Orissa High Court
Pravat Kumar Mishra vs State Of Odisha&Ors. ..... Opposite ... on 16 July, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.346 of 2021
Pravat Kumar Mishra ..... Petitioner
Ms. P. Rath, Sr. Advocate
along with
Ms. S. Gumansingh, Advocate
-versus-
State of Odisha&Ors. ..... Opposite Parties
Mr. B. Mohanty, AGA
Mr. P.K. Mohanty, Sr. Advocate
along with
Ms. K.T. Mudali, Advocate
(Opp. Party No. 3)
CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
16.07.2024 Order No.06
1. This matter is taken up through hybrid mode.
2. Heard Ms. P. Rath, learned Sr. Counsel appearing for the Petitioner along with Ms. S. Gumansingh, Mr. B. Mohanty, learned Addl. Govt. Advocate appearing for the State and Mr. P.K. Mohanty, learned Sr. Counsel appearing for the Opp. Party No. 3 along with Ms. K.T. Mudali.
3. Petitioner has filed the present writ petition inter alia challenging office order dtd.24.12.2020 so passed by Opp. Party No. 2 under Annexure-12, which was so issued basing on the letter issued to the Petitioner on 16.12.2019 under Annexure-10.
4. Learned Sr. Counsel appearing for the Petitioner contended that Petitioner on being found suitable, was appointed as against the post of Programmer-cum-Training Officer, Keonjhar vide order of appointment issued on 06.01.1998 under Annexure-2.
Page 1 of 8.4.1. It is contended that while so continuing Petitioner on being found suitable was adjusted as against the vacant post of System Analyst vide office order dtd.13.03.2006 under Annexure-4. It is contended that the post of System Analyst was subsequently re- designated as Asst. Director, MIS vide office order dtd.08.01.2007 under Annexure-5.
4.2. Learned Sr. Counsel appearing for the Petitioner contended that Petitioner while continuing as against the re-designated post of Asst. Director, MIS in terms of the order of adjustment issued under Annexure-4, he was issued with the impugned letter on 16.12.2019 under Annexure-10 inter alia on the following grounds:-
"With reference to the subject cited above, I am to say that, during verification of your certificates by the Committee, pursuant to OSEPA Memo No 7445 Dt. 27.09.2019. Office Order No 8151 Dt 25 10.2019. No 8582 D1 04.11.2019 & No. 8620 Dt: 05 11:2019 the following dispanties have been found by the Committee.
Although as per qualification laid down under the staff and pay structure of SSA/SIEMAT at St. No. 12 of item No. 09 of the proceeding of 15th Executive Meeting held on 20.01.2004 (Copy enclosed), the requisite qualification for the post of Asst. Director/System Analyst (MIS) is degree in Computer Engineering with Knowledge of Management of Information System, but at the time of verification it was observed by the Committee that you have submitted the certificate of degree in Electrical Engineering from the Institution of Engineering (India), MCA from Naba Bharat Shikshya Parishad, Orissa, PGDCA from Sambalpur University, and also you have simultaneously acquired PGDCA & Electrical Engineering qualification in the year, 1992. Further it is observed by the Committee that no experience Certificate as stipulated in the eligibility criteria for engagement of Programmer-Cum-Training Officer (PTO) w.r.t. your initial engagement has been furnished by you during verification.
It has been observed by the Committee that one Public Notice regarding fake University has been issued vide No. F.7- 3/2012 (AMPC) Dt. 30.06 2016 under the signature of the Page 2 of 8. Secretary UGC, New Delhi, wherein Naba Bharat Shikshya Parishad, Odisha is declared as fake at Sl. No.22 Further, as per the recent data available in the website the aforesaid University is also declared as fake at Sl. No. 21.
Further, you have not submitted any certificate in support of qualification of degree in Computer Engineering required for the post of Asst. Director/ System Analyst (MIS) and 3 years' experience required for the post of Programmer-cum-Training Officer (PTO) against which your initial engagement has been made, but submitted one MCA Certificate from Naba Bharat Shikshya Parishadm Odisha which is declared fake by the University Grants Commission (UGC).
In this connection, you are called upon to explain why disciplinary action as deemed proper will not be taken against you for the aforesaid disparities as per OPEPA Service Rules and Regulations 1996.
