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2023 DIGILAW 201 (ORI)

Arati Choudhury v. State of Odisha

2023-11-07

B.R.SARANGI, MURAHARI SRI RAMAN

body2023
JUDGMENT 1. Dr. B.R. Sarangi, ACJ. The petitioner, who was the applicant in O.A. No. 1552 of 1991 before the Orissa Administrative Tribunal, Bhubaneswar, has filed this writ petition challenging the order dated 04.05.2012 passed by the Tribunal in the said Original Application. 2. The fact leading to the approach this Court, in a nutshell, is that the petitioner, after passing her graduation, had registered her name with the employment exchange. An advertisement was floated by the Board of Revenue to fill up the posts of Junior Assistant. As the petitioner was fulfilling the eligibility criteria fixed in the advertisement, applied for the said recruitment and was allotted with Roll Number-1100874. Name of the petitioner was sponsored by opposite party no.3 to the Deputy Director Marketing and Ex-Officio Under Secretary to Government, Industries Department on 09.08.1991 for being appointed as a Junior Assistant, pursuant to the requisition made by opposite party No.2, and it was further pointed out that the order of appointment may be issued in favour of the petitioner as per the address given. Accordingly, on 22.08.1991, the petitioner was issued with an order of appointment as Junior Assistant in the establishment of opposite party no.2 in the scale of pay of Rs. 950-1500/- with usual DA as admissible from time to time. Pursuant to the said order of appointment, the petitioner joined on 26.08.1991. While the petitioner was discharging her duties, opposite party no.4 wrote a letter on 09.10.1991 to opposite party no.2 in pointing out that the name of the petitioner was erroneously sponsored for the post of Junior Assistant and in the said letter a request was made to terminate the services of the petitioner as per the terms and conditions of her appointment and on receipt of the confirmation about the termination of the services of the petitioner, steps would be taken to sponsor suitable candidate. 2.1. 2.1. Aggrieved by such action of the opposite parties, petitioner approached the Orissa Administrative Tribunal, Bhubaneswar by filing O.A. No. 1552 of 1991, in which it was pointed out that the opposite parties are estopped under law, by virtue of their own conduct, as the petitioner, pursuant to the advertisement, had applied for the post of Junior Assistant and appeared at the written test, her name being sponsored by opposite party no.3, she was issued with an order of appointment and, as such, petitioner cannot be held responsible for the alleged omission on the part of the opposite parties. After joining the post of Junior Assistant, a right was accrued in her favour to hold the post and, as such, she cannot be terminated without following the principles of natural justice. More so, it was pointed out that the action of the opposite parties in terminating the services of the petitioner is in violation of Articles 14, 16 & 311 of the Constitution of India. 2.2. The Tribunal, while admitting the Original Application, granted stay of the order dated 09.10.1991, by which a request was made to terminate the services of the petitioner as per the terms and conditions of her appointment. Pursuant to the notices issued by the Tribunal, the opposite parties filed their reply, in which it was pointed out that the petitioner was not at all selected and, as such, her name was not included in the select list prepared by the Selection Committee and, as such, the sponsoring of the name of the petitioner was erroneous. The then Director of Examinations of the Board of Revenue, who was the instrumentality in sponsoring the name of the petitioner, was placed under suspension and a proceeding was also initiated against him. Like the petitioner, three more persons, who were issued with the order of appointment pursuant to their names, being sponsored by opposite party No.3, had approached the Tribunal challenging the proposed action of the opposite parties in terminating their services at the dictate of opposite party No.4, who had made similar request to their appointing authorities citing the identical reason, i.e. their names were erroneously sponsored. 2.3. 2.3. In one of such application filed by one Jaganath Satpathy (O.A. No. 1548 of 1991), a Miscellaneous Petition was filed to call for the records of the selection and the Tribunal, vide order dated 16.01.1992, directed to the following effect:- 'Under the circumstances, since the controversy relates to the determination of a question of fact we would like to see the relevant file relating, to competitive examination held on 21- 10-90. The select list and other documents, if any, including the answer paper of the petitioner to enable us to arrive at a correct conclusion. Let this case be listed on 17-02-92 for further hearing. Government Advocate do tile the documents as indicated above, with a list after serving a copy of the list on the petitioners or his counsel.' 