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2006 DIGILAW 476 (ORI)

Amal Kumar Mishra v. Utkal University

2006-07-03

J.P.MISHRA, P.K.MOHANTY

body2006
JUDGMENT P. K. MOHANTY, J. : The petitioner assails the order of opposite party No.1 appointing opposite party No.3 as the Head of the P.G. Department of History under Utkal University for a period of two years from 1.6.2003 to 31.5.2005 mainly on the ground that the said order is in violation of the provisions of Statute-251(1) of Orissa Universities First Statutes, 1990 and discriminates the petitioner in the matter of promotion in viola¬tion of the provisions of Articles 14 and 16 of the Constitution. 2. The short facts of the petitioner’s case are that he was appointed initially on ad hoc basis as a Lecturer in History with effect from 1978 in Bhadrak (Evening) College and subse¬quently was appointed on regular basis as a Lecturer in History with effect from 20.11.1986. In response to an open advertisement for the post of Lecturer in History, (General Category) in the P.G. Department of Utkal University, he made an application and being selected, he was appointed as a Lecturer in History in the P.G. Department of History against the vacant post. He joined the post on 15.10.1996 (AN) and his joining report was accepted by office order dated 15.11.1996, a copy of which is Annexure-4. While continuing as such, he was placed as a Lecturer (Sr. Scale) in the scale of Rs.3000-Rs.5000/- with effect from 20.11.1991 in notification of the Government in Higher Education Department dated 12.11.1999, a copy of which is Annexure-5. The petitioner was re-designated as Sr. Lecturer in History with effect from 15.10.1998 (AN) and allowed to draw the scale of pay applicable to the post. 3. The petitioner applied for promotion to the post of Reader in the PG Department of History, appeared at the interview and being placed at Sl. No.1, was appointed as a Reader along with opposite party No.3, who had also appeared at the same interview. The promotion of petitioner as well as opposite party No.3 was given effect to form 31.12.1999. According to the peti¬tioner, he was eligible for promotion earlier, but the opposite party No.3 only became eligible after the resolution of the Government dated 31.12.1999 relaxing the required period from eight years to five years as stipulated earlier. The Career Advancement Scheme/Promotion Scheme was adopted by the Utkal University in accordance with the provisions made in Government Resolution No.44038 dated 6.10.1989. The Career Advancement Scheme/Promotion Scheme was adopted by the Utkal University in accordance with the provisions made in Government Resolution No.44038 dated 6.10.1989. Pursuant to the clarifica¬tion on the Career Advancement Scheme given by Government extend¬ing the benefit of career advancement due up to 30.12.1999 by letter dated 19.7.2001, the University extended the same benefit by antedating the promotion of the petitioner with effect from 20.11.1999. The copies of the letter dated 19.7.2001 and the notification of the University dated 20.11.2001 and the office order dated 7.5.2002 have been annexed as Annexure-10, 11 and 12 respectively. It is, therefore, the case of the petitioner that he being senior to opposite party No.3 in the grade of Reader, he was entitled to be appointed as a Head of the Department, which fell vacant on 31.5.2003. However, the opposite party No.2, by order dated 30.4.2003 vide Annexure-1 appointed opposite party No.3 as Head of the Department of PG Department of History with effect from 1.6.2003 for a period of two years under Statute 251(1) of the Orissa Universities First Statutes, 1990 (hereinaf¬ter called ‘the Statutes’) even though the petitioner was senior to opposite party No.3. Hence, the writ petition. 4. The opposite parties 1 and 2, in the counter affidavit, have submitted that the controversy regarding the seniority between the petitioner and opposite party No.3 on the merit of their claim could not be decided by the University for which the opinion of the learned Advocate General was sought for and as per the opinion of the learned Advocate General, Dr. B. K. Mallick, opposite party No.3, was considered senior to Dr. Mishra, the petitioner. A further affidavit has been filed by the opposite parties 1 and 2 sworn to by the Registrar of the Utkal Universi¬ty. It is their case that the petitioner joined the University service as a Lecturer on 15.10.1996, whereas the opposite party No.3 joined the service as a Lecturer on 9.7.1996. Pursuant to the decision of the Syndicate dated 27.6.2001 and the subsequent orders passed by the Vice Chancellor, the opposite party No.3 and the petitioner