The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 134 of 2017 Dr. Rajashree Mishra …. Appellant Mr. Manoj Mishra, Sr. Advocate Mr. Dinesh Kumar Panda, Advocate -versus- University of Orissa Agriculture & Technology, Bhubaneswar & Others …. Opposite Parties Mr. Ashok Kumar Mishra, Advocate (for O.P. No.1) CORAM: THE HON’BLE MR. JUSTICE S.K. SAHOO THE HON’BLE MR. JUSTICE CHITTARANJAN DASH Date of Judgment: 17.12.2024 Chittaranjan Dash, J. 1. Heard Mr. Manoj Mishra, learned Senior Advocate appearing on behalf of the Appellant and Mr. Ashok Kumar Mishra, learned counsel representing the Opposite Party No.1-OUAT. 2. By means of this writ appeal, the Appellant has challenged the Judgment dated 05.05.2017 passed by the Hon’ble Single Judge in W.P.(C) No. 15499 of 2008 as placed under Annexure-1 and to further quash the order of rejection passed vide Annexure-21 of the writ petition and further direct the Opposite Parties to consider the case of the Appellant as Teacher/Asst. Professor in the Department of Bacteriology & Virology of Orissa Vety. College and pay the W.A. No. 134 of 2017 Page 1 of 14 scale of pay and financial benefits retrospectively w.e.f. from 31.07.1993 along with other service benefits. 3.
Legal Reasoning
The background facts of the case are that the Appellant, Dr. Rajashree Mishra, being a highly qualified individual who stood first in her B.V.Sc. & A.H. course and completed her M.V.Sc. in Veterinary Bacteriology and Virology in 1992, was appointed as a Research Assistant (a Class-III post) by the Orissa University of Agriculture and Technology (OUAT) in the scale of pay of Rs. 1640-2900/-, in the year 1993. She was initially posted against the post of Junior Scientist but was soon adjusted against a vacant post of Lecturer in the Department of Bacteriology, where she discharged the duties of a Lecturer from 31.07.1993 onwards. However, she continued to receive the scale of pay of that of a Research Assistant (in Class-III post) without any objection whatsoever. Despite her qualifications, including clearing the National Eligibility Test (NET) in 1994, and her performance in teaching and research, the Appellant was never regularised as a Lecturer. Over the years, she submitted multiple representations to the University seeking regularisation and service benefits, but her requests were consistently ignored or deferred. In the year 1999, she filed her first writ petition vide OJC No. 13411 of 1999, before this Court, seeking regularisation and consequential benefits in the post of Lecturer from 31.07.1993 i.e. the very date she was adjusted in the same position. This Court
Decision
disposed of the OJC with a direction to the University to consider her case whenever the question of appointing Lecturers in Bacteriology arose. However, the Court declined to grant her other benefits as claimed. Following this, an advertisement was issued in W.A. No. 134 of 2017 Page 2 of 14 2005, and the Appellant was selected and appointed as an Assistant Professor, a designation for the post of Lecturer under the three-tier teaching pattern. She formally joined in the said position on 17.06.2005. However, her case was not considered for continuity and seniority benefits for her prior service rendered. Aggrieved by the same, she filed a second writ petition vide W.P.(C) No. 12199 of 2008, seeking recognition of her teaching experience from 1993 to 2005 and its inclusion in her service records. This Court directed the university to reconsider her representation, but her request was ultimately rejected on 20.09.2008, with the university citing procedural and statutory barriers. Subsequently, she filed another writ petition vide W.P.(C) No. 15499 of 2008, reiterating her demand for recognition of her service continuity from 31.07.1993. She argued that she had been effectively performing the duties of a Lecturer, that her peers in similar situations were regularised, and that the University’s inaction on regular recruitment disadvantaged her unfairly. However, this Court dismissed the petition, concluding that her appointment as a Research Assistant could not entitle her to benefits attached to a Lecturer post before her formal appointment in 2005. This present appeal challenges the above decision of this Court, emphasising the unfair denial of recognition for her long years of teaching service and the differential treatment meted out to her compared to similarly placed colleagues. 