The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos. 36614 & 36616 of 2021 & 28186 of 2023 W.P.(C) No.36614 of 2021 Abhijeet Swain …. Petitioner Mr. B. Routray, Sr. Advocate Union of India and Others …. -versus- Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 06.03.2024 I.A. No.3442 of 2024 Order No. 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel for the Parties. 3. Considering the grounds taken in the I.A., the prayer for impletion of party is allowed. 4. Learned counsel for the Petitioners is permitted to implead Odisha University of Technology and Research (OUTR) as Opposite Party No.8 in Court today. 5.
Decision
Accordingly, the I.A stands disposed of. (Biraja Prasanna Satapathy) Judge W.P.(C) No.36614 of 2021 07. 1. Heard Mr. B. Routray, learned Senior Counsel appearing for the Petitioners in W.P.(C) No.36616 of 2021 and W.P.(C) No.28186 of 2023 & Mr. P.K. Rath, learned Sr. // 2 // Counsel appearing for the Petitioners in W.P.(C) No.36614 of 2021 along with Ms. P. Naidu, learned counsel appearing for the Opposite Party Nos. 3 & 4 and Mr. S. Udgata, learned counsel appearing for Opposite Party No.7 in W.P.(C) No.36614 of 2021 and W.P.(C) No.36616 of 2021 and for Opposite Party No.3 in W.P.(C) NO.28186 of 2023. 2. Initially Writ Petition Nos. 36614 of 2021 and 36616 of 2021 were filed inter alia challenging the order passed by the Government-Opposite Party No.1 on 01.11.2021 wherein claim of the Petitioners to get the benefit of regularization was rejected. During pendency of both the matters, W.P.(C) No.28186 of 2023 was filed challenging the advertisement issued by Opposite Party No.3 to fill up the posts in question on regular basis on 31.07.2023. Since the issue involved in W.P.(C) No.28186 of 2023 depends on the out come of W.P.(C) No.36614 of 2021 and 36616 of 2021, all the three writ petitions were heard analogously and disposed of by the present common order. However, for the sake of convenience pleadings made in W.P.(C) No.36614 of 2021 was taken as the lead case. 3. Mr.P.K. Rath, learned Senior Counsel appearing for the Petitioners contended that Petitioners were all engaged as Asst. Professor on temporary basis for TEQIP-III Project vide order of engagement issued by the College of Engineering & Technology-Opposite Party No.7, a Constituent College of BPUT, Odisha in the year 2018. Petitioners were so engaged in terms of the notice issued by the National Project Implementation Unit, Ministry of HRD, Govt. of India-Opposite Party No.3 in the year 2017 under Annexure-1. Page 2 of 9 // 3 // 3.1. It is contended that on being so engaged as Asst. Professors, Petitioners were allowed to continue in the establishment of College of Engineering & Technology- Opposite Party No.7, now renamed as Odisha University of Technology and Research-Opposite Party No.8. Petitioners were so engaged in terms of the draft plan published by Government of India, Department of Higher Education, Ministry of Human Resource Development (MHRD), New Delhi in June, 2017 under Annexure-3-Series. In the said draft plan, it was decided to retain faculty of high quality in focus States and that the funding will be based on an understanding with the State Government. The decision taken in the draft plan published in 2017, also reiterated in the draft Project Implementation Plan (PIP) issued in the month of March, 2021 under Annexure-3-Series. Relevant provisions contained in the draft PIP vide Point No.(e) in the plan issued in June, 2017 and March, 2021 are reproduced hereunder:- “e. Recruitment and retention of high quality faculty (through better faculty appraisal systems and the faculty recruitment plan) in focus States : The project will support states in filing sanctioned posts through hiring of contract faculty at the entry level as per AICTE norms on qualifications and pay, by funding the cost (up to 75%) of such faculty during the project period. Such funding will be based on an understanding with state governments that well-performing faculty hired using project funds will be retained post project, all else unchanged, and any of these faculty retained in the final year of the project will be paid exclusively from state funds”. xxx xxx xxx “e. Recruitment and retention of high quality faculty (through better faculty appraisal systems and the faculty recruitment plan) in focus States : The project will support states in filing sanctioned posts through hiring of contract faculty at the entry level as per AICTE norms on qualifications and pay, by funding the cost of such faculty during the project period. Such funding will be based on an understanding with state governments that well-performing faculty hired using project funds will be retained post project, all else unchanged”. Page 3 of 9 // 4 // 3.2. It is also contended that prior to issuance of the PIP so issued in June, 2017, Memorandum of understanding was signed in between the Ministry of Human Resources Development, Government of India and the Focus States for implementation of Technical Education Quality Implementation Programme Phase-III on 02.02.2017 vide Annexure-4. In the said Memorandum, it was agreed to follow the project guidelines and procedures prescribed in the PIP as may be prescribed from time to time of the Govt. of India for implementation of the project. Clause-C of the Memorandum dtd. 02.02.2017 is reproduced hereunder:- “c) Follow the PROJECT guidelines and procedures prescribed in the PIP and as may be prescribed from time to time by the Government of India for implementation of the PROJECT”. 