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2016 DIGILAW 242 (ORI)

Mahamaya Prasad Nayak v. OUAT

2016-03-29

B.R.SARANGI

body2016
JUDGMENT Dr. B.R. SARANGI, J. - The petitioner, who was working as Post Graduate Research Fellow (Agriculture Extension) under Orissa University of Agriculture and Technology, has filed this application seeking to quash the order of appointment of opposite party Nos. 3 to 10 issued under Annexures 3 to 7 and further seeking for a direction to appoint him as Training Associate with effect from the date the orders of appointment in Annexures 3 and 4 were issued and further seeking for a direction that he is entitled to be appointed against any of the 11 posts, which were the subject matter of advertisement under Annexure-1 and extend all consequential benefits as due and admissible to him in accordance with law. 2.The factual matrix of the case, in hand, is that the Orissa University of Agriculture & Technology, (hereinafter to be referred to as “OUAT”, in short) established under the Orissa University of Agriculture & Technology Act, 1966, has been functioning for the purpose of imparting instruction in the subjects connected with agriculture and agricultural technology. The petitioner has acquired the qualification of B.Sc. (Agri.) and thereafter M.Sc. (Agri) in Agriculture Extension from OUAT, Bhubaneswar in the year 1992.Thereafter he has been engaged as Post Graduate Research Fellow (Agriculture Extension) at Krushi Vigyan Kendra, G. Udayagiri in the district of Phulbani. The petitioner was appointed against the initial post in the year 1994 and continued as such till the date of filing of the writ application. The OUAT issued an advertisement on 19.09.1995 for filling up of the following posts: Lecturer-1 Junior Scientist-2 Training Associate 8 The advertisement does not indicate the number of posts, which were reserved for reserved category and also does not indicate regarding subject or disciplines vis-à-vis reservation. The petitioner having got the requisite qualification coupled with experience and eligibility for the post, applied for the same pursuant to advertisement. The petitioner’s application having been found in order, he was called upon to appear the interview and he secured 2nd position in select list. The first batch of persons were appointed against the post advertised under Annexure-1 on 25.07.1997 vide Annexure-3 by which the opposite party Nos. 3 to 7 were given appointment. The petitioner’s application having been found in order, he was called upon to appear the interview and he secured 2nd position in select list. The first batch of persons were appointed against the post advertised under Annexure-1 on 25.07.1997 vide Annexure-3 by which the opposite party Nos. 3 to 7 were given appointment. The opposite party No.3 has been given appointment as Assistant professor against one post and opposite party Nos.4 to 7 have been appointed as Training Associate against 2 posts and Junior Scientists against 2 posts. On 22.08.1997, appointment order was issued vide Annexure-4 by which the opposite party Nos. 8 to 10 were appointed as Training Associates, as a result of which three more posts are filled up in the said rank leaving three out of 8 posts of Training Associates. By the time the writ application was filed, three posts of Training Associates were laying vacant and no person had been given appointment against the rest three posts of Training Associates. Since the posts of Assistant professor, Lecturer, Junior Scientist and Training Associate are interchangeable in the same scale of pay of Class-II Cadre, inter-transfer to the said post is also permissible. But surprisingly, when three posts of Training Associates are lying vacant, even though opposite party No.3 was appointed as Assistant Professor/Lecturer, he has been transferred as Training Associate on 30.12.1997.Similarly, opposite parties 4 and 5, who have been appointed as Junior Scientists, have been transferred and posted as Training Associates vide Office Order dated 11.02.1998 and 21.03.1998 respectively.By this, it indicates that three vacancies were lying vacant as Training Associates have been filled up. But nothing has been stated about the vacancies of Assistant Professor or the Lecturer and two posts of Junior Scientists which were created due to transfer of the opposite party No.3 to 5 as Training Associates. Opposite Party Nos. 3 to 7 and 10 were serving in OUAT on adhoc basis without any selection but when the advertisement was issued vide Annexure-1 the said persons did not want to face the interview, rather they approached this Court by filing writ applications bearing OJC No.8218 of 1995 disposed of on 22.07.1996 and OJC No.2330 of 1996 disposed of on 09.05.1996 by relying upon the earlier judgment in OJC No.6637 to 6647 of 1992 disposed of on 28.04.1995. In the said writ applications, this Court directed the OUAT to consider their cases in terms of the order passed in OJC No.6637 to 6647 of 1992 disposed of on 28.04.1995 and further directed the petitioners therein to face the Standing Selection Committee but