4. Mr. Manoj Mishra, learned Senior Advocate appearing on behalf of the Appellant submits that the Hon’ble Single Judge failed to appreciate the existence of vacancies for the posts of Lecturer/Assistant Professor in the Department of Bacteriology and W.A. No. 134 of 2017 Page 3 of 14 Virology, one of which the Appellant had been discharging her duties against. He further submits that there was a clear budgetary provision for the post of Assistant Professor under the IIS Plan, ensuring no financial constraint in appointing the Appellant to the position she was already performing. Moreover, the Hon’ble Single Judge overlooked the fact that there was no sanctioned post of Research Assistant in the Department of Bacteriology and Virology. Mr. Mishra asserts that the Appellant was officially directed to discharge the duties of Assistant Professor with proper intimation to the university authorities, and this direction underscores the university’s acknowledgment of the Appellant’s role and the absence of procedural impediments to her regularisation. Mr. Mishra further contends that the University authorities had, on multiple occasions, permitted her to officiate as a Lecturer/Assistant Professor, and despite this, the University neglected to issue formal orders recognising her as such, thereby depriving her of the due benefits of her service. The Hon’ble Single Judge failed to consider the office order dated 24.07.1993, which clearly states that the Appellant had been posted as Lecturer (IIS Plan) and overlooked subsequent communications, such as Annexure-11, that reinforced her functioning in the capacity of an Assistant Professor. It is further argued by Mr. Mishra that the Hon’ble Single Judge did not properly consider the Appellant’s contention that her selection as a Research Assistant was followed by her assignment to Assistant Professor duties due to the acute need for teaching staff in the department. The Appellant had been discharging her duties as a Lecturer/Assistant Professor in a regular manner from 31.07.1993 W.A. No. 134 of 2017 Page 4 of 14 until her formal appointment in 2005 by this Court’s order in OJC No. 13411 of 1999, which explicitly directed the University to consider the Appellant’s qualifications, NET certification, and experience when filling the Lecturer post. Mr. Mishra prays that the period between 1993 to 2005, should be treated as continuous service and recognised as teaching experience, entitling her to differential financial benefits and seniority. It was further argued that the Hon’ble Single Judge failed to appreciate that the delay in advertising and filling the vacant post, despite repeated requests, significantly disadvantaged her. This delay not only denied her rightful appointment but also violated the university’s statutory obligations and this Hon’ble Court’s directions in OJC No. 13411 of 1999. Mr. Mishra contends that the Hon’ble Single Judge erroneously held that her original appointment as a Research Assistant, a Class-III post, precluded her from continuity of service in a Class-II teaching post, and that this interpretation ignores the statutory provisions of Statute-49 of the OUAT Rules, which mandates that employees continuously serving in temporary posts with requisite qualifications be considered for substantive appointments. The Appellant’s teaching experience, recognised by the university in practice, was wrongfully dismissed as lacking official status, despite her performing duties equivalent to those of other regularised Assistant Professors. Finally, it was submitted by Mr. Mishra that similarly situated individuals, who were junior to her in the merit list, have been granted benefits of past service and continuity in other disciplines. This selective treatment violates her fundamental rights under Articles 14 and 16 of the Constitution of W.A. No. 134 of 2017 Page 5 of 14 India, and the Hon’ble Single Judge’s failure to address this differential treatment and consider precedents from the Hon’ble Supreme Court and this Hon’ble Court constitutes a significant error in law, justifying the present appeal, and the Appellant hence prays for relief recognising her service continuity, granting retrospective financial and seniority benefits, and remedying the manifest injustice caused by the University’s inaction and the impugned judgment. 