The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C ) No.3840 of 2018 Dr. Pawan Kumar Petitioner …. Mr. S.K. Das, Adv. -versus- Union of India, Ministry of Human Resource Development, Higher Education, New Delhi & Others …. Opp. Parties Mr. P.K. Parhi, DSGI Mr. S.D. Das, Sr. Adv along with Mr. H.P. Mohanty, Adv. (for O.P. No.2 & 3) Mr. R.N. Behera, Adv. (for O.P. No.5) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 12.11.2024 Order No. 20. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Perused the Office note. 3. Since notice has been duly served on Op. Party No.4, notice against the said Opp. Party is treated as “sufficient”. 4. Heard Mr. Sameer Ku. Das, learned counsel appearing for the Petitioner, Mr. P.K. Parhi, learned DSGI appearing on behalf 1 of Opp. Party No.1 and Mr. S.D. Das, learned Sr. Counsel along with Mr. H.P. Mohanty, learned counsel appearing on behalf of Opp. Party Nos.2 & 3 and Mr. R.N. Behera, learned counsel appearing on behalf of Opp. Party No.5. 5. The present Writ Petition has been filed inter alia with the following prayer: the and selection “Under the above circumstances, it is therefore humbly prayed that the Hon’ble Court be graciously pleased to quash consequential appointments/promotions of the Opp. Party No.4 & 5 to the post of Professor in Physics and Astronomy in NIT, Rourkela and to appoint the Petitioner as a Professor of the same Department from the date the Opp. Party Nos.4 & 5 got such benefits and to grant him all consequential service and financial benefits within the stipulated time as deem fit and proper. 6. Learned counsel appearing for the Petitioner contended that pursuant to the advertisement issued by Opp. Party No.2 & 3 vide Advertisement No.04 of 2017, Petitioner made his application to get the benefit of promotion to the rank of Professor. 6.1. It is the case of the Petitioner that along with him private Opp. Party Nos.4 & 5 also made their application to get the benefit of promotion subject to their qualifying the interview to be conducted in accordance with the N.I.T Statutes. It is contended that prior to conducting the interview as provided under the Statutes, a Committee was formed which includes three experts, namely Dr. Chandra Prakash, Dr. R.P. Tondon and Professor Gautam Sengupta. 2 6.2. It is the case of the Petitioner that the interview of Opp. Party Nos.4 & 5 was conducted by the Committee comprising of the three experts, namely Dr.C. Prakash, Dr. R.P. Tondon and Professor Gautam Sengupta. But at the time of conducting the interview of the Petitioner at the instance of the Director NIT- O.P. No.3 who also happens to be a member of the Committee, two of the experts namely Dr. C. Prakash and Dr. R.P. Tondon were replaced and in their place one expert, namely Professor T.P. Middya was nominated. It is contended that while the interview of private Opp. Party Nos.4 & 5 was conducted in presence of three (3) experts namely Dr. C. Prakash, Dr. R.P. Tondon and Professor Gautam Sengupta, as provided under the Statutes, but the interview in respect of present Petitioner was conducted by the Committee in presence of two experts namely; Professor Gautam Sengupta and Professor T.P. Middya. It is accordingly contended that the interview of the Petitioner was not conducted as provided under the Statutes and Petitioner because of that was seriously prejudiced. 6.3. It is also contended that the experts so nominated by the O.P. No.3 namely Professor T.P. Middya was not competent to be a member of the Committee to conduct the interview as he was not in the panel prepared by the Board of Governors in the 54th Board of Governors Meeting held on 08.05.2017 under Annexure-15. It is accordingly contended that since the interview was required to be conducted by the Committee comprising of 3 experts which was followed in the case of Opp. 3 Party Nos.4 & 5, but the same was not followed while conducting the interview of the Petitioner, the entire selection process was vitiated. At the instance of O.P. No.3, the expert nominated in place of Dr. C. Prakash and Dr. R. P. Tondon namely Professor T.P. Middya was also not competent to be an expert as he was not there in the panel so prepared by the Institute under Annexure-15. It is accordingly contended that because of such illegalities committed by the Director-O.P. No.3 by constituting a Committee which is not in consonance with the Statutes, Petitioner was wrongly declared ineligible to get the benefit. However, basing on the interview so conducted by a properly constituted Committee. Opp. Party Nos.4 & 5 got the benefit of promotion in the month of February, 2018. 6.4. It is also contended that challenging such unfair practice conducted by the Opp. Party-NIT, Petitioner when made series of representations under Annexure-14 series starting from 16.02.2018, in consideration of the same, the order of promotion extended in favour of Opp. Party Nos.4 & 5 was not confirmed as reflected vide Annexure-16 to the Writ Petition. 6.5. It is however fairly contended that during pendency of the Writ Petition, Petitioner got the benefit of promotion in the year 2022. It is accordingly contended that since because of the fault committed by the Opp. Party-NIT, Petitioner was deprived to get the benefit of promotion in the year 2018, when such benefit was extended in favour of Opp. Party Nos.4 & 5, 4 Petitioner is eligible and entitled to get such benefit from the date Opp. Party Nos.4 & 5 got the benefit of promotion. 