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2018 DIGILAW 292 (ORI)

Priya Ranjan Dash v. State of Odisha

2018-03-22

SUJIT NARAYAN PRASAD

body2018
JUDGMENT : S.N. Prasad, J. In both the writ petitions the same order is under challenge, as such the same has been heard together and are being disposed of by this common order. Both the writ petitions have been filed for quashing the order dated 01.01.2018 (Annexure-13), whereby and where under the re-designation and fixation of pay of the petitioners in Pay Band 4 (Rs.37,400/- Rs.67,000/- + AGP Rs.9000/-) prior to completion of 5 years as Reader have been held to be devoid of merit and also the Resolution No. 7889 dated 04.04.2016 under Annexure-7, which according to the petitioners is contrary to the U.G.C. Regulation, 2010, as such since the petitioners have been appointed as Associate Professors in terms of Clause-4.3.0 of the University Grants Commission Regulation, 2010, hence the Resolution dated 4.4.2016 is not applicable with the further direction upon the opposite parties to fix the Pay Scale of the petitioners in Pay Band 4 (Rs.37,400/- Rs.67,000/- + AGP Rs.9000/-) in terms of Appendix-I, Appendix-III, Table-II(c) of the UGC Regulation, 2010 read with Clause-(iii) of Sub-Rule-(1) of Rule-7 of Orissa Rules, 2010 with retrospective effect i.e. from the date of appointment with all arrears and consequential benefits. 2. Brief facts of the case of the petitioners is that both the writ petitioners have joined their service by virtue of an advertisement published on 22.06.2015 by the Registrar, Utkal University inviting applications from eligible candidates for the post of Readers in various Post Graduate Departments with 8 years of Post Graduate Training and/or Research experience along with 300 Academic Performance Indicator (API) as mandatory requirement for applying the posts. Both the petitioners in terms of the said advertisement have been considered and appointed as Reader in the Scale of Pay of Rs.15,600/-39,100/-+ Rs.8,000/- AGP. In terms thereof, both the petitioners have submitted their joining before the Registrar, Utkal University which has been accepted and thereafter the petitioners have started discharging their duties. The University Grants Commission in exercise of power conferred under clause (e) and (g) of sub-section (1) of Section 26 of University Grants Commission Act, 1956, issued Regulation known as UGC Regulation, 2010 which came into force w.e.f. 18.09.2010 by superseding the University Grants Commission (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations, 2000 together with all amendments made therein. The clause-2 of the UGC Regulations, 2010 laid down the pay structure of different categories of teachers and equivalent positions. The pay scale of the post of Associate Professor is reflected in said Regulation under clause 4.3.0 which shall be in Pay Band 4 (Rs.37,400/- Rs.67,000/- + AGP Rs.9000/-) and consequent upon coming into force of the UGC Regulation 2010, the Chancellor in exercise of power conferred under sub-section (1) of Section 22 of the Orissa Universities Act, 1989 issued a Notification on 15.02.2010 framing the Orissa Revised Scales of Pay for University Teachers (U.G.C. Scale of Pay) Rules, 2010 (hereinafter “Orissa Rules 2010”) coming into force w.e.f. 01.01.2006 as per Clause-3 of Rule-7 of Orissa Rules, 2010 which provides the provision of fixation of initial pay in the revised pay structure under 7(iii) fixation of pay of Readers who were selected strictly in accordance with the rules and regulation framed by UGC and who were in the post of Readers and have completed 5 years of service after 1.1.2006, their pay will be fixed at the minimum of Rs.37,4000/-. According to the petitioners as per Clause-4.3.0 read with Appendix –III, Table-II(c) of UGC Regulations 2010 read with Clause(iii) of sub-rule(1) of Rule 7 of Orissa Rules, 2010, both the petitioners come under the first part of the said provision as the petitioners are direct recruit of 8 years of Post Graduate Training and/or Research experience along with 300 API entitled to draw the scale of pay band-4 (Rs.37,400/-67,000/- + Rs.9,000/- AGP). Grievance of the petitioners is that since they are fulfilling all eligibility criteria as per the UGC Criteria, they ought to have been got the pay scale as per the UGC Regulation i.e. in the scale of pay of Rs.37,400/-67,000/- + Rs.9,000/- AGP, but the authorities have not considered it, hence they have approached this Court by filing the instant writ petitions seeking for a direction to fix the pay scale as Reader/Associate Professor in Pay Band-4 (Rs.37,400/-67,000/- + Rs.9,000/- AGP) and to change their designation from Reader to Associate Professor which has been taken into consideration by the authority thereafter, the order has been passed by the Addl. Chief Secretary, whereby and where under, the claim of the petitioners has been rejected on the pretext that the petitioners have not completed 5 years of service prior to 1.1.2006, hence these writ petitions have been filed. 3. Chief Secretary, whereby and where under, the claim of the petitioners has been rejected on the pretext that the petitioners have not completed 5 years of service prior to 1.1.2006, hence these writ petitions have been filed. 