5. Mr. Ashok Mishra, learned counsel representing the Opposite Party-OUAT, submits that the appellant was substantively appointed as a Research Assistant in 1993, which is a Class-III post with a distinct pay scale and responsibilities and her subsequent ad hoc assignment to perform Lecturer duties was an administrative arrangement made to address the university’s needs and did not constitute a formal appointment to the post of Lecturer. Mr. Mishra asserts that Statute-49 of the OUAT statutes is inapplicable to the appellant’s case as the provision mandates that substantive appointments to permanent posts must prioritise employees holding temporary posts in the same grade and pay scale as the permanent post, provided they meet the requisite qualifications. The appellant’s substantive position as a Research Assistant was in a lower grade and pay scale than the Lecturer post, precluding her from claiming benefits under this statute. He furthers his argument that the appellant did not undergo the mandatory recruitment process, including selection by the Standing Selection Committee as required under Clause 3(1)(ii) of the OUAT statutes, to hold the post of Lecturer before 2005. Her duties as a Lecturer were assigned administratively and did not confer any statutory W.A. No. 134 of 2017 Page 6 of 14 entitlement to regularisation or retrospective benefits. It is further argued by Mr. Mishra emphasising the appellant’s continued acceptance of the pay and benefits of a Research Assistant throughout the relevant period undermining her claim for higher pay and seniority as a Lecturer as she also availed study leave from 2000 to 2004 under provisions applicable to non-teaching staff, reaffirming her official designation as a Research Assistant during this period. The principle of "no work, no pay" further bars her from claiming retrospective salary for a post she was not formally appointed to. Mr. Mishra again highlighted the orders in previous writ petitions, including OJC No. 13411 of 1999 and W.P.(C) No. 12199 of 2008, where her case was graciously considered by this Court with a direction that during the next recruitment process for Lecturers, her case be considered, which resulted in her appointment as an Assistant Professor in 2005 after undergoing the prescribed selection process. Mr. Mishra concludes his argument by affirming with the impugned judgment passed by the learned Single Judge. He argues that allowing the appellant’s claims would set a dangerous precedent, enabling individuals to bypass statutory procedures and claim benefits for ad hoc arrangements. Such an outcome would compromise the integrity of public employment systems, especially when her appointment as Assistant Professor was made through open competition ensured transparency and fairness in 2005. He, therefore, prays for the dismissal of the appeal and upholding of the impugned judgment. 6. Keeping in view the submissions of the respective parties, it is expedient for us to look into the findings rendered by the learned W.A. No. 134 of 2017 Page 7 of 14 Single Judge, if the same stands the scrutiny of correctness, legality and propriety. 7. The impugned judgment rendered by the learned Single Judge of this Court delves into Dr. Rajashree Mishra’s plea for recognition of her teaching duties from 31.07.1993 to 17.06.2005 as continuity in service for pay, seniority, and related benefits. The Court rejected the petition based on several statutory, procedural, and factual observations, with significant reliance on the OUAT Statutes and the nature of her original appointment. Reliance on Statute-49 of the OUAT Rules was addressed by the learned Single Judge and held that this statute did not apply to the Appellant’s case because her original appointment as a Research Assistant was in a different grade and pay scale than the Lecturer post. The impugned judgment further noted that the Appellant’s duties during the period were not officially recognised as those of a Lecturer under a proper appointment order. It is also observed by the learned Single Judge that the Appellant availed study leave from 2000 to 2004 as a non- teaching employee under university resolutions applicable to her substantive post as a Research Assistant. It stated that her case had already been considered in earlier writ petitions OJC No. 13411 of 1999 and W.P.(C) No. 12199 of 2008. In these cases, the Court had directed the university to consider her case during the next recruitment process for Lecturers. Following these directions, she was appointed as an Assistant Professor in 2005 after undergoing the requisite selection process. Finally, the impugned judgment places its reliance on an order of judgment in the matter of Purilal Mohanta v. NESCO passed in W.P.