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2007 DIGILAW 908 (ORI)

BIMALENDU MOHANTY v. UTKAL UNIVERSITY OF CULTURE

2007-12-05

A.K.SAMANTARAY, B.P.DAS

body2007
JUDGMENT : A.K. Samantaray, J. - The Petitioner, who was appointed as Vice-Chancellor of the Utkal University of Culture has filed this Writ Petition under Articles 226 and 227 of the Constitution of India challenging Annexure-10 to the writ petition wherein, the Chancellor on the recommendation of the Department of Tourism and Culture, Government of Orissa has determined the salary of the Petitioner at Rs. 22,400/- per month and has rejected the request of the Petitioner for fixing his salary at Rs. 25,0007- per month maintaining parity with the scale of the Vice-Chancellors of the other Universities and has, inter alia, prayed for a direction to the opposite parties to fix his salary/scale of pay at Rs. 25,000/- and to quash the said Annexure-10 on the ground that the same is violative of Article 14 of the Constitution. 2. The case of the Petitioner in this writ petition is that he was appointed as Vice-Chancellor of Utkal University of Culture (hereinafter referred to as "UUC") by the Chancellor under proviso 2 to Sub-section (1) of Section 9 of Utkal University of Culture Act, 1999 vide Notification No. 7117 dated 05.10.1999 (Annexure-1). In pursuance of the said Notification the Petitioner assumed charge of the Office of the Vice-Chancellor, UUC, Bhubaneswar on 06.10.1999. The Petitioner addressed a letter to the Chancellor's Office on 07.10.1999 for orders of the Chancellor to determine the salary and other attendant service conditions at par with the Vice-Chancellor of other nine Universities in Orissa and to communicate the order to move the opposite parties for provision of funds to meet the expenditure on this count. The Petitioner served as Vice-Chancellor of the UUC from 06.10.1999 to 05.10.2001. The Chancellor's Secretariat moved the Secretary of Tourism and Culture Department (OP No. 3) vide letter No. 675/SG dated 22.1.2000 calling for recommendation to nodal Department before taking a decision in fixing the salary and other service conditions after receipt of the letter of the Petitioner No. 07.10.1999. The O.P. No. 3 was reminded by the Chancellor's Office again on 10.04.2001 in that connection. After protracted correspondence the Chancellor (OP No. 2) fixed the salary of the Petitioner at Rs. 22,400/- only minus the pension received by him during the period of his incumbency vide letter dated 7412/SG dated 08.08.2002, i.e., nearly three years after the Petitioner assumed office of Vice-Chancellor of the UUC. After protracted correspondence the Chancellor (OP No. 2) fixed the salary of the Petitioner at Rs. 22,400/- only minus the pension received by him during the period of his incumbency vide letter dated 7412/SG dated 08.08.2002, i.e., nearly three years after the Petitioner assumed office of Vice-Chancellor of the UUC. The Petitioner thereafter moved the Vice-Chancellor of UUC by his letter dated 13.08.2002 for drawal of salary and other allowances for the period of his incumbency, i.e., from 06.10.1999 to 05.10.2001 and disbursement of the same in terms of Statute (10)(1) of Utkal University of Culture's Statute and the Petitioner was paid a sum of Rs. 1,08,387/- only by the UUC on 14.08.2002 purported to be the salary from 06.10.1999 to 28.02.2000 which he received under protest pending revision of pay and sanction of other allowances to which he was entitled under Statute (10) (1) of the UUC Statute. The Petitioner vide his letter dated 13.09.2002 addressed to the Vice-Chancellor of UUC to take expeditious step to move Government for making Budgetary provision and drawal of salary at the rate approved by the Chancellor and Dearness Allowance and HRA as admissible under the Statute. On 23.09.2004 the Chancellor's Secretariat issued letter to the Registrar, UUC clarifying that the Vice-Chancellor may draw salary of Rs. 22,400/- plus admissible D.A. minus pension received by him. The Petitioner represented to the Chief Secretary to Government of Orissa at his Grievance Cell on 14.05.2001 to determine the salary of the Vice-Chancellor of UUC at par with Vice-Chancellors of other Universities in the State and the Petitioner also moved the Chancellor vide his D.O. letter dated 28.09.2001 to fix his salary at Rs. 25,000/- at par with the Vice-Chancellors of other Universities of the State. In response to the aforesaid correspondences, the Petitioner received the letter dated 21.10.2002 (Annexure-10) from the Commissioner-cum-Secretary to the Chancellor rejecting his request for maintaining parity of his pay with the Vice-Chancellors of other Universities of the State. 