Orissa High Court
Alekha Kumar Panigrahi vs State Of Odisha & Ors. .... Opposite ... on 24 July, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.C.(OAC) No.2665 of 2016
In the matter of an application under Section 19 of the Administrative
Tribunal's Act, 1985.
..................
Alekha Kumar Panigrahi .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioner : M/s. J.K. Khuntia (Advocate)
H.S. Deo (Advocate)
For Opp. Parties : Mr. B. Panigrahi
Addl. Standing Counsel
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 12.07.2023 and Date of Judgment: 31.07.2023
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Biraja Prasanna Satapathy, J.
The present writ petition has been filed by the Petitioner challenging the order dtd.28.10.2016 passed by the Collector -Cum- Chairman, SSA, Bhadrak in Misc. Case No. 01/2016 arising out of W.P.(C) No. 15497 of 2016. Vide the said order the Petitioner who was continuing as a primary school teacher was terminated from his service.
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2. It is the case of the Petitioner that pursuant to the advertisement issued by the Opp. Party No. 2 in the year 2003 for selection and engagement of Sikshya Sahayak, the Petitioner made his application and on being found suitable, he was issued with the order of engagement vide order dtd.16.12.2003 under Annexure-1 series. Pursuant to the order passed by this Court in W.P.(C) No. 11748 of 2003 though the Petitioner was disengaged, but once again vide office order dtd.28.09.2005 under Annexure-1 series, he was reengaged as a Sikshya Sahayak.
3. It is contended that while so continuing as a Junior Teacher the Petitioner for the first time was issued with a show-cause notice on 17.04.2010 under Annexure-2 by the Opp. Party No. 3 asking him to produce the original certificates and mark-sheets regarding his educational qualification for verification. The Petitioner as directed also produced his original certificates and mark-sheets in terms of Annexure-2 and Opp. Party No. 4 vide letter dtd.05.05.2010 under Annexure-3 requested Controller of Examination, Utkal University to verify the genuineness of the certificates and mark-sheets so submitted by the Petitioner of his +3 mark-sheet and B.Ed. mark- sheet. Not only that vide letter dtd.29.05.2010 under Annexure-4 Opp. Party No. 3 requested Opp. Party No. 4 to produce the advertisement published for engagement of Sikshya Sahayak during the year 2004- Page 2 of 18 // 3 // 05 and other relevant information. In the said letter Opp. Party No. 4 was also requested to provide the marks secured by the present Petitioner during the selection process.
3.1. It is contended that on receipt of Annexure-4 vide letter dtd.24.06.2010 under Annexure-5, Opp. Party No. 4 intimated Opp. Party No. 3 to the effect that the original application form and other relevant documents may be available in his office. In the meantime vide letter dtd.20.08.2010 Utkal University under Annexure-6 indicated that the result of the present Petitioner of his B.Ed. Examination, 1994 has been withheld due to want of Registration Number.
3.2. It is contended that while the matter stood thus, an allegation was made against the Petitioner by one Dillip Kumar Nayak that the Petitioner by producing fake B.A. and B.Ed. certificates along with fake mark-sheets has managed to get appointment as Sikshya Sahayak in the year 2005. On receipt of such complaint the Petitioner was again issued with the show-cause by the Opp. Party No. 3 on 28.10.2010 directing him to submit his reply with regard to the submission of fake B.A. and B.Ed. certificates by the Petitioner for his selection as Sikshya Sahayak.
3.3. It is contended that the Petitioner on receipt of the show-cause dtd.28.10.2010 under Annexure-8 submitted his reply on 15.11.2010 Page 3 of 18 // 4 // under Annexure-9 indicating that pursuant to the earlier notice issued on 29.05.2010 under Annexure-4 the Petitioner since has already submitted his original B.A. and B.Ed. certificates, the authenticity of the said documents may be verified at his level.