2.4. O.A. No. 1603 of 1991 was filed by one Pradeep Kumar Nayak, challenging the proposed action of the authorities in terminating his services on the ground that his name was erroneously sponsored by opposite party no.3, was taken up for hearing on 30.09.1993 and the Tribunal quashed the order of termination on the ground that the same was in violation or the rules of natural justice. 2.5. In this background, the application filed by the petitioner was taken up for hearing on 29.10.1998, along with one filed by Jagannath Satpathy, and by order dated 11.03.1999 all the applications filed by different candidates, including that of the petitioner, were dismissed. All the petitioners during the course of argument pointed out that they, being similarly placed like that of Sri Pradeep Kumar Nayak, they are entitled to the same relief as has been granted in favour of Sri Nayak. But the said point was not considered by the Tribunal, while dismissing the application filed by the petitioner. Even though the Tribunal had called for the file relating to the selection to be produced before it at the time of hearing, when that file was not produced, the Tribunal, instead of asking the Government Advocate to produce the said file, went on to dismiss the application. 2.6. The petitioner had approached this Court by filing OJC No. 4220 of 1999 challenging the order of the Tribunal dated 11.03.1999, by which her application was dismissed by the Tribunal. 2.6. The petitioner had approached this Court by filing OJC No. 4220 of 1999 challenging the order of the Tribunal dated 11.03.1999, by which her application was dismissed by the Tribunal. This Court, vide order dated 13.01.2010, disposed of the said writ petition by passing the following order:- 'Considering the submissions made by the learned counsel for the parties and without expressing any opinion on the merits or the case, the impugned order is set aside and the matter is remitted back to the learned Tribunal for fresh disposal alter giving opportunity of hearing to the parties. The respondent-opposite parties are directed to produce the relevant records/ documents for perusal of the learned Tribunal. It is open for the petitioners to raise all such pleas available to them in law, including the plea regarding the earlier decision of the learned Tribunal dated 30-09-2003 passed in a similar case i.e. O.A. 1503 of 1991, which shall be considered by the learned Tribunal on its own merit and in accordance with law." 2.7. This Court further directed that the services of the petitioner shall not be terminated till the disposal of the matter by the Tribunal. In compliance to the direction issued by this Court, the petitioner appeared through her counsel on 22.01.2010. Thereafter, on 03.03.2010, when the matter was taken up, the Tribunal, taking note of the order passed by this Court, was pleased to direct the Standing Counsel to produce the file and at the same time directed the Registry to list the O.A. No. 1603 of 1991 filed by Pradeep Kumar Nayak, but the same was not produced by the Standing Counsel till the last date of hearing and only the approved select list prepared by the selection committee was produced. In absence of the selection file, the matter was finally heard on 15.02.2012, on which date, after hearing the parties, the Tribunal formulated two points for consideration, i.e. (a) whether in fact the applicants have been selected; (b) if they have not been selected, but got appointed as Junior Assistant, in the facts and circumstances were they required to be given a chance of hearing before termination of their services? Though selection file was not produced, but the Tribunal at last opined that the approved merit list is sufficient to decide the matter and went on to decide the matter and vide common order dated 04.05.2012 dismissed O.A. No. 1548 of 1991 (filed by Jagannath Satpathy), O.A. No. 1552 of 1991 (filed by the writ petitioner) and O.A. No. 8 of 1992 (filed by Prahallad Parida). Hence, this writ petition. 