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2017 DIGILAW 533 (ORI)

Rajashree Mishra v. O. U. A. T.

2017-05-05

B.R.SARANGI

body2017
JUDGMENT : B.R. Sarangi, J. The petitioner, having stood first in B.V. Sc. & A.H. course conducted in the year 1989 by the Orissa University of Agriculture and Technology (for short “OUAT”) and completed her M.V. Sc. in 1st division in the year 1992 in the subject Veterinary Bacteriology, Virology, by following due process of selection was initially appointed as Research Assistant under OUAT in the scale of pay of Rs.1640-2900/-against the post of Junior Scientist at Mahisapat vide office order dated 09.07.1993. While she was so continuing, she qualified in the National Eligibility Test, 1994. On 24.07.1993, in partial modification of office order dated 09.07.1993, the petitioner, who was posted as Research Assistant against the post of Junior Scientist, was reposted as such against the post of Lecturer, Bacteriology, (ISS Plan), Orissa Veterinary College. 2. On 02.06.1995, the petitioner filed a representation before the Registrar, OUAT to be appointed as Ad hoc Lecturer, since she acquired the minimum qualification and had been holding the post. Pursuant to the query made by the Registrar, OUAT, the Dean of the Veterinary Science & Animal Husbandry, OUAT vide his letter dated 05.10.1995, while pointing out that the petitioner has been adjusted against the post of Lecturer, requested for publication of advertisement to fill up the vacant posts as per the list appended to the said letter. As no steps were taken for recruitment against the vacant posts of Lecturers, the Dean of the Veterinary Science & Animal Husbandry, OUAT issued reminder to the Registrar, OUAT to take steps for recruitment and, while stating so, specifically pointed out that the petitioner, who was appointed as Research Assistant, has been adjusted against the post of Lecturer. The petitioner, referring to her earlier representation dated 03.06.1995, again filed a representation on 21.07.1996 to consider her case for appointment as Lecturer. In the said representation, she stated that though she had already rendered 3 years of service as Lecturer and was also continuing as such, her case for appointment as Lecturer had not been considered nor the post had been advertised, even though for other disciplines advertisement had been made by the authority and the Research Assistants working in other faculties had already been appointed as Lecturer in the concerned Department. By letter dated 05.08.1996, the Dean of the Veterinary Science and Animal Husbandry, OUAT, while forwarding the representation of the petitioner to the Registrar, OUAT, specifically indicated that there were two vacancies in the rank of Asst. Professor (one post plan and another non-plan) in the Department of Bacteriology and that action be taken to fill up the posts so that the petitioner could be adjusted. 3. The petitioner again made a representation on 28.07.1999 to consider her case for regularization in the post of Asst. Professor, since persons below her in the select list had been adjusted in their respective departments as Asst. Professor. Due to inaction of the authority, the petitioner approached this Court by filing OJC No. 13411 of 1999, which was disposed of by order dated 28.01.2003 with a direction that as and when the questions of appointment and filling up the post of Lecturer in Bacteriology would be considered by the University, it would also consider the case of the petitioner, keeping in view the academic qualification, the NET certificate and the experience in accordance with the Statute. Thereafter, an advertisement was issued for the post of Asst. Professor, Bacteriology in the College of Veterinary Science and Animal Husbandry, OUAT. The petitioner was selected and appointed as Asst. Professor of Bacteriology as per letter dated 10.06.2005. While so continuing, she made a grievance that she should be extended with the benefit from the date of initial appointment, i.e., 31.07.1993 so as to enable her to get senior scale of pay w.e.f. 01.08.2001. But, the representation of the petitioner was not considered for a long period and ultimately, on 20.09.2008, the same was rejected. Hence, this application has been filed seeking for direction to the opposite parties to treat the petitioner as Lecturer/Asst. Professor w.e.f. 31.07.1993 and grant scale of pay and consequential service benefits and financial benefits as due and admissible to the post from that date. 4. Mr. A.K. Mishra, learned Senior Counsel appearing along with Mr. G. Sinha, learned counsel for the petitioner urged that, since the petitioner on being allowed by the authority was discharging the duties of Lecturer/Asst. Professor w.e.f. 31.07.1993 pursuant to her selection to the post of Research Assistant/Training Assistant, after her regular appointment on 10.06.2005 as Lecturer/Asst. 4. Mr. A.K. Mishra, learned Senior Counsel appearing along with Mr. G. Sinha, learned counsel for the petitioner urged that, since the petitioner on being allowed by the authority was discharging the duties of Lecturer/Asst. Professor w.e.f. 31.07.1993 pursuant to her selection to the post of Research Assistant/Training Assistant, after her regular appointment on 10.06.2005 as Lecturer/Asst. Professor in which post she joined on 17.06.2005, the opposite parties should have counted the period from 31.07.1993 till 17.06.2005 towards continuity in service as Asst. Professor treating the same as teaching experience and extended consequential