7. Mr. S.D. Das, learned Sr. Counsel appearing on behalf of Opp. Party Nos.2 & 3 does not dispute the contention raised by the learned counsel appearing for the Petitioner with regard to change of the experts while conducting the interview of the Petitioner. But it is contended that such a step was taken by the Director-Opp. Party No.3 as one of the expert, namely Dr. C. Prakash was related to the Petitioner. It is however not disputed that while replacing 2 of the experts, one expert was nominated to the Committee to conduct the interview in respect of the Petitioner. But the Committee since did not recommend the name of the Petitioner, accordingly he could not get the benefit. It is also concluded that as provided under the First Statutes of NIT, such an authority is vested on Opp. Party No.3, more particularly Statute 23(14) of the First Statutes. Statute.23(14) reads as follows: 14. No Act or proceeding of any Selection Committee shall be called in question on the ground merely of the absence of any member or members of the Selection Committee. 7.1. Since the Committee which conducted the interview of Opp. Party Nos.4 & 5 recommended their name, they got the benefit of promotion in the year 2018. It is also contended that in the meantime, Opp. Party No.5 after getting the benefit of promotion has retired and Opp. Party No.4 is going to retire 5 shortly. It is also contended that petitioner subsequently has also got the benefit of promotion in the year 2022. 8. Mr. R.N. Behera, learned counsel appearing on behalf of Opp Party No.5 on the other hand contended that since after facing the interview and on being duly recommended by the Committee, he got the benefit of promotion in the year 2018, no fault lies with him. It is also contended that while continuing with such benefit, Opp. Party No.5 has retired form the service in the meantime. 9. In spite of notice nobody has entered appeared on behalf of Opp. Party No.4. 10. Having heard learned counsel for the parties and considering the submission made, this Court finds that basing on the advertisement issued by the Institute under Annexure- 1, Petitioner and private Opp. Party Nos.4 & 5 made their applications to get the benefit of promotion to the rank of Professor. On being found eligible, Petitioner and Opp. Party Nos. 4 & 5 were called to attend the interview to be conducted by the Committee which was constituted as per the provisions contained under the NIT Statutes. As provided under Statute 23(5) (a) of in the Statutes, such interview was required to be conducted by a Committee comprising of three (3) experts. Statute 23(5) of the Statutes reads as follows: 6 23. APPOINTMENTS 5. Selection Committees for filling up of posts under the Institute (other than on contract basis by advertisement or by promotion from amongst the members of staff of the Institute shall be constituted in the following manner; namely:- (a) the Selection committee for recruit of Academic Staff (excluding the Director and the Deputy Director), or for prometon shall be as under: 1. Director or Deputy Director - Chairman 2. Visitor’s Nominee - Member 3. two nominee of the Board one being an expert, but other than a member of the Board - Member 4. one expert nominee of Senate from outside the institute 5. Head of Department concerned (for other than the post of Professor) - Member xxx xxx xxx 10.1. It is not disputed by either of the parties that in respect of Opp. Party Nos.4 & 5, the interview was conducted by the Committee, comprising of three (3) Experts namely Dr. C. Prakash, Dr. R.P. Tondon and Prof. G. Sengupta. But while conducting the interview of the Petitioner at the instance of the Opp. Party No.3, two of the experts namely Dr. C. Prakash and Dr. R.P. Tondon were replaced and in their place, only one expert was nominated namely Professor T.P. Middya. As found 7 from Annexure-16, the said expert was not in the panel and accordingly he was not eligible to remain in the Committee and be part of the Committee to conduct the interview of the Petitioner. 10.2. In that view of the matter, it is the view of this Court that the interview of the Petitioner was not conducted by a Committee constituted in terms of the NIT Statutes. However, Since Petitioner in the meantime has got the benefit of promotion on 19.05.2022 and private Opp. Party No.5 has retired, this Court while disposing the Writ Petition directs Opp. Party No.2 to take effective steps to hold the interview of the Petitioner once again by constituting a new Committee in accordance with the Statutes. On such conduct of the interview by the Committee, if the Petitioner comes out successful, then benefit of promotion be extended in his favour from the date such benefit was extended in favour of Opp. Party Nos.4 & 5, but on notional basis. This Court directs Opp. Party No.2 to complete the entire exercise within a period of four (4) months from the date of receipt of this order. The Writ Petition is accordingly disposed of. sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 18-Nov-2024 18:29:34 8 (Biraja Prasanna Satapathy) Judge