3. Mr. S.K. Dash, learned counsel appearing for the petitioner vehemently contended that though this Court, vide order dated 13.01.2010, while disposing of OJC No. 4220 of 1999, directed the opposite party-authorities to produce the relevant files and took note of the earlier order passed by it in O.A. No. 1603 of 1991 (filed by Pradeep Kumar Nayak), who stands on the same footing as that of the petitioner, as he challenged the order of termination passed at the behest of opposite party no.4, who directed the appointing authority to terminate his service as his name was erroneously sponsored, but the same was not taken into consideration by the Tribunal, while passing the order impugned. Therefore, the order passed by the Tribunal in O.A. No. 1603 of 1991 (filed by Pradeep Kumar Nayak) has got a precedenctiary value and has to be applied to the present case. It has been further contended that the Tribunal relied upon the judgment of the apex Court in the case of Regional Manager, Central Bank of India v. Madhulika Guruprasad Dahir, (2009) 1 SCC (L&S) and in the case of Arunima Baruah v. Union of India, AISLJ- 2008 (1) SC 80 and Indian Bank v. Satyam Fibers, AIR 1996 SC 2590 to come to a finding that the petitioner obtained the appointment order fraudulently, but those decisions cannot have any application to the present case and those cases are distinguishable to the present facts of the case itself. He further contended that the termination having been done without following the principle of natural justice, the same cannot be sustained. Without appreciating the same, the Tribunal dismissed the Original Application which is the outcome of non-application of mind. According to him, the applicant in O.A. No. 8891 of 2012, i.e., Jagannath Satapathy had also approached this Court challenging the very common order dated 04.05.2012 passed by the Tribunal by filing W.P.(C) No. 8891 of 2012. Without appreciating the same, the Tribunal dismissed the Original Application which is the outcome of non-application of mind. According to him, the applicant in O.A. No. 8891 of 2012, i.e., Jagannath Satapathy had also approached this Court challenging the very common order dated 04.05.2012 passed by the Tribunal by filing W.P.(C) No. 8891 of 2012. The said writ petition was disposed of, vide order dated 23.02.2022, by observing that 'In view of the above submission, since the petitioner has already retired from service on attaining the age of superannuation and till then he was discharging his duty on being protected by the interim orders passed by the tribunal as well as by this Court, nothing remains to be adjudicated as against him.Thus, this Court, without expressing any opinion with regard to the legality and propriety of the order passed by the tribunal, disposes of the writ petition directing the opposite parties to extend the benefits, as due and admissible to the petitioner, after his retirement. To substantiate his contention, reliance has been placed on the cases of Vikas Pratap Singh v. State of Chhattisgarh, (2013) 14 SCC 494 and Anmol Kumar Tiwari v State of Jharkhand, (2021) 5 SCC 424 . 4. Mr. A.R. Dash, learned Addl. Government Advocate appearing for the State opposite parties vehemently contended that though the name of the petitioner was not found place in the select list, but she obtained fraudulent order of sponsoring her name and basing on such order, she was appointed. Therefore, her appointment is illegal and arbitrary. Further, the person, who had issued the order of appointment, i.e., the then Director, Board of Examinations has been proceeded against for misconduct of issuance of the fraudulent letters of sponsoring the name of the petitioner and others. Therefore, the petitioner cannot be allowed to continue in the post. As a consequence thereof, he seeks for dismissal of the writ petition filed by the petitioner. The Tribunal, vide order dated 04.05.2012, has observed that the applicants having entered into service basing on fraudulent and manufactured letters and their entries having been made on deceitful means, they have committed perjury and their hands are not clean. Therefore, the order passed by the Tribunal is well justified and does not require interference at this stage. 5. This Court, vide order dated 03.07.2023, directed the State Counsel to file an affidavit. Therefore, the order passed by the Tribunal is well justified and does not require interference at this stage. 5. This Court, vide order dated 03.07.2023, directed the State Counsel to file an affidavit. In compliance thereof, an affidavit has also been filed on 05.09.2023 by the opposite party no.2, where he has reiterated the same fact that soon after receipt of communication in letter no. 1235/exam dated 09.10.1991 of the Board of Revenue, Cuttack, the petitioner was terminated with immediate effect on 10.10.1991. Against which order, the petitioner approached the Tribunal and the Tribunal, vide order dated 11.10.1991, directed to withdraw the termination order and allow the petitioner to join in duty. The Tribunal, however, vide order dated 11.03.1999, vacated the previous order regarding not to terminate the services of the petitioner. Challenging the order, the petitioner filed OJC No. 4220 of 1999 before this Court and this Court passed an interim order on 08.04.1999 that the services of the petitioner shall not be terminated. Ultimately, this Court disposed of the writ petition by remanding the matter to the Tribunal to dispose the case at their level. Thereafter, the Tribunal dismissed O.A. No. 1552 of 1991, being devoid of merit, on 04.05.2012, against which the present writ petition has been filed. It is contended that since the petitioner was appointed by fraudulent means, she cannot claim equity to get the benefit of continuation in service. Accordingly, prayed for dismissal of the writ petition. 