were promoted to the post of Reader with effect from 31.12.1999, but subsequently by order dated 7.5.2002, the service of the petitioner as Reader was antedated to 20.11.1999 thereby making Dr. Pursuant to the decision of the Syndicate dated 27.6.2001 and the subsequent orders passed by the Vice Chancellor, the opposite party No.3 and the petitioner were promoted to the post of Reader with effect from 31.12.1999, but subsequently by order dated 7.5.2002, the service of the petitioner as Reader was antedated to 20.11.1999 thereby making Dr. Mishra, the petitioner, senior in the rank of Reader and this was done in accordance with the Government Reso¬lution dated 6.10.1989, the decision of the Syndicate dated 30.5.2001 and the subsequently order passed by the Vice Chancel¬lor on 1.5.2005. It is the further stand of the opposite parties 1 and 2 that under the Career Advancement Scheme of UGC’s new scheme, the petitioner and opposite party No.3 were found suit¬able in all respect for promotion to the post of Reader with effect from 31.12.1999 since as per the Government Resolution, the Lecturer in senior scale would be eligible for promotion to the post of Reader, if she/he has completed five years of service in the senior scale amongst other conditions. Extension of career advancement benefit to the petitioner by antedating his promotion to the post of Reader with effect from 20.11.1999 was done in accordance with Government Resolution dated 6.10.1989 and the decision of the Syndicate dated 30.5.2001. The allegation of showing undue favour has been denied by these opposite parties and it has been pleaded that Dr. Mallick, the opposite party No.3, belongs to Scheduled Caste category and as such, he will be entitled to retain his seniority in the promotional post of Reader on the basis of his station seniority as a Lecturer under the University. In view of the circulars of the State Government dated 20.3.2002 regarding the seniority of the Scheduled Caste and Scheduled Tribe Government servants by virtue of rule of reservation, it is submitted that with a view to allowing Govern¬ment servants belonging to Scheduled Caste and Scheduled Tribe to retain their seniority in the case of promotion, the opposite party No.3’s seniority has been restored. The benefit of antedat¬ing the date of promotion of Dr. Mishra, the petitioner, would be confined to the financial benefits accruing therefrom and as such, he will be entitled to increment in salary earlier than Dr. Mallick. The benefit of antedat¬ing the date of promotion of Dr. Mishra, the petitioner, would be confined to the financial benefits accruing therefrom and as such, he will be entitled to increment in salary earlier than Dr. Mallick. The opposite party No.3, in his counter affidavit, has denied the allegations and the claims made in the writ petition and contended that he is the Head of the Department of the PG Department of History of Utkal University for a period of two years on the basis of the Statutes which envisages that every Post Graduate Department of the University shall be headed by a Head of the Department and the Head of the Department shall be appointed for a period of two academic years from amongst the Professors and Readers on seniority-cum-rotation basis. Since his appointment as Head of the Department has bee done within the frame work of the Statutes, it cannot be questioned. The opposite party No.3 submitted that he is senior to the petitioner in the university service and as per the interpretation of the Statutes, the initial pay of a person other than one already in the univer¬sity service, when appointed to a post under the University shall be the minimum of pay scale prescribed for the post unless other¬wise decided by the appointing authority. The opposite party No.3 has joined the University service on 4.7.1996 whereas the peti¬tioner having joined the said service on 15.10.1996, he is junior to opposite party No.3. 5. In view of the pleadings of the parties and the submis¬sion made at the Bar, the moot question that falls for consideration is as to whether the petitioner was senior to oppo¬site party No.3 in the post of Reader in PG Department of History and as such, was entitled to be appointed as Head of the PG Department in History in terms of Statutes 251(1) of the Orissa Universities First Statutes, 1990 prior to the opposite party No.3 and as such, the appointment of opposite party No.3 was illegal. In course of hearing, it having transpired that both the petitioner and opposite party No.3 were appointed to the post of Reader under Career Advancement Scheme/Personal Promotion Scheme formulated by the UGC, it is to be determined whether they were at all eligible to be appointed as the Head of the Department in terms of Statutes 251(1) of the Statutes. 