Mr v. Mohapatra
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.2146 of 2021 In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950. ……………… Dr. Patitapaban Das …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : M/s.Pami Rath, A. Mohnaty, S. Guman Singh, B. Thakur & S. Mohanty. For Opp. Parties : Mr. V. Mohapatra, Adv. for O.P.2. PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------- Date of Hearing:02.08.2023 and Date of Judgment:12.09.2023 ---------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. The Petitioner has filed the present Writ Petition inter alia challenging the order dated 29.12.2020 so passed by Opposite Party No.2 under Annexuire-11. Vide the said order, the claim of the Petitioner to get the benefit of two additional advance increments in terms of Sub-Clause-(d) of Clause-4.8 of the Government of Orissa resolution dtd.31.12.1999 under Annexure-12 was rejected. // 2 // 2. The facts giving rise to the filing of the present Writ Petition is that the Petitioner with having qualification of M.A. with M. Phil was appointed as a Lecturer in Philosophy in Ravenshaw University vide order of appointment issued on 30.10.2010 under Annexure-1- Series. Pursuant to the said order, Petitioner joined as a Lecturer on 20.12.2010. While so continuing, the services
Legal Reasoning
of the Petitioner as a Lecturer in Philosophy was confirmed by the University vide order dated 20.12.2012.
Legal Reasoning
2.1. It is contended that while continuing as a Lecturer in terms of the order of appointment issued on 30.10.2010, the Petitioner acquired the Ph.D degree in Philosophy vide notification issued by the University on 15.05.2015 under Annexure-3. On such acquisition of the Ph.D degree placing reliance on the resolution issued by the Government in the Department of Higher Education on 31.12.1999 under Annexure-12, Petitioner moved the Government on 20.09.2016 and thereafter on 16.11.2016 under Annexure-4-Series claiming grant of two advance increments in his favour. In the meantime, the post of Lecturer as against which the Petitioner was appointed was re-designated as Asst. Professor vide notice issued on dtd.08.11.2016 under Annexure-5. Page 2 of 13 // 3 // Subsequently vide notification dtd.31.09.2017 issued by the University, the Petitioner was promoted to the rank of Asst. Professor from Stage-1 to Stage-II w.e.f. 21.04.2013. 2.2. As the claim made by the Petitioner to extend the benefit of two advance increments in terms of the Resolution dtd.31.12.1999 so made vide Annexure-4-Series was not acted upon, Petitioner again moved the Opposite Party No.2 on 14.08.2019 under Annexure-8 with a request to sanction two additional increments w.e.f. 15.07.2019 for acquiring his Ph.D degree. The claim of the Petitioner was rejected vide notification dtd.07.09.2019 under Annexure-9 inter alia holding that Clause-4.8(d) of the Resolution dtd.31.12.1999 shall not be applicable to the claim of the Petitioner as he had M.Phil degree at the time of his appointment and the Petitioner has availed the benefit of two increments in terms of Clause-4.8(a). 2.3. The claim of the Petitioner to get the benefit of two advance increments when was rejected vide notification dtd.07.09.2019 under Annexure-9, the Petitioner made a fresh representation on 16.11.2020 with a request to extend the benefit of three advance increments for his Page 3 of 13 // 4 // completing Ph.D degree while in service in terms of UGC notification issued in the year 2010 and 2018. But the said claim of the Petitioner was again rejected vide the impugned order dtd.29.12.2020 under Annexure-11 inter alia on two grounds that the Petitioner since has acquired the Ph.D degree before the notification issued by the UGC on 18.07.2018, the Petitioner is not eligible to get the benefit. The other ground taken while rejecting such claim is that the Petitioner since has not acquired the Ph.D degree within two years of his recruitment, he is not entitled to get the benefit of two advance increment in view of the provisions contained under Clause4.8(b) of the Resolution. 2.4. Ms. Rath, learned Senior Counsel appearing for the Petitioner placing reliance on the resolution issued by the Government in the Department of Higher Education on 31.12.1999 under Annexure-12 contended that as provided under Clause-4.8(a) of the said resolution, the Petitioner was allowed two advance increments at the time of his appointment as a Lecturer as the Petitioner at the time of his appointment was having M.Phil degree. Since the Petitioner while continuing as a Lecturer, the post of which was designated as Asst. Professor, the Petitioner acquired Page 4 of 13 // 5 // the Ph.D degree vide notification dtd.15.05.2015 under Annexure-3, in terms of Clause-4.8(d) of the resolution, the Petitioner again became entitled to get the benefit of two advance increments. 