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2017 DIGILAW 892 (ORI)

Biswajeet Mohapatra v. State of Odisha

2017-08-17

B.R.SARANGI

body2017
JUDGMENT : B.R. Sarangi, J. The Water and Land Management Institute (WALMI), a society registered under the Societies Registration Act, 1860, is an autonomous institute under the Department of Water Resources, Government of Orissa. The Government in its resolution dated 30.12.1985 established WALMI in Orissa under the Development Credit Agreement for Subarnarekha Irrigation Project in order to improve the deficiency in the knowledge of agricultural practices especially crop, water requirement, survey, lay out, construction and management of distribution system including minor canals, water courses, field channels and drainage channels. The main objectives of the society was to promote advancement of science and acquisition of scientific knowledge, provide instructions and training in all branches of science both theoretical and applied and in particular in water management and land development for irrigation and agriculture. WALMI imparts training to the in-service Diploma, Degree and Master Degree holder practicing engineers and Agriculture Officers, Field Staff and Farmers. It also undertakes adaptive research and extension activities in irrigation command areas. It has also been recognized, as a centre for research by Utkal University for pursuing studies leading to award of Ph.D degree, by its letter dated 11.10.1995. It has also been accorded non-plan budget in budgetary allocation of the Department of Water Resources, Government of Odisha, as it has been recognized as the key institute in transfer of technologies related to water and land development and management to officers of Department of Water Resources, Command Areas Development Agencies, Department of Agriculture, Lift Irrigation Corporation etc, field staff and farmers of the State. 2. WALMI, under the control of Department of Water Resources, is strictly following University Grant Commission (UGC) norms since its inception, while recruiting its Faculty Members, to maintain high quality teaching standard, by granting them UGC pay scales duly corroborated by Gazette Notification and subsequent Government Resolutions. 3. Pursuant to advertisement issued in Odia daily “The Samaj” on 20.07.1987, applications were invited by WALMI for three posts of Lecturers in Engineering Faculty so as to reach the same on or before 24.08.1987. It was mentioned therein that the scale of pay would be the existing UGC scale of pay of Rs.700-1600/-for Lecturers with usual foreign service terms and conditions and would be stationed at Bhubaneswar WALMI headquarters. It was mentioned therein that the scale of pay would be the existing UGC scale of pay of Rs.700-1600/-for Lecturers with usual foreign service terms and conditions and would be stationed at Bhubaneswar WALMI headquarters. The petitioners, having requisite qualification and satisfied the conditions stipulated in the advertisement itself, submitted their applications for the post of Lecturer in Engineering Faculty, and being duly selected, were appointed in the said post on 27.02.1992. Pursuant to resolution dated 18.08.1992, Department of Irrigation, Government of Odisha approved the revision of scale of pay of Faculty Members of WALMI, by which the scale of pay of the petitioners in Lecturer in Engineering Faculty was revised from Rs.700-1600/-to Rs.2400-4000/-. In conformity with the said resolution, the office order was issued on 28.08.1992 allowing the petitioners to draw their pay in the revised UGC scale of pay from the date they were entitled to get such benefit. Accordingly, the petitioners were also paid their increment. When there was revision of scale of pay pursuant to recommendation made by the Fifth Pay Commission, the benefit of UGC scale of pay was granted to the College teachers and University teachers with effect from 01.01.1996 by virtue of resolution of the Department of Higher Education, Government of Odisha dated 31.12.1999. Similarly, pursuant to resolution dated 21.10.2000 of the Department of Agriculture, Government of Odisha, teachers in Orissa University of Agriculture and Technology (OUAT) were extended the scale of pay recommended by the University Grants Commission w.e.f. 01.01.1996. Consequentially, the Lecturers who were getting scale of pay of Rs.2200-4000/-as per the recommendation of Fourth Pay Commission, their scale of pay was revised to Rs.8000-13500/-as per recommendation made by Fifth Pay Commission and that was given effect to from 01.01.1996. 