DEBASISH PRADHAN Vs. UTKAL UNIVERSITY

JUDGEMENT

(1.) This writ petition seeks mandamus against the opposite parties to treat the petitioners as regular employees with effect from their respective dates of joining as Lecturer in University Department of Pharmacology Science (for short "UDPS") on consolidated pay basis and pay them all consequential service benefits including financial benefits, for opening of service book involving each of the petitioners and grant pension to the petitioners under Pension Scheme, as applicable to the State Government employees and open the G.P.F. accounts of the petitioners from the date of joining to the post i.e. 5/12/2003 within stipulated time, grant annual increments and revised scale of pay as per 6th Revised Pay Commission in favour of the petitioners and declare petitioners are eligible for promotion under Career Advancement Scheme as per AICTE norms with all other consequential service and financial benefits, further any other order as deem fit and proper. In sum and substance petitioners here prayed for (i) regularization in their service from the date of their contractual absorption,(ii) consequential benefits including financial benefits, (iii) opening their service books, (iv) grant pension to both (v) open G.P.F. accounts (vi) granting increments in terms of 6th Revised Scale of Pay and (vii) promotion under Career Advancement Scale as per AICTE norm.

(2.) Factual background involving the case is that Utkal University opened self-finance sponsored courses under different departments in the year 1989. Pharmacy course is one of the said finance post opened under the University through the Department of Pharmaceutical Science (hereinafter called as UDPS) and running independently. Petitioners on the basis of information obtained through Right to Information Act claimed Pharmacy course is a regular course undertaken through a regular department of the University. It is claimed that opposite party no.2 with an intention to achieve the desire through the AICTE, New Delhi Letter F. No.06/02/ ORI/ Phar/2002/2001 dtd. 1/1/2002 for approval of AICTE with retrospective effect the B.Pharm Course. In the process of imparting B.Pharm and M.Pharm as regular course, University in their correspondents to Director, Medical Education and Training (for short "DMET"), Orissa attempted obtaining NOC, the Registrar, Utkal University vide its letter dtd. 16/4/2003 however conveying that UDPS Department is an independent department. To establish the aforesaid, petitioners have enclosed Annexure-1(A), 1(B) and 1(C) respectively. Through Annexure-1(D), petitioners attempted to establish UDPS is a Government owned institution. AICTE also in the year 2007 communicated that UDPS approval to Pharmacy, Utkal University is a constituent College of University. The documents to support above is at Annexure-1(E) appended to the writ petition. It is on the basis of the information through Annexures-A(1), to A(E), petitioners claimed there should not be any doubt that UDPS is a regular institution under Government and being a institution is running under the Utkal University, the employees like that of the petitioners should be entitled to such benefits extended to the regular employees of the University as well as their counterparts in Government owned regular establishment. Petitioners claimed that while the position of the petitioners stood thus, an advertisement was published in Daily English Newspaper "Indian Express" dtd. 6/11/2003 by the UDPS, Utkal University inviting application from eligible candidates with respective specialization for different faculty position for UDPS, under Utkal University annexed to the writ petition as Annexure-1. Annexure-1 discloses date of interview to be dtd. 30/11/2003. Petitioners claimed that for the disclosures in Annexure-1, they are entitled to salary as per AICTE norms. Petitioners being applicant pursuant to Annexure-1 found to have been qualified for the post of Lecturers in Pharmacology and Pharmaceutics. Petitioners were directed to appear in the interview board on 30/11/2003. Petitioners claiming to be coming out successful in the interview but were shocked and surprised to receive the appointment order on 5/12/2003 issued by the Registrar of the Utkal University disclosing that their engagement is on contractual basis and again on consolidated pay. Petitioner No.1 was appointed as Lecturer of Pharmacology whereas petitioner no.2 was appointed as Lecturer in Pharmaceutics. Copies of the appointment orders are enclosed as Annexure-4 series. Petitioners claimed facing employment crisis, petitioners had no other option than to join the respective posts pursuant to the offer of appointment at Annexure-4 series. Consequent upon joining of the petitioners, notification was issued by the Registrar on 21/2/2004 indicating the names of the Lecturers and the date of joining of the petitioners along with others vide Annexure-5. Petitioners were continuing on the basis of extension orders vide Annexure-6 series. Petitioners claimed considering their persuasion for posting both of them as regular lecturers in terms of advertisement, while the matter stood thus, in the year 2007 the Chairman P.G. Council in a first step issued engagement orders engaging the petitioners as adjunct lecturers under the order of Chairman, P.G. Council dtd. 15/3/2007 vide Annexure-7 series. Petitioners claimed, there has been playing with the terms of appointment involving the petitioners by the University even both of them have been interviewed and appointed against substantive vacant posts of Lecturers and they claimed there is no post called adjunct lecturer available through the advertisement or appointment. Being aggrieved and finding no proper fitment of the petitioners, petitioners resisted such treatment to the higher authorities. There was no improvement and petitioners were still engaged as adjunct lecturers. There is further representation by the petitioners on 30/6/2008 seeking regularization of their services from the date of their engagement. It is in a development, the Syndicate in its resolution dtd. 28/8/2008 took a decision to regularize the services of the petitioners and several similarly situated persons. It is on the basis of Syndicate resolution, the University started paying petitioners regular scale of pay but with effect from 1/9/2008 appearing at Annexure-8. On a subsequent development, the petitioners were allowed to draw their monthly salary in regular scale of pay at Rs.8000.00275-13600/- with effect from 1/9/2008 with usual D.P. and D.A. as admissible from time to time appearing at Annexure-9. Through the order at Annexure-8, the petitioners claimed this order clearly discloses both the petitioners will be paid salary in regular scale of pay with effect from 1/9/2008 and their services will be regularized from the date of joining the post in the consolidated salary and they will be covered under the C.P.F. Scheme. Petitioners further pleaded that by direction at Annexure-8, services of the petitioner were regularized from the date of joining and that they will be covered under the C.P.F. Scheme. Petitioners here however claimed that since they have been regularized from the date of their joining, they are entitled to regular arrear salary from the date of joining in their respective posts and as a consequence of which they should also be entitled to other reliefs also. For there is some development in the pendency of the writ petition, it appears, there has been amendment to the writ petition. By way of amendment, petitioners have claimed that in the pendency of the writ petition, the opposite parties directed the petitioners to give their option for pension scheme or G.P.F. scheme in accordance with the provision of Orissa University Employees (Conditions of Survive) Statues, 1988. Petitioner No.1 claimed to have already submitted his application on 28/1/2011 giving his option for Pension Scheme as applicable to State Government Employees. Petitioners enclosed such application as Annexure-1(F).

