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2015 DIGILAW 702 (ORI)

Susanta Kumar Mohanty v. O. U. A. T.

2015-12-15

B.R.SARANGI

body2015
JUDGMENT : B.R. Sarangi, J. 1. Susanta Kumar Mohanty, who was appointed as Post Graduate Research Fellow against the post of Junior Scientist in NARP, Bhawanipatna, petitioner herein, has filed this petition, inter alia, with a prayer to direct the Orissa University of Agriculture and Technology to absorb him on regular basis in terms of Clause 49 of the Orissa University of Agriculture and Technology Statute, 1966. The epitome of the facts is that Orissa University of Agriculture and Technology, hereinafter to be referred to as "OUAT", in short, has been constituted under the provisions of the OUAT Act. The petitioner obtained B.Sc. (Ag) qualification from the said University in the year 1987 and was placed in 1st Class with Honours and completed M.Sc. (Ag) in Plant Breeding and Genetics in the year 1990 and was also placed in 1st Class. He was also qualified in the National Eligibility Test (NET) in the year 1997 in the professional subject Plant Breeding and became eligible for Lecturership/Asst. Professorship in the State Agricultural University. He had registered his name with the Employment Exchange. His name was sponsored by the Employment Exchange to appear at the selection for the post of Research Assistant and after being successful in the selection, he was appointed against the said post by the Dean of Research vide office order dated 13.12.1990, pursuant to which he joined on 14.12.1990. Subsequently, vide order dated 11.2.1991, the petitioner was allowed to draw the pay of Rs. 1640/- per month in the scale of pay of Rs. 1640-60-2600-EB-75-2900 with usual D.A. and other allowances as admissible from time to time by the University and as such the petitioner was posted against the vacant post mentioned against his name in the said office order. Thereafter, vide office order dated 20.2.1991 in Annexure-4 the petitioner was appointed temporarily as Post Graduate Research Fellow in the vacant post of Research Assistant (Agril.) and has discharged his duties against the post of Junior Scientist in NART, Bhawanipatna. The post of Junior Scientist being a Class-II post, the petitioner having been appointed as Post Graduate Research Fellow, he has been allowed to discharge his duties uninterruptedly and was continuing in NART, Bhawanipatna and thereafter vide office order dated 27.2.1998 in Annexure-5, he has been transferred and posted as such on his own pay and scale against the post of Technical Asst, AICRP on D.L.A.P., Phulbani. Pursuant to the said order of transfer, the petitioner joined in his new place of posting and has been continuing there till date. For the period he has rendered service against the post of Junior Scientist, which is a Class- II cadre post, necessary experience certificate was also issued by the competent authority and thereafter while discharging his duties at Phulbani, the authorities also issued experience certificate to the petitioner. Even though the petitioner discharged his duties against Class-II post uninterruptedly, he has been deprived of getting the benefits thereof and in the meantime persons similarly situated have been extended with such benefits while the petitioner has only been discriminated. Hence, this petition. 2. Mr. H.M. Dhal, learned counsel for the petitioner states that as per Clause 49 of the University Statute, 1966, the petitioner is entitled to continue against Class-It post and he should be granted the benefits admissible in accordance with law. More so, it is urged that Dr. Sarbanaryan Mishra, a similarly situated person, approached this Court in OJC No. 14049 of 2006 and on consideration of his grievance, this Court directed the authorities to consider his case in terms of Clause 49 of the OUAT Statute, 1966 and to make a substantive appointment against the vacant post of Class-II cadre and extend the consequential benefits as due and admissible under law. The OUAT preferred Special Leave Petition assailing the said order of this Court before the apex Court and on being admitted, the same was numbered as Civil Appeal No. 3940 of 2009. However, the said Civil Appeal came to be dismissed as withdrawn vide order dated 3.8.2015. In view of dismissal of the Civil Appeal by the apex Court, the judgment passed in the case of Dr. Sarbanaryan Mishra having reached its finality, the petitioner being similarly circumstances, has to be extended with the said benefits forthwith. 3. Mr. Ashok Mishra, learned Senior Counsel appearing for the University with reference to the counter strongly refuting the contentions raised by the learned counsel for the petitioner, stated that the petitioner is not entitled to get any benefits as his initial appointment was Post Graduate Research Fellow, which is a Class-II post and therefore, he is not entitled to get the benefits. 4. 4. On the basis of the facts pleaded above, it is to be considered whether the petitioner can be extended with the benefits as per Clause 49 of the Statute, 1966. 