4. The Finance Department, Government of Odisha vide notification dated 26.02.2001 framed a Rule called “Orissa Revised Scales of Pay (for College Teachers) Rules, 2001 by which the UGC scale of pay of the Government Lecturers was revised from 01.01.1996. The petitioners, having been appointed in the existing UGC scale of pay and discharged the responsibility of Lecturer in Engineering Faculty, also stood on the same footing and are entitled to get the revised UGC scale of pay as per report of the Fifth Pay Commission w.e.f. 01.01.1996. But the Department of Water Resources, Government of Odisha, by resolution dated 15.10.2004, granted UGC scale of pay w.e.f. 01.10.2004 prospectively. But the Department of Water Resources, Government of Odisha, by resolution dated 15.10.2004, granted UGC scale of pay w.e.f. 01.10.2004 prospectively. Accordingly, the petitioners’ pre-revised scale of pay of Rs.2200-4000 was revised to Rs.8000-13500/- w.e.f. 01.10.2004, though they are entitled to get such benefit with effect from 01.01.1996 at par with their counterpart Lecturers of OUAT, College teachers and University teachers as well as Government Colleges of the State, pursuant to resolutions passed by the Department of Agriculture, Department of Higher Education and Department of Finance respectively. Though the petitioners had made grievances before the authorities, the same having not been taken into consideration, these applications have been preferred. 5. Mr. A.K. Mishra, learned Senior Counsel appearing along with Mr. D.K. Panda, learned counsel for the petitioners urged that there is no reason for fixing the cut-off date, i.e., 01.10.2004, while granting UGC scale of pay to the petitioners pursuant to the recommendations of the Fifth Pay Commission, though they stand on the similar footing with the Lecturers of the OUAT, College teachers and University teachers, as well as Government Lecturers, who have been granted UGC scale of pay with effect from 01.01.1996 pursuant to resolutions of the Department of Agriculture, Department of Higher Education and Department of Finance respectively. Fixation of such cut-off date, i.e., 01.10.2004, extending the benefit prospectively, has no reasonable nexus to the object sought to be achieved. As such, the authorities have, not only committed gross illegality and irregularity in fixing such cut-off date, but also created discrimination amongst the same class of teachers working in the same conditions with same qualification. Thereby, the action of the authorities violates Articles 14 and 16 of the Constitution of India. It is further contended that, in the name of financial crunch and policy decision, the rights of the petitioners to get UGC scale of pay ought not to have been curtailed by the authorities, which amounts to arbitrary and unreasonable exercise of power and warrants interference of this Court. 6. Mr. C.A. Rao, learned Senior Counsel appearing along with Mr. S.K. Behera, learned counsel for opposite party no.3 referring to paragraph-8 of the counter affidavit stated that WALMI, being a training institute, cannot be compared with a University, Government College or an aided College. 6. Mr. C.A. Rao, learned Senior Counsel appearing along with Mr. S.K. Behera, learned counsel for opposite party no.3 referring to paragraph-8 of the counter affidavit stated that WALMI, being a training institute, cannot be compared with a University, Government College or an aided College. It is an autonomous training institute, but not an educational institution, where implementation of the UGC scale of pay depends upon the administrative decision of the Governing Council which implements the policy of the State Government. It is further contended that fixation and grant of UGC scale of pay to the attached teachers with effect from 01.10.2004 was due to financial crunch and, therefore, the petitioner cannot and should not have made any grievance for extending such benefits from 01.01.1996. More so, the extension of UGC scale of pay with effect from 01.10.2004, so far as teaching staff of WALMI is concerned, being a policy decision, cannot be interfered with. In such view of the matter, the writ petition is liable to be dismissed. To substantiate his contention, he has relied upon the judgments of the apex Court in A.K. Bindal and another, v. Union of India and others, AIR 2003 SC 2189 ; and of this Court in W.P.(C) No.9453 of 2005 and W.P.(C) No.213 of 2007 (Mayadhar Pani v. Orissa State Financial Corporation and others) decided on 20.01.2012. 7. Having heard learned counsel for the parties and after perusing the records, since pleadings between the parties have been exchanged, with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 8. Undisputedly, the petitioners, pursuant to advertisement dated 20.07.1987, having requisite qualification and eligibility criteria, participated in the process of selection and on being duly selected, appointed as Lecturers by office order dated 27.02.1992 in the existing UGC scale of pay of Rs.700-1600/-and had been discharging their duties from the date of their initial appointment. Pursuant to resolution dated 18.08.1992 of the Government of Orissa in the Department of Irrigation, the pay scale of the Lecturers was revised from Rs.700-1600/-to Rs.2200-4000/-. The petitioners, having come under the Lecturer category, were granted the revised UGC scale of pay admissible to the post, pursuant to office order dated 28.10.1992. When Fifth Pay Commission Recommendation was made, the UGC also revised the scale of pay. The petitioners, having come under the Lecturer category, were granted the revised UGC