Orissa High Court
Dr.Chittaranjan Nayak vs State Of Odisha & Others : Opp. Parties on 28 June, 2019
Equivalent citations: AIRONLINE 2019 ORI 393
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT : C U T T A C K
W.P.(C) NO.11882 OF 2017
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
Dr.Chittaranjan Nayak : Petitioner
-Versus-
State of Odisha & others : Opp. Parties
For petitioner : M/s.S.K.Das, S.K.Mishra &
P.K.Behera
For O.P.1 : Mr.S.N.Mishra,
Additional Standing Counsel
For O.Ps.2 & 3 : Mr.K.K.Jena
PRESENT:-
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Date of hearing : 17.06.2019 & Date of Judgment : 28.06.2019
Biswanath Rath, J. This writ petition involves the following prayer :-
"Under the above circumstances, it is therefore
humbly prayed that the Hon'ble Court be graciously pleased
to direct the Opp.Parties to sanction and release five advance
increments in favour of the petitioner from the date of his
initial joining in the University, i.e. dtd. 26.2.2010 as per the
UGC Regulation under Annexure-4 with all consequential
benefits ;
And further the Hon'ble Court be pleased to
quash the Government letter dtd. 30.11.2017 under
Annexure-9/1 ;
And further the Hon'ble Court be pleased to
direct the opposite party to calculate the difference arrears of
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the petitioner and pay the same to him with accrued interest
minimum at the rate of 8% per annum within a stipulated
period as deem fit and proper ;
And/or pas any other appropriate writ/writs,
order/orders and direction/directions in the fitness of the
case...."
2. Short background involving the case is that the
petitioner was a Post Graduate Teacher in Economics in Kendriya
Vidyalaya Sangthan. While continuing in K.V.No.1 (Army), Jodhpur,
Rajasthan, his job was confirmed with effect from 6.9.2004. While
continuing in K.V.No.1 at Itanagar of Arunachal Pradesh, the
petitioner did his PH.D. in Economics from Utkal University and he
was awarded with PH.D. in January, 2008. Coming across the
advertisement no. 3748 dated 2.9.2008 issued by the Ravenshaw
University asking for applications for the post of Lecturers
subsequently re-designated as Assistant Professor, the petitioner
applied for the post of Assistant Professor with due permission from
his Employer. O.P.3, Vice-Chancellor, Ravenshaw University in his
Office Letter dated 30.11.2009 issued appointment order, vide
Annexure-1. It is contended that for the conditions in the U.G.C.
Regulation and for initial appointment in the Ravenshaw University,
the petitioner was not only entitled to pay protection considering his
previous service but he was also entitled to number of increments
as prescribed in the U.G.C. Regulation. For not being granted the
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increment in terms of Clause-9.1 of the U.G.C. Regulation, the
petitioner approached the University. For no action from the side of
the University involving the above, the petitioner moved the Vice-
Chancellor of the University. The University did not take any follow
up action on the other hand in the meantime the Utkal University
sought for a clarification from the State Government. The State
Government, vide letter no.20625 dated 14.9.2015 issued
clarification on payment of advance increment to the Lecturers with
Ph.D. Degree in the State Universities thereby disclosing that for the
old practice, persons of similar nature would be entitled to three
advance increments at the time of entry into service. Such
clarification being not worked out the petitioner sought for
information through R.T.I. Act by communication dated 14.9.2016.
The petitioner was intimated that the matter regarding grant of
advance increment was pending consideration and as such, no
information could be supplied. However, the petitioner was supplied
with Government Resolution dated 30.12.1999. Clause 4.8 (a) of the
Government Resolution deals with sanction of advance increment to
the Lecturers having Ph.D. Degree at entry level. On the premises of
Government Resolution dated 31.12.1999, vide Annexure-9 the
petitioner while claiming to be entitled to at least the minimum four
advance increments, contended that similarly situated persons in
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the BPUT and VSSUT at Burla have been entitled to five additional
advance increments following the U.G.C. Regulation. Referring to
Annexure-9/1 the petitioner contended that grant of advance
increment has been illegally withdrawn in case of persons at entry
level entitled to pay protection. Referring to the documents at
Annexures-10 to 12 the petitioner contended that for grant of
benefit under the U.G.C. Regulation to similarly situated employees
in other Universities under the State Government, the petitioner
alleged that there has been discrimination meted against the
petitioner and the petitioner has been given a differential treatment,
such action is not only contrary to the U.G.C. Regulation but also
contrary to the benefits granted to the similarly situated persons
working in other Universities under the same State Government.
