Susanta Kumar Parida .… v. Union of India and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 21895 of 2015, W.P.(C) No. 21899 of 2015, W.P.(C) No. 21906 of 2015 & W.P.(C) No. 21907 of 2015 Applications under Articles 226 & 227 of Constitution of India. W.P.(C) No. 21895 of 2015 Susanta Kumar Parida .…… Petitioner --------------- - Versus - Union of India and others ...…. Opp. Parties W.P.(C) No. 21899 of 2015 Deepak Kumar Behera …… Petitioner - Versus - Union of India and others ...… Opp. Parties W.P.(C) No. 21906 of 2015 Mukesh Kumar Meena …… Petitioner - Versus - Union of India and others ...…. Opp. Parties W.P.(C) No. 21907 of 2015 Subhransu Sekhar Panda ……. Petitioner - Versus – Union of India and others ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________________ For Petitioners : M/s. N. Lenka, H.K. Mohanty, L. Sahu R. Lenka & S. Sahu, Advocates.
Legal Reasoning
For Opp. Parties: Mr. Aurovinda Mohanty, Central Government Counsel _________________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA Page 1 of 16 JUDGMENT 5th September, 2023 SASHIKANTA MISHRA, J. All the four writ applications involve common questions of fact and law and therefore, were heard together and are
Decision
being disposed of by this common judgment. 2. On 20.10.2009, an advertisement being Advertisement No. 01/2009 was published by the National Institute of Science Education and Research, Bhubaneswar (NISER) (opposite party No.3) for filling up of nine different posts including Lab Technician. Six posts of Lab Technician were advertised carrying pay of Rs.5200-20,200/- with grade pay of Rs.2000/-. The essential qualification for such post was Bachelor‟s degree in Science with major in Physics/Chemistry/Biology with 45% marks and three years work experience in assisting faculty/researchers/students in a laboratory in an educational institution of national repute. Pursuant to such advertisement, the petitioner (in W.P.(C) No. 21895 of 2015) applied and faced a test/interview held on 15th and 16th, October, 2009. He was found suitable for Page 2 of 16 appointment and accordingly by letter dated 20.10.2009 he was appointed as such. Again on 01.06.2010, an advertisement being Advt. No. Rct./NA/01/2010 was published by NISER for filling up different posts including Laboratory Operator. Seven posts of Laboratory Operator were advertised carrying pay of Rs.5200- 20,200/- with grade pay of Rs.2000. The essential qualification for such post was Bachelor‟s degree in Science with Physics/Chemistry/Biology with at least 45% marks. Work experience of assisting faculty/researchers/students in a Chemistry/Physics/ Biology laboratory in an educational institution of national repute was also required. Pursuant to such advertisement, the petitioner (in W.P.(C) No. 21899 of 2015) applied and faced interview held on 8th October, 2010. He was found suitable for appointment and accordingly by letter dated 14.10.2010, he was appointed as such. Similarly on 31.03.2012, an advertisement being Advertisement No. Advt. No.: Estt./Rct.NA/01-2012 was published by NISER for filling up different posts including Operator. 16 posts of Operator were advertised carrying pay Page 3 of 16 of Rs.5200-20,200/- with grade pay of Rs.2000/-. The essential qualification for such post was Bachelor‟s degree in Science (B.Sc.) with Chemistry or Biology or Mathematics as major subject with at least 45% marks. Minimum one year experience of assisting faculties/research scholars/students in a Chemistry/ Biology/Mathematics laboratory of an educational institution and PG Diploma/ Diploma in instrumentation or computer application with proficiency in usage of office packages was also required. Pursuant to such advertisement, the petitioners (in W.P.(C) No. 21906 of 2015 and W.P.(C) No. 21907 of 2015) applied and faced a written test & interview held on May 20, 2012 and August 13, 2012 respectively. They were found suitable for appointment and accordingly by letter dated 16/17th August, 2012, they were appointed as such. Subsequently, the Board of Governors of NISER took a decision to enhance the grade pay of the post of “Section Officer” by re-designating it as “Asst. Personnel Officer” and the grade pay also enhanced from Rs.4200/- to Rs.4600/-. According to the petitioners, the minimum qualification required for the post of Lab Technician/Lab Operator is +2 Page 4 of 16 Science, whereas that of Scientific Assistant –B is Bachelor Degree. Since the petitioners had Bachelor‟s Degree qualification in the relevant disciplines, they expected that the post of Lab Technician/Lab Operator held by them would be redesignated as Scientific Assistant –B as had been done in case of Section Officers. Accordingly, the petitioners submitted representations for effecting