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2019 DIGILAW 425 (ORI)

Chittaranjan Nayak v. State Of Odisha

2019-06-28

BISWANATH RATH

body2019
JUDGMENT Biswanath Rath, J. - This writ petition involves the following prayer :- "Under the above circumstances, it is therefore humbly prayed that the Hon'ble Court be graciously pleased to direct the Opp. Parties to sanction and release five advance increments in favour of the petitioner from the date of his initial joining in the University, i.e. dated 26.2.2010 as per the UGC Regulation under Annexure-4 with all consequential benefits ; And further the Hon'ble Court be pleased to quash the Government letter dated 30.11.2017 under Annexure-9/1 ; And further the Hon'ble Court be pleased to direct the opposite party to calculate the difference arrears of the petitioner and pay the same to him with accrued interest minimum at the rate of 8% per annum within a stipulated period as deem fit and proper ; And/or pas any other appropriate writ/writs, order/orders and direction/directions in the fitness of the case...." 2. Short background involving the case is that the petitioner was a Post Graduate Teacher in Economics in Kendriya Vidyalaya Sangthan. While continuing in K.V.No.1 (Army), Jodhpur, Rajasthan, his job was confirmed with effect from 6.9.2004. While continuing in K.V.No.1 at Itanagar of Arunachal Pradesh, the petitioner did his PH.D. in Economics from Utkal University and he was awarded with PH.D. in January, 2008. Coming across the advertisement no. 3748 dated 2.9.2008 issued by the Ravenshaw University asking for applications for the post of Lecturers subsequently re-designated as Assistant Professor, the petitioner applied for the post of Assistant Professor with due permission from his Employer. O.P.3, Vice-Chancellor, Ravenshaw University in his Office Letter dated 30.11.2009 issued appointment order, vide Annexure-1. It is contended that for the conditions in the U.G.C. Regulation and for initial appointment in the Ravenshaw University, the petitioner was not only entitled to pay protection considering his previous service but he was also entitled to number of increments as prescribed in the U.G.C. Regulation. For not being granted the increment in terms of Clause-9.1 of the U.G.C. Regulation, the petitioner approached the University. For no action from the side of the University involving the above, the petitioner moved the Vice-Chancellor of the University. The University did not take any follow up action on the other hand in the meantime the Utkal University sought for a clarification from the State Government. For no action from the side of the University involving the above, the petitioner moved the Vice-Chancellor of the University. The University did not take any follow up action on the other hand in the meantime the Utkal University sought for a clarification from the State Government. The State Government, vide letter no.20625 dated 14.9.2015 issued clarification on payment of advance increment to the Lecturers with Ph.D. Degree in the State Universities thereby disclosing that for the old practice, persons of similar nature would be entitled to three advance increments at the time of entry into service. Such clarification being not worked out the petitioner sought for information through R.T.I. Act by communication dated 14.9.2016. The petitioner was intimated that the matter regarding grant of advance increment was pending consideration and as such, no information could be supplied. However, the petitioner was supplied with Government Resolution dated 30.12.1999. Clause 4.8 (a) of the Government Resolution deals with sanction of advance increment to the Lecturers having Ph.D. Degree at entry level. On the premises of Government Resolution dated 31.12.1999, vide Annexure-9 the petitioner while claiming to be entitled to at least the minimum four advance increments, contended that similarly situated persons in the BPUT and VSSUT at Burla have been entitled to five additional advance increments following the U.G.C. Regulation. Referring to Annexure-9/1 the petitioner contended that grant of advance increment has been illegally withdrawn in case of persons at entry level entitled to pay protection. Referring to the documents at Annexures-10 to 12 the petitioner contended that for grant of benefit under the U.G.C. Regulation to similarly situated employees in other Universities under the State Government, the petitioner alleged that there has been discrimination meted against the petitioner and the petitioner has been given a differential treatment, such action is not only contrary to the U.G.C. Regulation but also contrary to the benefits granted to the similarly situated persons working in other Universities under the same State Government. 3. Sri S.K.Das, learned counsel for the petitioner referring to the pleading involving the writ petition as well as the documents indicated herein above and taking this Court to the U.G.C. Regulation and the other clarifications from time to time appearing at Annexures- 4, 7 & 9 contended that the petitioner has been discriminated so far as the entitlement of additional increment is concerned. Referring to two decisions of this Court in W.P.(C) No.4480/2018 (Governing Body of Laxminarayan Mahavidyalaya, Jamusuli & another vs. State of Odisha & others) decided on 16.4.2018 and W.P.(C) No.16810/2016 (Sri Basudev Guru & others vs. State of Odisha & others) decided on 18.12.2018, while claiming application of the above decisions to the petitioner's case, Sri Das requested this Court for allowing the prayer involving the writ petition. Sri Das, learned counsel for the petitioner also referring to the denial of the State Government, vide the impugned order, submitted that since the Resolution of the State Government has the authority of the Chancellor of the State, mere decision of the Deputy Secretary or the Secretary cannot override the decision of the Chancellor more particularly in absence of the authority of the Chancellor at least. 