Your explanation should reach before the undersigned within 7 days failing which it will be presumed that you have nothing to say in this matter and action as deemed proper will be initiated against you."
4.3. It is contended that Petitioner though gave a detailed reply under Annexure-11, but without proper appreciation of the grounds taken, the impugned order was passed on 24.12.2020 under Annexure-12, whereby Petitioner was relieved from his duties as Asst. Director, MIS and further direction was issued to join in the post of Programmer as against the existing vacancy in the office District Project officer, Mayurbhanj forthwith.
4.4. Learned Sr. Counsel appearing for the Petitioner contended that since Petitioner was appointed as against the post of Programmer- cum-Training Officer in terms of the order issued under Annexure- 2 and he was adjusted as against the post of System Analyst vide order dtd.13.03.2006 under Annexure-4, which was subsequently re-designated as Asst. Director, MIS, Petitioner basing on the impugned letter issued under Annexure-10 could not have been Page 3 of 8. relieved from the said post and with a further direction to join as against the post of Programmer, in which he was never appointed.
4.5. It is further contended that in terms of the resolution issued by the Govt. in the Department of School & Mass Education, Programmer-cum-Training Officer and Programmer are two different posts and if at all the Petitioner was relieved from the post of Asst. Director, MIS, he could have been allowed to continue in his parent post in which he was so appointed vide order under Annexure-2 i.e. as against the post of Programmer-cum-Training Officer. Since the Petitioner was directed to work as against the post of Programmer vide the impugned order, in which he was never appointed, in terms of the said order Petitioner never joined and he is going without employment. It is accordingly contended that considering the nature of appointment issued in favour of the Petitioner vide order under Annexure-2, appropriate order be passed while interfering with the impugned order dt.24.12.2020 under Annexure-12.
4.6. It is also contended that the ground on which Petitioner was relieved from the post of Asst. Director, MIS is not sustainable as the Petitioner by the time he was adjusted as against the post of System Analyst, he was having the requisite qualification to hold the post.
5. Mr. P.K. Mohanty, learned Sr. Counsel appearing for the Opp. Party No. 3 on the other hand made his submission basing on the stand taken in the counter affidavit. Initially Mr. Mohanty, learned Sr. Counsel raised a point with regard to maintainability of the writ petition relying on the provisions contained under Rule 33 of the Odisha Primary Education Programme Authority Service Rules & Page 4 of 8. Regulations, 1996. Placing reliance on the provisions contained under Rule 33, learned Sr. Counsel contended that against the order impugned Petitioner has a right of appeal and the appellate authority is the Vice-President of OSEPA.
6. To the aforesaid submission of Mr. Mohanty, learned Sr. Counsel, Ms. Rath, learned Sr. Counsel appearing for the Petitioner contended that such an appeal will lie against an order passed under Rule 28 or Rule 32 of the Rules. Since the impugned order has not been passed in terms of the provisions contained under Rule 28 or Rule 32, Petitioner has rightly approached this Court instead of availing the alternate remedy.
7. Mr. Mohanty, learned Sr. Counsel appearing for the Opp. Parties made further submission by submitting that even though Petitioner vide order under Annexure-2 was appointed as against the post of Programmer-cum-Training Officer, but he was adjusted as against the post of System Analyst vide order under Annexure-4. It is also not disputed that post of System Analyst was subsequently re- designated as Asst. Director, MIS vide office order dtd.08.01.2007 under Annexure-5.
7.1. It is however contended that during continuance of the Petitioner as against the post of Asst. Director, MIS, an allegation was made that the Petitioner does not have the requisite qualification to hold the post. Petitioner was issued with the show- cause on 16.12.2019 under Annexure-10. Opp. Party No. 2 after due consideration of the grounds taken in the reply so submitted by the Petitioner under Annexure-11 came to a definite finding that Petitioner does not have the qualification to hold the post of Asst. Director, MIS. Accordingly, while relieving him from the said post, Page 5 of 8. he was directed to join as against the post of Programmer vide office order dtd.24.12.2020 under Annexure-12.