2.5. It is accordingly contended that since Clause-4.8(d) clearly stipulates that a Teacher will be eligible for two advance increments as and when she / he acquired a Ph.D degree in her/his service career, the Petitioner since acquired the Ph.D degree while continuing as a Lecturer/Asst. Professor under Opposite Party No.2 and he acquired the Ph.D qualification while in service on 15.05.2015 under Annexure-3, he is eligible and entitled to get the benefit of two advance increments. But Opposite Party No.2 without proper appreciation of the said provision rejected the claim vide the impugned order dtd.29.12.2020 under Annexure-11. It is accordingly contended that the impugned order is not sustainable in the eye of law. 3. Mr. V. Mohapatra, learned counsel appearing for the Ravenshaw University on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that as provided under Clause- 4.8(a) of the resolution dtd.31.12.1999, four advance Page 5 of 13 // 6 // increments is admissible to those Teachers who hold the Ph.D degree at the time of recruitment as a Lecturer. Similarly, two advance increments is admissible to those Lecturers who hold M.Phil degree at the time of recruitment as a Lecturer. The present Petitioner since had M.Phil degree at the time of recruitment, he was given two advance increments in terms of Clause-4.8(a). 3.1. It is further contended that since in terms of Clause- 4.8(b) of the resolution, the Petitioner has not acquired the Ph.D degree within two years of his recruitment, the Petitioner is not entitled to get the benefit as claimed in the writ petition and benefit provided under Clause-4.8(d) is not applicable to the claim of the Petitioner. 3.2. Mr. Mohapatra, further contended that the benefit indicated in Clause-4.8(d) will be applicable only to those Teachers who have not received any previous advance increments at the time of their recruitment. It is further contended that since the Petitioner has acquired the Ph.D degree prior to issuing of the notification so issued by the University Grants Commission, the Petitioner is also not eligible and entitled to get the benefit of three advance Page 6 of 13 // 7 // increments as claimed in terms of the notification issued by University Grants Commission. 3.3. It is accordingly contended that the Petitioner’s claim has been rightly rejected vide the impugned order dtd.29.12.2020 and it needs no interference. In support of the aforesaid submission, Mr. Mohapatra, learned counsel for the Opposite Party No.2 relied on the decision of the Hon’ble Apex Court in the case of Jagdish Prasad Sharma v. State of Bihar, reported in (2013) 8 SCC-633. Hon’ble Apex Court in Para-70 & 72 of the said judgment has held 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 the 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 the UGC relate to Entry 66 List I of the Constitution in the Seventh Schedule to the Constitution, but it does not empower the Commission to alter any of the terms and conditions of the enactments by the Constitution. Under Entry 25 of List III, 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 (emphasis supplied). the States under Article 309 of xxx xxx xxx 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 Page 7 of 13 // 8 // 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 the 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”. 4. To the submissions made by the learned counsel for the University, Ms. Rath, learned Sr. Counsel for the Petitioner while reiterating her submission relying on the provisions contained under Clause-4.8(d), contended that in view of the decision of the Hon’ble Apex Court in the case of Commissioner of Customs (Preventive), Mumbai vs. M. Ambalal and Company reported in (2011) 2 SCC-74, a beneficial notification has to be interpreted in a liberal way. Hon’ble Apex Court in Para-16 of the said judgment has held as follows:- “16. It is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. The rule regarding exemptions is that exemptions should generally be strictly interpreted but beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. This composite rule is not stated in any particular judgment in so many words. In fact, majority of judgements emphasize that exemptions are to be strictly interpreted while some of them insist that exemptions in fiscal Statutes are to be liberally interpreted giving an apparent impression that they are contradictory to each other. But this is only apparent. A close scrutiny will reveal that there is no real contradiction amongst the judgements at all. The synthesis of the views is quite clearly that the general rule is strict interpretation while special rule in the case of beneficial and promotional exemption is liberal interpretation. The two go very well with each other because they relate to two different sets of circumstances.” Page 8 of 13 // 9 // 4.1. Learned counsel for the Petitioner relied on another decision of the Hon’ble Apex Court reported in the case of Mohinder Singh Gill & Another vs. The Chief Election Commissioner, New Delhi & Others, wherein Hon’ble Apex Court held 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 affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, gets validated by additional grounds later brought out. 4.2. Learned Senior Counsel for the Petitioner accordingly contended that the provisions contained under Clause- 4.8(a) of the resolution dtd.31.12.1999 clearly provides without any rider that four and two advance increments will be admissible to those who have got h.D degree and M.Phil degree respectively at the time of recruitment as Lecturers. As provided under Clause-4.8(d), the Teacher will be eligible for two advance increments as and when she/he acquires a Ph.D. degree in her/his service career. The Petitioner since during his continuance as a Lecturer / Asst. Professor acquired Ph.D degree on Page 9 of 13 // 10 // 15.05.2015, he became eligible to get the benefit of two advance increments in terms of Clause-4.8.(d). 4.4. It is further contended that under Clause-4.8.(a) to (d) various increments of different nature were made available to Lecturers/Teachers and all the Clauses under Clause- 4.8(a) to 4.8(d) are separate in nature and independent to each other. Since the Petitioner was having the M. Phil degree at the time of recruitment, in terms of Clause-4.8.(a), he got the benefit of two advance increments. Similarly since during his continuance as a Lecturer/Asst. Professor, he acquired the Ph.D degree while in service, as per Clause- 4.8.(d), he became eligible to get the benefit of further two advance increments. 4.5. Accordingly, it is contended that the prayer of the Petitioner to get the benefit of two advance increments as provided under Clause-4.8.(d) of the resolution has been wrongly rejected by Opposite Party No.2 vide the impugned order dated 29.12.2020 and the said order is not sustainable in the eye of law. 5. I have heard Ms P. Rath, learned Sr. Counsel for the Petitioner and Mr.V. Mohapatra, learned counsel appearing for the Opposite Parties. On their consent, the matter was Page 10 of 13 // 11 // taken up for final disposal at the stage of admission with due exchange of pleadings. 6. Having heard learned counsel for the Parties and after going through the materials available on record, it is not disputed by either of the Parties that the Petitioner at the time of his appointment as a Lecturer vide order dated 30.10.2010 under Annexure-1-Series was having M. Phil degree. It is also not disputed that since the Petitioner at the time of his initial recruitment was having M. Phil degree, as provided under Clause-4.8(a) of the Resolution dtd.31.12.1999, he was allowed two advance increments. When the Petitioner claimed the benefit of two advance increments for his acquiring Ph.D degree during his service career in terms of Clause-4.8.(b), the University relying on the provisions contained under Clause-4.8.(b) took a view that since the Petitioner has not acquired the Ph.D degree within two years of his recruitment, he is not entitled to get the benefit as claimed. 6.1. This Court after going through the provisions contained under Clasue-4.8(b) vis-à-vis Clause-4.8.(d) is of the view that both the clauses are having separate identity and both are independent to each other. While on the one Page 11 of 13 // 12 // hand Government in the Department of Higher Education vide Clause-4.8.(b) has made provision for sanction of two increment to a candidate who acquired the Ph.D degree within two years of the recruitment, vide Clause-4.8.(d) a Teacher has been made eligible to get the benefit of two advance increment as and when he/she acquires the Ph.D degree in her/his service career. Though the stipulation contained under Clause-4.8(b) & 4.8(d) is contradictory to each other, but since both the clauses are independent to each other, the Petitioner in view of Clause-4.8.(d) is eligible to get the benefit of two advance increments and his prayer cannot be rejected relying on the provisions contained under Clause-4.8(b). 6.3. Therefore, while holding so, this Court is inclined to quash the order dated 29.12.2020 so issued by Opposite Party No.2 under Annexure-11. While quashing the same, this Court directs Opposite Party No.2 to extend the benefit of two advance increments in terms of the provisions contained under Clause-4.8(d) of the resolution dtd.31.12.1999 under Annexure-11 from the date of entitlement of the Petitioner within a period of two (2) months from the date of receipt of this order. Page 12 of 13 // 13 // 6.4. However, while parting with the case, this Court is of the view that Clause-4.8.(b) and Clause-4.8(d) needs a re- look by the Government as both the clauses are contradictory to each other. Government may bring out a clarification with regard to the benefit indicated under Clause-4.8.(b) and 4.8.(d) of the resolution dtd.31.12.1999. 7. With the aforesaid observations and directions, the
Decision
Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 12th of September, 2023/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 17-Nov-2023 14:40:57 Page 13 of 13