scale of pay admissible to the post, pursuant to office order dated 28.10.1992. When Fifth Pay Commission Recommendation was made, the UGC also revised the scale of pay. Accordingly, the Government of Orissa in the Department of Higher Education decided to extend UGC scale of pay to the College Teachers and University Teachers w.e.f. 01.01.1996 pursuant to resolution dated 31.12.1999; and Government of Orissa in Department of Agriculture also extended such UGC scale of pay to the Lecturers of the OUAT w.e.f. 01.01.1996 pursuant to resolution dated 21.10.2000. Similarly, the Department of Finance, Government of Orissa vide notification dated 26.02.2001 extended UGC scale of pay to the Lecturers of the Government colleges and aided colleges w.e.f. 01.01.1996. But the petitioners, having stood in the same footing with the Lecturers appointed in other departments, have been extended with the benefits of UGC scale of pay w.e.f 01.10.2004 prospectively instead of 01.01.1996. As such, fixing of such cut-off date, i.e., 01.10.2004 has no reasonable nexus to the object sought to be achieved by the authority concerned. 9. The reliance was placed on the decision of the apex Court in A.K. Bindal (supra), by the learned counsel for opposite parties, where the question raised for consideration was that whether the employees of public sector enterprises had legal rights to claim that though the industrial undertakings or the companies in which they were working did not have the financial capacity to grant revision in pay scale, yet the Government should give financial support to meet the additional expenditure incurred in that regard. The apex Court answered the said question in negative and held that the policy decision taken by the Government that Public Sector Enterprises would have to generate their own resources to meet the additional expenditure incurred on account of increase in wages was neither illegal nor unconstitutional. Similar view has also been taken by following the said judgment in Sri Mayadhar Pani (supra). If the facts of those cases are taken into consideration, they are totally distinguishable from that of present one. Similar view has also been taken by following the said judgment in Sri Mayadhar Pani (supra). If the facts of those cases are taken into consideration, they are totally distinguishable from that of present one. As such, in A.K. Bindal (supra) the consideration was that if the company is sustaining losses continuously over a period and does not have the financial capacity to revise or enhance the pay scale, the petitioners therein cannot claim any legal right to ask for a direction to the Central Government to meet the additional expenditure which may be incurred on account of revision of pay scales. But this is not the case here. The factual matrix, as delineated above, is crystal clear that right accrues on the petitioners because they have been appointed as Lecturers in Engineering Faculty in UGC scale of pay and their pay have also been revised under the UGC Scale of pay. The claim of the petitioners is that similarly situated persons working in the Department of Higher Education, Department of Agriculture and Department of Finance of the Government of Odisha as Lecturers, having been extended with the benefits of UGC scale of pay from the date of revision of scale of pay i.e. 01.01.1996, they are entitled to such benefits from 01.01.1996. In the instant case, it is not a fact that the petitioners are not entitled to get the UGC scale of pay; they have been extended with the benefits but w.e.f. 01.10.2004 instead of 01.01.1996. As such, there is no reasonable nexus sought to be achieved by fixing such a cut-off date i.e., 01.10.2004 prospectively. 10. The only contention raised in the counter affidavit, as well as in course of arguments by learned counsel for opposite parties, is that due to financial crunch this benefit could not be extended from 01.01.1996. A similar question had come up for consideration before the apex Court in State of Maharashtra v. Manubhai Pragaji Vashi, AIR 1996 SC 1 that non-extending the grant-in-aid by State to Non-Government Law Colleges and at the same time extending such benefit to non-Government college with faculties viz., Arts, Science, Commerce, Engineering and Medicine (other professional non-Government colleges) was patently discriminatory. In that case, the aforesaid benefit had not been extended by pleading paucity of funds or otherwise, and the apex Court held that the plea of paucity of funds taken by the State would not be tenable as the paucity of funds can be no reason for discrimination. In paragraph 12 of the aforesaid judgment, the apex Court specifically observed as follows: “The facts stated above amply bring out the fact that recognised private law colleges alone were singled out for hostile discriminatory treatment. The recommendations of the committee (pages 198-208) to apply the new formula for the grant to private law colleges and the resolution adopted by the Government to extend the UGC scales to teachers of law colleges (pages 86-87) remained only in `paper' and no