3. The Petitioner has averred that he has made several correspondences representing for redressal of his grievance in the matter of fixation of his salary at par with the Vice-Chancellor of other Universities of the State but the same has not been heeded to and for that he has preferred this writ petition for speedy and efficacious redressal of his grievance. 4. 4. Though notice was issued to all the opposite parties, O.P. No. 3-State of Orissa represented though Secretary to Government in the Department of Tourism and Culture did not enter appearance nor file any counter affidavit. Opposite Parties 1 and 2 filed their counter affidavit through the Registrar of UUC. In the counter affidavit, the Registrar of the UUC has disputed the claim of the Petitioner mostly on the ground that since the representation of the Petitioner for determination of his-salary at par with the Vice-Chancellor of other Universities of the State has already been rejected by the Chancellor he is not entitled to receive salary of Rs. 25,000/- per month. It is also stated that UUC Statute, 2001 does not prescribe the amount of salary to be paid to the Vice-Chancellor and the said Statute provides in Statute (10)(1) that Vice-Chancellor shall be entitled to such salary and allowance as may be fixed by the Chancellor from time to time on the recommendation of the Government. It is further stated that accordingly the Chancellor has fixed his salary at Rs. 22,400/- and since his salary has already been fixed, his claim stands settled by the said fixation of salary. 5. This writ petition was heard along with W.P.(C) No. 12529/2004 filed by Sri N.K. Mishra with self same prayer seeking direction to the opposite parties to fix his scale of pay maintaining parity with the scale of pay of Vice-Chancellors of other Universities of the State in accordance with University Grants Commission Notification. During arguments, it was submitted by the learned Counsel for the Petitioner that Annexure-6 to the said writ petition of Shri N.K. Mishra is an agenda note for the 7th Vice-Chancellors Conference held in the year 2004. The Agenda No. XXIII is regarding salary of the Vice-Chancellors, wherein the agenda note was that Education Department had to issue clarification regarding salary payable to Vice-Chancellors and the other agenda was that the Vice-Chancellors are to draw salary at the rate of Rs. 25,000/- plus Dearness Allowance minus gross pension prior to communication subject to minimum total salary of Rs. 25,000/- plus Dearness Allowance minus gross pension prior to communication subject to minimum total salary of Rs. 25,000/- In the said proceeding of the conference mere has been mention with regard to the salary of the Vice-Chancellors and it is recorded in the said proceeding that the Secretary, Department of Higher Education informed that it had been decided to fix the salary of the Vice-Chancellors at Rs. 25,000/- plus Dearness Allowance while they would not be able to draw any pension or T.I. It is further mentioned therein that the Secretary, Department of Tourism and Culture agreed to establish parity between the salary of Vice-Chancellor of UUC and the Vice-Chancellors of other Universities of the State. The learned Counsel submitted that in this context, since there is a conscious decision by the State Government to pay salary at the rate of Rs. 25,000/- to the Vice-Chancellor, non-fixation of the Petitioner's salary at Rs. 25,000/- is violative of Article 14 of the Constitution of India. 6. To this the learned Counsel for the contesting opposite party University submitted that UUC is an independent body and this University Statute does not permit salary to the Vice-Chancellor at the rate of Rs. 25,000/-. He vehemently submitted that since Chancellor had allowed salary to the Vice-Chancellor at the rate of Rs. 22,400/- under Annexure-5, the question of further review salary of the Petitioner does to arise. He further submitted that the UUC Statute has not yet been amended permitting salary at the rate equivalent scale and as such this writ petition, which is bereft of any merit may be dismissed. 