they will not be asked to compete with the freshers, consequence thereof, the opposite party Nos.3 to 7 got the benefit of facing interview and were selected separately. But the opposite party No.10, who was serving on adhoc basis, was not given the said benefit as he did not file any case, consequence thereof, the opposite party No.10 also faced the interview along with freshers and the petitioner pursuant to advertisement issued in Annexure-1 and he having stood first, has been given appointment in the regular post. The sole controversy raised before this Court was with regard to following of reservation policy with regard to which it was stated that prior to this recruitment, ORV Act was not followed in OUAT and in order just to deprive the benefit admissible to the petitioner, the same has been followed. Consequently, the petitioner could not be absorbed along with similar persons who have been appointed on adhoc basis and get the benefit of order passed by this Court in Annexure-9 and 10. When similar benefit has been extended to opposite party Nos. 3 to 7 and the petitioner having stood in the same footing, he should have been called upon to appear the interview and his service could have been regularized at par with his counterparts, i.e. opposite party Nos. 3 to 7. Instead of doing so, calling upon the petitioner, who stood 2nd in the merit list, to participate in the process of selection without considering his past service and without absorbing against the vacancy available, the authorities have committed gross error to the extent that the roster point has not been followed properly. Hence this application. 3.Mr. R.K. Rath, learned Senior Counsel for the petitioner urged that the selection has to be done in consonance with the advertisement issued. The advertisement does not indicate with regard to the post advertised vis-à-vis the post reserved, only the number of vacancies have been advertised. Hence this application. 3.Mr. R.K. Rath, learned Senior Counsel for the petitioner urged that the selection has to be done in consonance with the advertisement issued. The advertisement does not indicate with regard to the post advertised vis-à-vis the post reserved, only the number of vacancies have been advertised. The petitioner having qualified in the selection process and stood second, his selection should have been done taking into consideration his past experience and it should not have been done beyond the advertisement issued, which deprives the claim of the petitioner for regularization at par with his counterparts i.e. opposite party No.3 to 7, who have got the benefit of judgments of this Court in Annexure-9 and 10. It is urged that since the petitioner stands in the same footing as that of opposite party Nos. 3 to 7, his case should have been considered in the light of the judgment rendered by this Court in Annexure-9 and 10 and his service should have been regularized in accordance with the direction issued in Annexure-9 and 10 at par with their counterparts, i.e opposite party Nos. 3 to 7. It is further urged that so far as applicability of the roster point under the ORV Act is concerned, an utter confusion has been created by the opposite parties both in counter affidavit and subsequent affidavit filed by opposite parties to the extent that initially advertisement was made to fill up 8 nos. of vacancies of Training Associate. It is again stated that the said number of vacancies has been reduced to 6 and then, in the counter affidavit it is stated that it is reduced to 7 thereby, there is inconsistency with regard to the number of vacancies at different stages, which is contrary to the advertisement issued, consequence thereof is dislocation of roster point and the entire action has been done just to deprive the petitioner to get regularization of service. In order to substantiate his case, he has relied upon the judgments in Dayanidhi Mishra and others v. Orissa University of Agriculture & Technology and another (OJC No.17618 of 1997 disposed of on 27.07.2005), Dr. In order to substantiate his case, he has relied upon the judgments in Dayanidhi Mishra and others v. Orissa University of Agriculture & Technology and another (OJC No.17618 of 1997 disposed of on 27.07.2005), Dr. Sarbanarayan Mishra v. Orissa University of Agriculture & Technology and another (W.P.(C) No.14049 of 2006 disposed of on 17.07.2008), Devraj Lenka v. Orissa University of Agriculture & Technology and another (W.P. (C) No.7705 of 2009 disposed of on 03.02.2011), Susanta Kumar Mohanty v. O.U.A.T. and another (W.P.(C) No.2185 of 2009, disposed of on 15.12.2015), 2016 (I) OLR 565 , State of Karnataka and others v. C. Lalitha, (2006) 2 SCC 747 and State of Uttar Pradesh and others v. Arvind Kumar Srivastava and others, 2015 (1) SCC 347 . 