(C) No. 8192 of 2008, where an individual W.A. No. 134 of 2017 Page 8 of 14 performing duties beyond their official designation was not granted retrospective benefits. Applying this analogy, it was held that merely discharging Lecturer duties while being substantively appointed as a Research Assistant could not entitle the Appellant to retrospective recognition of service, seniority, or pay. The learned Single Judge, thus, dismissed the writ petition, concluding that the Appellant’s claim for retrospective regularisation and service continuity lacked merit under both the procedural framework and the statutory provisions governing OUAT appointments. 8. The learned counsel for the Appellant has primarily placed the reliance on Clause-49 of the OUAT Statutes, which reads as follows – 49. Whenever a permanent post in any grade and pay scale is available for substantive appointment, the claim of any University employee holding a tenure post or temporary post continuously for a period exceeding two years in that grade and pay scale and possessing the qualification required for the permanent post, shall be considered first for substantive appointment in that permanent post. 9. A comprehensive reading of the provision would expound that it applies only to university employees holding tenure or temporary posts in the same grade and pay scale as the permanent post available for substantive appointment. The Appellant, however, was substantively appointed as a Research Assistant, a Class-III post with a pay scale of Rs. 1640-2900/-, whereas the post of Lecturer/Assistant Professor is a Class-II post with distinct responsibilities and a different pay scale. The clear disparity in grade and pay scale disqualifies the Appellant from invoking Clause-49, which is predicated on equivalency between W.A. No. 134 of 2017 Page 9 of 14 the temporary and permanent posts in both grade and remuneration. The Appellant’s duties as a Lecturer were assigned as an ad hoc administrative arrangement to address the university’s needs in the absence of a sanctioned Research Assistant post in the Department of Bacteriology and Virology. This temporary adjustment, made for administrative convenience, did not constitute a formal appointment to the Lecturer post, which requires selection through the Standing Selection Committee as per Clause 3(1)(ii) of the OUAT Statutes. Consequently, the Appellant’s role as a Lecturer cannot be equated to a temporary post within the meaning of Clause-49. However, this Court in OJC No. 13411 of 1999 and W.P.(C) No. 12199 of 2008, still directed consideration of the Appellant’s case during the next recruitment process for Lecturers. In adherence to these directives, the university issued a fresh advertisement, and the Appellant underwent the prescribed selection process, ultimately being appointed as an Assistant Professor on 17.06.2005. This appointment followed due process, ensuring merit-based recruitment in line with statutory requirements and judicial directives. The partial relief granted to the Appellant in these earlier proceedings underscores that her claims were considered, and she was provided appropriate redress through formal appointment. 10. The Appellant’s claim for retrospective salary and financial benefits as a Lecturer prior to her formal appointment i.e. 17.06.2005 lacks validity, primarily because she did not undergo the prescribed appointment procedure necessary to hold the post. The OUAT Statutes, particularly Clause 3(1)(ii), mandate that appointments must be made through a competitive selection process involving the Standing Selection Committee. The Appellant, by her W.A. No. 134 of 2017 Page 10 of 14 own admission, was appointed as a Research Assistant on 31.07.1993, a Class-III post with a distinct pay scale and responsibilities. Her posting against a vacant Lecturer position was an ad hoc administrative arrangement necessitated by departmental needs. This adjustment was not equivalent to an official appointment as a Lecturer, as it lacked the requisite procedural formalities, including advertisement of the post, scrutiny of applications, and selection through the prescribed committee. The Appellant’s failure to undergo this mandatory process precludes her from claiming the status, salary, or benefits of a Lecturer prior to 17.06.2005. 11. Financial benefits and salary are intrinsically linked to the substantive post held by an employee under valid appointment orders. Since the Appellant’s designation as a Research Assistant was never formally changed through due process, her claims for higher financial entitlements based on her duties are unsustainable. The entitlement to salary and other benefits must stem from lawful appointment to the claimed position, not from mere discharge of duties in an officiating or ad hoc capacity. 