concrete steps were taken to implement them. It is not explained as to why recognised private law colleges alone are disentitled to receive grant-in-aid from the Government. The burden of proof cast on the State, that discrimination against recognised private law colleges is based on a reasonable classification having nexus to the object sought to be achieved, has not been discharged. The High Court has held so, placing reliance on the decisions of this Court reported in Budhan Choudhary and others v. State of Bihar, AIR 1955 SC 191 Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578 , Mehant Moti Das v. S.P.Sahi AIR 1959 SC 942 , Babulal Amthalal Mehta V. Collector of Customs AIR 1957 SC 877 and D.S.Nakara v.Union of India, AIR 1983 SC 130 . We hold that the aforesaid reasoning and conclusion of the High Court is fully justified and no exception can be taken to the decision so arrived at by the High Court. The High Court has further referred to the plea of paucity of funds pleaded by the State and has held that paucity of funds can be no reason for discrimination placing reliance on the decision of this Court in Municipal Council, Ratlam v. Vardhichand AIR 1980 SC 1622 . This reasoning of the High Court is also fully justified and no exception can be taken to the said proposition as well. We hold so.” 11. The reason for fixation of cut-off date, i.e., 01.10.2004 to extend the benefit of revised UGC scale of pay tothe petitioners of Rs.8,000-13500/-has no reasonable nexus to the object sought to be achieved. This reasoning of the High Court is also fully justified and no exception can be taken to the said proposition as well. We hold so.” 11. The reason for fixation of cut-off date, i.e., 01.10.2004 to extend the benefit of revised UGC scale of pay tothe petitioners of Rs.8,000-13500/-has no reasonable nexus to the object sought to be achieved. Therefore, the basic question is to be determined as to whether the fixation of such cut-off date is arbitrary, unreasonable or discriminatory. 12. When a cut-off date is fixed by the concerned authority, the Court is required to keep in mind that such a date must have been fixed by the authority after considering various aspects of the case and, therefore, there is very limited scope of judicial interference in such matters. This issue has been examined and considered by the Supreme Court time and again in a large number of cases, some of which are Jaila Singh v. State of Rajasthan, AIR 1975 SC 1436 ; D.S. Nakara v. Union of India, AIR 1983 SC 130 ; Dr. (Mrs.) Sushma Sharma v. State of Rajasthan, AIR 1985 SC 1367 ; U.P.M.T.S.N.A. Samiti, Varanasi v. State of Uttar Pradesh, 1987 (2) SCC 453 : AIR 1987 SC 1772 ; Krishna Kumar v. Union of India, AIR 1990 SC 1782 ; State of Rajasthan v. Rajasthan Pensioner Samaj, AIR 1991 SC 1743 ; All India Reserve Bank Retired Officers Association v. Union of India, AIR 1992 SC 767 ; T.S. Thiruvengadam v. Secretary to the Government of India, (1993) 2 SCC 174 ; Union of India v. Sudhir Kumar Jaiswal, AIR 1994 SC 2750 ; M. C. Dhingra v. Union of India, (1996) 7 SCC 564 : AIR 1996 SC 2963 ; University Grants Commission v. Sadhana Chaudhary, (1996) 10 SCC 536 ; State of Rajasthan v. Amrit Lal Gandhi, AIR 1997 SC 782 ; and many others. 13. It is well settled in law that a cut-off date can be introduced, but it is not permissible to introduce such a date in an artificial manner resulting in discrimination between similarly situated persons. 13. It is well settled in law that a cut-off date can be introduced, but it is not permissible to introduce such a date in an artificial manner resulting in discrimination between similarly situated persons. A cut-off date may be introduced by creating a fiction, but before fixing such cut-off date, the consequences are required to be examined thoroughly and the date so fixed must have some nexus to the object sought to be achieved and should not result in making an artificial classification between similarly situated persons. If the choice of fixing a particular date is shown to be wholly arbitrary and introduces discrimination, which violates the mandate of Article 14 of the Constitution, such a cutoff date can be struck down for the reason that a purpose of choice unrelated to the object sought to be achieved cannot be accepted as valid. The Constitution Bench of the Supreme Court in Union of India v. M.V. Valliappan, AIR 1999 SC 2526 held that a cut-off date cannot be held to be invalid unless it is shown to be capricious or whimsical and it cannot be held to be so merely in absence of any particular reason for choosing the same. The Court observed as under: “It is settled law that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances; while fixing a line of point is necessary and there is no mathematical date or way of fixing it, precisely the decision of the Legislature or its delegate must be accepted unless it is very wide of reasonable mark University Grants Commission v. Sadhana Chaudhary, (1996) 10 SCC 536 . The learned Counsel for the respondents was not in a position to point out any ground for holding that the said