6. 6. Statutes 251 (1) of the Orissa Universities First Statute, 1990 prescribed the method and the principle of appoint¬ment of Head of the PG Departments of the University which runs as follows : “Every Post-Graduate Department of the University shall be headed by a Head of the Department. The Head of the Department shall be appointed for a period of two academic years from amongst the Professors and Readers on seniority-cum-rotation basis; Provided that in a Department where there is no Professor or Reader, the Chairman, P.G. Council shall be the Head of the concerned Department.” 7. The petitioner as well as opposite party No.3 were placed in the post of Lecturer (Sr.Scale) with effect from 20.11.1991 and 3.12.1991 respectively. The entry into University service as Lecturer for the petitioner as well as opposite party No.3 was 15.10.1996 and 4.7.1996 respectively. The petitioner as well as opposite party No.3 were promoted first to the post of Reader under the Career Advancement Scheme of U.G.C. on 16.7.2001 retrospectively with effect from 31.12.1999 (Annexure-8) wherein the petitioner was appointed at serial No.1. Following the Govern¬ment Instruction, the Syndicate further antedated the promotion of the petitioner to 20.11.1999 by order dated 7.5.2002 (Annex¬ure-12). The Syndicate of the University having antedated the promotion of the petitioner with effect from 20.11.1999 vide Annexure-12 by order dated 7.5.2002 and kept the date of appoint¬ment of opposite party No.3 in tact i.e. 31.12.1999, the peti¬tioner obviously was declared senior to opposite party No.3. The University in its additional affidavit dated 4.4.2004 has clearly admitted that pursuant to the decision of the Syndicate on 27.6.2001 and subsequent order passed by the Vice Chancellor, the petitioner and opposite party No.3 were promoted to the post of Reader with effect from 31.12.1999 but subsequently, by order dated 7.5.2005, the promotion of the petitioner was antedated to 20.11.1999 thereby making Dr. Mishra, the petitioner senior in rank of Reader to opposite party No.3. All these promotions were given under the Career Advancement Scheme formulated by the UGC against the post of Reader. Mishra, the petitioner senior in rank of Reader to opposite party No.3. All these promotions were given under the Career Advancement Scheme formulated by the UGC against the post of Reader. Since the petitioners date of promo¬tion was 20.11.1999 whereas the opposite party No.3 was promoted with effect from 31.12.1999, the petitioner obviously is senior to opposite party No.3 and opposite party No.3 could not have been treated as senior in terms of the advice of the learned Advocate General in absence of any resolution/decision of the competent authority, the Syndicate. The advice of the learned Advocate General has not been placed for consideration of this Court nor in the counter affidavit, any reason has been assigned as to how and why the learned Advocate General opined to treat opposite party No.3 as senior and whether such advice was accepted by the Syndicate, which is the appointing authority. The plea taken by the University that the opposite party No.3 was a SC candidate and as such, since the petitioner and opposite party No.3 were appointed on the same day, opposite party No.3 was to be treated as senior is thoroughly misconceived in law inasmuch as this was not the case of the opposite parties in their first counter filed in this Court. The University having itself decided to antedate the petitioner’s appointment and held the petitioner as senior to opposite party No.3, it could not have taken the plea that oppo¬site party No.3 being a SC candidate was to be treated as senior. No decision of the Syndicate, which is the appointing authority in this regard, has been filed in support of the contention that such a decision to treat the opposite party No.3 as senior to the petitioner was ever taken. In absence of any such decision and in view of the specific resolution of the Syndicate antedating the date of appointment of the petitioner, the petitioner has to be treated as senior. In view of the Statute 251, appointment of Head of the Department is to be made on rotation basis in accord¬ance with the seniority. 8. In absence of any such decision and in view of the specific resolution of the Syndicate antedating the date of appointment of the petitioner, the petitioner has to be treated as senior. In view of the Statute 251, appointment of Head of the Department is to be made on rotation basis in accord¬ance with the seniority. 