AMAL KUMAR MISHRA Vs. UTKAL UNIVERSITY

JUDGEMENT

(1.) THE petitioner assails the order of opposite party No.1 appointing opposite party No.3 as the Head of the P.G. Department of History under Utkal University for a period of two years from 1.6.2003 to 31.5.2005 mainly on the ground that the said order is in violation of the provisions of Statute -251(1) of Orissa Universities First Statutes, 1990 and discriminates the petitioner in the matter of promotion in violation of the provisions of Articles 14 and 16 of the Constitution.

(2.) THE short facts of the petitioners case are that he was appointed initially on ad hoc basis as a Lecturer in History with effect from 1978 in Bhadrak (Evening) College and subsequently was appointed on regular basis as a Lecturer in History with effect from 20.11.1986. In response to an open advertisement for the post of Lecturer in History, (General Category) in the P.G. Department of Utkal University, he made an application and being selected, he was appointed as a Lecturer in History in the P.G. Department of History against the vacant post. He joined the post on 15.10.1996 (AN) and his joining report was accepted by office order dated 15.11.1996, a copy of which is Annexure -4. While continuing as such, he was placed as a Lecturer (Sr. Scale) in the scale of Rs.3000 -Rs.5000/ - with effect from 20.11.1991 in notification of the Government in Higher Education Department dated 12.11.1999, a copy of which is Annexure -5. The petitioner was re -designated as Sr. Lecturer in History with effect from 15.10.1998 (AN) and allowed to draw the scale of pay applicable to the post.

(3.) THE opposite parties 1 and 2, in the counter affidavit, have submitted that the controversy regarding the seniority between the petitioner and opposite party No.3 on the merit of their claim could not be decided by the University for which the opinion of the learned Advocate General was sought for and as per the opinion of the learned Advocate General, Dr. B. K. Mallick, opposite party No.3, was considered senior to Dr. Mishra, the petitioner. A further affidavit has been filed by the opposite parties 1 and 2 sworn to by the Registrar of the Utkal University. It is their case that the petitioner joined the University service as a Lecturer on 15.10.1996, whereas the opposite party No.3 joined the service as a Lecturer on 9.7.1996. Pursuant to the decision of the Syndicate dated 27.6.2001 and the subsequent orders passed by the Vice Chancellor, the opposite party No.3 and the petitioner were promoted to the post of Reader with effect from 31.12.1999, but subsequently by order dated 7.5.2002, the service of the petitioner as Reader was antedated to 20.11.1999 thereby making Dr. Mishra, the petitioner, senior in the rank of Reader and this was done in accordance with the Government Resolution dated 6.10.1989, the decision of the Syndicate dated 30.5.2001 and the subsequently order passed by the Vice Chancellor on 1.5.2005. It is the further stand of the opposite parties 1 and 2 that under the Career Advancement Scheme of UGCs new scheme, the petitioner and opposite party No.3 were found suitable in all respect for promotion to the post of Reader with effect from 31.12.1999 since as per the Government Resolution, the Lecturer in senior scale would be eligible for promotion to the post of Reader, if she/he has completed five years of service in the senior scale amongst other conditions. Extension of career advancement benefit to the petitioner by antedating his promotion to the post of Reader with effect from 20.11.1999 was done in accordance with Government Resolution dated 6.10.1989 and the decision of the Syndicate dated 30.5.2001. The allegation of showing undue favour has been denied by these opposite parties and it has been pleaded that Dr. Mallick, the opposite party No.3, belongs to Scheduled Caste category and as such, he will be entitled to retain his seniority in the promotional post of Reader on the basis of his station seniority as a Lecturer under the University. In view of the circulars of the State Government dated 20.3.2002 regarding the seniority of the Scheduled Caste and Scheduled Tribe Government servants by virtue of rule of reservation, it is submitted that with a view to allowing Government servants belonging to Scheduled Caste and Scheduled Tribe to retain their seniority in the case of promotion, the opposite party No.3s seniority has been restored. The benefit of antedating the date of promotion of Dr. Mishra, the petitioner, would be confined to the financial benefits accruing therefrom and as such, he will be entitled to increment in salary earlier than Dr. Mallick. The opposite party No.3, in his counter affidavit, has denied the allegations and the claims made in the writ petition and contended that he is the Head of the Department of the PG Department of History of Utkal University for a period of two years on the basis of the Statutes which envisages that every Post Graduate Department of the University shall be headed by a Head of the Department and the Head of the Department shall be appointed for a period of two academic years from amongst the Professors and Readers on seniority -cum -rotation basis. Since his appointment as Head of the Department has bee done within the frame work of the Statutes, it cannot be questioned. The opposite party No.3 submitted that he is senior to the petitioner in the university service and as per the interpretation of the Statutes, the initial pay of a person other than one already in the university service, when appointed to a post under the University shall be the minimum of pay scale prescribed for the post unless otherwise decided by the appointing authority. The opposite party No.3 has joined the University service on 4.7.1996 whereas the petitioner having joined the said service on 15.10.1996, he is junior to opposite party No.3.