3.4. It is contended that in the meantime vide office order dtd.13.06.2012 the Petitioner while continuing as a Junior Teacher, he was appointed as a regular primary school teacher vide order dtd.13.06.2012 w.e.f.28.09.2011 under Annexure-10. However, the Petitioner was again issued with a show-cause notice by the Opp. Party No. 2 on 29.08.2016 under Annexure-12 directing him to file his reply as to why his services shall not be terminated for submitting forged B.A. & B.Ed. certificates during the process of selection of Sikshya Sahayak in the year 2004-05. The Petitioner challenging issuance of such show-cause by the Opp. Party No. 2 approached this Court in W.P.(C) No. 15497 of 2016. This Court vide order dtd.12.09.2016 while disposing the writ petition, observed that if the Petitioner files his show-cause within a period of 15 days, Opp. Party No. 2 shall conduct an enquiry after affording opportunity of hearing to the Petitioner and pass a reasonable order within a period of one month thereafter. Till a decision is taken, the services of the Petitioner shall not be dispensed with. Pursuant to the order passed by this Court, the Petitioner submitted his reply to the show-cause on Page 4 of 18 // 5 // 27.09.2016 and the matter was registered as Misc. Case No. 01 of 2016 before the Opp. Party No. 2. But the Opp. Party No. 2 without causing any enquiry passed the order of disengagement vide the impugned order dtd.28.10.2016 under Annexure-13. 3.5. It is the contention o the learned counsel for the Petitioner that the Petitioner pursuant to the selection process initiated by the Opp. Party No. 2 was duly engaged as Sikshya Sahayak initially vide order dtd.16.12.2003 and subsequently vide another order issued on 28.09.2005 under Annexure-1 series. The Petitioner thereafter was engaged as a Junior Teacher on completion of 3 years of engagement as a Sikshya Sahayak. While so continuing when the Petitioner was issued with a show-cause and he was directed to produce the certificates in support of his qualification vide Annexure-2, he submitted all the original certificates in support of his qualification including the mark-sheet of his B.A. and B.Ed. qualification. Even though after due verification of his B.A. and B.Ed. certificates from Utkal University nothing was found against him, but the Petitioner when was issued with another show-cause on 28.10.2010 under Annexure-8, he submitted his reply to the same on 15.11.2010 under Annexure-9. On submission of such reply no further action was taken and the Petitioner vide order dtd.13.06.2012 was appointed as a regular primary school teacher w.e.f.28.09.2011 under Annexure-10. Page 5 of 18
// 6 // But circularingly the Petitioner was again issued with a show-cause by the Opp. Party No. 2 on 29.08.2016 under Annexure-12 and without following the direction of this Court so issued in its order dtd.12.09.2016 in W.P.(C) No. 15497 of 2016, the Petitioner was terminated from his service vide order dtd.28.10.2016 under Annexure-13.
3.5. It is accordingly contended that since while terminating the services of the Petitioner vide the impugned order dtd.28.10.2016 the direction of this Court in W.P.(C) No. 15497 of 2016 was not followed, the impugned order is not sustainable in the eye of law. It is also contended that since the Petitioner was duly selected and appointed as a Sikshya Sahayak and was regularized as a junior teacher and subsequently as a regular primary school teacher, Opp. Parties basing on the principle of promissory estoppel are not competent to terminate the services of the Petitioner. In support of such submission learned counsel for the Petitioner relied on a decision of this Court in the case of Prtima Sahoo Vs. State of Odisha & Ors. (2021 (I) ILR-CUT-115) and another decision of this Court in the case of Bikash Mahalik Vs. State of Odisha & Ors. (2022 (I) ILR- CUT-108). Learned counsel for the Petitioner also relied on another decision of this Court in the case of Bishnu Kishore Majhi Vs. State of Odisha & Ors. (2023 (I) OLR - 162).