3.3. It is also contended that basing on the request made by Opposite Party No.3 with regard to continuance of TEQIP Faculty (Asst. Professor) under Annexure-5-Series, in the minutes of the 4th State Steering Committee Meeting of TEQIP- III held on 17.12.2020 under Annexure-6, the following decision was taken vide Para- R-4.4. Academics:- “A detailed discussion was carried out on academic matters. The AICTE mandate was also discussed for 1.1. institutions and ATU (Annexure-III). Efforts are going on to allow BOG to fill up the faculty posts as a large number of sanctioned posts are lying vacant. (Annexure- III). An amendment in the BPUT Act is required for CET Bhubaneswar. However for GCE Kalahandi, GCE Keonjhar and PMEC Berhampur, Govt. will take suitable steps once Govt. order is issued to that effect. Govt. permission is awaited for VSSUT Burla as the tenure of present Vice Chancellor is expiring in February 2021. The Jt. Secy, SDTE Department will consult Governor’s office in this regard. The Chairman suggested that rolling advertisement system maybe practiced as in case of IITs and NITs to fill up the vacant faculty posts. Govt. will also take steps for retention of TEQIP faculties or regularization of their services against vacant posts through proper procedure”. Page 4 of 9 // 5 // 3.4. Subsequently, in the minutes of the meeting held on 26.03.2021 under Annexure-9, with regard to continuance of TEQIP Faculties in Institutions of Odisha Post Closure of the Project w.e.f. 31.03.2021, vide Para-R.5-2, the following decision was taken:- “2. A detailed discussion was made on retention of TEQIP faculties in various Government institutions. It was opined that in the event of closure of the project, the TEQIP faculties maybe retained in existing terms and conditions who are otherwise found eligible and having satisfactory performance”. 3.5. It is contended that on the face of the decision taken under Annexures-6 and 9 so chaired by Opposite Party No.5 and so also the stipulation contained in the PIP issued under Annexure-3-Series, when no decision was taken in letter and spirit for retention and absorption of the Petitioners, W.P.(C) No.30176 of 2021 was filed challenging the inaction of the Opposite Parties in not taking a decision in the matter of retention / absorption of TEQIP-III Faculties. 3.6. This Court vide order dtd.27.09.2021 under Annexure- 10, while disposing the matter directed Opposite Party No.5 to take a decision, taking into account the stipulation contained in the PIP and the decision taken in the minutes of the meeting held under Annexures-6 & 9. The order passed by this Court on 27.09.2021 is reproduced hereunder:- “1. For the development taking place through Annexures-3 and 4 and the documents appended at Annexure-9 series, Principal Secretary, Skill Development & Technical Education, Odisha, Bhubaneswar, O.P.5 is directed to look into the grievance of the Petitioners to take a decision as appropriate but while keeping in view the development through the aforesaid annexures as well as the plea in the writ petition by completing the entire exercise within a period of one and half months from the date of communication of this order. Petitioners are permitted to supply copy of the writ petition along with certified copy of this order to the opposite party no.5 at least within seven days. This Court further observes till a Page 5 of 9 // 6 // decision is taken by Opposite Party No.5, the position of the petitioner as on date shall not be disturbed. 2. With the above observation, the writ petition stands disposed of. 3. Issue urgent certified copy in course of the day”. 3.7. Learned Senior Counsel for the Petitioners contended that even though this Court vide order dtd.27.09.2021 specifically directed Opposite Party No.5 to look into the grievances of the Petitioners, taking into account the stipulations contained in the PIP under Annexure-3-Series and the decision taken in the minutes of the meeting held under Annexures-6 & 9, but without considering the claim of the Petitioners in the light of the direction issued by this Court, Opposite Party No.5 while passing the impugned order on 01.11.2021, only held that since the continuance of the Petitioners are project based and the project has come to an end w.e.f. 30.09.2021, there is no scope for consideration of the claim of the Petitioners. 