12. Furthermore, while the Appellant performed duties associated with the Lecturer position, she did so as an appointee to the post of Research Assistant, receiving compensation corresponding to her substantive post. Allowing retrospective financial claims would create an inequitable situation, granting her dual benefits without the necessary procedural safeguards. The Appellant’s appointment as Assistant Professor on 17.06.2005 was the result of compliance with judicial directions in prior writ petitions (OJC No. 13411 of 1999 and W.P.(C) No. 12199 of 2008), W.A. No. 134 of 2017 Page 11 of 14 where this Hon’ble Court directed the university to consider her case in future recruitment processes following due advertisement and selection, she was appointed on merit, ensuring procedural integrity. 13. A significant point to note in the Appellant’s claim is the inherent contradiction in her actions and assertions regarding her roles as Research Assistant and Lecturer. If the Appellant genuinely believed that her duties and position were equivalent to those of a Lecturer, it is reasonable to argue that she should have refrained from accepting the benefits, pay, and privileges attached to the position of Research Assistant. By continuing to accept the salary and benefits of a Research Assistant, she effectively affirmed her substantive appointment in that capacity, which was a Class-III post, while simultaneously performing duties associated with the post of Lecturer, a Class-II post. The Appellant’s case is further weakened by her reliance on benefits specific to Research Assistants, such as study leave granted between 2000 and 2004, which she availed under provisions applicable to non-teaching employees. This availing of benefits under the Research Assistant designation, while now claiming entitlement to Lecturer pay and continuity, reveals a contradictory stance. It indicates an attempt to derive selective benefits from both positions, which is inequitable and inconsistent with the principles of administrative and statutory accountability. Her acquiescence to this arrangement, combined with her consistent drawal of Research Assistant pay and the benefits thereof, indicates an implicit acknowledgment of her official status as a Research Assistant during the disputed period. W.A. No. 134 of 2017 Page 12 of 14 14. In light of the discussions above, the Appellant’s claim for retrospective recognition as a Lecturer and associated financial benefits is legally and factually untenable. The Appellant was appointed as a Research Assistant, a Class-III post, and her ad hoc assignment to Lecturer duties did not entitle her to the position of Lecturer, as Statute-49 of the OUAT requires the temporary post to be in the same grade and pay scale as the permanent post. Since the Appellant’s Research Assistant role differed in both grade and pay, the statute is inapplicable. Additionally, the Appellant did not undergo the formal recruitment process for the Lecturer post, as required by OUAT statutes, until her appointment on 17.06.2005. Her continued acceptance of Research Assistant pay and benefits further undermines her claim. 15. The Hon’ble Single Judge in the impugned judgment has rightly observed that the Appellant’s case had been adequately addressed in prior proceedings, including OJC No. 13411 of 1999 and W.P.(C) No. 12199 of 2008, where partial relief was granted. The directions in those cases led to her formal appointment on 17.06.2005, conclusively resolving her claims to the post of Assistant Professor through lawful and transparent procedures. Reopening these issues in the current petition undermines the finality of judicial determinations and the integrity of appointment procedure. 16. The Appellant’s claims also lack equity. Allowing her retrospective benefits would create an untenable precedent where individuals performing higher duties without formal appointment can claim benefits, thereby circumventing established recruitment W.A. No. 134 of 2017 Page 13 of 14 procedures and statutory safeguards. This would be detrimental to the principles of fairness and equality in public employment. 17. For the reasons as above, the impugned judgment in W.P.(C) No. 15499 of 2008 by the learned Single Judge is upheld. The Appellant’s claims for retrospective regularisation, salary, and seniority benefits are rejected as legally unsustainable and procedurally flawed. 18. This Writ Appeal is accordingly dismissed. (Chittaranjan Dash) Judge (S.K.Sahoo) Judge A.K.Pradhan/Bijay Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 18-Dec-2024 16:59:21 W.A. No. 134 of 2017 Page 14 of 14