8. However, the main question that needs determination is as to whether in view of the position of law laid down by the apex Court, a person holding any post under the Career Advance¬ment Scheme was eligible to be treated as an in-cadre teacher, entitled to hold a post of Head of the P.G. Department which is obviously a cadre post. 9. In view of the pleadings of the parties, now it has be to considered as to whether a person like the petitioner and opposite party No.3, who are appointed on promotion to the post of Reader under the Career Advancement Scheme could be treated as holder of a cadre post to be entitled to the benefits of being appointed as Head of the Department. Section 4(2) of the Orissa Universities Act (hereinafter called as ‘the Act’) provides as under: “4.(1) xx xx xx xx (2) The following shall be the teachers of the University, namely, (i) Professors; (ii) Readers; (iii) Lecturers; and (iv) Such other teachers as may be prescribed to be teachers of the University.” Section 21(2) of the Act provides that the teachers of a University shall be appointed by the Syndicate of the University on the recommendation of a Selection Committee after scrutinizing all the papers concerning the selection. The Selection Committee under Sub-Section (3) consists of (i) the Vice-Chancellor, (ii) Director, (iii) three experts selected by the Vice-Chancellor from out of a panel prepared by the Syndicate of the University; and (iv) an expert nominated by the Chancellor in case of ap¬pointment to the post of Professor. Chapter 2 in Part-II of the Orissa Universities First Statutes specifies the addition to the list of teachers contemplated under Statute 4(ii) such as Profes¬sors and teachers appointed by the Director, Correspondence Courses as the Principal or Vice-Principal, as the case may be, part-time Lecturer and Sikhyaka (Instructor). Chapter 2 in Part-II of the Orissa Universities First Statutes specifies the addition to the list of teachers contemplated under Statute 4(ii) such as Profes¬sors and teachers appointed by the Director, Correspondence Courses as the Principal or Vice-Principal, as the case may be, part-time Lecturer and Sikhyaka (Instructor). Statute 4(ii) provides that the teachers of the University are to be appointed by the Syndicate either on fixed tenure or permanent basis on the recommendation of a Selection Committee constituted in accordance with Sub-statute (2) of Statute 4. Sub-statutes (3), (4) and (5) of Statute 4 speak of mode of selection of experts for different posts of teachers. Sub-statute (6) of Statute 4 contemplates that unless appointed on tenure basis, the teachers shall, in the first instance, be on probation for a period of two years and on satisfactory completion of the said period, such teachers shall be confirmed by the Syndicate on recommendation of the Vice-Chancellor and in case of appointment of teachers on tenure basis on satisfactory completion of the period of tenure can be ap¬pointed on substantive basis on the recommendation of the Vice-Chancellor. However, under Statute-5, notwithstanding anything contained in these statues but subject to the provision of Sub-section (2) of Section 21 of the Act, the Syndicate is authorized to appoint on such terms and condition as it may deem fit, any distinguished retired Professors as Emeritus Professors, visiting Professor and honorary teachers who can take part in the activi¬ties of the University in their respective subjects. 10. In view of the provisions of the Act and Statute made thereunder, any appointment to the post of teachers, either a Professor, a Reader or a Lecturer is to be made directly by selection but appointment to any such post by way of promotion has not been contemplated. It is the admitted case of all the parties that appointment to the post of teachers under the Uni¬versity is made by way of direct appointment through open adver¬tisement and no appointment is contemplated by way of promotion except under the Scheme formulated by the University Grants Commission and accepted both by the University as well as the Government. 