such re-designation and for enhancement of the pay including grade pay, but no action was taken on such representations. While the matter stood thus, the Recruitment Rules of NISER for Scientific & Technical Personnel was introduced in 2014 (in short “Recruitment Rules, 2014”). It provides that the officers already in different positions shall be re-designated/ upgraded wherever required. While the petitioners were expecting re-designation of their posts as per Recruitment Rules, 2014, an advertisement was issued by the Director of NISER (opposite party No.4) on 24th July 2015 inviting applications from the eligible candidates for different posts. In the said advertisement, the minimum qualification required for the post of Technician-B was stated as +2 Science with 60% marks while for Scientific Assistant-B, the Page 5 of 16 same was Science graduate with 60% marks and one year diploma in Computer Science. Since the advertisement also provides for direct recruitment to the post of Technician-C, which is at the next higher level of Technician-B, in which the petitioners were working, it would entail a situation of senior employees with higher qualification having to work under juniors and persons with less qualification. According to the petitioners, as per norms prescribed by the Department of Atomic Energy, Government of India, any post for which B.Sc. is the minimum required qualification, the pay band is Rs.9300-34800/- with grade pay of Rs.4200/-. On such basis, it is further claimed that the advertisement issued in the year 2009 mentioning B.Sc. qualification for Lab Technician was erroneous. The petitioners, Susanta Kumar Parida, Deepak Kumar Behera and Subhransu Sekhar Panda therefore, approached this Court in W.P.(C) No. 15629 of 2015, W.P.(C) No. 15632 of 2015 and W.P.(C) No. 15630 or 2015 respectively. This Court directed the petitioners to make a representation before the opposite parties, which was to be disposed of in accordance with law within a period of three months. Accordingly, the petitioners Page 6 of 16 submitted representations before opposite party No.4 on 03.09.2015 highlighting their grievances. By order dated 12.04.2016 passed by opposite party No.4, the representations were rejected. On the above facts, the petitioners have approached this Court seeking the following relief: to why to admit “It is, therefore, prayed that, this Hon’ble Court graciously be pleased the writ application, issue rule NISI in the nature of writ of mandamus or any other writ/writs as deem fit and proper calling upon the Opp.Parties to show the advertisement vide cause as Annexure-8 so far as the post of SA-B is concerned shall not be quashed, why they shall not be directed to absorb the petitioner against the post of SA-B or alternatively why the post of Operator of the petitioner shall not be re- designated as SA-B and all benefits attached to said post be given to the petitioner w.e.f. the date he was entitled to hold the post of SA-B and why the Order dtd.12.04.2016 passed by the opposite party No.4 vide annexure-10 and all action pursuant thereto shall not be quashed. In the event of the Opp.Parties fail to show- cause or show insufficient cause said rule be made absolute.” 3. In the counter affidavit filed by NISER it is stated that as per suggestion of Department of Atomic Energy, Government of India, the post of Laboratory Technician was re-designated as Laboratory Operator. As regards the Page 7 of 16 petitioners‟ grievance, it is stated that the same has no force in law. Re-designation of “Section Officer” as “Assistant Personnel Officer” with enhancement of grade pay was done to maintain equality of cadre in all departments in D.A.E.. It is further stated that as per clause 4.1 of the Recruitment Rules, 2014, the persons already holding the positions including Lab Operator shall suitably be re-designated in accordance with the grade pay as they are drawing and they shall retain their eligibility of service in the grade pay, irrespective of their previous designations. According to the opposite parties, this does not harm the petitioners in any manner. After coming into force of the Recruitment Rules, 2014, the essential qualification for Laboratory Operator (Lab Technician) was modified from Bachelors Degree in Science with 45% marks to +2 Science with minimum 60% marks. In the meantime, the petitioners have been promoted to the next higher post of Technician-C w.e.f. 01.07.2015. However, Scientific Assistant is a different cadre, the recruitment and promotion for which are different from the Technician Cadre. There is no provision under the Recruitment Rules, 2014 for change of cadre from Technician to Scientific Assistant. On Page 8 of 16 such grounds, the prayer of the petitioner was rightly