3.8. Learned Senior counsel for the Petitioners contended that while passing the impugned order on 01.11.2021 under Annexure-12, the direction issued by this Court in its order dtd.27.09.2021 has not been followed in letter and spirit. Had the Opposite Party No.5 consider the claim of the Petitioners taking into account the stipulations contained in the PIP and the decisions taken in the minutes of the meeting held under Annexures-6 & 9, claim of the Petitioners could not have been rejected as has been rejected vide the impugned order dtd.01.11.2021 under Annexure-12. 3.9. It is accordingly contended that the matter be remitted to Opposite Party No.5 to take a fresh decision in the light of the order passed by this Court in W.P.(C) No.30176 of 2021. Page 6 of 9 // 7 // A further contention was also raised that even though Opposite Party No.7 on 31.07.2023 issued the advertisement to fill up the posts in question, which is the subject matter of challenge in W.P.(C) No.28186 of 2023, but no final selection has been made with completion of the selection process. 4. Mr. S.K. Samal, learned Addl. Government Advocate for the State on the other hand while supporting the impugned order contended that since the Petitioners’ engagement were project based and the project was closed w.e.f., 30.09.2021, claim of the Petitioners as made in the earlier writ petition has been rightly rejected and it requires no interference. Petitioners were all engaged as temporary faculties under TEQIP-III Project in terms of the decision taken by the Project in its PIP under Annexure-3-Series. Since the project was funded by the Central Govt. and it was closed w.e.f. 30.09.2021, claim of the Petitioners for their absorption/ retention has been rightly rejected by Opposite Party No.5. 5. Mr. S. Udgata, learned counsel appearing for the University-Opposite Party No.7 on the other hand contended that even though advertisement has been issued on 31.07.2023 to fill up the posts in question, but the selection process has not yet attained its finality because of some practical problem. 6. Madam P. Naidu, learned counsel appearing for Opposite Party Nos.3 and 4 on the other hand contended that engagement of the Petitioners were project based and the project has since been closed w.e.f. 30.09.2021. It is now for the State Government to take a decision on the claim of the Petitioners and Opposite Party Nos.3 and 4 have no further role to play. Page 7 of 9 // 8 // 7. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that the Petitioners were all engaged as faculties in TEQIP-III project basing on the notice issued by Opposite Party Nos.3 and 4 under Annexure-1. Though it is not disputed that the engagement of the Petitioners were project based and the project as contended by the learned counsel appearing for Opposite Party Nos.3 and 4 has been closed since 30.09.2021, but the Petitioners’ right of further continuance, flows from the decision taken by the State- Opposite Party No.5 in the minutes of the meeting held under Annexures-6 & 9 and the stipulations contained in the PIP under Annexure-3-Series. Taking into account the stipulations contained in the PIP and the decisions taken in the minutes of the meeting, this Court while disposing the earlier writ petition in W.P.(C) No.30176 of 2021, directed Opposite Party No.5 to take a decision following the stipulation contained in the PIP and the decisions taken in the minutes of the meeting held under Annexures-6 & 9. 7.1. But as found from the impugned order dtd.01.11.2021 under Annexure-12, Opposite Party No.5 has not followed the direction of this Court while considering the claim of the Petitioners. Since it is found that the direction issued by this Court in W.P.(C) No.30176 of 2021 has not been followed in letter and spirit and Opposite Party No.5 has taken a decision without following the said direction, this Court is inclined to quash order dtd.01.11.2021 so passed by Opposite Party No.5 under Annexure-12. While quashing the same, this Court remits the matter to Opposite Party No.5 to take a fresh decision in terms of the order passed by this Court in W.P.(C) No.30176 of 2021. Page 8 of 9 // 9 // 7.2. Since the Petitioners as contended are out of employment, this Court directs Opposite Party No.5 to take a fresh decision within a period of six (6) weeks from the date of receipt of this order. Considering the request made by the learned Sr. Counsel for the Petitioners, Petitioner No.1 in W.P.(C) No.36614 of 2021 is permitted to provide a copy of this order before Opposite Party No.5 for compliance. Opposite Party No.5 is also directed to give an opportunity of hearing to Petitioner No.1 in W.P.(C) No.36614 of 2021 to place the claim of the Petitioners in the present batch of Writ Petitions for effectual adjudication of the dispute. 8. With the aforesaid observations and directions, all the Writ Petitions and pending I.As stand disposed of. 9. Photocopy of the order be placed in other connected matters. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Mar-2024 10:47:34 Page 9 of 9