.
After careful consideration of all these three types of categories of post for the contract teachers, it is directed that their names shall be considered along with the candidates who have been enlisted in the draft merit list provided they have applied for 3 the posts within the cut-off date i.e. 20.11.2014 and prepare the final merit list. However, no appointment shall be given till the finalization of the O.As filed by the candidates of three categories in the OAT. But in respect of rest of the candidates who are in the merit list and d not belong to these three categories, the respondents are at liberty to issue appointment order in their favour.
The candidates whose names find place n draft reject list of the three categories of posts, requisites numbers of posts shll be kept reserved in case they emerge successful in the O.As.
W.P.(C ) Nos.10758 and 10765 of 2015 11.06.2015.
"Heard.
Petitioners in W.P.(C ) NO.10758 of 2015 has challenged the illegal and arbitrary action of the opposite parties in publishing the common merit list of the candidates and also challenges the validity and propriety of order dated 14.05.2015 passed by Odisha Administrative Tribunal, Cuttack Bench, Cuttack.
Petitioner in W.P.(C ) NO.10765 of 2015 has challenged the order dated 15.05.2015 passed by Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. NO.1676(C )/2015 wherein the Tribunal rejected the interim prayer of the petitioner.
Since in both the writ petitions common questions of law are involved, they are heard together and disposed of by this common order.
It appears from the record that the Tribunal in O.A. NO.3629(C )/2014 by order dated 17.11.2014 has passed the following orders:-
"So far as the prayer for interim order is concerned, the applicants may be allowed to submit hard-copy of their applications to the authorities competent to receive the applications, within the stipulated date and their applications be provisionally accepted, if they are eligible otherwise than for their age. The respondent-authorities may go ahead with the process of selection, but final selection list should not be published without leave of this Tribunal."
Further the Tribunal in O.A. NO.1674(C ) of 2015 by order dated 14.05.2015 has passed the following order.:-
"It is directed that their names shall be considered along with the candidates who have been enlisted in the draft merit list provided they 4 have applied for the posts within the cut-off date i.e. 20.11.2014 and prepare the final merit list. However, no appointment shall be given till the finalization of the O.As filed by the candidates of three categories in the OAT. But in respect of rest of the candidates who are in the merit list and do not belong to these three categories, the respondents are at liberty to issue appointment order in their favour."
From the above, it appears that the Tribunal has passed contradictory orders in the aforesaid Original Applications.
Considering the above without expressing any opinion on the merit of the case, this Court remits the matter back to the Tribunal to hear O.A. NO.3629(C ) /2014 and O.A. NO.1674(C )/2015 along with O.A. No.1676(C )/2015 afresh on being moved by the Petitioners on 19.06.2015. Till that date, the impugned order dated 14.05.2015 shall be kept in abeyance.
With the aforesaid observation, both the Writ Petitions are disposed of."
4.5. It is contended that since Petitioner was having the required disability which was reflected at 57% permanent, and accordingly was issued with the order of engagement vide order dt.12.06.2015 under Annexure-6, there was no occasion on the part of opposite parties to cancel the order of engagement so issued on 12.06.2015 vide the impugned order dt.28.08.2015 under Annexure-7 on the ground indicated in the said order. It is accordingly contended that the impugned order is not sustainable in the eye of law.
5. Mr.M.K. Balabantary, learned A.G.A on the other hand made his submission basing on the stand taken in the counter affidavit followed by further instruction provided by the Director in its letter dt.18.03.2024. Learned State counsel contended that as provided under Clause-(1)(e) of the resolution dt.27.10.2014, after being found eligible, Petitioner was referred to the Appellate Medical Board constituted for the Women and Child welfare Deptt. Vide notification dt.06.09.2011 for re- examination of the Petitioner's disability. Clause 1(e ) of Resolution dt.27.10.2014 under Annexure-2 reads as follows:
5"1.(e) The case of PH candidates shall be referred to Appellate Medical Board constituted by the W & CD Department vide Notification NO.16430/WCD Date
06.09.2011 for re-examination. Engagement order shall be issued if such candidates are found genuine by the Board."
5.1. On such re-examination, the disability of the Petitioner since was found at 54% temporary vide Annexure-C/3, in view of the notification issued by the Govt. in the Deptt. of Social Security and Empowerment of Persons with Disability on 24.10.2019 , Petitioner was found ineligible to get the benefit of appointment as a P.W.D category candidate. Stipulation contained in the notification dt.24.10.2019 is reproduced hereunder.