4. Sri S.N.Mishra, learned Additional Government Advocate appearing for O.P.l-State taking this Court to the counter averments at the instance of O.P.1 and the impugned order again filed in the counter affidavit as Annexure-A/1 submitted that for the petitioner being entitled to pay protection/counting of past service is not entitled to advance increment. Referring to the counter statement made in different paragraphs, Sri Mishra, learned Additional Government Advocate attempted to justify the stand of the O.P.-State and accordingly prayed this Court for not interfering with the impugned order. Sri Mishra further submitted that in the event of allowing the writ petition, there may be financial implications on the State Government. 5. Sri K.K.Jena, learned counsel for O.Ps.2 & 3- University while not disputing the claim of the petitioner submitted that they are bound by the direction of the State Government, as the matter involves financial implication. 6. Considering the rival contentions of the parties and looking to the documents involving the case involved herein, this Court finds, there is no dispute that the petitioner while working in the Kendriya Vidyalaya was selected for the post of Lecturer in Economics in Ravenshaw University in the Scale of Pay of Rs. 8000-275-13400/- and admissible allowance on the specific terms and conditions that his salary will be determined on the basis of principle of pay protection with reference to U.G.C. Pay Scale prevailing in the country in addition to be entitled to revision of scale and allowance as admissible from time to time. Under the above condition, the petitioner joined the post of Lecturer in Ravenshaw University. Under the above condition, the petitioner joined the post of Lecturer in Ravenshaw University. Looking to the U.G.C. Regulation, this Court finds from Clause-9.0 of Annexure-4, which deals with incentives for Ph.D./M.Phil and other higher qualification to take effect from 1.9.2008. Relevant Clause 9.1 of the U.G.C.Regulation is quoted herein below :- "9.1. Five non-compounded advance increments shall be admissible at the entry level of recruitment as Assistant Professor to persons possessing the degree of Ph.D. awarded in a relevant discipline by the University following the process of admission, registration, course work and external evaluation as prescribed by the UGC." Further looking to the document at Annexure-9, a correspondence by the Government of Orissa, Department of Higher Education to the Vice-Chancellor, Utkal University clarifying the advance increment to the Lecturers with Ph.D. in the State University issued on 14.9.2015, which discloses as follows :- "I am directed to invite a reference to the letter and subject cited above and to say that the Universities may continue with the existing practice of allowing 3 (three) and 1(one) advance increments to the teachers having Ph.D. and M.Phil. qualification respectively at the time of their entry into service until further orders." Further looking to Clause 4.8 of the Government Resolution in the Department of Higher Education, vide Annexure-9 dated 31st December, 1999 dealing with incentives for Ph.D./M.Phil. speaks as follows :- "4.8. Incentives for Ph.D./M.Phil. : (a) Four and two advance increments will be admissible to those who hold Ph.D. and M.Phil. degrees, respectively, at the time of recruitment as Lecturers. Candidates with D.Litt./D.Sc. should be given benefit on part with Ph.D. and M.Litt. on par with M.Phil. (b) One increment will be admissible to those teachers with M.Phil, who acquire Ph.D. within two years of recruitment. (c) A Lecturer with Ph.D. will be eligible for two advance increments when she/he moves into Selection Grade/Reader. (d) A teacher will be eligible for two advance increments as and when she/he acquires a Ph.D. degree in her/his service career." 7. Looking to the aforesaid clear directives, this Court while recording the submission of the learned counsel appearing for the parties that there is no dispute on the application of U.G.C. Regulation, a statutory Regulation, this Court observes, the petitioner is entitled to be governed under the U.G.C. Regulation. Looking to the aforesaid clear directives, this Court while recording the submission of the learned counsel appearing for the parties that there is no dispute on the application of U.G.C. Regulation, a statutory Regulation, this Court observes, the petitioner is entitled to be governed under the U.G.C. Regulation. Looking to the provision quoted and available in the U.G.C. Regulation, this Court finds, there is no obstruction in the entitlement of the petitioner with five additional increments, as prescribed to the petitioner at the entry level of the recruitment as Lecturer subsequently designated as Assistant Professor particularly to a Professor possessing Ph.D. Even assuming that there is some consideration of this entitlement by the State Government through its Resolution at Annexure-9 for the provision at Clause 4.8, the petitioner at the entry level on his joining the University for having Ph.D. is at the minimum entitled to four advance increments particularly keeping in view that State Resolution at Annexure-9 is brought into force under special consideration and being adopted and applied by all the Universities under the State Government. It is at this stage, taking into account the offer of appointment involving the petitioner, this Court finds, for Clause-I in the offer of appointment involving the petitioner, the petitioner has been guaranteed, vide Annexure-1 that his salary will be determined on the basis of principle of pay protection with reference to U.G.C. Pay Scales prevailing in the country. This Court here finds, there is no restriction on the part of an Assistant Professor having Ph.D. Degree being entitled to advance increment involved in the U.G.C. Regulation, vide Annexure-4, thus the State Government issuing directive disentitling the Assistant Professor from the advance increments remains contrary to the provision both at Annexures-4 & 9, the U.G.C. Regulation as well as the Government Resolution respectively. 