service and differential financial benefits to the petitioner, as such benefits have already been granted to the similarly situated persons of other Departments of OUAT. 5. Mr. Ashok Mishra, learned Senior Counsel appearing along with Mr. S.C. Rath, learned counsel for opposite party-University strenuously urged that the petitioner is not entitled to the relief as claimed in the writ petition. It is contended that the petitioner was selected as Research Assistant, which is a Class-III Cadre post and appointed against a vacant post of Junior Scientist (Animal Nutrition) at NARP-II, Mahisapat. On her own request, she was posted at Bhubaneswar as Research Assistant in her own grade and pay scale with an official arrangement to facilitate drawl of her salary from a vacant post of Lecturer, Bacteriology (ISS Plan), College of Veterinary Science and Animal Husbandry, Bhubaneswar by office order dated 24.07.1993, pursuant to which she joined on 31.07.1993 (forenoon), even though there was no sanctioned post of Research Assistant in the said Department. While the petitioner was continuing as Research Assistant against the post of Lecturer, Bacteriology, she approached this Court by filing OJC No. 13411 of 1999 with a prayer to regularize her service to the post of Lecturer, Bacteriology w.e.f. 31.07.1993, i.e., from the date of her joining as Research Assistant against the vacant post of Lecturer and to give all the emoluments attached to the post of Lecturer with other benefits. This Court treated the petitioner as a Research Assistant and disposed of the above writ petition by order dated 29.01.2003 with the direction to University authorities to consider her case as and when the University considered the question of appointment and filling up the post of Lecturer, Bacteriology. Pursuant thereto, a fresh advertisement was issued for filling up of some vacant teaching posts in OUAT including two posts of Asst. Pursuant thereto, a fresh advertisement was issued for filling up of some vacant teaching posts in OUAT including two posts of Asst. Professor in Bacteriology in the year 2005. The petitioner was selected as Asst. Professor, Bacteriology pursuant to such advertisement on 10.06.2005 and joined in the post on 17.06.2005. After joining in the post as an Asst. Professor on regular basis, the petitioner made a representation to the Chairman of the Board of Management, OUAT for counting the period from 30.07.1993 to 03.10.2000 as teaching experience and extending the benefits of Asst. Professor. The same having not been considered, she again approached this Court by filing W.P.(C) No.12199 of 2008, which was disposed of by order dated 01.09.2008 directing the opposite parties to consider the representation filed by the petitioner within a period of fifteen days from the date of communication of that order. On 08.09.2008, again said order was modified and permitted the Board to reconsider the matter. The Chairman, Board of Management considered and examined the representation dated 15.05.2008 of the petitioner and the information furnished by her containing the total number of classes, research and extensions works done by her during the period from 30.07.1993 till 03.10.2000, but rejected the said representation on 10.05.2008 by assigning reasons. Therefore, it is contended that pursuant to grievance made by the petitioner, it has been already considered and concluded by this Court in earlier two writ applications and for the self same relief, the petitioner could not have approached this Court by filing this application. 6. This Court heard Mr. A.K. Mishra, learned Senior Counsel for the petitioner and Mr. Ashok Mishra, learned Senior Counsel for opposite parties and perused the records. Pleadings having been exchanged between the parties, the writ petition is disposed of finally at the stage of admission with the consent of learned counsel for the parties. 7. The relief claimed in this writ petition rests on the fact that the petitioner, having been appointed as Research Assistant/Training Assistant under the different schemes of the OUAT in the scale of pay of Rs.1640-2900/- with usual allowance and having been allowed to continue against a vacant post of Lecturer, is entitled to get the benefits of teaching experience and continuity in service against the post of Asst. Professor Bacteriology and Virology in the Veterinary College. Professor Bacteriology and Virology in the Veterinary College. There is no dispute that there are two sources of recruitment, namely, recruitment to the post of Research Assistant/Training Assistant which is a Class-III post and recruitment to the post of Asst. Professor which is a Class-II post. Admittedly, the petitioner had been selected for the post of Research Assistant/Training Assistant pursuant to which she joined on 31.07.1993 against a Class-III post and officially she was posted as Junior Scientist at Mohisapat. On her own request, she was adjusted against the post of Lecturer in the Veterinary Science College of OUAT where she had been discharging her duty. That ipso facto may not entitle her to get the benefit of teaching experience as well as continuity in service as Lecturer/Asst. Professor from the date of joining as Research Assistant/Training Assistant w.e.f. 31.07.1993. 