10. The apex Court in the case of Dr. 10. The apex Court in the case of Dr. Rashmi Srivastava v. Vikram University and others; AIR 1995 SC 1694 considered the position of University teachers promoted under the Merit Promo¬tion Scheme vis-a-vis, the University Teachers, who were directly recruited to their posts. On examining the provisions of M.P. Viswavidyalaya Adhiniyam, 1973, the apex Court held that under the said Act, only source of appointment was by direct recruitment. Hence, direct recruits alone form the regular cadre. The merit promotes would, therefore, fall outside the cadre under the Adhiniyam, unless the Act was amended introducing Merit Promotion Scheme as an additional source of recruitment. It was further held that ordinances and Statute issued by the University providing for promotion as a new source of recruitment and deter¬mination of inter-se-seniority will be ultra vires the Act and would have no effect. The apex Court, on consideration of the distinguishing features between the direct appointees and the appointees by way of promotion to the post of Reader and Profes¬sors and on elaborate consideration of the features, found that the features clearly indicate that merit promotee Professors and Readers form a distinguished class of ex-cadre or supernumerary appointees as compared to cadre employee, namely, directly re¬cruited Readers and Professors. They are unequals not only be¬cause of the source of their appointment but also because of the nature and character of their appointment and of the nature of the posts, which they hold. It was held that they cannot be treated equally for all purposes and particularly for seniority and promotion, if any. For this purpose, the nature of work they do is irrelevant. The competition for seniority can only be amongst those who are in the cadre posts. Otherwise, the mandate of Articles 14 and 16(I) would get violated treating them at par with the seniority for promotion in violation of Articles 14 and 16(I). However, in the case of Dr. Suman Agrawal v. Vice-Chancellor, (1996) I SCC 632, while considering the question of seniority amongst the persons directly recruited as Readers and a person promoted as a Reader under the Merit Promotion Scheme, the apex Court rejected the contention that a Reader appointed by personal promotion was not to be considered as a member of the cadre of Readers, on the basis of the provision of the U.P. State Universities Act, 1973. The Court distinguished the case of Dr. The Court distinguished the case of Dr. Rashmi Srivastava and held that under the Scheme of Section 31-A(1) of U.P. State Universities Act, 1973 read with Statute 17.05-B and Statute 11.12-B clause 6, a personal promote gets a berth through statutory force under Section 31-A(1) and the post held by the promotee becomes a temporary addition to the sanc¬tioned cadre occupied by direct recruits. In case of personal promotion, so long as the candidate holds the post, the post remains in the cadre. It ceases with the cessation of service of the holder of the post. This decision was rendered in considera¬tion of the specific provision incorporated in the U.P. State Universities Act as Section 31-A (I) to take care of such promo¬tees. In the case of Dr. Bal Krishna Agarwal v. State of Uttar Pradesh and others; 1995 (I) SCC 614 also, the apex Court has considered such appointments under the U.P. State Universities Act, 1973 read with relevant Statute as between direct appointees and promotees under the Personal Promotion Scheme and their inter-se-seniority. The Court relying on a specific provision of the Statute which regulated inter-se-seniority between direct recruits and recruits under the Personal Promotion Scheme, like the present one held that in view of the specific provisions in the Act, both the categories are within one cadre and as such, their seniority has to be calculated on the basis of their date of appointment/promotion. Similar view was expressed by the apex Court in the case of Prof. S.A. Siddiqui v. Prof. M. Wajid Khan and others, 1999 SCC (L&S) 422. In the case of Prof. Siddiqui, the apex Court keeping in view of the specific provision in the Aligarh Muslim University Act, 1920 and the Statute made thereun¬der, wherein provisions were made for considering the inter-se-seniority amongst the persons holding a regular post and those holding same post under the Merit Promotion Scheme held that the inter-se-seniority has to be determined treating the promotees as in-cadre teachers. 11. 11. In view of the conspectus of the decisions referred to above and the ratio decided in Rashmi Srivastava’s case (supra), it has to be held that in absence of a provision in the University Act or Statutes made thereunder, creating a new source of recruitment by way of departmental promotions, by incorporating suitable amendments providing for an additional source of recruitment of Readers and Professors by way of Depart¬mental Promotions, mere adoption of Career Advancement Scheme or Merit Promotion Scheme recommended by the University Grants Commission or mere decision of the Syndicate not to discriminate between merit promotees and direct recruit university teachers, the concerned University is not allowed to fuse the cadre employ¬ees with ex-cadre employees and to prepare a combined seniority list on