8. Coming to consider the claim of discrimination meted to the petitioner, this Court going through the document at Annexure-10 involving BPUT finds, the persons in similar stage have been provided five additional increments at the entry level. Similarly, in Annexure-11 involving Ravenshaw University, the persons have been entitled to at least three advance increments. Coming to the document at Annexure-12 again involving the Ravenshaw University, this document also discloses that the Lecturers in similar capacity have been entitled to additional increments. 9. Similarly, in Annexure-11 involving Ravenshaw University, the persons have been entitled to at least three advance increments. Coming to the document at Annexure-12 again involving the Ravenshaw University, this document also discloses that the Lecturers in similar capacity have been entitled to additional increments. 9. In the above backdrop of the matter, this Court takes into account two decisions of Hon'ble apex Court; one in the Jagdish Prasad Sharma & others vs. State of Bihar & others reported in (2013) 8 SCC 633 wherein in paragraphs-70, 72 & 77 wherein the Hon'ble apex Court observed as follows :- "70. The authority of the Commission to frame regulations with regard to the service conditions of teachers in the Centrally-funded educational institutions is equally well-established. As has been very rightly done in the instant case, the acceptance of the Scheme in its composite form has been left to the discretion of the State Governments. The concern of the State Governments and their authorities that UGC has no authority to impose any conditions with regard to its educational institutions is clearly unfounded. There is no doubt that the Regulations framed by UGC relate to Schedule VII List I Entry 66 to the Constitution, but it does not empower the Commission to alter any of the terms and conditions of the enactments by the States under Article 309 of the Constitution. Under List III Entry 25, the State is entitled to enact its own laws with regard to the service conditions of the teachers and other staff of the universities and colleges within the State and the same will have effect unless they are repugnant to any Central legislation. 72. As far as the States of Kerala and U.P. are concerned, they have their own problems which are localised and stand on a different footing from the other States, none of whom who appear to have the same problem. Education now being a List III subject, the State Government is at liberty to frame its own laws relating to education in the State and is not, therefore, bound to accept or follow the Regulations framed by UGC. It is only natural that if they wish to adopt the Regulations framed by the Commission under Section 26 of the UGC Act, 1956, the States will have to abide by the conditions as laid down by the Commission. 77.University Statutes. It is only natural that if they wish to adopt the Regulations framed by the Commission under Section 26 of the UGC Act, 1956, the States will have to abide by the conditions as laid down by the Commission. 77.University Statutes. There is no ambiguity that the final decision to enhance the age of superannuation of teachers within a particular State would be that of the State itself. The right of the Commission to frame regulations having the force of law is admitted. However, the State Governments are also entitled to legislate with matters relating to education under List III Entry 25. So long as the State legislation did not encroach upon the jurisdiction of Parliament, the State legislation would obviously have primacy over any other law. If there was any legislation enacted by the Central Government under List III Entry 25, both would have to be treated on a par with each other [Ed.: But see Articles 254(1) and 246 of the Constitution.] . In the absence of any such legislation by the Central Government under List III Entry 25, the regulations framed by way of delegated legislation have to yield to the plenary jurisdiction of the State Government under List III Entry 25." Secondly in the case of Kalyani Mathivanan vs. K.V.Jeyaraj & others reported in (2015) 6 SCC 363 , in paragraphs-62.3 and 62.4 of which it is observed as follows :- "62.3. The UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central universities and colleges thereunder and the institutions deemed to be universities whose maintenance expenditure is met by UGC. 62.4. The UGC Regulation, 2010 are directory for the universities, colleges and other higher educational institutions under the purview of the State Legislation as the matter has been left to the State Government to adopt and implement in the Scheme. Thus, the UGC Regulations, 2010 are partly mandatory and is partly directory." In view of the above decisions, there remain no doubt that the condition in the U.G.C. Regulation has the application but at the same time, the Resolution of the State Government, vide Annexure-9 under special circumstance having the binding force, there is no obstruction in at least adopting the benefits of additional increment available under Annexure-9 to the petitioner at the minimum. 10. 10. In the circumstance, this Court finds, there is no rational behind restricting the grant of additional increments in favour of the petitioner as appearing at Annexure-9/1, which is hereby interfered with and set aside. This Court accordingly directs the State Government in the concerned Department to make necessary communication to the Ravenshaw University allowing grant of four advance increments at least following the entitlement of benefit to the similarly situated persons at Clause-4.8, vide Annexure-9 within a period of one month from the date of communication of this order by the petitioner. On receipt of such communication, the Ravenshaw University is directed to release the entitlement of the petitioner on account of additional increments along with 6% interest at least all through within a period of four weeks thereafter. 11. The writ petition succeeds. In the circumstance, there is no order as to cost.