The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.8323 of 2009 (Application under Articles 226 and 227 of the Constitution of India) A.F.R. Subhankar Das … Petitioner -versus- Utkal University & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.A.K.Mohanty, Advocate. -versus- For Opposite Party No.1 & 2 : Mr. Dayananda Mohapatra, Advocate For Opposite Party No.3 : Mr. S.N.Patanaik, A.G.A --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA W.P.(C) No.8323 of 2009 Page 1 of 15 09.08.2024. JUDGMENT Sashikanta Mishra,J. The Petitioner has filed this Writ Petition with the following prayer; is that in view of therefore prayed this “It Hon’ble Court may be graciously pleased to admit the writ application, call for the records, issue notice to the Opp. Parties to show cause as to why the impugned decision of the Opp. Parties dated 20.11.2008 under Annexure-6 so far as the post of System Manager is concerned, shall the not be quashed availability of the statutory Rules to fill up the post of System Manager and appropriate writ shall not be issued to the Opp. Parties to give promotion to the petitioner who is continuing as System presently Manager In-charge and if the Opp. Parties do not show cause or s how impugned insufficient decision dated 20.11.2008 under Annexure-6 be quashed by issuing a writ of certiorari and a writ of Mandamous be issued directing the Opp. Parties to fill up the post of System Manager by way of giving promotion to the Petitioner with all consequential financial benefit and order(s)/writ other pass (s)/direction (s) as may deem fit and proper.” cause any the W.P.(C) No. 8323 of 2009 Page 2 of 15 2. The facts of the case, brief stated, are that the Petitioner was appointed as Computer Operator in the Computer Centre of Utkal University on 01.9.1990. Subsequently he was appointed as Programmer of the Computer Centre w.e.f. 1.10.1996. Upon retirement of the incumbent System Manager of the said Computer Centre namely, B.K.Ranasingh on attaining the age of superannuation on 30.10.2004, the Petitioner was kept as in-charge of System Manager on 26.2.2005. Such appointment was made by the authorities by obtaining an undertaking from him that he would not claim any financial benefit. The Petitioner was given to understand that he would be given promotion to the post of System Manager. According to him, the said post is a Class-1 post and equivalent to the post of Deputy Registrar and Deputy Controller of Examinations which, as per Rule 13(2)(a) of the Odisha University (Recruitment and Promotion of Non- Teaching Staff) Rules, 1991 (for short, the 1991 Rules) are to be filled up by way of promotion. All these posts carry the same scale of pay. The Petitioner was W.P.(C) No. 8323 of 2009 Page 3 of 15 however, not promoted to the post of System Manager nor paid the pay scale of the said post, which is contrary to Rule 96 of the Odisha Service Code. While the matter stood thus, the authorities took a decision on 20.11.2008 to fill up the post of System Manager through Direct Recruitment. Though promotion was granted to the post of Deputy Registrar and Administrative Officer, no such exercise was conducted for the post of System Manager. Further, officiating promotion was given to other employees against non- teaching posts, such as Administrative Officer, Technical Assistant, Punch Operator etc. without holding D.P.C. The Petitioner, on other hand, has been discharging duties as System Manager satisfactorily since 28.2.2005 without being promoted on regular basis. On such facts, the Petitioner has filed the instant Writ Petition seeking the relief as stated hereinbefore. 3. Counter affidavit has been filed on behalf of the Utkal University mainly taking the plea that all the three posts in the Computer centre namely, W.P.(C) No. 8323 of 2009 Page 4 of 15 Programmer, System Engineer and System Manager are base level posts and are being filled up by direct recruitment and selection. There is no provision in the 1991 Rules to fill up these posts by promotion. The post of System Manager is not equivalent to the post of Deputy Registrar. The Petitioner is entitled to the benefits as per the Finance Department Office Memorandum dated 05.2.2004 regarding grant of additional pay for holding combination of posts/appointment. The Petitioner was never assured of promotion as System Manager and had fully accepted the arrangement without any financial benefit. 4. The Petitioner has filed a rejoinder stating that the posts of System Manager and Programmer were created in the year 1989. After retirement of the System Manager, the Petitioner was kept in-charge but was not granted the scale of pay of such post even though he continued in such post for more than 10 years. Similarly placed employees have been granted W.P.(C) No. 8323 of 2009 Page 5 of 15 officiating promotion in the post in which they were kept in-charge. 5. By way of an additional affidavit, the University authorities clarified that the post of System Manager was a base level post till the University received clarification from the Higher Education Department vide letter dated 30.3.2016 to the effect that it is to be filled up by promotion. Further, the matter being sub-judice, the D.P.C. could not be convened and as such no one was granted promotion. Further, the Petitioner has got the benefit of pay revision as career advancement for non-availability of promotion avenue and therefore, he can have no further claim. Moreover, the Petitioner has in the meantime retired from service on attaining the age of superannuation on 30.6.2021. 6.