rejected. The petitioners filed rejoinder reiterating the facts averred in the writ petition. It is stated in addition that since the petitioners have the same qualification required for Scientific Assistant-B, the posts held by them are required to be re-designated. The Advertisement issued in 2009 must be held to be erroneous in so far as the qualification is concerned. It has also been averred that even at the time of recruitment, the post of Scientific Assistant-B with qualification +3 Science was available but by wrongly depicting the required qualification in the advertisement, the authorities appointed the petitioners against the post of Lab Technician/Lab Operator instead of Scientific Assistant-B. 4. Heard Mr. N. Lenka, learned counsel for the petitioners and Mr. A. Mohanty, learned counsel appearing for NISER. 5. Mr. N. Lenka would argue that as per the norms of the Department of Atomic Energy, the re-designation of different posts is required to bring uniformity in the cadre of Page 9 of 16 different departments but by simply re-designating the posts of Lab Technician as Lab Operator by order dated 29.04.2010 in the same scale of pay without change of any grade pay is nothing but an eyewash. As per Recruitment Rules, 2014, the post of Technician-B requires educational qualification as H.S.C. or 12th Pass with minimum 60% of marks but in so far as Scientific Assistant-B is concerned, the required qualification is B.Sc. with minimum 60% marks in relevant trade. Since the petitioners had possessed the educational qualification of Scientific Assistant-B from the dates of their appointment, either the post should be re-designated or they should be given the same scale of pay with grade pay of Rs.4200/-. Mr. Lenka further argues that minimum scale of pay of an employee with graduate qualification and work experience is Rs.9,300-34,800/- with grade pay of Rs.4200/-, but even though the petitioners possess such qualification they have been provided with scale of pay of Rs.5,200- 20,200/-with grade pay of Rs.2000/- only. Under such circumstances, the Advertisement No.1 of 2009 prescribing higher qualification for a lower post was erroneous, which can be rectified by re-designating the post as Scientific Page 10 of 16 Assistant-B or by allowing the same pay scale, which would also be in conformity with Recruitment Rules, 2014. As per the said Rules, B.Sc. qualification exists only for the Scientific Assistant post and not for the Technician post. 6. Per contra, Mr. A. Mohanty, would argue that having accepted the terms and conditions of the advertisement No.1/2009 and being selected and appointed pursuant thereto it is not open to the petitioners to challenge the same at this distance of time. Mr. Mohanty further argues that had the qualification for Scientific Assistant-B as per Recruitment Rules, 2014 been in vogue in the year 2009 the petitioners would not have qualified. Mr. Mohanty further argues that the petitioners are harbouring a misconception that the posts of Lab Technician and Scientific Assistant-B are of equal status, but as per the Recruitment Rules, 2014, the Technician-B is a Group-„C‟ post whereas, the Scientific Assistant-B is a Group-„B‟ post. The petitioners have their own path of promotion which they have already availed being promoted to the next higher grade of Technician-C. The Rule Page 11 of 16 does not permit change of cadre on the ground of qualification. 7. Having heard learned counsel for the parties at length, this Court finds that the basic facts of the case are undisputed. The advertisement No.1 of 2009 (copy enclosed as Annexure- 2) inter alia, provides as follows: “Posts: Lab Technician Essential: Bachelor’s degree in Science with Major in Physics/Chemistry/Biology with 45% marks and three years work experience in assisting faculty/researchers/students in a laboratory in an educational institution of national repute. Desirable: Diploma in Computers with proficiency in usage of office packages Age Limit: Upper age limit is 35 years as on 01.05.2009.” It is not in dispute that the petitioners have never challenged the advertisement in all these years though it is now claimed that the same was erroneous. Be that as it may, fact remains that some posts were re-designated. The reason for re- designation is stated under paragraph-12 of the counter affidavit filed by NISER, which is quoted hereibelow. “12. That, in reply to Para-10 of the Writ Petition, it is humbly submitted that the Department of Atomic Energy, Government of India has decided to re- designate the posts on the basis of other departments Page 12 of 16 of D.A.E. which will maintain similarity or similar status. Accordingly, the Registrar, NISER, Opposite Party No.3 has issued an office order on 29.03.2010 (Annexure-4, Page-27) that “The Board of Governors of NISER in it’s meeting on 11.01.2010 decided to change the designation and Grade Pay of Section Officers as Assistant Personal Officer”. Hence, the Grade Pay of Section Officer (Grade Pay of Rs.4,200/- ) re-designated to Assistant Personal Officer (Grade Pay of Rs.4,600/-). Similarly, the post of Lab Technician was re-designated as Lab Operator on the same pay and grade pay. What is important to note is, after coming into force of Recruitment Rules, 2014, the essential qualification for Lab Operator (Lab Technician) was modified from Bachelor degree in Science with 45% marks to +2 Science with minimum 60% marks. There is also no dispute that Recruitment Rules, 2014 have not been challenged as yet. It would be significant to note that Rule-4 of the Recruitment Rules, 2014 provides for re- designation. Clause-4.1 of Recruitment Rules, 2014 is as follows: “4.1 On adoption of this Recruitment Rule 2014, the persons already holding the positions of System Administrator, System Manager, Library Technician, Lab. Operator, Operator (laboratory) shall suitably be re-designated in accordance with the grade pay they are now drawing. They shall retain their eligibility of they are drawing, service irrespective of their previous designations, while considering for promotion prescribed in the rule.” the eligibility service the grade pay in Page 13 of 16 Thus, re-designation is to be done in accordance with the grade pay the concerned employees were drawing at the time of coming into force of the Rules. The mode of recruitment and other particulars of the different posts have been provided under different Schedules. Schedule-III relates to Technician-B, which is a Group-C post. Schedule-V relates to Scientific Assistant-B and is a Group-B post. The method of recruitment to Scientific Assistant-B is mentioned as 100% by direct recruitment. Thus, there is no common element involved in both these posts as both belong to different grades. Moreover, there is nothing in the Rules to suggest that qualification of an employee in a particular post shall be a factor for up-gradation/enhancement/re-designation of the post held by him. On the contrary, a careful reading of Clause-4.1 would suggest that re-designation would be resorted to only if a particular post already held by an employee carries the same grade pay in the posts created by the Recruitment Rules, 2014. To amplify, the petitioners belonged to Technician Grade having their own promotional path, which is distinct and separate from Scientific Assistant grade, which similarly has its own promotional path. Only Page 14 of 16 because the petitioners possessed higher qualification at the time of recruitment to the lower post obviously cannot be a ground to enhance/upgrade the post to a higher post carrying the same qualification created at a subsequent stage. On such ground also it cannot be said that the advertisement in the year 2009 prescribing higher qualification for the lower post was erroneous, since it is strictly within the domain of the authorities to decide the qualifications required for each post at the relevant time. On the same analogy, the decision to modify the required qualification subsequently (after coming into force of the Recruitment Rules, 2014) also cannot be questioned. In such view of the matter, the claim of the petitioners for re- designation has no legs to stand. 8. It has been argued that because of the new Rules, it is possible that persons junior to the petitioners may hold senior posts and that too with lesser qualification. Since the petitioners have put in nearly 14 years of service by now they would be seriously prejudiced if such a situation comes to pass. It has therefore, been alternatively argued that if not re- Page 15 of 16 designation, the petitioners should at least be favoured with same pay scale and grade pay as the posts which require the same qualification as they possess. In the absence of any rules in this regard this Court can only observe that this is a matter to be considered by the concerned authority if in fact the situation envisaged by the petitioners does arise. However, no direction can be issued to the authorities in this regard. 9. For the foregoing reasons therefore, this Court finds the claim of the petitioners not being in consonance with the relevant rules, is not tenable and therefore, is not persuaded to interfere with the impugned order passed by opposite party No.4 in rejecting their representations. 10. The writ petition therefore, stands dismissed. There shall be no order as to costs. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 5th September, 2023/ A.K.Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 08-Sep-2023 16:59:22 Page 16 of 16