7.2. It is also contended that the certificate, which was produced by the Petitioner at the time of his adjustment as against the post of System Analyst so issued by Naba Bharat Sikhya Bharat Parishad, Rourkela is not recognized by UGC and the Institute was held not empowered to confer any degree. It is accordingly contended that Petitioner was rightly relieved from the post of Asst. Director, MIS and with a further direction to join as against the post of Programmer vide impugned order dtd.24.12.2020 under Annexure-
12.
8. To the submission made by the learned Sr. Counsel appearing for the Opp. Party No. 3 with regard to certificate obtained by the Petitioner from Naba Bharat Sikhya Bharat Parishad, Rourkela, learned Sr. Counsel appearing for the Petitioner contended that in terms of the guideline issued by the DOPT under Annexure-11, Petitioner was having the requisite qualification of Bachelors' degree in Engineering from a recognized University even if the qualification of MCA, so obtained from Naba Bharat Skhya Bharat Parishad is held bad, Petitioner is otherwise eligible to continue in the post of Asst. Director, MIS. It is accordingly contended that since Petitioner in terms of the guideline issued by the DOPT was having the requisite qualification, there was no occasion to relieve him from the post of Asst. Director, MIS with passing of the impugned order in question.
8.1. It is also contended that in terms of the provisions contained in the memorandum of association available at Annexure-14, since Petitioner was having the requisite qualification to hold the post of Page 6 of 8. Asst. Director, MIS, taking into account the fact that the certificate issued in his favour with regard to acquiring the qualification of MCA from Naba Bharat Sikhya Bharat Parishad could not have been taken as a ground to relieve the Petitioner from the post of Asst. Director, MIS.
9. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner on being duly selected was appointed as against the post of Programmer-cum-Training Officer vide order of appointment issued on 06.01.1998 under Annexure-2. Petitioner while so continuing he was adjusted as against the post of System Analyst vide office order dtd.13.03.2006 under Annexure-4 and the said post was re-designated as Asst. Director, MIS vide office order dtd.08.01.2007 under Annexure-5.
9.1. It is found from the record that Petitioner while continuing as against the post of Asst. Director, MIS, he was issued with the show-cause on 16.12.2009 on the ground that the certificate produced by him in support of his acquiring the qualification of MCA from that Naba Bharat Sikhya Bharat Parishad is a fake one. It is also found that Petitioner though gave a detailed reply and relied on the guideline issued by the DOPT so indicated hereinabove and the memorandum issued by the Opp. Parties under Annexure-14, but Opp. Party No. 2 while relieving him from the post of Asst. Director, MIS allowed him to join as against the post of Programmer against the existing vacancy.
9.2. It is the view of this Court that Petitioner since was originally appointed as against the post of Programmer-cum-Training Officer vide order of appointment issued under Annexure-2 and Page 7 of 8. subsequently was adjusted as against the post of System Analyst, which was re-designated as Asst. Director, MIS, it confers no right on the Petitioner to hold the post of Asst. Director, MIS as he was never appointed as against the said post by facing due recruitment process.
9.3. Therefore, as per the considered view of this Court Petitioner has got no right with regard to his continuance as against the post of Asst. Director, MIS. Since the Petitioner was originally appointed as against the post of Programmer-cum-Training Officer vide order issued under Annexure-2, it is also the view of this Court that while relieving the Petitioner from the post of Asst. Director, MIS vide impugned order dtd.24.12.2012, he could not have been directed to join as against the post of Programmer, which is completely a different post. Therefore, while quashing that part of the order, wherein Petitioner was directed to join as against the post of Programmer in the impugned order dtd.24.12.2020 under Annexure-12, this Court directs Opp. Party No. 2 to allow the Petitioner to continue as against his original post of Programmer- cum-Training Officer, Keonjhar or any vacancy available in any other district. Such a fresh order be passed within a period of two (2) weeks from the date of receipt of this order. Learned Sr. Counsel appearing for the Opp. Party is directed to intimate this order to Opp. Party No. 2 to do the needful.
10. With the aforesaid observation and direction, the writ petition is disposed of.
Signature Not Verified (BIRAJA PRASANNA SATAPATHY) Digitally SignedSigned by: SNEHANJALI PARIDA Judge Reason: Authentication Sneha Location: High Court of Orissa, Cuttack Date: 19-Jul-2024 19:05:44 Page 8 of 8.