(3.) It is in the above background, Mr.Mishra, learned senior counsel for the petitioners on reiteration of the above facts and development taken place in the meantime and narrated through the above paragraphs, took this Court to several documents through rejoinder affidavit. In an attempt to satisfy that petitioners were appointed against sanctioned post, in the process, Mr.Mishra, learned Senior Counsel took this Court to the document at Annexure-15/A, running page-142 of the brief and submitted that for the letter dtd. 18/4/2003, the Registrar, Utkal University requested the Deputy Secretary, Higher Education Department to take steps regarding concurrence and sanction of five Lecturer posts including the two posts held by the petitioners. Mr.Mishra, learned Senior Counsel through Annexure-15/B, running page-143 to 145 taking this Court to the disclosures therein submitted that there was Special Committee meeting held under the Chairmanship of Principal Secretary, Finance Department to take decision for creation of five numbers of regular Lecturer posts in the Pharmacy Department and suggesting for immediate recruitment. In the above background, Mr. Mishra, learned Senior Counsel also submitted that taking into account the above development, Government in Higher Education Department vide Letter No.18153 intimated the Registrar, Utkal University for creation of five numbers of regular lecturer posts in the Pharmacy Department i.e. UPDS on the condition that Utkal University may communicate the view of the Government to UGC about setting up of Pharmacy Department and that the post shall be filled up as per the PCI/AICTE guideline. It is also directed that there shall be entitlement of UGC/AICTE lecturer scale of pay and the P.G. (M.Pharm) and Int.M.Pharm would be running as per AICTE/PCI guideline. Mr.Mishra, learned senior counsel thus made reference of the document at Annexure-16/A at page 146 to 148 of the brief. Mr.Mishra, learned senior counsel taking this Court to the letter dtd. 17/6/2003 issued by the AICTE claimed in this letter the AICTE intimating the Secretary, Department of Health and Family Welfare regarding extension of approval of AICTE to School of Pharmacy, University Department of Pharmaceutical Science (UPDS). Mr.Mishra made reference of Annexure-17/A in this regard. Taking to the disclosure through Annexure-18/A, Mr.Mishra, learned Senior Counsel contended that this is a letter where the Government directed the Registrar to complete the process of filling up of five numbers of sanctioned regular post of lecturers as concurred by Finance Department Order dtd. 27/9/2003. It is in the above background, Mr.Mishra, learned senior counsel claimed the selection process having followed through all the above developments, there should not be any doubt that the posts advertised and filled are not only regular posts for which the petitioners are recruited but there has been also recruitment through an advertisement definitely deemed to be filling up of regular vacancies. It is at this stage, taking this Court to the document at Annexure-19/A, running page-163, Mr.Mishra claimed the Registrar of the University clearly disclosed the University's intention indicating that appointments were made as per the Government order in compliance of PCI/AICTE norms. It is in the above scenario, reading through Annexure-5, Mr.Mishra, learned Senior Counsel claimed that there is clear communication by the Registrar notifying petitioners have joined as faculty members and vide Annexure-8 the University was compelled to come out with an order of regularization of the petitioners. In a further development through Annexure-20, Mr.Mishra, submitted that there has been direction for paying the four lecturers including the two petitioners therein from the University fund. Through Annexure-21 series, Mr.Mishra, learned senior counsel claimed the Additional Secretary, Higher Education Department requested the Additional Secretary to the Chancellor to consider the case of the petitioner no.1 for promotion to Reader post as per the CAS-AICTE. It is in the above background, Mr.Mishra learned senior counsel while admitting the petitioners have been regularized since their date of joining but complains that they have been provided with regular scale attached to such post only with effect from 1/9/2008 when petitioners ought to have been paid in the regular scale, since their initial date of joining in 2003 with settling of consequential increments also. Mr.Mishra, learned senior counsel also complained of no decision for grant of other financial reliefs, as indicated in paragraph-1 herein.