6. This Court heard Mr. S.K. Dash, learned counsel appearing for the petitioner and Mr. A.R. Dash, learned Addl. Government Advocate appearing for State opposite parties by hybrid mode, and perused the record. Pleadings have been exchanged between the parties and with their consent, the writ petition is being disposed of finally at the stage of admission. 7. The facts narrated above are not in dispute. The only stand taken by the opposite parties is that the petitioner, having been appointed as a Junior Assistant by virtue of a fraudulent appointment order and the same having been detected subsequently, the order of termination was issued and, thereby, no illegality or irregularity has been committed by the authority in terminating the services of the petitioner. The only stand taken by the opposite parties is that the petitioner, having been appointed as a Junior Assistant by virtue of a fraudulent appointment order and the same having been detected subsequently, the order of termination was issued and, thereby, no illegality or irregularity has been committed by the authority in terminating the services of the petitioner. But fact remains, nothing has been indicated in the order of termination that any fraud was played by the petitioner, rather, the admitted case of the opposite parties is that the then Director, Board of Examinations, who was in the helm of affairs for issuance of the letter, had issued the letter of appointment to the petitioner to join in the post and the same was worked out. It is also the admitted case that pursuant to the advertisement issued, the petitioner appeared in the selection test, basing upon which the order of appointment was issued and the same was worked out by joining the post. Consequentially, a right was accrued in favour of the petitioner. But, subsequently, at the behest of opposite party no.4 action was taken and services of the petitioner were terminated. Needless to say, such order of termination was issued without giving opportunity of hearing or without complying with the principle of natural justice. This fact has not been denied by the opposite parties expressly in their counter affidavit. 8. On the other hand, one similarly situated person, namely, Pradeep Kumar Nayak had approached the Tribunal by filing O.A. No. 1603 of 1991 challenging his order of termination. The said order of termination was quashed by the Tribunal, vide order dated 30.09.2003. As such, there is no denial of such fact. The petitioner stands in the same footing, inasmuch as, without complying with the principles of natural justice she having been terminated from service had approached the Tribunal. Though a specific stand was taken by the petitioner that in case of a similarly situated person the order of termination has already been quashed because of non-compliance of the principle of natural justice and the said benefit should have been extended in her favour in O.A. No. 1552 of 1991, but the same was not adhered to. It is also the admitted fact that three Original Applications were heard together. It is also the admitted fact that three Original Applications were heard together. The petitioners in the said three Original Applications stand in the same footing with that of the applicant in O.A. No. 1603 of 1991, in which the order of termination was quashed by the Tribunal vide order dated 30.09.2003. Even though such fact was brought to the notice of the Tribunal, the same was not taken note of and mechanically the order of termination issued by the authority was confirmed by dismissing the Original Application filed by the petitioner taking a view that fraudulently the petitioner was appointed and, therefore, the termination order was well justified. But fact remains, nothing has been placed on record to indicate that the petitioner has played fraud to get the appointment. Therefore, nothing can be attributable to the petitioner so far as issuance of the appointment letter in her favour is concerned. Once such attribution is not available against the petitioner, the action so taken against the petitioner cannot have any justification. 