3. Sri S.K.Das, learned counsel for the petitioner
referring to the pleading involving the writ petition as well as the
documents indicated herein above and taking this Court to the
U.G.C. Regulation and the other clarifications from time to time
appearing at Annexures-4, 7 & 9 contended that the petitioner has
been discriminated so far as the entitlement of additional increment
is concerned. Referring to two decisions of this Court in W.P.(C)
No.4480/2018 (Governing Body of Laxminarayan Mahavidyalaya,
Jamusuli & another vrs. State of Odisha & others) decided on
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16.4.2018 and W.P.(C) No.16810/2016 (Sri Basudev Guru & others
vrs. State of Odisha & others) decided on 18.12.2018, while
claiming application of the above decisions to the petitioner's case,
Sri Das requested this Court for allowing the prayer involving the
writ petition. Sri Das, learned counsel for the petitioner also
referring to the denial of the State Government, vide the impugned
order, submitted that since the Resolution of the State Government
has the authority of the Chancellor of the State, mere decision of
the Deputy Secretary or the Secretary cannot override the decision
of the Chancellor more particularly in absence of the authority of
the Chancellor at least.
4. Sri S.N.Mishra, learned Additional Government
Advocate appearing for O.P.1-State taking this Court to the counter
averments at the instance of O.P.1 and the impugned order again
filed in the counter affidavit as Annexure-A/1 submitted that for the
petitioner being entitled to pay protection/counting of past service
is not entitled to advance increment. Referring to the counter
statement made in different paragraphs, Sri Mishra, learned
Additional Government Advocate attempted to justify the stand of
the O.P.-State and accordingly prayed this Court for not interfering
with the impugned order. Sri Mishra further submitted that in the
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event of allowing the writ petition, there may be financial
implications on the State Government.
5. Sri K.K.Jena, learned counsel for O.Ps.2 & 3-
University while not disputing the claim of the petitioner submitted
that they are bound by the direction of the State Government, as
the matter involves financial implication.
6. Considering the rival contentions of the parties
and looking to the documents involving the case involved herein,
this Court finds, there is no dispute that the petitioner while
working in the Kendriya Vidyalaya was selected for the post of
Lecturer in Economics in Ravenshaw University in the Scale of Pay
of Rs.8000-275-13400/- and admissible allowance on the specific
terms and conditions that his salary will be determined on the basis
of principle of pay protection with reference to U.G.C. Pay Scale
prevailing in the country in addition to be entitled to revision of
scale and allowance as admissible from time to time. Under the
above condition, the petitioner joined the post of Lecturer in
Ravenshaw University. Looking to the U.G.C. Regulation, this Court
finds from Clause-9.0 of Annexure-4, which deals with incentives
for Ph.D./M.Phil and other higher qualification to take effect from
1.9.2008. Relevant Clause 9.1 of the U.G.C.Regulation is quoted
herein below :-
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"9.1. Five non-compounded advance
increments shall be admissible at the entry level of
recruitment as Assistant Professor to persons possessing
the degree of Ph.D. awarded in a relevant discipline by the
University following the process of admission, registration,
course work and external evaluation as prescribed by the
UGC."