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// 7 // This Court in Para 10 of the Judgment in the case of Prtima Sahoo has held as follows:-
"10. Thus, in this case, the district administration, being an integral part of the State of Orissa, by its declaration i.e. act of issuing order of appointment intentionally caused the petitioner to believe that she is found to be eligible on comparison of the marks secured by all the candidates and she acted upon such belief, thereby resigned from the post of Anganwadi Worker and joined the post of Sikshya Sahayak under Bhapur Block. In such situation, neither the State of Orissa nor its representatives i.e. the district administration or the Director of the OPEPA, in any proceeding between it and the petitioner deny the truth of that thing. Once the State Government has allowed the petitioner to believe that she has qualified in the selection process and is being appointed as Sikshya Sahayak in pursuance of which she resigned from the post of Anganwadi Worker and worked for almost six to eight months as Sikshya Sahayak, the district administration/ State Government cannot deny that she does not qualify for the post of Sikshya Sahayak."
Similarly, this Court in Para 27 of the Judgment in the case of Bikash Mahalik has held as follows:-
"27. In Pratima Sahoo (supra), this Court held that the order of disengagement of the petitioner from the post of Sikshya Sahayak, pursuant to decision of the district administration, having found qualified in the selection process and appointed after resigning from her erstwhile post of Anganwadi Worker and having worked for six to eight months, amounts to putting the petitioner in prejudical and disadvantageous position and the reason assigned for later Page 7 of 18 // 8 // finding the petitioner not suitable for securing less marks than other meritorious candidates do holds good, the petitioner cannot be found faulted by the mistake committed by the appointing authority in calculating the percentage. Consequentially, direction was given to absorb the petitioner forthwith applying the doctrine of promissory estoppel in the said case."
Similarly, this Court in Para 9 to 15 of the Judgment in the case of Bishnu Kishore Majhi has held as follows:-
"In the case of Miss Reeta Lenka v. Berhampur University. 1992 (11) OLR 341, where the petitioner had been admitted in Rama Devi Women's College in 1985 and completed her B.Sc. from that College and thereafter obtained Diploma in Pharmacy from V.S.S. Medical College, Burla, but on cancellation of her result because of mass copying she had approached this Court, it was observed by this Court that in cases of mass copying, natural justice is not required to be complied with and, as such, it is apparent that the candidate in question does not get an opportunity to have his say in the matter. Therefore, after thorough discussion on the principle of promissory estoppels under Section 115 of the Evidence Act, the Division Bench of this Court held that the said case was a fit case, where the petitioner should be protected by applying the principles of promissory estoppel.
Similar view was taken in the case of David C. Jhan v. Principal Ispat College, Rourkela and others, 1984 (1) OLR 564, where the petitioner was admitted to the College after being declared to have passed the High School Certificate Examination conducted by the Board of Secondary Education, but subsequently the Board notified that the candidate was wrongly declared to have passed and on the basis of such notification, the College Authorities Page 8 of 18 // 9 // cancelled the admission of the petitioner. But due to interference of this Court, referring to the judgment of this Court in the case of Gita Mishra v. Utkal University, ILR 1971 CUT-24, the said notification was quashed and the petitioner in the said case was permitted to continue his studies.
10. In Ambika Prasad Mohanty v. Orissa Engineering College and another, 1989 (1) OLR 440, this Court, applying the principle of estoppel, observed that once a student is admitted after satisfying all the qualification, subsequent cancellation of admission cannot be made since he/she would be deprived of pursuing his/her studies in any other institution.
11. The principles of promissory estoppel has been considered by the apex Court in Union of India and others v. M/s Anglo Afghan. Agencies etc., AIR 1968 SC 718, Chowgule & Company (Hind) Pvt. Ltd. v. Union of India and others, AIR 1971 SC 2021, M/s Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and others, AIR 1979 SC 621, Union of India and others v. Godfrey Philips India Ltd., AIR 1986 SC 806, Delihi Cloth & General Mills Ltd. v. Union of India and others, AIR 1987 SC 2424, Bharat Singh and others v. State of Haryana and others, AIR 1988 SC 2181 and many other subsequent decisions also.
