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2014 DIGILAW 165 (ORI)

SRI PIUSA KANTA PATRA v. STATE OF ODISHA

2014-03-11

B.N.MAHAPATRA, I.MAHANTY

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JUDGMENT : B.N. Mahapatra, J. - This writ petition has been filed with a prayer for quashing the order No. 3972/PH-OA-06/09 dated 20.10.2009 (Annexure-10) by which opposite party No. 2-Director of Health Services, Orissa cancelled the promotional order No. 6865 dated 06.12.2008 issued in favour of the petitioner and further directed recovery of excess payment, if any, made by way of enhanced salary in trained post as well as order dated 12.11.2009 (Annexure-14) passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 2714(C)/09 declining to interfere with the order passed under Annexure-10. 2. Petitioner's case in a nut-shell is that on 01.01.1983, initially the petitioner was appointed against the post of Field Worker in the office of the CDMO, Balasore. In the year 1985, he was directed to undergo MPHW (male) training for a period of eight weeks in two phases. After training his scale of pay was revised from time to time under ORSP Rules, 1989, 1996 and 2008. In 2007, the petitioner was assigned duties to collect the Blood Samples along with other MPHW (M). On 06.12.2008, the petitioner joined in the promotional post with an undertaking to submit the MPHW (M) Training Certificate within one month. In 2009, he approached opposite party No. 4 to provide the Training Certificate, but opposite party no. 4 expressed his inability to provide the same. Thereafter, the petitioner approached the learned Tribunal in O.A. No. 680(C) of 2009 praying for a direction to the concerned authority to issue the training certificate. By order dated 02.04.2009, the said O.A. was disposed of with a direction to opposite party No. 2 to verify and if the petitioner had undergone training, then relevant certificate be issued within a period of one month. Opposite party No. 2 instead of complying with the aforesaid order of the Tribunal, by order dated 20.10.2009, cancelled the promotion order dated 06.12.2008 with a direction for recovery of excess payment, if any, made to the petitioner in the promotional post in 48 equal monthly instalments. Challenging the said order, the petitioner approached the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 2714 (C) of 2009, which was dismissed by order dated 12.11.2009. Hence, the present writ petition. 3. Mr. N. Lenka, learned counsel appearing for the petitioner submitted that in the service book of the petitioner, it was clearly mentioned that on 23.12.2008 (U/A 11) Dr. Hence, the present writ petition. 3. Mr. N. Lenka, learned counsel appearing for the petitioner submitted that in the service book of the petitioner, it was clearly mentioned that on 23.12.2008 (U/A 11) Dr. B.K. Das, the M.O. I/c, CHC, Jaleswarpur issued a certificate stating therein that the petitioner be treated as trained MPHW (male) as per Fifth Schedule of ORSP Rules, 1985, which was duly signed by the CDMO, Balasore. The petitioner had undergone the training of MPHW (male) in the year 1985. In 2008, gradation list of MPHW (M) was published, where it has been mentioned that the petitioner had undergone the said training. On 20.12.2008, the petitioner was posted at CHC, Hatigarh as MPHS (M) in the district of Balasore. Concluding his argument Mr. Lenka submitted to allow the writ petition. 4. Learned Additional Government Advocate for the State-opposite parties submitted that the action taken by opposite party Nos. 1 and 2 are justified and in consonance with the provisions of law. The petitioner has never been selected to undergo MPHW training for a period of eight weeks in two phases in the year 1985. There is no sufficient documentary proof in support of his training. In the pay fixation statement, a line has been incorporated, i.e., to be designated as trained MPHW (M), which does not mean that the applicant has undergone MPHW (M) training for a period of eight weeks and is a trained MPHW (M). If the applicant could have undergone such training, the same would have been specifically mentioned in his Service Book that he is a trained MPHW (M) like others, who have undergone such training. Therefore, the order issued by the M.O., I/c, CHC, Jaleswarpur is wrong and unauthorized. The duties of MPHW (M) are to collect blood samples from the persons suffering from fevers and to distribute the medicines to the patients, which the applicant cannot do without training. Pursuant to the direction of the learned Tribunal vide order dated 02.04.2009 passed in O.A. No. 680(C)/2009, enquiry was conducted and it was found that the petitioner had not undergone eight weeks training in MPHW(M) course. The petitioner was given a last chance before cancellation of his promotion order asking him to submit MPHW (M) training certificate within 15 days, which he failed to produce. Therefore, the promotion order of the petitioner was cancelled. The petitioner was given a last chance before cancellation of his promotion order asking him to submit MPHW (M) training certificate within 15 days, which he failed to produce. Therefore, the promotion order of the petitioner was cancelled. The gradation list of MPHW (M) in which the name of the petitioner appears at Sl. No. 417 was prepared by the CDMO, Balasore which was a provisional one and the name of the applicant was mentioned as "Ex-PMW-trained" basing on which the promotion of the petitioner was considered to the post of MPHS(M) subject to production of relevant certificate/document before the concerned authority. Due to non-production of any such authenticated training certificate/document, promotion given to the petitioner was cancelled. 