3. The contention raised by the petitioners is that under the provision of UGC Act, 1956, UGC Regulation, 2010 has come fixing the eligibility/educational qualification for being appointed as Associate Professor (after its re-designation of the post of Reader) then whatever pay scale is mentioned in the said UGC Regulation will be applicable and if the State Government is coming forward with any notification contrary to it, the same will not guide the pay re-fixation of the petitioners rather it will be abided by the UGC Regulation as per which, they are entitled to get Pay Band of Rs.37,400/-67,000/- + Rs.9,000/- AGP, since they are fulfilling the eligibility criteria as per the UGC Regulations, 2010. Further contention has been raised by the learned counsel for the petitioners that rejecting their claim on the basis of notification dated 15.02.2010 is nothing but a decision without any application of mind and the eligibility condition which is not contained in the UGC Regulation 2010 cannot be taken as a ground to reject the claim of the petitioners. 4. Mr. B.P. Tripathy, learned Addl. Govt. Advocate has put his appearance to represent the opposite party-State, who has vehemently defended the order passed by the authority by submitting that this is the second round up litigation and both the petitioners are claiming the pay band-4 i.e. scale of pay of Rs.37,400/-67,000/- + Rs.9,000/- AGP on the basis of UGC Regulation, 2010 but the moment the Government of Odisha in exercise of power conferred under sub-section (1) of Section 22 of Orissa Universities Act, 1989 has come out with a Notification dated 15.02.2010 in the name of Orissa Revised Scales of Pay for University Teachers (U.G.C. Scale of Pay) Rules, 2010, the State authorities are duty bound to follow the said Notification in taking decision for re-fixation of the Pay Scale of the petitioners. He submits that the UGC Regulation, 2010 is for minimum qualification for appointment of teachers and other academic staff of the Universities and the appointment is to be made strictly on the basis of the eligibility conditions mentioned therein, however there is a reflection with respect to the Pay Band to the holders of the post of Associate Professors i.e. in the Pay Band-4 of Rs.37,400/-67,000/- + Rs.9,000/- AGP. Directly recruited Associate Professors shall be fixed with minimum of Rs.37,400/-67,000/-+ Rs.9,000/- AGP at the appropriate stage in the Pay Band in terms of the conditions of appointment. He submits that the State Government has come out with Resolution dated 4.4.2016 being Resolution No.7889 which provides re-designation of Lecturers and Readers of Universities and College of the State, if a Reader with less than 5 years of service in the Scale of Pay of Rs.15,600/-39,000/- + AGP Rs.8000/- shall be re-designated as Assistant Professor (Stage-III) and the Readers with 5 years of service in the scale of pay of Rs.37,400/-67,000/- + Rs.9,000/- AGP shall be re-designated as Associate Professors, subsequent to that clarification on the above Resolution has also been issued vide Department Letter No.33217 dated 24.11.2016 which states that those Readers who have been selected strictly in accordance with the Rules and Regulations framed by UGC, on completion of five years as Readers and subject to fulfillment of conditions stipulated in this Deptt. Resolution No.7889 dated 04.04.2016 may be re-designated as Associate Professors in the scale of pay of Rs.37,400/-67,000/- with AGP Rs.9000/-. Those Readers who have completed five years of service as Readers in the Pay Scale of 15,600/-39,000/- with AGP Rs.8000/-, but do not fulfill the conditions stipulated in this Deptt. Resolution No.7889 dated 04.04.2016 may continue with the present scale of pay and designation of Reader but on completion of five years, they shall be assessed as per the qualifications prescribed by UGC for Associate Professor as per Career Advancement Scheme. Those Readers who have joined in the Pay Scale of Rs.15,600/--39,000/- with AGP Rs.8,000/- and have not completed five years of service may also continue with the present scale of pay and designation as Reader. On completion of five years, they shall be assessed as per the qualifications prescribed by UGC for Associate Professor as per Career Advancement Scheme. According to him, the petitioners have been appointed in the scale of pay of Rs. On completion of five years, they shall be assessed as per the qualifications prescribed by UGC for Associate Professor as per Career Advancement Scheme. According to him, the petitioners have been appointed in the scale of pay of Rs. 15,600/--39,000/- with AGP Rs.8,000/- as per the advertisement made by the Utkal University and have not completed five years of service as Reader till date as per their averment made in para-5 of the writ petition, hence they are not entitled to be given the Pay Band-4 of Rs.37,400/-67,000/- with AGP Rs.9000/-, accordingly their claim has been found to be debarred of merit, hence rejected. He further submits that Section 22 of the Orissa Universities Act, 1989 confers power upon the Chancellor to determine the scale of pay and allowances attached to such posts and in exercise of the said power, Notification dated 15.02.2010 has issued which has never been challenged by anyone, as such the State authorities by putting reliance upon the said Notification dated 15.02.2010 and also the Resolution dated 4.4.2016 read with its Clarification dated 24.11.2016 has not committed illegality in rejecting the claim of the petitioners, as such he submits that there is no merit in the writ petition. 