date is capricious or whimsical in the circumstances of the case.” 14. The learned Counsel for the respondents was not in a position to point out any ground for holding that the said date is capricious or whimsical in the circumstances of the case.” 14. In Bhupinderpal Singh v. State of Punjab, (2000) 5 SCC 262 , the Supreme Court placed reliance upon large number of its earlier judgments, particularly in Ashok Kumar Sharma v. Chandra Sekhar, (1997) 4 SCC 18 ; Andhra Pradesh Public Service, Commission v. B. Sharat Chandra, (1990) 2 SCC 669 and M.V. Nair (Dr.) v. Union of India, (1993) 2 SCC 429 and observed as under: “The High Court has held that (i) the cutoff date, by reference of which the eligibility required must be satisfied by the candidate seeking a public employment, is the date appointed by the relevant rules and if there be no cut-off date appointed by the rules then such date, as may be appointed for the purpose in the advertisement seeking for application; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed, by which the application has been received by the Authority. The view taken by the High Court is supported by several decisions of the Court and is, therefore, well settled and hence cannot be found fault with.” 15. The said judgment was considered and approved by the Supreme Court in Jasbir Rani v. State of Punjab, (2002) 2SCC 124. Similarly, in State of West Bengal v. West Bengal Government Pensioners Association, (2002) 2 SCC 179 , the Supreme Court approved the cut-off date fixed by the State for the purpose of revising the pay scale, observing that the cut-off date cannot be set aside unless on the facts it is proved to be arbitrary and unreasonable. 16. In view of the law laid down by the apex Court as mentioned above, nothing has been placed on record to indicate why such cut-off date, i.e., 01.10.2004 has been fixed by the authority concerned while granting revised UGC scale of pay to the petitioners, whilst similarly situated persons have been extended such benefits w.e.f. 01.01.1996. Thereby, the entire action of the authorities is arbitrary, unreasonable and contrary to the provisions of law. 17. Thereby, the entire action of the authorities is arbitrary, unreasonable and contrary to the provisions of law. 17. In the name of policy decision of the Government, this cut-off date cannot also be fixed, because it amounts to arbitrary and unreasonable exercise of power, and is violative of Articles 14 and 16 of the Constitution of India. 18. In the case of Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1 , the apex Court held that the Government companies/public sector undertakings being “States” would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. The power of the State in the sphere of exercise of its constitutional power including those contained in Article 298 of the Constitution of India inheres in it a duty towards public, whose money is being invested. Therefore, while carrying trade or business the State must fulfill its Constitutional obligations. Referring to the aforesaid judgment in respect of employees of working under the said organization, namely, WALMI, who have completed five years of service, this Court directed for regularization of service in the case of Binan Kumar Mohanty v. Water & Land Manageemnt Institute (WALMI) 2015(1) OLR 347 . 19. In the name of policy decision of the Government, the action of the authority in fixing the cut-off date, i.e., 01.10.2004 prospectively, while granting the benefit of UGC scale of pay to the petitioners, not only arbitrary, unreasonable and contrary to the provisions of law, but also violates Articles 14 and 16 of the Constitution of India. If any policy decision violates Articles 14 and 16 of the Constitution of India, the Court has got every right to interfere with the same. As such, the nature of policy decision has to be taken into consideration, while adjudicating the same in accordance with law. 20. In view of the discussions made above, this Court has no hesitation to hold that the fixation of cut-off date for extending the benefit of revised UGC scale of pay w.e.f. 01.10.2004 prospectively, is arbitrary, unreasonable and violates Articles 14 and 16 of the Constitution of India. 20. In view of the discussions made above, this Court has no hesitation to hold that the fixation of cut-off date for extending the benefit of revised UGC scale of pay w.e.f. 01.10.2004 prospectively, is arbitrary, unreasonable and violates Articles 14 and 16 of the Constitution of India. Accordingly, the opposite parties are directed to extend the benefits of revised UGC scale of pay to the petitioners w.e.f. 01.01.1996 at par with their counterpart Lecturers working under the Department of Higher Education, Agricultural Department and Finance Department of Government of Odisha with consequential benefits, and the differential salary on that score be calculated and paid to them as expeditiously as possible, preferably within a period of four months from the date of communication of this judgment. 21. The writ petitions are thus allowed. There shall be no order as to cost.