Legal Reasoning
Heard Mr. Amiya Kumar Mohanty, learned counsel for the Petitioner and Mr.Dayananda Mohapatra, learned counsel for the Utkal University. 7. Mr.Mohanty would argue that the UGC created certain posts for the Computer Centre of the University, which were sanctioned by the Governor by W.P.(C) No. 8323 of 2009 Page 6 of 15 order dated 27.6.1989. Further, the post of Programmer is a Group-B post while System Manager is a Group-A post carrying higher scale of pay. The letter dated 30.3.2016 of the Government in Higher Education Department providing for filling up the post of System Manager through promotion is to be treated as a clarification only. In the absence of any Rules prior to issuance of such clarification, the rules relating to filling up of equivalent Group-A post should be treated as holding the field. As such, according to Mr. Mohanty, the post of System Manager is equivalent to the post of Deputy Registrar for which as per Rule 13(2)(a) of the 1991 Rules, it can be filled up only by way of promotion. In any case, the Petitioner occupied the post being kept in-charge for a long time i.e. from 28.2.2005 till 30.6.2021 i.e. for nearly 16 years. Further, the so called undertaking signed by him cannot have any legal sanctity. Since the authorities have admitted that even after receipt of clarification from the Government the DPC was not constituted, it automatically proves that the Petitioner was most W.P.(C) No. 8323 of 2009 Page 7 of 15 illegally deprived of his right to be considered for the higher post. 8. Mr.Dayananda Mohapatra, on the other hand, submits that the post of Deputy Registrar cannot be equated with the post of System Manager as both operate in entirely different fields. In the absence of any specific rule, a decision was taken in a meeting held on 20.11.2008 under the Chairmanship of the Chief Secretary that the post of System Manager would be filled up through direct recruitment. However, no advertisement was issued. It is only after receipt of clarification by the State Government that the post was found to be entitled to be filled up through promotion. However, because of pendency of this case, the DPC could not be held and subsequently, the Petitioner retired on attaining the age of superannuation. 9. As already stated, the Petitioner has retired on attaining the age of superannuation w.e.f. 30.6.2021.