12. Sanatan Gauda (supra) is a case where the petitioner, while securing his admission in the Law College, had admittedly submitted his mark sheet along with the application for admission, the law college had admitted him and he had pursued his studies for two years, the University had also granted him the admission cards for the Pre-Law and Inter-Law Examinations, he was also permitted to appear in the said Examinations and was admitted to the Final Year of the course and it was only at the stage of the Page 9 of 18 // 10 // declaration of his results of the Pre-Law and Inter-Law Examinations, the University raised objection to his so called ineligibility to be admitted to the law course. Therefore, in the said case, this Court held that the University is clearly estoppel from refusing to declare the results of the appellant's examination or preventing him from pursuing his Final Year course.
13. The ratio decided by this Court as well as the apex Court, as discussed above, is fully applicable to the present case and any other plea advanced by opposite parties no.2 and 3-BPUT, cannot sustain in the eye of law.
14. In the case of P.V. Mahadevan v. Md. T.N. Housing Board, (2005) 6 SCC 636, the apex Court, in paragraphs-8, 10 and 11 of the judgment held that for the mistake committed by the Department in the procedure for initiating a disciplinary proceeding, the appellant should not be made to suffer. Similar view has also been taken in Secretary Ministry of Defence v. Prabhash Chandra Mishra, (2012) 11 SCC 565.
15. In the above premises, the stand taken by the BPUT, that inadvertently the result was published and subsequently the mistake having been detected the same was withdrawn, cannot have any justification, in view of the law laid down by the apex Court, as mentioned supra."
4. Mr. B. Panigrahi, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Opp. Party No. 3. Though it is not disputed that pursuant to the advertisement issued by the Opp. Party No. 2, the Petitioner was selected and engaged as a Sikshya Sahayak vide order dtd.16.12.2003 and subsequent orderdtd.28.09.2005 under Annexure- Page 10 of 18
// 11 // 1 series and he was also regularized as a junior teacher and as a regular primary school teacher, but at the time of his initial selection the Petitioner had submitted forged mark-sheet of B.A. and B.Ed. examination. Basing on the show-cause issued by the Opp. Party No. 3 on 17.04.2010 under Annexure-2 when the Petitioner submitted his mark-sheet of both B.A. and B.Ed. examination, it was found that the Petitioner has secured 503 out of 1200 marks in B.A. and 406 out of 900 in his B.Ed. examination. But in the calculation sheet prepared on the basis of mark-sheet submitted by the petitioner at this time of submission of his application, his B.A. mark was reflected in the calculation sheet as 714 marks out of 1200 and 526 marks out of 900 in the B.Ed. examination. Since in the calculation-sheet prepared at the time of initiation selection basing on the mark-sheet produced by the Petitioner, his marks in the B.A. examination was included as 745 out of 1200 and in the B.Ed. examination his mark was calculated as 526 out of 900, but on verifying the original mark-sheet so produced by the Petitioner pursuant to Annexure-2 it was found that the Petitioner has in fact secured 503 out of 1200 in his B.A. examination and 406 out of 900 in his B.Ed. examination.
4.1. Not only that in the selection conducted by the Opp. Party No. 2 for the year 2003 the Petitioner having belonged to UR Category and taking into account his original mark so produced by him, he should Page 11 of 18 // 12 // not have been selected. In the selection conducted in the year 2003 the cut-off mark in UR category was 55.31%. Taking into account the mark submitted by the petitioner in his B.A. i.e. 503 out of 1200 and in the B.Ed. i.e. 406 out of 900, his percentage comes to 41.91% in the B.A. examination and 45.11 in his B.Ed. examination, which comes to average percentage of 43.51%. But since the Petitioner at the time of his selection produced the fake mark-sheet showing his mark in B.A. as 714 out of 1200 and 526 out of 900 in the B.Ed., his percentage was calculated at 59.50 in the B/A. examination and 58.44 in the B.Ed. examination, average of which comes to 58.99%. Since the cut-off mark in UR category in B/Ed. Was 55.31%, taking into account the average mark at 58.97% as the Petitioner was selected and engaged, but in fact in the original mark-sheet so produced by the Petitioner his percentage of mark in the B.A. examination is 41.91% in the B.A. and in the B.Ed. it is 38.4%, the average of which comes to 43.51%.