9. No doubt, the power has been vested with the authority to take action against its employees in the event any error is committed by him/her, but nothing is made available on record to show that any error has been committed by the petitioner so as to take action against her. But fact remains, if the petitioner was appointed by issuance of a valid appointment letter, it cannot be construed to be fraudulent appointment letter and even if the opposite parties have taken action against the authority who has issued such letter and the petitioner may be the beneficiary thereof, but that cannot ipso facto be said that the appointment was made fraudulently at the instance of the petitioner. If fraud has not been established against the petitioner, merely because he was appointed, may be erroneously, but that itself cannot call for termination of service of the petitioner. At best it can be construed that the appointment made to the petitioner may be improper, but it cannot be construed that any fraud has been played by the petitioner to get such appointment. 10. In Vikas Pratap Singh (supra), referring to the decision rendered in the case of Buddhi Nath Chaudhary and others v. Akhil Kumar and others, (2001) 2 SCR 18 , the apex Court at paragraphs-24 and 25 of the judgment stated as follows:- '24. 10. In Vikas Pratap Singh (supra), referring to the decision rendered in the case of Buddhi Nath Chaudhary and others v. Akhil Kumar and others, (2001) 2 SCR 18 , the apex Court at paragraphs-24 and 25 of the judgment stated as follows:- '24. In Buddhi Nath Chaudhary and Ors. v. Akhil Kumar and Ors., (2001) 2 SCR 18 , even though the appointments were held to be improper, this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained experience and observed: "We have extended equitable considerations to such selected candidates who have worked on the posts for a long period." (See: M.S. Mudhol (Dr.) and Anr. v. S.D. Halegkar and Ors., (1993) II LLJ 1159 SC and Tridip Kumar Dingal and Ors. v. State of West Bengal and Ors., (2009) 1 SCC 768 ) 25. Admittedly, in the instant case the error committed by the respondent-Board in the matter of evaluation of the answer scripts could not be attributed to the appellants as they have neither been found to have committed any fraud or misrepresentation in being appointed qua the first merit list nor has the preparation of the erroneous model answer key or the specious result contributed to them. Had the contrary been the case, it would have justified their ouster upon re-evaluation and deprived them of any sympathy from this Court irrespective of their length of service.' 11. In Anmol Kumar Tiwari (supra), the apex Court observed that the writ petitioners were not responsible for the irregularities committed by the authorities in preparation of the select list. Moreover, the writ petitioners were appointed after completion of training and worked for some time. Therefore, the High Court was of the opinion that the writ petitioners ought to be considered for reinstatement without affecting the rights of other candidates, who have already been selected. In the said decision, the apex Court had taken note of the judgment in the case of Vikas Pratap Singh (supra), where the apex Court had opined that the appellants therein were appointed due to an error committed by the respondents in the matter of valuation of answer scripts. As there was no allegation of fraud or misrepresentation committed by the appellants therein, the termination of their services was set aside as it would adversely affect their career. As there was no allegation of fraud or misrepresentation committed by the appellants therein, the termination of their services was set aside as it would adversely affect their career. The appellants therein had successfully undergone training and were serving the State for more than 3 years was another reason that was given by the apex Court for setting aside the orders passed by the High Court. Therefore, the present petitioners, having stood on the same footing with the appellants in Vikas Pratap Singh (supra), are to be extended with the same benefit. 12. The ratios decided by the apex Court, as mentioned above, in Vikas Pratap Singh and Anmol Kumar Tiwari (supra), are fully applicable to the present case. Apart from the same, if a similarly situated person namely, Pradeep Kumar Nayak, the applicant in O.A. No. 1603 of 1991, has been allowed to continue and another person, namely, Jagannath Satapathy, who was the petitioner in W.P.(C) No. 8891 of 2012, which was preferred against the common order dated 04.05.2012 passed in O.A. No. 1548 of 1991 and batch, was allowed to continue and retired from service on attaining the age of superannuation, the petitioner cannot be discriminated. 13. In view of the above, the order dated 04.05.2012 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No. 1548 of 1991, out of which this writ petition arises, cannot be sustained in the eye of law and is liable to be quashed and is hereby quashed. Accordingly, the petitioner is entitled to get all the benefits as due and admissible to her including grant of revised scale of pay, increments and other service benefits, as due and admissible to her in accordance with law. 14. Thus, the writ petition is allowed. However, there shall be no order as to costs.