4.Mr. G.A.R. Dora, learned Senior Counsel appearing for the opposite party-OUAT strenuously refuted the allegations made by the petitioner in the writ application and urged that since this Court has held that five persons will face the Standing Selection Committee, but will not be asked to compete with the freshers, petitioner and other eligible candidates were not called for the interview, consequentially five vacancies had been filled up in consonance with the direction given by this Court, out of which one post of Lecturer, two Junior Scientists and two Training Associates have been filled up and it is stated that following 80-point roster seven posts of Training Associates have also been filled up in the following manner : Roster. Reserved category 1 ST 2 UR 3 UR (W) 4 SC 5 UR 6 SEBC 7 UR Two persons out of 5 before this Hon’ble Court are UR and were found suitable and appointed against reserve point 2 and 5. Out of 1,3,4,6,7-1 and 4 ST & SC did not apply. 3 UR (W) 6 SEBC and 7 UR were found suitable and appointed. Point 7 UR category went to Op. No.10 (UR) who stood 1st. It is further urged that admittedly, the petitioner stood second in the merit list. Since one UR post has been filled up by opposite party No.10, there is no vacancy available to adjust the petitioner as per 80-point roster, consequentially, his service has not been regularized pursuant to advertisement issued under Annexure-1. No.10 (UR) who stood 1st. It is further urged that admittedly, the petitioner stood second in the merit list. Since one UR post has been filled up by opposite party No.10, there is no vacancy available to adjust the petitioner as per 80-point roster, consequentially, his service has not been regularized pursuant to advertisement issued under Annexure-1. In the further affidavit filed by opposite party No.1 on 21.12.2015, it is stated that during pendency of the writ application, the petitioner was appointed as Training Associate on contractual basis as per order dated 14.02.2005 and he joined in the said post on 28.02.2005 .Challenging such action of the authorities, he filed W.P. (C) No.2483 of 2005 for a direction to regularize his service. By order dated 21.07.2015, this Court without delving into the merits of the case, observing that as the Vice Chancellor was authorized by the Board to take appropriate measures to resolve the issue, disposed of the writ application directing the Vice Chancellor to take necessary steps in consonance with the resolution dated 16.6.2008 read with the judgment of this Court dated 3.4.2012. he further urged that the petitioner having been appointed as Junior Scientist on the recommendation of the Standing Selection Committee pursuant to order dated 08.10.2015, the relief sought for having been granted to the petitioner in compliance to the order passed by this Court in W.P. (C) No.2483 of 2005, the writ application cannot sustain in the eye of law. 5.On the basis of the facts pleaded above, since the service of the petitioner has already been regularized as Junior Scientist as per the order dated 08.10.2015, it is to be considered whether the petitioner is entitled to get the benefit at par with his counterparts i.e., opposite party Nos. 3 to 7 from the date their services have been regularized in consonance with the order passed by this Court in Annexure-9 and 10 respectively. 6.The petitioner has got requisite qualification. This fact has not been disputed and considering the same, he has been given appointment and has been discharging the duty w.e.f. 1994. Once the petitioner has been discharging the duty taking into consideration the past service, he should have been absorbed against the regular vacancy available under the OUAT. 6.The petitioner has got requisite qualification. This fact has not been disputed and considering the same, he has been given appointment and has been discharging the duty w.e.f. 1994. Once the petitioner has been discharging the duty taking into consideration the past service, he should have been absorbed against the regular vacancy available under the OUAT. 7.In Pravati Tripathy and batch v. Orissa University of Agriculture and Technology and another (O.J.C.) No.6637 of 1992 disposed of on 28.4.1995) vide Annexure-10, this Court considering the fact that batch of lecturers in different subjects were appointed under the OUAT to the Basic Science College of University on adhoc basis and that they have already served more than eight years to the satisfaction of all concerned indicates to a great extent about their suitability for holding the post in question, observed that the Standing Selection Committee would be entitled to hold the interview of those petitioners and shall then form its opinion in the matter of selection. Accordingly, this Court directed that the process of selection and consideration of regularization of all those petitioners has to be done in accordance with the observations of this Court within a period of two months from the date of receipt of the order. Consequence thereof, the petitioners in the said batch of writ applications appeared before the Standing Selection Committee and their services have been regularized by the OUAT. 8.In Radheshyam Panigrahi v. Orissa University of Agriculture and Technology and another (O.J.C. No.8218 of 1995 disposed of on 22.7.1996) vide Annexure-8 and Bibhuti Prasad Mohapatra Orissa University of Agriculture and Technology (O.J.C. No.2330 of 1996 disposed of