4.2. Accordingly, since at enquiry it was found that the Petitioner by producing forge certificate of his B.A. and B.Ed. qualification was elected and appointed as a Sikshya Sahayak in UR Category, basing on the order passed by this Court in W.P.(C) No. 15497 of 2016 Opp. Party No. 2 after due enquiry came to the aforesaid finding with regard to percentage of mark secured by the Petitioner originally as Page 12 of 18 // 13 // per his certificate and the inclusion made because of the forged mark- sheet produced by the Petitioner. Since the Petitioner by producing forged mark-sheet of his B.A. and B.Ed. examination managed to be selected in UR Category, Opp. Party No. 2 rightly terminated the Petitioner from his services vide order dtd.28.10.2016 under Annexure-13.
4.3. It is also contended by the learned ASC that in the calculation- sheet so prepared at the time of enquiry, the Petitioner has do the signature in the scrutiny-cum-mark calculation register by agreeing to the said inclusion. Therefore, it is to be held that the Petitioner knowingly submitted forged and manipulated mark-sheet of his B.A. and B.Ed. examination and basing on the excluded mark he was selected and appointed as a Sikshya Sahayak. Accordingly, it is contended that no illegality or irregularity has been committed by the Opp. Party No. 2 in terminating the services of the Petitioner vide order dtd.28.10.2016 under Annexure-13. Learned ASC in support of his submission relied on the decision of the Hon'ble Apex Court in the case reported in
i) AIR 1994 SC 853
ii) AIR 1956 SC 593
iii) 2012(2) CLR (SC) 312 Page 13 of 18 // 14 //
5. To the stand taken in the counter affidavit the Petitioner while filing the rejoinder affidavit, produced the mark-sheet of his B.A. and B.Ed. examination vide Annexure-15 series and contended that since taking into account the mark-sheet available under Annexure-15 series which was produced by the Petitioner at the time of his selection, he was selected and appointed, no fault can be attributed as against the Petitioner for such selection and appointment. Taking into account his selection and appointment and long continuance the order of termination passed under Annexure-13 is liable for interference of this Court.
6. I have heard Mr. J.K. Khuntia, learned counsel for the Petitioner and Mr. B. Panigrahi, learned Addl. Standing Counsel appearing for the Opp. Parties. On the consent of both the Parties, the matter was heard at the stage of admission and dispose of by the present common order.
7. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that the Petitioner pursuant to the selection process initiated by the Opp. Party No. 2 for the year 2003 was appointed as a Sikshya Sahayak vide order dtd.16.12.2003 and subsequently vide order dtd.28.09.2005 under Annexure-1 series. It is also found from the record that placing on the engagement order issued on 28.01.2005 under Annexure-1 Page 14 of 18 // 15 // series, the Petitioner was appointed as a junior teacher for the year 2008. But for the first time when a show-cause was issued to the Petitioner by the Opp. Party No. 3 on 17.04.2010 under Annexure-2 the Petitioner as directed submitted his original certificates and mark- sheets with regard to his educational qualification. Even though the Petitioner in terms of Annexure-2 submitted his original certificates in support of his educational qualification, but when another show-cause was issued by the Opp. Party No. 3 on 28.10.2010 under Annexure-8, the Petitioner challenging the said show-cause in W.P.(C) No. 22419 of 2011. Pursuant to the order passed by this Court by the Opp. Party No. 2 initiated Misc. Case No. 13 of 2011 and in the said Misc. Case the following order was passed:-
"xxx In the above scenario of facts, the District Project Co-ordinator,SSA,Bhadrak is directed to look into the allegation against the petitioner if there is prima-facie materials on record against the petitioner. Merely on simply allegation petition against the petitioner, the District Project Co- ordinator,SSA,Bhadrak must cause an enquiry and thereafter can issue further show cause notice to the petitioner. Accordingly, the Misc. Case is disposed of."
