The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6581 of 2017 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Mangala Prasad Mohanty …. Petitioner(s) -versus- The Vice Chancellor, Orissa University of Agriculture and Technology, Bhubaneswar &Ors. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) For Opposite Party (s) : : Mr. B.K. Parida, Adv. Mr. Sonak Mishra, ASC Mr. Gouri Mohanty Rath, Adv. CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-18.04.2024 DATE OF JUDGMENT: -25.06.2024 Dr. S.K. Panigrahi, J. 1. The Petitioner has filed this Writ Petition challenging the impugned order dated 22.03.2017 passed by the Opp. parties relating to the approval for up-gradation of the Petitioner to the post of Asst. Engineer to Asst. Executive Engineer and allowing the scale of pay attached to the post although the proposal for approval is pending before the State
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 Page 1 of 11 Government and such impugned action is highly arbitrary and discriminatory. I. FACTUAL MATRIX OF THE CASE: 2. The brief fact of the case as emanated from the material placed on record and the arguments of the counsel for the Parties. (i) The Petitioner initially joined before the Opp. Party Office as a Junior Engineer (P.H), D.P.P Section and subsequently on 24.11.2006 got promoted to the post of Assistant Engineer (P.H) at a pay scale of Rs.6,500-200-10,500/- with usual allowances as was sanctioned from time to time. Further, it was specifically mentioned in the joining letter that the probation period was fixed for two years from the date of joining and the post will be extended for such further period, if the Petitioner work performance is found satisfactory. (ii) On 30.09.2013 the Opp. Party made a Gazette Notification for restructuring of the cadre of Odisha Engineering Service and diploma Engineering Service whereby it was specifically decided that the entry level post of the cadre of Odisha Engineering Service should be Assistant Executive Engineer in Junior Class-I branch in the scale of pay PB- 3, Rs.15,600-39,100/- with grade pay of Rs.5,400/- and the existing post of AE & AEE and the newly created post 47 numbers of post will be designated as the post of AEE (Assistant Executive Engineer). Besides, it was specifically mentioned that 100% post of Asst. Engineer is upgraded as the post of Asst. Executive Engineer. (iii) Further, on 26.02.2014 one Notification was issued by the Department of Housing and Urban Development wherein a decision was taken by the Page 2 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 Department enlisting the names of the Assistant Engineer (P.H.) who were upgraded to the post of Assistant Executive Engineer (P.H.) in the pay scale of PB-3, Rs.15,600-39,100/- and they were allowed to continue in their present place of posting. (iv) Moreover, on 15.11.2013, the Department of Housing and Urban Development has accorded sanction to the upgradation of 397 posts of Junior Engineer in the scale of pay of PB-2 Rs.9300-34800/- with grade pay of Rs.4200/- under the Housing and Urban Development to that of Assistant Engineer in the pay scale of P.B-2 Rs.9300-34,800/- with grade pay of Rs.4600/- adopted in OUAT in case of those who are Junior Engineer (P.H.) who is deputed to OUAT from the State Government. (v) Owing to such upgradation to the post of Assistant Engineer to the post of Assistant Executive Engineer, the issue was placed before the Board Management meeting on 01.08.2014 wherein various issues were dealt out of which one of the issue was in connection with the consideration of the upgradation of the post of Assistant Engineer to the rank of Assistant Executive Engineer which was duly approved and forwarded to the Government for upgradation at par with other Government
Legal Reasoning
norms. The said meeting was attended by the representative of the Principal Secretary of Agriculture and Finance and University Authority. (vi) In connection with the said Board meeting referred above, a letter dated 05.09.2014 was issued to the Opp. Party No.2 for consideration of the proposal of upgradation from Assistant Engineer to Assistant Executive Engineer (Junior class-I) which was passed in the Board meeting dated Page 3 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 01.08.2014 under the Resolution No.3870 sought for concurrence as the proposal was approved and moved to the Government for upgradation at par with the Government norms. (vii) Vide letter dated 20.12.2014, the necessity to upgrade the petitioner along with other three employees to the post of Assistant Executive Engineer was provided as the Petitioner was working in the post of Assistant Engineer (P.H.) since last 8 years carrying higher responsibilities with higher technical knowledge for which the present post of the Petitioner is required to be upgraded to the higher post i.e. Assistant Executive Engineer (P.Н.). (viii) The action of the Opp. Parties in not upgrading the post of the Petitioner from Assistant Engineer (P.H.) to Assistant Executive Engineer (P.H.) is alleged to be highly arbitrary and violative of Articles 14 and 16 of the Constitution of India. Beside the other State Government undertakings like Bhubaneswar Development Authority, Bhubaneswar, Municipal Corporations have already adopted the said upgradation as per the said Gazette Notification. Hence, the present Writ Petition. I. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: (i) The statute of OUAT mandates to give position of OUAT employees at par with counter parts of the State Government and after restructuring 100% post of A.E. upgraded to the rank of A.E.E. in Government. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 Page 4 of 11 (ii) The Board of OUAT resolved to upgrade the post of A.E. to A.E.E in OUAT par with the Government norms where the Additional Secretary to both Agriculture and Finance Department were members in OUAT Board and the Board of Management resolved to upgrade A.E (P.H) to A.E.E. (P.H) for the Petitioner. (iii) The Registrar, OUAT requested the Opp. Party No.3 for concurrence which was denied for which the Petitioner filed W.P.(C) No.520 of 2017 wherein this Court directed the Opp. Parties to take a decision on the resolution under Annexure-5 within 45 days. Accordingly, the impugned order was issued stating that without the cadre rule, up- gradation is not possible and proposal was rejected. (iv) The J.E. (P.H) deputed to OUAT from Government was upgraded in Government and allowed to continue in OUAT though there is a reservation of 50% of J.E. upgraded to A.E. where 100% of A.E upgraded to A.E E not implemented in case of the Petitioner and the A.E.E became base level post in place of A.E. and due to non-up- gradation, the Petitioner automatically downgraded. (v) In the year 2006 the Opp. Party No.3 upgraded the post of Junior Engineer (Elect.) to the post of Asst. Executive Engineer (Elect.) which was submitted by the Opp. Parties in the form of affidavit before this Court. However, in this case, there was no implementation of cadre rule but in the case of Petitioner the Opp. Parties not considering the matter where 100% up-gradation to the post of Asst. Executive Engineer after being implementation of cadre rule in the year 2014. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 Page 5 of 11 (vi) In such view of the matter, he contended that the impugned order under Annexure- 7 may be quashed. II. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY : 4. Learned counsel for the Opposite Party No.2 earnestly made the following submissions in support of his contentions. (i) It is abundantly clear in the backdrop of facts stated that Agriculture Department, Government of Odisha is the Administrative Department of OUAT and also provides all the funds for the functioning of the University. It is pertinent to mention here that approval and concurrence of the concerned department of Government of Odisha is required for any decision for filling up the posts or upgradation of posts in the university. Since the Department of Agriculture, Government of Odisha considered the application of the OUAT in respect of the Petitioner and declined the same, the Opp. Party No.1 and 2 cannot take any further action. (ii) The Department of Housing and Urban Development, Government of Odisha has issued Notification regarding up-gradation of Assistant Engineer to Assistant Executive Engineer. However, the same Assistant Engineer being the employee of the Government can avail the benefits of the notification. Since the notification is not related to OUAT, the Opp. Party No.1 and 2 cannot apply the same in case of the Petitioner. (iii) The petitioner was appointed on 30.08.1997 as Junior Engineer (PHD) in Director, Physical Plants under OUAT. Subsequently the Petitioner was appointed on 24.11.2006 as Assistant Engineer (PH) on promotion in the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 Page 6 of 11 scale of pay Rs.6500-200-10,500/-. While the Petitioner served as the Assistant Engineer, a Gazette Notification dated 30.09.2013 was notified wherein the restructuring of the Cadre of Odisha Engineering Service was done. According to the new structure the entry level post of the cadre of Odisha Engineering Service shall be Assistant Executive Engineer in Junior Class-1 branch in the scale of pay PB-3, Rs.15,600- 39,100/- with grade pay of Rs.5400/-. (iv) The Petitioner sought from the Opp. Party Nos.1 & 2 an upgradation in accordance with the said notification. The Opp. Party Nos.1 & 2 placed the same proposal of upgradation before the Board of Management for consideration. The Board of Management came to the conclusion that the proposal regarding upgradation should be moved to the Government. The Department of Agriculture, Government of Odisha communicated vide letter No.11864/Ag. dated 14/07/2016 stated that since there is no cadre rule of Assistant Engineer and junior Engineer in OUAT, the proposal for upgradation of Assistant Engineer to Assistant Executive Engineer may not be possible. (v) The decision of the Government in Department of Agriculture and Farmers Empowerment, Odisha regarding restructuring of the cadre of Odisha Engineering Service which was published in the Odisha Gazette vide Resolution No.1891 dated 30.09.2013 was applicable to Departments at the discretion of the Government. The University and specifically Opp. Party Nos.1 and 2, without prior sanction of the Government, cannot take any decision in furtherance to that notification. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 Page 7 of 11 III. COURT’S REASONING AND ANALYSIS: 5. The part II of the chapter-II of the Statute of the Agricultural Department dated 05.11.1966 deals with the appointment, powers and duties of the officers of the University wherein it is specifically stated in Chapter II clause 2(1x) that:- "The qualification of the Ministerial staff and other employees shall be the same as for similar posts under the Government of Orissa bearing the same or equivalent scales of pay." Further, Chapter-II clause 3(iii) deals with the "Ministerial Staff and other Employees" which is quoted herein below:- “The scales of pay of the ministerial staff and other employees relating to posts of various categories in the University Office and all offices sub-ordinate to it, shall be the same as those of the staff of the Secretariat relating to similar post. The minimum qualifications at the entry point shall be equalised with that of Secretariat.” Thus, it clearly states that the scale of pay of the staffs of the OUAT shall be at par with those serving in other Government sectors in the similar post. 6. Furthermore, after the order passed by this Court, on earlier round the Petitioner submitted the certified copy of the order along with the brief as directed by this Court to the Opp. Party No.3 to consider the resolution of the OUAT and take a decision on the request made by the Registrar OUAT to the Government within a period of 45 days, by a reasoned order, after affording reasonable opportunity of hearing to the Petitioner. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 Page 8 of 11 7. However, on 22.03.2017, the Opp. Party No.3 issued a reply against this Court’s direction stating that till now no cadre rule framed for Assistant Engineer and Junior Engineer of QUAT. As such, the proposal for up- gradation of the post of Asst. Engineer to the rank of Asst. Executive Engineer may not be possible., It reveals that the proposal for upgradation for the post of Asst. Engineer and Junior Engineer in OUAT, the proposal for upgradation for the post of Asst Engineer to the rank of Asst Executive Engineer may not be possible since there is no cadre rule of Asst Engineer and Junior Engineer in OUAT. Since the Petitioner was under deputation to the University and in the absence of any encadrement in the University, he should get all benefits like any other similarly placed employee in the Government. 8. Though there were ample instances where the upgradation of the post from Asst. Engineer to Asst. Executive Engineer have been made in terms of University Statute keeping in view the designation of the Government from time to time. Since Statute is very clear that the Engineer and other employees working in the University will be placed as per the restructuring and position of the Government employees according to the Notification issued by the Government from time to time. Moreover, undisputedly, the State Government have restructured the cadre as redesignated the Asst Engineer as "Asst Executive Engineer (P.H)", thus there cannot be any confusion for placing the petitioner by re- designating him as Asst. Executive Engineer (P.H). 9. The position being very clear and un-ambiguous, the Opp. Parties, the OUAT authorities cannot in any manner escape from such position and Page 9 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 they are bound under the law to place the Petitioner and re-designate him as Asst Executive Engineer (P.H.) in terms of the Government notification as the University Statute mandates for the same. The impugned order by the Authority after the disposal of the earlier Writ Petition clearly spells out the malafide and deliberate action in depriving the Petitioner from his legal entitlement as such, the impugned order dated 22.03.2017 is completely unwarranted, uncalled for as is also unsustainable in the scrutiny of law. Further, the impugned order as above is highly illegal and discriminatory and is liable to be quashed. 10. Moreover, as clarified by the Petitioner, the Petitioner never approached the Registrar, OUAT for getting his benefits but the issue was placed before the Board Management meeting dated 01.08.2014 under Annexure-5 of the Writ Petition where the post of the Petitioner from Asst. Engineer to the rank of Asst. Executive Engineer was duly approved and was forwarded to the Government for upgradation at par with other Government norms and in the said meeting the representative of the Principal Secretary of Agriculture and Finance was present. 11. The Government issued a letter on 18.11.2006 regarding the proposal for approval for up- gradation of the post of Junior Engineer (Elect.) to the post of Asst. Engineer (Electrical) and Asst. Engineer (Elect.) to Asst. Executive Engineer (Elect) by strictly observing the rules and conditions of the OUAT Employees statutes, 1989. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 Page 10 of 11 12. After the restructuring 50% of the total post of Junior Engineer upgraded to the rank of Asst. Engineer and one P.K. Pattanik who was deputed to OUAT as J.E. (P.H) after restructuring he was also upgraded to the post of Asst. Engineer (PH) and he was continuing in the said post since 2013. On the other hand, 100% post of Asst. Engineer upgraded to Asst. Executive Engineer in Government. But, the Opp. Parties did not bother to upgrade the post of the Petitioner from Asst. Engineer to the rank of Asst. Executive Engineer which is totally unreasonable in the eyes of law. 13. In the light of the aforesaid discussion, this Court is inclined to quash the order dated 22.03.2017 passed by the Opp. Parties relating to the approval for up-gradation of the Petitioner to the post of Asst. Engineer to Asst. Executive Engineer. Further, the Opposite Party No.1 is directed to upgrade the Petitioner’s post to the post of Asst. Executive Engineer within a period of three months from the date of presentation of this order.
Decision
14. Accordingly, the Writ Petition is allowed. Judge (Dr. S.K. Panigrahi) Orissa High Court, Cuttack, Dated the 25th June, 2024/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Jun-2024 17:34:14 Page 11 of 11