7. The above submission of the learned Counsel for the opposite parties appears to us to be highly fallacious. Admittedly, the UUC was established pursuant to an Act of the State Legislature, for which Notification was published on 12.08.1999. This Utkal University of Culture Act (Orissa Act 9), 1999 was legislated to provide for establishment and incorporation of UUC in the state of Orissa and for the matters connected therewith and for matters incidental thereto. Section 7(1) of the said Act states that the Governor of the State of Orissa by virtue of his Office shall be the Chancellors of the University. Section 8 of the Act prescribes who should be the Officer of the University. The Vice-Chancellor shall be one of such Officer of the University. Section 7(1) of the said Act states that the Governor of the State of Orissa by virtue of his Office shall be the Chancellors of the University. Section 8 of the Act prescribes who should be the Officer of the University. The Vice-Chancellor shall be one of such Officer of the University. The Vice-Chancellor shall be appointed by the Chancellor on the recommendation of the Committee constituted for the purpose by the Chancellor. The Office of the Chancellor, UUC issued the Notification dated 5th October, 1999 (Annexure-1), which goes to show that in an exercise of powers conferred by Section 9(1) of the UUC Act, 1999, the Chancellor has appointed the Petitioner for a period of two years or until further orders which is earlier with effect from the date on which he actually takes over the charge. It is not disputed that the Petitioner is the first regularly selected Vice-Chancellor of UUC. The Petitioner, as per Annexure-2, assumed charge of Vice-Chancellor of the UUC on 6th October, 1999 and he retired from the Office on 5th October, 2001 after completion of the term for which he was appointed. 8. It was submitted by the learned Counsel for the Petitioner that Government of India through the Ministry of Human Resources Development (Department of Education) issued the letter to the UGC on 22nd September, 1998 indicating the revised pay scale of Vice-Chancellor would be Rs. 25,000/- (fixed) with effect from 01.01.1996. This scale was fixed much prior to the establishment of the Utkal University of Culture. On 24th December, 1998, UGC under Annexure-11 to the connected writ petition (which was referred to during hearing by the learned Counsel for the Petitioner) has prescribed the scale of pay of the Vice-Chancellors to be Rs. 25,000/- (fixed). Admittedly the UUC Act came into force on 09.06.1999. It was argued by the learned Counsel for the contesting opposite parties that the UGC scale of pay depends on UGC grant and this University has not been eligible to receive UGC grant even though this University is recognized u/s 2(6) of the UGC Act, 1956. The learned Counsel for the Petitioner forcefully submitted that admittedly UGC has given recognisation to this University and the University Fund created u/s 28(2) of the UUC Act, 1999 receives grant from numerous sources like grant from Central Government, State Government and other institutions, UGC is only one of the sources. The learned Counsel for the Petitioner forcefully submitted that admittedly UGC has given recognisation to this University and the University Fund created u/s 28(2) of the UUC Act, 1999 receives grant from numerous sources like grant from Central Government, State Government and other institutions, UGC is only one of the sources. In that view of the matter, it was submitted by the learned Counsel for the Petitioner that the submission advanced by the opposite parties for not extending the revised scale of pay to the Petitioner and the fact that since the scale of pay of the Petitioner once ascertained/fixed at Rs. 22,400/- and is subject to any further review is not at all tenable. It was further argued and submitted by the learned Counsel for the Petitioner that vide Annexure-5 dated 08.08.2002, i.e., long after the Petitioner was superannuated after completing two years term on 05.10.2001 intimated the Vice-Chancellor of UUC regarding approval of fixation of salary of the Petitioner at Rs. 22,400/- and vide Annexure-8 dated 23.09.2004 