Further looking to the document at Annexure-9, a
correspondence by the Government of Orissa, Department of Higher
Education to the Vice-Chancellor, Utkal University clarifying the
advance increment to the Lecturers with Ph.D. in the State
University issued on 14.9.2015, which discloses as follows :-
"I am directed to invite a reference to the letter
and subject cited above and to say that the Universities
may continue with the existing practice of allowing 3 (three)
and 1(one) advance increments to the teachers having Ph.D.
and M.Phil. qualification respectively at the time of their
entry into service until further orders."
Further looking to Clause 4.8 of the Government
Resolution in the Department of Higher Education, vide Annexure-9
dated 31st December, 1999 dealing with incentives for Ph.D./M.Phil.
speaks as follows :-
"4.8. Incentives for Ph.D./M.Phil. :
(a) Four and two advance increments will be admissible to
those who hold Ph.D. and M.Phil. degrees, respectively,
at the time of recruitment as Lecturers. Candidates with
D.Litt./D.Sc. should be given benefit on part with Ph.D.
and M.Litt. on par with M.Phil.
(b) One increment will be admissible to those teachers with
M.Phil, who acquire Ph.D. within two years of
recruitment.
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(c) A Lecturer with Ph.D. will be eligible for two advance
increments when she/he moves into Selection
Grade/Reader.
(d) A teacher will be eligible for two advance increments as
and when she/he acquires a Ph.D. degree in her/his
service career."
7. Looking to the aforesaid clear directives, this
Court while recording the submission of the learned counsel
appearing for the parties that there is no dispute on the application
of U.G.C. Regulation, a statutory Regulation, this Court observes,
the petitioner is entitled to be governed under the U.G.C.
Regulation. Looking to the provision quoted and available in the
U.G.C. Regulation, this Court finds, there is no obstruction in the
entitlement of the petitioner with five additional increments, as
prescribed to the petitioner at the entry level of the recruitment as
Lecturer subsequently designated as Assistant Professor
particularly to a Professor possessing Ph.D. Even assuming that
there is some consideration of this entitlement by the State
Government through its Resolution at Annexure-9 for the provision
at Clause 4.8, the petitioner at the entry level on his joining the
University for having Ph.D. is at the minimum entitled to four
advance increments particularly keeping in view that State
Resolution at Annexure-9 is brought into force under special
consideration and being adopted and applied by all the Universities
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under the State Government. It is at this stage, taking into account
the offer of appointment involving the petitioner, this Court finds,
for Clause-I in the offer of appointment involving the petitioner, the
petitioner has been guaranteed, vide Annexure-1 that his salary will
be determined on the basis of principle of pay protection with
reference to U.G.C. Pay Scales prevailing in the country. This Court
here finds, there is no restriction on the part of an Assistant
Professor having Ph.D. Degree being entitled to advance increment
involved in the U.G.C. Regulation, vide Annexure-4, thus the State
Government issuing directive disentitling the Assistant Professor
from the advance increments remains contrary to the provision both
at Annexures-4 & 9, the U.G.C. Regulation as well as the
Government Resolution respectively.
8. Coming to consider the claim of discrimination
meted to the petitioner, this Court going through the document at
Annexure-10 involving BPUT finds, the persons in similar stage
have been provided five additional increments at the entry level.
Similarly, in Annexure-11 involving Ravenshaw University, the
persons have been entitled to at least three advance increments.
Coming to the document at Annexure-12 again involving the
Ravenshaw University, this document also discloses that the
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Lecturers in similar capacity have been entitled to additional
increments.
9. In the above backdrop of the matter, this Court
takes into account two decisions of Hon'ble apex Court; one in the
Jagdish Prasad Sharma & others vrs. State of Bihar & others
reported in (2013) 8 SCC 633 wherein in paragraphs-70, 72 & 77
wherein the Hon'ble apex Court observed as follows :-
"70. The authority of the Commission to frame
regulations with regard to the service conditions of teachers
in the Centrally-funded educational institutions is equally
well-established. As has been very rightly done in the
instant case, the acceptance of the Scheme in its composite
form has been left to the discretion of the State
Governments. The concern of the State Governments and
their authorities that UGC has no authority to impose any
conditions with regard to its educational institutions is
clearly unfounded. There is no doubt that the Regulations
framed by UGC relate to Schedule VII List I Entry 66 to the
Constitution, but it does not empower the Commission to
alter any of the terms and conditions of the enactments by
the States under Article 309 of the Constitution. Under List
III Entry 25, the State is entitled to enact its own laws with
regard to the service conditions of the teachers and other
staff of the universities and colleges within the State and
the same will have effect unless they are repugnant to any
Central legislation.
