"Affected The Right To Livelihood Of The Petitioner U/A 21": Orissa HC Reinstates A Physically Handicapped Teacher Who Was Removed After Appointment

"It must be kept in mind that the State is supposed to be a model employer and as such, cannot be allowed to take actions that are arbitrary and not countenanced in law. In the instant case, the Opposite Party-authorities are guilty of approbation and reprobation, i.e. of blowing hot and cold at the same in the manner as described above thereby adversely affecting the right to livelihood of the Petitioner included under Article 21 of the Constitution of India."

Factual Background:

The Petitioner was appointed as a TGT (CBZ) Contract Teacher under Physically Handicapped (PH) category on 11th June, 2015 pursuant to an advertisement issued on 27th October, 2014 followed by a corrigendum dated 6th January, 2015. He submitted a disability certificate issued by the Medical Board of Balasore indicating 45% disability in hearing. He was called upon to execute an agreement on 9th June, 2015 and thereafter engagement order being issued, he joined in the post on 12th June, 2015 by submitting his joining report.

Subsequently, the Commissioner-cum-Secretary, School and Mass Education Department, State of Odisha (Opposite Party No.1) issued a letter to all the District Education Officers directing them to disengage all the Contract Teachers who were appointed on or after 11th June, 2015 and in the process, the petitioner was disengaged.

On 19th March 2016, the Opposite Party-authorities drew a corrigendum to the select list of candidates of PH category by deleting the name of the Petitioner. It was stated that the petitioner's name was deleted in the subsequent merit list on the ground that he had less than 20% disability which was placed on a report of the Appellate Medical Board which was held much after his selection in the year 2015.

As regards the PH certificate submitted by the petitioner, it is stated that the same was issued in the year 2009 and, therefore, there were doubts regarding its propriety/legality. On further examination by the Appellate Board i.e. by the S.C.B. Medical College and Hospital, Cuttack, it was found that the petitioner is disabled only to the extent of 1% hearing impaired and, therefore, he could not be considered for engagement under the PH category.

Thus, challenging the action of the authorities in disengaging him, the Petitioner prayed for quashment of the corrigendum to the merit list dated 19th March, 2016 and for a direction to consider his candidature by issuing engagement order.

Contention of the Petitioner:

Mr. S.S. Mohapatra, advocate for the petitioner submitted that the disability certificate issued by the competent authority has never been proved to be fake or invalid. Again, accepting such certificate, he was engaged. Since the certificate was valid there was no occasion for the authority to send him for further examination by the Appellate Board.

In any event, according to the findings of the Appellate Board conducted more than six years after issuance of the PH certificate submitted by the petitioner cannot be treated as valid more so, when the same has not been issued by the Appellate Board but under the seal and signature of the Professor and HOD of the ENT Department.

Contentions of the Respondents:

Mr. R.N. Acharya, Additional Standing Counsel submitted that as per the recruitment procedure of teaching staff in Government Secondary Schools, the case of the PH candidates is required to be referred to Appellate Medical Board constituted by the W and C.D. Department for re-examination. Engagement orders are issued only if such candidates are found genuine by the Board.

In the instant case, the Petitioner was referred to the Appellate Medical Board wherein his disability was found to be only 1%, which was grossly at variance from the percentage indicated in the disability certificate submitted by him at the time of his engagement. It is thus evident that the Petitioner was not physically disabled so as to be considered for engagement under the PH quota.

Observations of the Court:

The Court doubted that when the disability certificate issued by the District Medical Board, Balasore cannot in any manner be treated as fake or invalid, can a subsequent report render the same a nullity or invalid. The Court made a reference to Clause (1)(e) of the recruitment procedure, which provided that engagement order shall be issued if such candidates are found genuine by the Board. In the instant case, the Petitioner submitted his certificates including the disability certificate, which was not only accepted but also, he was issued with engagement order. Further, he joined in the post and worked for some months.

Thus, it was observed that if the authority had any doubt as regards the authenticity or correctness of the disability certificate submitted by the Petitioner, then taking recourse to the provision under Clause (1)(e) of the recruitment procedure they could have referred him to the Appellate Medical Board and thereafter issued engagement order basing on the report of such board.

However, once the authority had itself accepted the disability certificate submitted by the Petitioner and issued engagement letter in his favour, they cannot turn around at a later stage and raise questions with regard to the extent of disability of the Petitioner and disengage him on such score, more so when there is simply no material or reason to even remotely suggest that the disability certificate submitted by the petitioner was a fake or otherwise invalid.

The Court relied upon the dictum in Union of India & Ors. v. Miss Pritilata Nanda, (2010) 11 SCC 674, wherein the Apex Court held that once the candidature of a person is accepted by the concerned authorities and he/she is allowed to participate in the process of selection, it is not open to them to turn around and question his or her entitlement to be considered for engagement.

The Court then observed that the case at hand stands on an even better footing inasmuch as not only was the candidature of the petitioner considered but also, he was engaged and allowed to work for some months. Therefore, the action of the authorities cannot be countenanced in law as the Petitioner cannot be deprived of his right to be engaged as a TGT(CBZ) Contract Teacher as a PH candidate. Accordingly, the Court directed the authorities to issue necessary orders for engagement of the petitioner in the said post.

Case Title: Kamalakanta Sahu v. State of Odisha & Ors.

Case No: WPC (OAC) No. 1810 of 2016

Judgment Dated: 15 March 2022

Coram: Justice Sashikanta Mishra

Counsel for the Petitioner: Mr. S.S. Mohapatra, Advocate

Counsel for the Respondents: Mr. R.N. Acharya, Advocate Addl. Standing Counsel, School & Mass Education Department

Citation: 2022 LiveLaw (Ori) 29