on 9.5.1996) vide Annexure-9, this Court taking into consideration the ratio decided in Dr. Pravati Tripathy and batch of cases (supra) disposed of the writ applications directing that the petitioners will face the Standing Selection Committee and they will not be asked to compete with the freshers. Basing upon such direction, the opposite party Nos. 3 to 7 have appeared before the Standing Selection Committee and their services have been regularized vide Annexure-3.The petitioner having stood in the same footing and taking into consideration his past service, his service should have been regularized at par with his counterparts, i.e. opposite party Nos. 3 to 7 by permitting him to appear before the Standing Selection Committee without directing him to compete with the freshers. 3 to 7 by permitting him to appear before the Standing Selection Committee without directing him to compete with the freshers. Instead of allowing the similarly situated persons to participate in the process of selection, calling upon the petitioner to participate in the selection along with freshers is absolutely an misconceived attempt made by the opposite parties. 9.In C. Lalitha (supra), the Apex Court has held that service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the Court that would not mean that persons similarly situated should be treated differently. Applying the said ratio to the present context, since the petitioner stands in the same footing as that of the opposite party Nos. 3 to 7, who have got the benefits by approaching this Court,it was not justified to deprive the petitioner of the same benefit, because he has not approached this Court. Law is well settled that justice demands that a person should not be allowed to derive any undue advantage over other employees. The concept of justice is that one should get what is due to him or her in law. Therefore, if the similarly situated persons have been extended with the benefits, depriving the to the petitioner creates a heart burning and as such, the entire action of the authority is violative of Article 14 and 15 of the Constitution of India. 10.In Arvind Kumar Srivastava (supra) the Apex Court in paragraph-22, 22.1 and 22.3 held as follows : “22. The legal principles which emerge from the reading of the aforesaid judgment, cited both by the appellants as well as the respondents, can be summed up as under. 22.1The normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not be treated differently. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not be treated differently. Xxxxxxxx 22.3However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularization and the like (See K.C. Sharma v. Union of India). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.” Therefore, in view of the law laid down by the Apex Court, the petitioner, having stood same footing than that of opposite party Nos. 3 to 7 could not have been deprived of getting the benefit of regularization of serving taking into consideration his past experience. As he is similarly situated as that of the opposite party Nos. 3 to 7, he should have called upon to appear before the Standing Selection Committee along with opposite party Nos. 3 to 7 and his merit should not have been determined asking him to participate in the process of selection with freshers. In any case, the action of the authority is contrary to the law laid down by the Apex Court mentioned supra. 11.In Dayanidhi Mishra and others (supra), this Court has already taken a view that Clause-49 of OUAT Statute, 1966 is applicable to said category of employees. Similar view has also been taken in Dr. Sarbanarayan Mishra and also in Devraj Lenka (supra). 11.In Dayanidhi Mishra and others (supra), this Court has already taken a view that Clause-49 of OUAT Statute, 1966 is applicable to said category of employees. Similar view has also been taken in Dr. Sarbanarayan Mishra and also in Devraj Lenka (supra). 12.In Susanta Kumar Mohanty (supra) reference has been made to Clause-49 of OUAT Statute, 1966, which 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.” 13.Applying the said provision, which has already been discussed in the judgment mentioned supra, this Court is also of the view that petitioner’s case has to be considered in terms of Clause-49 of OUAT Statute, 1966 and he should have been appointed substantively against the vacant post in Class-II cadre with effect from the date opposite parties 3 to 7 have been absorbed pursuant to Annexure-3. 