that basis. If, however, a provision is made, the same can elevate the merit promotee Readers and Professors to the care of such Readers or Professors recruited directly. The promotees would, therefore, remain ex-cadre employees but cannot claim any inter-se-seniority with direct recruits forming the concerned cadre. The guidelines of the scheme suggest that a teacher pro¬moted under the Career Advancement Scheme as Professor or Reader will be treated to have personal promotion. It will not create any addition to the cadre nor it will create any vacancy in the lower cadre from which he/she has been promoted. The promotee Professor or Reader when goes out of the service, there would remain no post which will fall vacant in the promotional avenue and as such it cannot be said that there was any temporary addi¬tion to the cadre strength of Reader or Professor. The Readers or Professors promoted under the scheme are, therefore, held not be entitled to be included in the seniority list of directly re¬cruited Readers or Professors. The teachers directly recruited on the basis of merit by the process of direct recruitment to the post of Reader and Professor cannot be equated for all purposes and particularly for seniority and promotion, if any. The ques¬tion of determination of inter-se-seniority can only be among those who are in the cadre post. The teachers directly recruited on the basis of merit by the process of direct recruitment to the post of Reader and Professor cannot be equated for all purposes and particularly for seniority and promotion, if any. The ques¬tion of determination of inter-se-seniority can only be among those who are in the cadre post. Therefore, the petitioner vis-a-vis opposite party No.3 both having been promoted to the cadre of Reader under the Career Advancement Scheme formulated by the University Grants Commission and accepted by the University as well as the State Government, they are to form a separate cadre or an ex-cadre and cannot be fused to the general cadre of Read¬ers and Professors appointed by way of direct recruitment under the provision of Orissa Universities Act and Statutes made there¬under till such time as the appropriate authority make provision for an addition of such post to the cadre of Reader or Professor. The petitioner and opposite party No.3 therefore, being promotees under the Career Advancement Scheme could not have been consid¬ered for anointment as Head of the Department in terms of Statute 251(1) of the Orissa Universities First Statutes, 1990. It may be reiterated that under the Statutes, every Post-Graduate Depart¬ment of the University is to beheaded by a Head of the Depart¬ment. The Head of the Department shall be appointed for a period of two academic years from amongst the Professors and Readers on seniority-cum-rotation basis of obviously would mean that the seniority has to be assessed from among the Readers and Profes¬sors holding the cadre post of Reader or Professor, as the case may be. 12. In the case at hand, there is no dispute that the petitioner as well as opposite party No.3 were promoted to the post of Reader under the Career Advancement Scheme formulated by the University Grants Commission and adopted by the University and the State Government and therefore, they form a separate cadre along with any such other appointee under the Scheme. Neither the petitioner nor opposite party No.3 is, therefore, eligible to be appointed as a Head of the PG Department in terms of Statute 251(1) of the Orissa Universities First Statutes, 1990. However, it seems that opposite party No.3 was appointed as a Head of the PG Department and his term is already over and, therefore, at this stage, we do not want to express any opinion on that score. However, it seems that opposite party No.3 was appointed as a Head of the PG Department and his term is already over and, therefore, at this stage, we do not want to express any opinion on that score. It is for the University and the State Government to consider for necessary amendments to the Orissa Universities Act, 1989 and Statutes made thereunder incorporating additional sources of appointment to the post of teachers under any scheme i.e. formulated by the University Grants Commission or the Uni¬versity itself. The University is also to consider and determine the inter-se-seniority of the petitioner vis-a-vis the opposite party No.3 in the ex-cadre post they hold for whatever purpose taking into consideration their date of appointment as determined by the Syndicate, within three months from the date of receipt of this order. The writ petition is thus disposed of in the aforesaid terms. J. P. MISHRA, J. I agree. Petition disposed of.