5. Heard learned counsel for the parties. The relief which is being sought for to re-fix the Pay Scale by keeping them Rs. Rs.37,400/-67,000/- with AGP Rs.9000/- which is the pay scale attached to the post of Associate Professors. It is evident from the UGC Regulation, 2010 as contained under Annexure-3 that the UGC has come out with a minimum qualification for appointment of teachers and other academic staff in the Universities and in exercise of power conferred to it under Clause (e) and (g) of sub-section (1) of Section 26 of UGC Act, 1956, has framed Regulations containing the minimum educational qualification to hold the teaching post and non-teaching post. It is evident from the Regulation, 2010 that the post which has been referred in the said Regulation is of Assistant Professors, Associate Professors and Professors only. Meaning thereby, the Assistant Professors will be said to be entry level, subsequent to the same is the Associate Professor and thereafter Professor. 6. Thus, it is evident that prior to the Regulation 2010, there was the post of Lecturer, Reader and Professor. Meaning thereby, the Assistant Professors will be said to be entry level, subsequent to the same is the Associate Professor and thereafter Professor. 6. Thus, it is evident that prior to the Regulation 2010, there was the post of Lecturer, Reader and Professor. The post of Lecturer happens to be the entry level post, Reader subsequent to the same and thereafter Professor but the post of Lecturer and Reader has been re-designated to that of post of Assistant Professor and Associate Professor. To hold the post of Associate Professor, the minimum qualification prescribed under Clause-4.3.0, which is being reproduced herein below :- (i) Good academic record with a Ph.D. Degree in the concerned/allied/relevant disciplines. (ii) A Master’s Degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed). (iii) A minimum of 8 years of experience of teaching and/or research in an academic/research position equivalent to that of Assistant Professor in a University, College or Accredited Research Institution/industry excluding the period of Ph.D. research with evidence of published work and a minimum of 5 publications as books and/or research/policy papers. (iv) Contribution to educational innovation, design of new curricula and courses, and technology – mediated teaching learning process with evidence of having guided doctoral candidates and research students. (v) A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Bases Appraisal System (PBAS), set out in this Regulation in Appendix III. Pay Scale has also been provided attached to the post of Associate Professor carry the pay scale of Rs.37,400-67,000/- with AGP of Rs.9000. The State of Orissa has come out with a Notification dated 15.02.2010 in pursuance to sub-section (1) of Section 22 of Orissa Universities Act, 1989, whereby and where under Orissa Revised Scales of Pay for University Teachers (U.G.C. Scale of Pay) Rules, 2010 has been enacted upon prescribing the fixation of initial pay in the revised pay structure under the provision of Clause-7, which speaks as follows :- “7. Fixation of initial pay in the revised pay structure – (1) The initial pay of a teacher who elects, or is deemed to have elected under sub-rule (3) of Rule 6 to be governed by the revised pay structure on and from the 1st day of January, 2006 shall, unless in any case the Governor by special order otherwise directs, be fixed separately in respect of his substantive pay in the permanent post on which he holds a lien or would have held a lien, if it had not been suspended, and in respect of his pay in the officiating post held by him in the following manner, namely :- (i) The pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on the 1st January 2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10; (ii) If the minimum of the revised pay band/pay scale is more than the amount arrived as per (i) above, the pay shall be fixed at the minimum of the revised pay band/pay scale or as specified in the Tables 1 to 6 annexed to these rules. (iii) Fixation of pay of Readers who were selected strictly in accordance with the rules and regulation framed by U.G.C. and who were in the post of Readers and have completed 5 years of service after 1st day of January, 2006, their pay will be fixed at the minimum of Rs. 37,400.” 7. It is evident from the provision that fixation of pay of Readers who were selected strictly in accordance with the rules and regulation framed by U.G.C. and who were in the post of Readers and have completed 5 years of service after 1st January, 2006, their pay will be fixed at the minimum of Rs.37,400/-. The petitioners admittedly have been appointed as Reader by virtue of an advertisement published on 22.06.2015 by the Utkal University. Admittedly the petitioners have not been appointed as Associate Professors and as such now they want to take advantage of the pay scale attached to the post of Associate Professors. The petitioners admittedly have been appointed as Reader by virtue of an advertisement published on 22.06.2015 by the Utkal University. Admittedly the petitioners have not been appointed as Associate Professors and as such now they want to take advantage of the pay scale attached to the post of Associate Professors. The contention raised by the petitioners that they ipso facto will be entitled to get the benefit of pay scale attached to the post of Associate Professors as per the UGC Regulation, 2010 since they are possessing the eligibility conditions as prescribed by the UGC Regulation 2010. But this argument is not having substance in the eye of law for the reason that if the petitioners would have been appointed as Associate Professors then what the petitioners are claiming can be said to be right claim but that is not the fact here, rather the petitioners have been appointed as Reader and now they are claiming the pay scale of Associate Professor on the basis of UGC Regulation, 2010, as such the UGC Regulations 2010 cannot be said to be applicable to the petitioners ipso facto, so far as the pay scale is concerned, irrespective of the fact that they are possessing the minimum qualification as prescribed under the UGC Regulation. 