14.Much argument has been advanced by both the Senior Counsel with regard to the applicability of the roster point in the present case, but that has got no bearing to the present context in view of the fact that the petitioner being a similarly situated person as that of opposite parties 3 to 7, whose services have been regularized pursuant to judgment passed by this Court, similar benefit should have been extended to the petitioner or else it would be violative of Article 14 and 16 of the Constitution of India. The Roster Notification dated 21.04.1994 is only applicable to the post advertised/notified for recruitment during the period from 13.05.1994 to 11.12.1994.For the post advertised/notified, after 12.12.1994, the roster given in the Notification dated 26.06.1996 has to be followed afresh from Serial No.1. Therefore, all the departments of the Government were directed to follow the 80-point roster dated 26.06.1996 for the vacancy advertised on or after 12.12.1994 and therefore, the entire argument of the opposite parties cannot sustain as the advertisement under Annexure-1 was issued after 12.12.1994. In any case, this Court is not considering the factum of applicability of the 80-point model roster to the present case, as the same has not been indicated in Annexure-1. In any case, this Court is not considering the factum of applicability of the 80-point model roster to the present case, as the same has not been indicated in Annexure-1. 15.The Apex Court in B.L. Gupta v. M.C.D. 1998 (9) SCC 223 has categorically held that criteria has to be made in consonance with the advertisement issued. Similarly, in K. Manjushree v. State of Andhra Pradesh and another, (2008) 3 SCC 512 , the Apex Court has held that in a recruitment process, the selection criteria has to be prescribed in advance. Rules of game cannot be changed afterwards. 16.Keeping in view the ratio decided in aforementioned judgments of the Apex Court, the advertisement issued by opposite party-OUAT under Annexure-1 does not indicate the applicability of reservation to the OUAT employees vis-à-vis the posts advertised and thus, the selection process has to be made in consonance with the advertisement itself and it cannot go beyond the same. In that view of the matter, all arguments made with regard to the applicability of the roster point is not tenable as the same is contrary to the advertisement issued in Annexure-1. 17.In Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi & others, AIR 1978 SC 851 , the Apex Court in paragraph;h-8 held as follows : “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavits or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji ( AIR 1952 SC 16 ) (at P.18). “Public orders publicily made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. “Public orders publicily made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to which they are addressed and must be construed objectively with reference to the language used in the order itself.” Orders are not like old wine becoming better as they grow older.” 18.Similar view has also been taken by the Apex Court in Bhikhubhai Vithlabhal Patel and others v. State of Gujarat and another, (2008) 4 SCC 144 . 19.Considering the law laid down by the Apex Court as above, when an authority makes an order based on certain grounds, its validity must be judged by reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. As the advertisement does not indicate the number of vacancies reserved nor any thing has been spelt out with regard to the applicability of the O.R.V. Act, the explanation given by way of counter affidavit cannot be considered with regard to the post advertised vis-à-vis the number of vacancies reserved. Therefore, the entire reasons assigned in the counter affidavit are contrary to the advertisement issued in Annexure-1, which cannot be sustained. 20.In compliance to the order dated 27.11.12015, the opposite party-OUAT has produced the original file of selection process. It appears that File No.97/2005 relating to Sri B.K.Mohanty, Training Associate containing selection panels for different Class-I & Class-II Cadre posts from 13.06.1995 onwards has been produced but those files do not relate to the selection process followed pursuant to the advertisement issued under Annexure-1, rather, the selection panel for different Class-I & II cadre posts from 13.06.1995 onwards only includes the advertisement issued in Annexure-1 and the process which has been followed by OUAT has not been mentioned therein. Therefore, such files have no assistance to draw a conclusion with regard to applicability of roster point as argued by learned Counsel for opposite party-OUAT. 21.Considering from all angels as mentioned above, this Court directs that the petitioner’s case be considered at par with his counterparts, i.e., opposite party Nos. Therefore, such files have no assistance to draw a conclusion with regard to applicability of roster point as argued by learned Counsel for opposite party-OUAT. 21.Considering from all angels as mentioned above, this Court directs that the petitioner’s case be considered at par with his counterparts, i.e., opposite party Nos. 3 to 7 with regard to regular absorption from the date of issuance of Annexure-3. Since in the meantime, the petitioner has already been absorbed, the same should be relate back to the date when similar benefits have been extended to opposite party Nos. 3 to 7 and he be granted all consequential benefits as due and admissible to him in accordance with law. The entire exercise shall be done within a period of three months from the date of communication of the judgment. 22.With the above observation and direction, the writ petition is allowed. No order as to costs. Petition allowed.