Decision
As such, the prayer made in the Writ Petition to grant him promotion to the post of System Manager no longer survives. The only question that survives for W.P.(C) No. 8323 of 2009 Page 8 of 15 determination is, whether the Petitioner was wrongly deprived of promotion at the relevant time and if so, what relief would he be entitled to? 10. Reference to the 1991 Rules and particularly Rule 13 thereof reveals that certain specific posts have been mentioned for being filled up by way of promotion. Mr.Mohanty has placed much emphasis on Rule 13(2)(a), which reads as follows; “13(2)(a). Deputy Registrar and its equivalent Class-1 posts the extent of one third of such posts/vacancies.” to 11. It has been argued on behalf of the University that the Post of Deputy Registrar is not equivalent to the post of System Manager. In the minutes of the meeting held on 20.11.2008, copy of which is enclosed as Annexure-6, both Deputy Registrar and System Manager have been described as Group-A posts with the latter having higher scale of pay. The post of Programmer is described as Group-B post. Reading of the 1991 Rules reveals that there is no specific W.P.(C) No. 8323 of 2009 Page 9 of 15 provision governing the method of filling up the post of System Manager. It would however suffice to state that the post of System Manager is a higher post than the post of Programmer. The Petitioner, while working as Programmer was kept in-charge of System Manager in which capacity he continued for as long as 16 years and ultimately retired on 30.6.2021. A purported undertaking was obtained from him by the authorities that he would not claim any financial benefit. This Court would however, place no importance whatsoever on the said undertaking for the reason that the employer being in a dominant position can always obtain such an undertaking from its employee against his own interest. It is well stated that such an undertaking has no sanctity in the eye of law. In the case of Central Inland Water Transport Corpn. v. Brojo Nath Ganguly, (1986) 3 SCC 156 : 1986 SCC (L&S) 429 at page 215, the Supreme Court held as follows; “89. xxx xxx xxx xxx xxx xxx. This principle is that the courts will not enforce and will, when called upon to do W.P.(C) No. 8323 of 2009 Page 10 of 15 so, strike down an unfair and unreasonable contract, or an unfair and in a contract, unreasonable clause entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. today’s complex world of giant In corporations vast with infrastructural organizations and with the State through its instrumentalities and agencies entering into almost every their W.P.(C) No. 8323 of 2009 Page 11 of 15 branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.” 12. What has happened in this case is that the Petitioner was asked to discharge the duties of higher post but without receiving the pay attached to such post. This is absolutely iniquitous and cannot be countenanced in law. Had it been a stop-gap arrangement for a limited period also, the matter would have been different. But here is a case where the Petitioner has been made to work in the higher post for as long as 16 years. Accepting the contention of the University for a moment that the post was required to be filled up by direct recruitment and such a decision was in fact taken in the meeting presided over by the Chief Secretary then what prevented the authorities to go for such recruitment. That apart, when the Government issued a clarification on 30.3.2016 that W.P.(C) No. 8323 of 2009 Page 12 of 15 the post is to be filled up by promotion, then also no step was taken by the authorities to convene a DPC for the purpose till as late as 30.6.2021 when the Petitioner retired. Thus, the authorities are found to have displayed an attitude of adhocism whereby an employee was made to work in a higher post without being paid the pay scale attached to it. Obviously, a public institution like Utkal University cannot be expected to adopt such an approach to the detriment of it employees. 13. Thus, no step was taken by the University to fill up the post of System Manager on regular basis either by way of direct recruitment at the relevant time or by promotion after receipt of clarification from the Government. As a result, the Petitioner was deprived of his legitimate right of being considered for appointment to the higher post by either of the modes. It has been argued that looking at the lack of promotion opportunity the Petitioner was granted the benefit of career advancement by way of RACP etc. but in view of the sheer inaction of the authorities as described W.P.(C) No. 8323 of 2009 Page 13 of 15 above, the same cannot be a ground to condone their action or inaction as the case may be. This Court is conscious of the fact that promotion is not a matter of right, but consideration for promotion certainly is. The peculiarity of the present case is that the Petitioner was made to work for long years in the higher post without being paid the pay attached to it on the untenable ground of signing of an undertaking by him. So even if no direction can be issued to the authorities to grant promotion to the Petitioner retrospectively, the claim of the Petitioner at least for being granted the pay scale of the post which he held as in-charge for 16 long years cannot be denied. This Court holds that notwithstanding the undertaking given by the Petitioner he is entitled to be paid the pay scale of the post of System Manager from the date he held the same till his retirement. 14. For the foregoing reasons therefore, the Writ Petition is partly allowed. The Opposite Party- authorities are directed to grant the scale of pay of the post of System Manager to the Petitioner from the date W.P.(C) No. 8323 of 2009 Page 14 of 15 he held the same as in-charge till the date of his retirement. Such pay less the amount already paid to him shall be calculated and disbursed in his favour along with all revisions of pay that may have taken place during such period. His last pay drawn should be fixed accordingly and his pension and pensionary benefits, if any, be also revised accordingly. It is further made clear that any amount paid towards career advancement such as ACP, RACP etc. shall be duly adjusted. The whole exercise should be completed within a period of two months from the date of production of certified copy of this order by the Petitioner. …………….……………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Aug-2024 16:36:25 W.P.(C) No. 8323 of 2009 Page 15 of 15