8. 8. Government of Orissa has come out with a Notification dated 15.02.2010 conferred under sub-section (1) of Section 22 of Orissa Universities Act, 1989 known as Orissa Revised Scales of Pay for University Teachers (U.G.C. Scale of Pay) Rules, 2010 determining the pay scale with the conditions to be extended in favour of one or the other holders of the post, the conditions contained therein i.e. the benefit of UGC Regulation will be given to the post of Readers who have completed 5 years of service after 1.1.2006 and thereafter Resolution has been issued on 4.4.2016 with clarification on 24.11.2016 to extend the pay scale as per the UGC Regulation in favour of the holders of the post who have been appointed as Readers and claiming the pay scale after re-designation of the post by virtue of the UGC Regulation, but admittedly the petitioners have not completed 5 years of regular service as contained in the Notification dated 15.02.2010 after 1.1.2006, as such the petitioners are not fulfilling the conditions laid down in the Notification dated 15.02.2010 or the Resolution dated 4.4.2016 with its clarification dated 24.11.2016, as such their claim has been rejected. 9. Submission of the learned counsel for the petitioners by referring to the Notification dated 15.02.2010 as contained under Condition No. 7(3) that fixation of pay of Readers who were selected strictly in accordance with the rules and regulation framed by UGC and who were in the post of Readers and have completed 5 years of service after 1st day of January, 2006, their pay will be fixed at the minimum of Rs. 37,400/-. He contends that there are two parts of the order and in between the regulation framed by UGC and who were in the post of Readers is to be read as separately and to demonstrate his argument, he has relied upon the judgment rendered by the Hon’ble Supreme Court in the case of Samee Khan vrs. Bindu Khan, reported in AIR 1998 SC 2765 . Bindu Khan, reported in AIR 1998 SC 2765 . This Court after going across the factual aspect of the said case, has found that the same was with respect to the provision of Order 39 Rules 1 and 2A of CPC, 1908 which contains the provision to grant temporary injunction, where the Hon’ble Supreme Court by interpreting the word “and may also” in Rule 2A has interpreted that is additional to attachment of the property of the opposite parties but here in the provision as contained in Rule 7(3), there is no insertion “and may also” rather the wording is that fixation of pay of Readers who are selected strictly in accordance with the rules and regulations framed by the UGC Regulation and have completed 5 years of service, meaning thereby an incumbent if appointed as Reader in pursuance of the Rules and Regulation framed by UGC and were in the post of Reader for a period of 5 years then only the benefit of pay scale attached to the post of Reader shall be given, hence the judgment relied upon in the said case is not applicable to the facts and circumstances of the instant case. 10. He has further relied upon the judgment in the case of Kshitendra Narayan Mishra vrs. 10. He has further relied upon the judgment in the case of Kshitendra Narayan Mishra vrs. State of Orissa and others, 2017 (I) OLR 950 but that judgment is also different factual aspect since it is on the basis of UGC Regulations but related to fixation of eligibility criteria but after going through the order the point which has been raised by the petitioner that so long as the Notification dated 15.02.2010 or the Resolution dated 4.4.2016 or its Clarification dated 24.11.2016 are in existence, the petitioners cannot be extended the pay scale as per the UGC Regulation, 2010 giving go by to the Government Notification dated 15.02.2010, wherein the conditions has been stipulated for getting the Pay Scale of Rs.37,400/-67,000/- with AGP Rs.9000/- subject to fulfillment of conditions and admittedly the petitioners are not fulfilling the said conditions, as such no benefit can be extended in favour of the petitioners but this point has not been raised before this Court in the case of Kshitendra Narayan Mishra (supra) as such the said judgment is not applicable in the facts and circumstances of the case on simple ground that so long as the Notification dated 15.02.2010 is in existence having not been struck down, if a candidate is not possessing the requisite criteria contained therein, he cannot be extended the benefit, as such it cannot be said that the authorities while passing the impugned order has committed any error. 11. In view of the facts stated hereinabove, this Court is of the considered view that the petitioners have failed to make out a case for passing a positive order for showing interference in the impugned order. Accordingly, both writ petitions fail and are dismissed.