" Persons with disability of temporary nature implied that percentage of disability of the person may progress or regress as it is temporary not permanent. Therefore, it may not be appropriate to give reservation in job to persons with benchmark disability of temporary nature as at the time their percentage of disability reduces below 40%, they will be out of the definition of person with benchmark disability (a person with not less than forty per cent of a specified disability) mentioned in Rights of Persons with Disabilities Act, 2016. However, such persons with temporary disability may be given other benefits meant for PWDs as long as their disability is not less than 40%."
In the light of above views of the Ministry, it is now clarified that provision of reservation in employment cannot be extended to persons with benchmark disabilities holding temporary disability certificates.
5.2. It is also contended that since as per the aforesaid notification dt.24.10.2019, a person will not be eligible to get the benefit of appointment , if his disability is found as "temporary", and in the instant case, the disability of the Petitioner by the Appellate Board since was found as 53% temporary vide Annexure-C/3, no illegality can be found with the impugned order issued on 28.08.2015 under Annexure-7.
5.3. Learned Addl. Govt. Advocate also contended that Petitioner was initially issued with the order of engagement on 6 12.06.2015 subject to the condition that it will be subject to outcome of O.A. No.1674(C ) of 2015 and batch. Basing on the order passed by the Tribunal on 14.05.2015 in O.A. No.1674 (C) of 2015 and batch, Petitioner though was issued with the order of engagement vide order dt.12.06.2015 under Annexure-6, but since the order passed on 14.05.2015, was kept in abeyance by this Court in its order dt.11.06.2015 in W.P.(C ) No.10758 & 10765 of 2015, Opp. Party No.2 vide his communication dt. 22.08.2015 under Annexure-D/3 directed all DEOs to disengage all contract teachers who have been appointed beyond 11.06.2015 . In view of the order dt.11.06.2015 of this Court and the letter issued by Opp. Party No.2 under Annexure-D/3 on 22.08.2015, the order of engagement so issued under Annexure-6 was cancelled vide the impugned order dt.28.08.2015.
5.4. It is accordingly contended that since the order of engagement issued on 12.06.2015 was subject to outcome of a batch of Original Application which includes O.A. No.1674 of 2015 and the order passed on 14.05.2015 basing on which Petitioner was so engaged since was kept in abeyance by this Court in its order dt.11.06.2015 in W.P.(C ) No.10758 & 10765 of 2015, Director, Secondary Education issued the common direction on 22.08.2015 under Annexure-D/3 to the counter directing all the D.E.Os to cancel all order of appointments issued beyond 11.06.2015. Since Petitioner was admittedly engaged on 12.06.2015, in view of the order passed by this Court on 11.06.2015, coupled with the direction issued by the Director on 22.08.2015 under Annexure-D/3, Petitioner's order of engagement was cancelled vide order dt.28.08.2015. It is accordingly contended that the cancellation of the order of engagement issued in favour of the Petitioner vide Annexure-7 has been rightly issued and it requires no interference.
76. To the submission made by the learned A.G.A, Mr. R.N. Parija, learned counsel for the Petitioner contended that by the time the Petitioner made her application to get the benefit of appointment in terms of the resolution dt.27.10.2014, there was no stipulation that person with temporary disability will not get the benefit of appointment. Such thing was brought into effect with issuance of the notification dt.24.10.2019 by the Department. Since the selection is of the year 2014 and there was no such provision that a person with temporary disability cannot get the benefit of appointment, the ground raised by the learned Addl. Govt. Advocate that Petitioner's disability having been found as temporary in nature vide Annexure-C/3, she is not eligible to get the benefit of appointment is not acceptable.
6.1. It is also contended that though basing on the order passed by this Court on 11.06.2015 and the direction issued by the Director, Secondary Education on 22.08.2015, the order of engagement was cancelled, but after remand of the O.As by this Court vide order dt.11.06.2015, OA No.1674(C ) of 2015 and batch was finally disposed of by the Tribunal vide order dt.16.05.2017. The Tribunal while disposing the batch only interfered with regard to the selection of Contract Teacher Hindi and not with regard to any other category of teachers. It is accordingly contended that since the Tribunal never observed anything with regard to selection and engagement of contract Teacher TGT (Arts) in its order dt.14.05.2015 and only interfered with the selection of Contract Teacher Hindi while disposing the batch of original application on remand vide order dt.16.05.2017, Petitioner's engagement could not have been cancelled on the ground indicated in the impugned order under Annexure-7. It is accordingly contended that the impugned order of cancellation so issued by Opp. Party No.3 under Annexure-7 is not sustainable in the eye of law and requires 8 interference of this Court. It is also contended that the ground of cancellation so raised by the learned Addl. Govt. Advocate in the counter or in the instruction dt.18.03.2024 being not the ground of cancellation vide Annexure-7, the same cannot be accepted in view of the decision of the Hon'ble Apex Court in the case of Mohinder Singh Gill & Another Vs. The Chief Election Commissioner, New Delhi & Others, reported in AIR 1978 SC-851. Hon'ble Apex Court in paragraph-8 of the said decision has held as follows:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16 (at p.18):
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older:
A Caveat".
7. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that pursuant to the resolution issued by the Government-Opp. Party No.1 on 27.10.2014 under Annexure-2, Petitioner duly participated in the selection process as against the post of Contract Teacher in TGT (Arts). Petitioner made the application as a PWD category candidate and along with her application, she submitted the disability certificate issued by the District Medical Board, Nayagarh under Annexure-3 series. In the said certificate available under Annexure-3 series, disability of the Petitioner was found at 57% permanent.
97.1. Considering the eligibility of the Petitioner and her disability, petitioner's name was originally included in the provisional merit list issued under Annexure-5. Petitioner thereafter was issued with the order of engagement on 12.06.2015, but with a condition that such engagement is subject to outcome of various O.As pending before the Tribunal, which includes OA NO.1674(C ) of 2015. This Court finds that even though in terms of order dt.14.05.2015 so passed in OA No.1674 (C ) of 2015 and batch, Petitioner was provided with the appointment and the said order was kept in abeyance by this Court in its order dt.11.06.2015 in W.P.(C ) No.10758 & 10765 of 2015, but Petitioner's claim is no way coming within the purview of order dt.14.05.2015 nor order dt.11.06.2015. Such order of engagement issued under Annexure-6 was cancelled in terms of the direction issued by Opp. Party No.2 in his letter dt.22.08.2015 under Annexure-D/3. Since Petitioner was duly selected and engaged vide order dt.12.06.2015 under Annexure- 6, order of engagement could not have been cancelled on the ground indicated in Annexure-7. The Tribunal in terms of order dt.11.06.2015 while disposing OA No.1674(C ) of 2015 & batch vide its order dt.16.06.2017 never also interfered with the selection of any categories of contract teachers save and except with regard to selection and engagement of contract Hindi Teacher.
7.2. With regard to the stand taken by the learned Addl. Govt. Advocate that disability of the petitioner since was subsequently found by the Appellate Board at 54% temporary and accordingly she is not eligible to get the benefit of appointment in view of the letter issued by the Department in dt.24.10.2019, is also not acceptable as the selection is of the year 2014-2015 and such a condition was brought into effect with issuance of the notification on 24.10.2019. It is also found 10 that there is no such stipulation either under the provisions of The Persons with Disabilities( Equal opportunities, Protection of Rights and Full Participation) Act, 1995 and the Rights of Persons with Disabilities Act, 2016, disentitling a candidate from getting the benefit of appointment if his/her disability is found as temporary.
Section 2(t) of the 1995 Act reads as follows:
"Person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority."
Similarly, Section 2 ( r ) of the 2016 Act reads as follows :
" person with benchmark disability" means a person with not less than forty per cent. Of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority;
Xxxx xxxx xxx 7.3. Since as per the provisions contained under the 1995 Act, Petitioner was found eligible and provided with order of engagement, vide order dt.12.06.2015 under Annexure-6, such order of engagement could not have been cancelled on the ground indicated in the impugned order dt.28.08.2015 under Annexure-7. It is also found that the ground on which the order of engagement was cancelled is not the ground which are now being raised by the State in the counter affidavit and the instruction so provided by Opp. Party No.2 on 18.03.2024. Therefore in view of the decision of the Hon'ble Apex Court in the case of Mohinder Singh Gill & Another as cited supra, no other grounds can be raised in support of the impugned order save and except the ground of disengagement indicated in Annexure-
7. 11 7.4. In view of the aforesaid analysis, this Court is inclined to quash order dt.28.08.2015 so issued by Opp. Party No.3 under Annexure-7. While quashing the same, this Court directs Opp. Party No.3 to re-instate the Petitioner with passing of an appropriate order within a period of four (4) weeks from the date of receipt of the order. Petitioner is directed to provide a copy of this order before Opp. Party No.3 for compliance.
The Writ Petition is accordingly disposed of.
(Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: AUTHENTICAITON OF ORDER Location: HIGH COURT OF ORISSA Date: 26-Apr-2024 17:27:36 12