72. As far as the States of Kerala and U.P. are
concerned, they have their own problems which are
localised and stand on a different footing from the other
States, none of whom who appear to have the same
problem. Education now being a List III subject, the State
Government is at liberty to frame its own laws relating to
education in the State and is not, therefore, bound to accept
or follow the Regulations framed by UGC. It is only natural
that if they wish to adopt the Regulations framed by the
Commission under Section 26 of the UGC Act, 1956, the
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States will have to abide by the conditions as laid down by
the Commission.
77. We are inclined to agree with such submission
mainly because of the fact that in the amended provisions of
Section 67(a) it has been categorically stated that the age of
superannuation of non-teaching employees would be 62
years and, in no case, should the period of service of such
non-teaching employees be extended beyond 62 years. A
difference had been made in regard to the teaching faculty
whose services could be extended up to 65 years in the
manner laid down in the University Statutes. There is no
ambiguity that the final decision to enhance the age of
superannuation of teachers within a particular State would
be that of the State itself. The right of the Commission to
frame regulations having the force of law is admitted.
However, the State Governments are also entitled to
legislate with matters relating to education under List III
Entry 25. So long as the State legislation did not encroach
upon the jurisdiction of Parliament, the State legislation
would obviously have primacy over any other law. If there
was any legislation enacted by the Central Government
under List III Entry 25, both would have to be treated on a
par with each other [Ed.: But see Articles 254(1) and 246 of
the Constitution.] . In the absence of any such legislation by
the Central Government under List III Entry 25, the
regulations framed by way of delegated legislation have to
yield to the plenary jurisdiction of the State Government
under List III Entry 25."
Secondly in the case of Kalyani Mathivanan vrs. K.V.Jeyaraj &
others reported in (2015) 6 SCC 363, in paragraphs-62.3 and 62.4
of which it is observed as follows :-
"62.3. The UGC Regulations, 2010 are
mandatory to teachers and other academic staff in all the
Central universities and colleges thereunder and the
institutions deemed to be universities whose maintenance
expenditure is met by UGC.
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62.4. The UGC Regulation, 2010 are directory
for the universities, colleges and other higher educational
institutions under the purview of the State Legislation as
the matter has been left to the State Government to adopt
and implement in the Scheme. Thus, the UGC Regulations,
2010 are partly mandatory and is partly directory."
In view of the above decisions, there remain no
doubt that the condition in the U.G.C. Regulation has the
application but at the same time, the Resolution of the State
Government, vide Annexure-9 under special circumstance having
the binding force, there is no obstruction in at least adopting the
benefits of additional increment available under Annexure-9 to the
petitioner at the minimum.
10. In the circumstance, this Court finds, there is no
rational behind restricting the grant of additional increments in
favour of the petitioner as appearing at Annexure-9/1, which is
hereby interfered with and set aside. This Court accordingly directs
the State Government in the concerned Department to make
necessary communication to the Ravenshaw University allowing
grant of four advance increments at least following the entitlement
of benefit to the similarly situated persons at Clause-4.8, vide
Annexure-9 within a period of one month from the date of
communication of this order by the petitioner. On receipt of such
communication, the Ravenshaw University is directed to release the
entitlement of the petitioner on account of additional increments
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along with 6% interest at least all through within a period of four
weeks thereafter.
11. The writ petition succeeds. In the circumstance,
there is no order as to cost.
..............................
Biswanath Rath, J.
Orissa High Court, Cuttack. The 28th June, 2019/mkr, secy.