the Chancellor has clarified that the Vice-Chancellor of the UUC may draw the salary of Rs. 22,400/- plus admissible Dearness Allowance minus the pension received by him for time being. Beth these Annexures on a bare footing substantiate the contention of the learned Counsel for the Petitioner when read with Annexure-1, the order of appointment of the Petitioner that the scale of pay of the Petitioner was not fixed when he was appointed to assume charge of the Vice-Chancellor of UUC. It is strange to note and it is also in fact that the Petitioner was appointed under Annexure-1 to assume the office without knowing as to what was the scale of pay he was to receive. It appears to us that not fixing the scale of pay of the Petitioner even after his superannuation is grossly arbitrary. Referring to Annexure-17 of the connected writ petition the learned Counsel for the Petitioner submitted that the Order vide Annexure-17 was passed by the Chancellor in exercise of power conferred on him u/s 9(6) of the UUC Act, 1999 read with the Statute 10(1) of the UUC Statute, 2001 and after taking into consideration the rationale of the recommendation of the Government of Orissa, Tourism and Culture Department vide their letter No. 3859 TC dated 6th December, 2005 the Chancellor has fixed the scale of pay of the Vice-Chancellor at Rs. 25,000/- and Dearness Allowance, as admissible from time to time. This scale of pay was given to the subsequent incumbent, who is presently functioning as Vice-Chancellor of UUC. There is nothing on record to draw a different conclusion that this scale of pay was fixed taking into consideration the decision of the State Government pursuant to the opinion expressed in 7th Vice-Chancellors' Confererence held in 2004. In the said Conference, the Secretary, Department of Tourism and Culture had agreed to establish parity in Scale of pay of Vice-Chancellors of the State. In pursuance of the said decision, admittedly the Commissioner-cum-Secretary to the Chancellor in his letter dated 27th September, 2004 addressed to the Principal Secretary to Government of Orissa in the Department of Tourism and Culture wrote regarding fixation of scale of pay of the Vice-Chancellor. This is indicative of the fact that the matter was discussed in the 7th Vice-Chancellor' Conference held at Raj Bhawan where the Secretary had stated that Government Order maintaining parity in scale of pay between Vice-Chancellor of UUC and other Universities of the State would be issued immediately. But such an order was perhaps not issued by them and for that there was delay in implementing the decision. The learned Addl. Government Advocate to our query submitted that there is no decision contrary to what had been agreed upon by the Secretary, Department of Tourism and Culture in the 7th Vice-Chancellors' Conference and in fact we also find the very decision has been implemented ultimately under Annexure-17 to which we have referred to earlier, without any amendment to the University's Statute in the case of succeeding Vice-Chancellor who is functioning now as such. It was stated at the Bar that in case of the Vice-Chancellors of all other Universities including the recently created Revenshaw University are getting the salary of Rs. 25,000/- and this statement is not controverted by the learned Counsel for the opposite parties. 9. In view of the above, we are of the considered view that the Petitioner is entitled to the salary of Rs. 25,000/- with effect from his date of joining, i.e., 06.10.1999 till the expiry of his two years term on 05.10.2001. We therefore allow the writ petition and mandate the opposite parties to fix Petitioner's salary at Rs. 25,000/- per month for the above period and disburse the differential salary after adjusting the amount he has received. 25,000/- with effect from his date of joining, i.e., 06.10.1999 till the expiry of his two years term on 05.10.2001. We therefore allow the writ petition and mandate the opposite parties to fix Petitioner's salary at Rs. 25,000/- per month for the above period and disburse the differential salary after adjusting the amount he has received. The opposite parties are directed to complete the entire exercise, as mandated within a period of four months from the date of this order. 10. The writ petition is disposed of accordingly. B.P. Das, J. 11. I agree.