Allowed

Bibekananda Samal v. State of Odisha

Orissa HC10 Feb 2021WP(C)/20987/2016

Case brief

AI extract

What is this about?

This court allowed a writ petition challenging the High Court Tribunal's quashing of the petitioner's promotion. Relying on Supreme Court precedent, the court held that academic qualification obtained before the application deadline made the petitioner eligible, rejecting the administrative delay in certificate issuance as a ground for ineligibility.

What did the court decide?

The impugned order of the Tribunal quashing the petitioner's promotion is set aside.

Bibekananda Samal Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2021)

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W.P.(C) No.20987 of 2016

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10.02.2021

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This matter is taken up by video conferencing mode.

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Heard Mr. R. N. Parija, learned counsel for the Petitioner and Mr. A. Kanungo, learned counsel for Opposite Party No.3.

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This writ petition is directed against an order dated 7^th September, 2016 passed by the State Administrative Tribunal, Principal Bench, Bhubaneswar (Tribunal) in Original Application No.2445 of 2013 filed by Opposite Party No.3, whereby the Tribunal quashed the promotion of the Petitioner as Block Extension Educator (BEE).

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The Petitioner was initially appointed as Multi Purpose Health Worker (MPHW) (M) on 2^nd February, 1999 by the Health & Family Welfare Department, State of Orissa. The Petitioner states that he had been discharging unblemished service, as of the date of filing of the present writ petition, for over 17 years.

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In service MPHW are eligible to be considered for the promotion to the post of BEE. It is stated that although there are no rules governing such promotion, there are executive instructions and directions. One such executive instruction relevant to the case on hand is dated 20^th July, 2009 issued by the Directorate of State Institute of Health

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& Family Welfare Orissa. Therein, inter alia, the following criteria were stipulated for promotion to the post of BEE:

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“(i) The candidate must be graduate

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(ii) They must have two years of experience related to community education, community health

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(iii) The recruitment will be kept open only for the field health staff mentioned above.

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(iv) Preference is selection will be given to candidates having DHE/DHF qualification over an ordinary graduates.

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(v) The HW (F) who are graduate and minimum service experience of 2 years be considered for promotion on the basis of seniority-cum-merit. Such HW(F) shall be required to exercise option for this post if she so desires. The option once exercised shall be treated as final and there will be no scope for her to change over to her earlier cadre for promotion to the post of LHV/PHN & DPHN etc.”

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On 23^rd August, 2009, an advertisement was published inviting application from eligible candidates for promotion to the post of BEE. The last date of submission of the application was 15^th September, 2009.

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The Petitioner states that he acquired the qualification of Diploma in Health Education (DHE) on 3^rd September, 2009 from the West Bengal University of Health Sciences (WBUHS) i.e., prior to the last date of submission of the application. Even the marksheet was published on 3^rd September, 2009. However, the provisional certificate of DHE was issued only on 22^nd March, 2010.

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The Departmental Promotion Committee (DPC) did not consider the case of the Petitioner for want of the DHE certificate. Nevertheless, the DPC recommended to the Director the case of the Petitioner by observing as under:

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“ The case of Sri Bibekananda Samal is not considered at present by the Committee due to want of DHE Certificate, although he has submitted marksheet of DHE. The Committee recommended that the Director will issue appointment order to Sri Samal on receipt of DHE Certificate.”

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The Petitioner states that he produced the DHE certificate before the Director through the Medical Officer undercover of a letter dated 15^th April, 2010. Thereafter, orders for appointment to the post of BEE to all the eligible candidates including the Petitioner were issued on 11^th October, 2010.

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Opposite Party No.3 filed Original Application No.898 of 2011 before the Tribunal challenging the promotion

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granted to the Petitioner and others. That application was disposed of by the Tribunal with the direction to the Opposite Party Nos.1 and 2 to conduct a Review DPC. Thereafter, by order dated 17^th June, 2013, the case of Opposite Party No.3 was rejected by Opposite Party Nos.1 and 2.

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For the second time, Opposite Party No.3 preferred Original Application No.2445 of 2013 before the Tribunal. By the impugned order, the Tribunal, while quashing the promotion of the Petitioner as BEE, has proceeded the basis that the Petitioner had "admittedly not produced any certificate showing DHE qualification as on the last date of submission of the application.” Referring to the decision of the Supreme Court in U.P. Public Service Commission v. Alpana AIR 1994( 2) SC 723 , which held that the eligibility condition should be examined as on the last date for receipt of application, the Tribunal held that although the Petitioner had passed the DHE exam prior to the last date, since the certificate was not submitted before the last date of submission of the application, he was not eligible to be considered for promotion as BEE.

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It should be noted at the outset that on 2^nd December, 2016, while directing notice to issue in the petition, this

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Court directed status quo to be maintained. That interim order has continued since then.

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Replies have been filed by the Opposite Parties and rejoinder thereto has also been filed by the Petitioner.

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From the documents placed on record, it is plain that the result of the DHE examination in which the Petitioner qulaified was published on 3^rd September, 2009 itself. This is evident from mark sheet of the Petitioner which clearly states that the date of publication of the result was 3^rd September, 2009. The provisional certificate came to be issued by the WBUHS to the Petitioner only on 22^nd March, 2010.

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It is not the case of any of the Opposite Parties, including Opposite Party No.3 that the Petitioner was somehow responsible for the delay in issuance of the provisional certificate. In other words, the delay in the WBUHS in issuing the certificate, was not attributable to the Petitioner at all.

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The requirement under the instructions in question is only that the Petitioner should have obtained the DHE qualification prior to the date of submission of the application. In the present case, the last date of submission

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of the application was 15^th September, 2009 and the date that the Petitioner qualified in the DHE exam was 3^rd September, 2009. It is well within the deadline. The mere fact that the certificate was not able to be obtained by the Petitioner prior to 22^nd March, 2010 cannot be a ground to hold the Petitioner ineligible. As long as he had qualified in the DHE examination and that was prior to the last date of submission of the application, the Petitioner could not be held to be ineligible for promotion.

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For the aforesaid reasons, this Court is unable to agree with the conclusion reached by the Tribunal in the impugned order. It is accordingly set aside.

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The writ petition is allowed. But, under the circumstances, no order as to costs.

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As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court’s website or print out thereof at par with certified copy in the manner prescribed, vide Court’s Notice No.4587, dated 25^th March, 2020.

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( Dr. S. Muralidhar) Chief Justice

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( K. R. Mohapatra ) Judge

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M. Panda

Bibekananda Samal v. State of Odisha

Case brief

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Bibekananda Samal v. State of Odisha

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