5. Clause 49 of the Statute, 1966 is quoted below: "Whenever a permanent post in any grade and pay scale Is available for substantive appointment, the claim of any university employee holding a tenure post or temporary post continuously for a period exceeding two years in that grade and pay scale and possessing the qualifications required for the permanent post, shall be considered first for substantive appointment in that permanent post." 6. Admittedly, the petitioner has been appointed as Post Graduate Research Fellow against the vacant post of Research Assistant and he was posted against the vacant post of Junior Scientist as mentioned in Annexure-4 to the writ petition dated 20.2.1991 and he has been discharging his duties uninterruptedly against the post of Junior Scientist, which is a Class-II post. As per the provisions contained in Clause 49, since the petitioner is considered for substantive appointment and was allowed to discharge his duties against a permanent post, he is entitled to get the benefits in accordance with Clause 49 of the Statute, 1966. Similar question came up for consideration in OJC No. 17618 of 1997, which has been disposed of vide judgment dated 27.7.2005, whereby the Division Bench of this Court came to hold that Clause 49 was squarely applicable to the case of the petitioners therein, who are similarly circumstanced as the present petitioner and having been appointed pursuant to the advertisement issued by the authorities. The Division Bench of this Court further directed that the petitioners' case in the said writ application should be first considered in terms of Clause 49 of the Statute, 1966 and referring to the same one Dr. Sarbanarayan Mishra claimed similar benefit in W.P.(C) No. 14049 of 2006 and on consideration of the same, the Division Bench of this Court delivered a judgment on 17.7.2008 extending similar benefits to him and passed the following order: "5. Sarbanarayan Mishra claimed similar benefit in W.P.(C) No. 14049 of 2006 and on consideration of the same, the Division Bench of this Court delivered a judgment on 17.7.2008 extending similar benefits to him and passed the following order: "5. On a consideration of the averments made by the learned counsel for both the parties and we find that the argument advanced by the learned counsel for the University cannot be accepted, since the very same argument had been advanced on behalf of the University before the Court in O. J.C. No. 17618 of 1997, this Court on consideration of the same has rejected the said contention. At this point, it is relevant to quote paragraph-2 of the counter affidavit filed by the University which is as follows: "...Accordingly, the petitioner belonging to AGRL. Economic subject was appointed as PGRF against the vacant post of junior scientist. NARP, Bhawanipatna vide office order No. 11285 dtd. 13.05.1993, annexed herewith as Annexure-B. He joined as such on 23.06.1993, a copy of which is annexed herewith as Annexure-C. Since the petitioner has not been appointed in Class-II cadre post, he hasn't been given the scale of pay meant for the said post and hence the claim of the petitioner to give him consequential benefits of Class-II post from his date of joining as PGRF is not possible." The aforesaid averments of the University clearly indicates that there was a vacancy in Class-II Cadre post and though the Board of Management for selection of PGRF, selected the petitioner for the purpose of being appointed against the said vacancy, due to certain problems, though the petitioner was appointed as PGRF, his appointment was made against the vacancy in Class-II Cadre Post of the University. xxxx 6. Accordingly, the writ application is allowed. The opposite party-University is directed to consider the case of the petitioner in terms of Clause-49 of the OUAT Statute, 1966 and to make a substantive appointment of the petitioner against the vacant Class-II cadre post which he presently holds alongwith consequential benefits. This direction may be carried out within a period of two months from the date of communication of this judgment." 7. The above judgment of Dr. This direction may be carried out within a period of two months from the date of communication of this judgment." 7. The above judgment of Dr. Sarbanarayan Mishra has been assailed by the OUAT before the apex Court in a Special Leave Petition and on being admitted, the same was registered as Civil Appeal No. 3940 of 2009 and subsequently the said Civil Appeal came to be dismissed as withdrawn, thereby the judgment passed by this Court in the case of Dr. Sarbanarayan Mishra has been confirmed by the apex Court. The petitioner being similarly circumstanced like that of Dr. Sarbanarayan Mishra, benefit should, also be extended to him in conformity with the provisions contained in Clause 49 of Statute, 1966. 8. For the foregoing discussions, this Court is of the considered view that as the petitioner's right accrued pursuant to Annexure-4 dated 20.2.1991 from the date of his appointment as Post Graduate Research Fellow since he has been called upon to perform as Junior Scientist of Class-II cadre post, the objection raised by the OUAT that he is not entitled to get any benefits, cannot sustain in the eye of law. Accordingly, the Opposite Party-University is directed to consider the case of the petitioner in terms of Clause 49 of the OUAT Statute, 1966 and appoint him substantively against the vacant post of Class-II cadre w.e.f. 12.4.1991 in which the petitioner has discharged his duties and extend all the consequential service benefits as due and admissible to him in accordance with law within a period of three months from the date of communication of this judgment. With the aforesaid observation and direction, the writ petition is allowed. Petition Allowed