8. Subsequently, basing on the enquiry conducted by the Opp. Party No. 3 and on being satisfied that fraud has been committed by the Petitioner by submitting fake B.A. and B.Ed. certificates, Opp. Party Page 15 of 18 // 16 // No. 2 when issued a show-cause on 29.08.2016 under Annexure-12 proposing therein to terminate the services of the Petitioner on the ground that the Petitioner has submitted fake B.A. and B.Ed. certificates for the purpose of his selection as Sikshya Sahayak, the Petitioner challenging the said show-cause approached this Court in W.P.(C) No. 15497 of 2016. This Court vide order dtd.12.09.2016 when directed the Opp. Party No. 2 to conduct and enquiry and pass a reasonable order without affording any opportunity of hearing to the Petitioner, Opp. Party No. 2 initiated Misc. Case No. 01 of 2016. This Court finds that in the said Misc. Case the Petitioner was not only challenged the personal hearing through his cancel, but also the Opp. Party No. 2 conducted due enquiry by verifying the mark-sheet produced by the Petitioner of his B.Ed. examination with the mark- sheet indicated in the scrutiny-cum-mark calculation register which was countersign by the Petitioner by agreeing to said calculation. On proper verification of the mark-sheet so produced by the Petitioner on his B.A. & B.Ed. examination with that of the mark engaged in the scrutiny-cum-calculation register. Opp. Party No. 2 clearly found that the Petitioner by producing B.A. & B.Ed. certificate was managed to be appointed as Sikshya Sahayak.
8.1. This Court after going through the materials available on record also finds that vide Annexure-15 series the Petitioner has produced Page 16 of 18 // 17 // his original B.A. & B.Ed. mark-sheet. While in the mark sheet issued by the Urkal University the petitioner has secured 503 in his B.A. examination out of 1200 and 406 in his B.Ed. examination out of 900, but the Petitioner was selected as Sikshya Sahayak by continuing as 714 out of 1200 in B.A. and 526 out of 900 in his B.Ed. examination. The Petitioner has also not disputed that cut-off mark of the selection conducted in the year 2003 in UR category was fixed at 55.31%. Since in spite of opportunity and while filing the writ petition as well as the rejoinder the Petitioner has failed to produce the mark-sheet of his B.A. and B.Ed. examination showing he was secured 714 out of 1200 in B.A. and 503 out of 900 in is B.Ed., this Court is of the view that the Petitioner by producing fake B.A. and B.Ed. mark-sheet has managed to be selected and appointed for the year 2003. 8.2. In view of such finding of this Court and since it is the view of this Court that the Petitioner by coming fraud has managed to be selected and appointed, placing reliance on the decision cited by the learned ASC, this Court is not inclined to interfere with the impugned order so passed by the Opp. Party No. 4 on 28.10.2016 under Annexure-13. The decisions relied on by the learned counsel for the Petitioner with regard to promissory estoppel is not maintainable to this Court as it is found that the Petitioner has committed fraud by producing fake mark-sheet of his B.A. and B.Ed. examination. In any Page 17 of 18 // 18 // view of the matter, this Court finds that no illegality or irregularity with the impugned order at Anexure-13 and accordingly, this Court is not inclined to entertain the writ petition and dismiss the same.
9. The writ petition is disposed of accordingly.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 31st of July, 2023/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Jul-2023 11:09:22 Page 18 of 18