5. On the rival contentions of the parties, the only question arises for consideration by this Court is whether the Tribunal is justified in not interfering with the impugned order of cancellation of petitioner's promotion and directing for recovery of excess payment already made by way of enhanced salary in the trained post by upholding the order dated 20.10.2009 under Annexure-10 of the Director of Health Services, Orissa. 6. It is not in dispute that the petitioner despite availing several opportunities has failed to produce any training certificate/document before the concerned authority. Moreover, pursuant to direction of the Tribunal given in O.A. No. 680(C)/2009 on 02.04.2009, the CDMO, Balasore was requested vide Directorate letter No. 1905 dated 15.05.2009 to furnish original Service Book of the petitioner for verification of the authenticity of the entry made with regard to completion of such training by him. Simultaneously, the M.O. I/c, CHC, Jaleswarpur and Hatigarh were also requested to verify the authenticity of the training certificate. On verification of the record, it was found that the petitioner is untrained and has not completed MPHW (M) course. On receipt of the original Service Book of the applicant from CDMO, Balasore, the authenticity of the training completion certificate was verified and it was found that no such entry has been made showing that the applicant has undergone/completed eight weeks MPHW (M) training. Besides, the M.O. I/c, CHC, Jaleswarpur vide his letter No. 386 dated 14.05.2009 stated that the applicant has not availed MPHW (M) training as it was found on being verified from his service book and no such documents with regard to his training is available. Besides, the M.O. I/c, CHC, Jaleswarpur vide his letter No. 386 dated 14.05.2009 stated that the applicant has not availed MPHW (M) training as it was found on being verified from his service book and no such documents with regard to his training is available. Before us, the petitioner also could not be able to produce any document to show that he has been selected to undergo MPHW training for a period of eight weeks in two phases at any point of time. He also could not produce any document/certificate in support of his claim that he had undergone MPHW (M) training for a period of eight weeks, except the certificate issued by Dr. Bijay Kentan Dash, M.O. I/c, CHC, Balasore to the effect that the petitioner be treated as trained MPHW (M). 7. In view of the above, we are of the considered view that the Tribunal has rightly not interfered with the impugned order passed under Annexure-10 cancelling the promotion order of the petitioner, which was based on wrong certificate. 8. Now, the question arises for consideration is whether the Tribunal is justified in upholding the direction of the opposite party No. 2 to recover excess payment made to the petitioner by way of enhanced salary in the trained post. 9. Vide order dated 02.11.2007 of the M.O. I/c, CHC, Balasore (Annexure-2), the petitioner was directed to collect blood samples from fever cases and distribute medicine to them. Under Annexure-3, he has been promoted to the post of MPHS(M) for a period of one year in the pay scale of Rs. 4000-100-6000/- as per the recommendation of the DPC without prejudice to the claim of others in the cadres w.e.f. the date of their joining in the promotional post. In the service book, it was mentioned that on 23.12.2008 Dr. Bijay Ketan Dash, M.O. I/c, CHC, Jaleswarpur issued a certificate stating therein that the petitioner be treated as trained MPHW (M), which was duly signed by the concerned CDMO. Now at a belated stage a stand is taken by opposite parties that the petitioner has not undergone MPHW (M) training for a period of eight weeks. This shows that there is lot of confusion because of negligent and carelessness of the officers of the concerned Department. Now at a belated stage a stand is taken by opposite parties that the petitioner has not undergone MPHW (M) training for a period of eight weeks. This shows that there is lot of confusion because of negligent and carelessness of the officers of the concerned Department. It is not denied by the opposite parties that the petitioner had been working in the promotional post till the order of promotion was cancelled and there was no allegation/complaint regarding his performance in the promotional post. 10. Considering the facts and circumstances of the case, while upholding the impugned order of cancellation of the promotion of the petitioner, we quash the order for recovery of the excess amount paid to the petitioner in the promotional post. 11. In view of the above, order No. 3972 dated 20.10.2009 (Annexure-10) passed by opposite party No. 2-Director of Health Services, Orissa and order dated 12.11.2009 (Annexure-14) passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 2714(C)/09 are partly modified as indicated above. 12. In the result, the writ petition is allowed in part. Final Result : Partly Allowed