8. The bone of contention of learned counsel for the petitioner is that as per the provisions contained in Statute 49 as she had been discharging her duties from 31.07.1993 as Lecturer, she would be entitled to senior scale of pay with effect from 01.08.2001. Statute-49 of Orissa University of Agriculture and Technology Statutes, 1966 reads as follows: “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 of temporary post continuously for a period exceeding two years in the grade and pay scale and possessing the qualifications required for the permanent post shall be considered first and substantive appointment in that permanent post.” As a matter of fact, the petitioner was posted as Research Assistant, which is a Class-III post with the State Government Scale of Pay Rs.1640-2900, against a vacant post of Lecturer, Bacteriology in the College of Veterinary Science vide office order dated 24.07.1993 in which she joined on 31.07.1993. There was no sanction post of Research Assistant in the Department of Bacteriology and Virology, College of Veterinary Science and Animal Husbandry. Consequentially, the petitioner was posted against the vacant post of Lecturer, Bacteriology with a view to provide her employment and to assist the teaching in the Department. She was not selected and joined as Lecturer in Bacteriology with UGC scale of pay i.e. Rs.2200-4000/-and also did not hold the Class-II Cadre post having duly selected by Standing Selection Committee as provided under Clasue-3(1)(ii) of the OUAT Statutes, 1966. She was not selected and joined as Lecturer in Bacteriology with UGC scale of pay i.e. Rs.2200-4000/-and also did not hold the Class-II Cadre post having duly selected by Standing Selection Committee as provided under Clasue-3(1)(ii) of the OUAT Statutes, 1966. Therefore, the petitioner having not joined in the same grade and same scale as Asst. Professor, the question of application of Statute 49 does not arise. While the petitioner was continuing as Research Assistant, she availed the study leave for prosecuting Ph.D degree from 01.09.2000 to 29.02.2004, which was allowed to her, as applicable to non-teaching employees of the University, as per decision of the Board of Management resolution dated 21.01.2002. As the petitioner was discharging the duty of Research Assistant, she was drawing the scale of pay admissible to the said post from 31.07.1993 to 17.06.2005. 9. The relief, as sought for in this application, having been considered by this Court in earlier two writ petitions, i.e., OJC No. 13411 of 1999 and W.P.(C) No. 12199 of 2008, the same cannot be reopened in the present writ application. The petitioner filed OJC No. 13411 of 1999 with following relief: “i. Regularize in the post of Lecturer, Bacteriology in the Veterinary College of Opposite Party no.1 i.e. opposite party no.3 from 30.07.1993 and ii. The petitioner be given all emoluments attached to the post of Lecturer from 30th of July, 1993 and other benefits as permissible under law from the date of her joining as Lecturer. This Court disposed of the writ application vide order dated 29.01.2003 directing that as and when the University considered the question of appointment and filling up the post of Lecturer in Bacteriology, it would also consider the case of the petitioner, keeping in view the academic qualification, the N.E.T. certificate and the experience in accordance with the Statute. Consequentially, an advertisement was issued in the year 2005. The petitioner appeared before the Standing Selection Committee and on recommendation, she was appointed as Asst. Professor, Bacteriology. She again filed W.P.(C) No. 15499 of 2008 seeking for the benefits as were sought for in OJC No. 13411 of 1999. When the grievance of the petitioner has already been considered and decided earlier and, pursuant to the direction of this Court, she has already been appointed and joined as Asst. Professor, Bacteriology. She again filed W.P.(C) No. 15499 of 2008 seeking for the benefits as were sought for in OJC No. 13411 of 1999. When the grievance of the petitioner has already been considered and decided earlier and, pursuant to the direction of this Court, she has already been appointed and joined as Asst. Professor, Bacteriology, she has once again approached this Court claiming continuity in service from 31.07.1993 till 17.06.2005 after her such grievance was rejected by the authority. Though exactly the language has not been couched in the present writ application, effectively the relief sought for is the same and similar as that of earlier two writ applications. 10. In Purilal Mohanta v. NESCO W.P.(C) No. 8192 of 2008 disposed of on 23.07.2008 a similar question had come up for consideration before this Court. In that case, the petitioner, who was functioning as Lineman-A and allowed to continue for some period to discharge the duty of Junior Engineer, and on joining of the Junior Engineer he again functioned as Lineman-A, claimed that he should be allowed to continue as Junior Engineer. This Court declined to grant such relief to the petitioner in that case. 11. Applying the said analogy to the present case, since the petitioner admittedly joined against a Class-III post as Research Assistant by following due procedure of selection, merely because she was discharging the duties in a vacant post of Lecturer which admittedly a Class-II post, she cannot get the benefit of continuity of service against a teaching post from the date of her joining as Research Assistant, i.e., 31.07.1993 till 17.06.2005, on which date she was regularized as Asst. Professor by following due procedure of selection as a Class-II post of the OUAT. 12. In view of the aforesaid facts and circumstances of the case, this Court finds no merit in this writ application. Accordingly, the same is dismissed. No order to cost.