Amarendra Mohanty vs Utkal University & Another
2023 Latest Caselaw 4431 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                          W.P.(C) No.29013 OF 2011

          (An application under Article 226 of the Constitution of India)

            Amarendra Mohanty                               ...     Petitioner

                                          -versus-

            Utkal University & another                        ... Opposite Parties


            Advocates appeared in the case through hybrid mode:

              For Petitioner                             : Mr.S.K.Mishra,
                                                           Advocate
                                          -versus-

              For Opposite Party
              Nos.1,2 & 5                               : Mr.D. Mohapatra,
                                                          Advocate

              For Opposite Party
              Nos.3 & 4                                 :Mr. B.P.Tripathy,
                                                         A.G.A.
              --------------------------------------------------------------------------
              CORAM:

                           JUSTICE SASHIKANTA MISHRA

                                     JUDGMENT

26.4.2023.

Sashikanta Mishra,J. The Petitioner has filed this Writ Petition

seeking the following relief;

<It is therefore, prayed that this Hon'ble Court may be graciously pleased to admit this writ petition, issue notice to the opposite parties, call for the relevant record and after hearing the parties the impugned order dated 21.9.2011 under Annexure-10 and order dated 17.10.2011 under Annexure-10 and order dated 17.10.2011 under Annexure-15 to the writ petition be quashed and consequently the opposite parties be directed to regularize the service of the petitioner as Junior Engineer (Civil) and further grant him benefit of revised pay w.e.f. 1.9.2011 by issuing writ of certiorari/mandamus or any other appropriate writ.=

2. The facts of the case are that the Petitioner is a

Diploma Engineer. He was included in the panel of

Junior Engineer (Civil) prepared by the Chairman,

Committee of Chief Engineer and Engineer-in-chief

(Civil)(Opposite Party No.4). By letter dated 25th April,

2005, the Registrar, Utkal University (Opposite Party

No.2) placed a requisition before Opposite Party No.4 to

sponsor the name of a Junior Engineer for

engagement against the available vacancy.

Accordingly, the name of the Petitioner was sponsored

by letter dated 30th April, 2005 and he was appointed

as Junior Engineer (Civil) on contractual basis on

consolidated remuneration of Rs.5,000/- per month by

order dated 8th June, 2005. Such appointment was

initially for 89 days, which was continued from time to

time with one day break. By Resolution dated 22nd

September, 2008, the Government in Works

Department decided that the Junior Engineer engaged

in different departments on contractual basis with

consolidated remuneration will be paid enhanced

remuneration @ Rs.7,500/- per month on completion

of three years of uninterrupted contractual service and

satisfactory performance and may be considered for

absorption in regular scale of pay after satisfactory

completion of 6 years of uninterrupted engagement

subject to availability of sanctioned post in the cadre.

The Petitioner therefore, submitted representation for

enhancement of his remuneration. The Syndicate in

its meeting held on 5th April, 2011 resolved to pay the

enhanced remuneration from Rs.5,000/- to Rs.7,500/-

as per the Resolution dated 22nd September, 2009.

The Government in Finance Department issued a

Resolution on 29th August, 2009 holding that the

contractual employees in different Government offices

are entitled to draw the minimum pay of corresponding

regular posts in the revised scale of pay w.e.f. 1st

September, 2009. The Petitioner submitted

representation for sanction of revised scale of pay as

also to consider his case for regularization as in the

mean time he had completed 6(six) years of service.

Instead of considering his claim, the Opposite Parties,

vide order dated 21st September, 2011 relieved him

from duty with direction to join his parent

organization. The Petitioner submitted his joining

report before the Opposite Party No.4 on 22nd

September, 2011. However, by order dated 30 th

September, 2011 (copy enclosed as Annexure-13), the

Opposite Party No.4 stated that Utkal University is his

appointing authority and shall control all service

conditions. It was categorically stated that the Office of

the Engineer-in-chief is not his parent department. The

Petitioner thereafter approached this Court in W.P.(C)

No.26388/2011 challenging the order dated 21st

September, 2011 passed by Opposite Party No.2. By

order dated 30th September, 2011, this Court directed

the Opposite Party No.2 to dispose of the

representation of the Petitioner and that he shall be

allowed to continue for 15 days. The Petitioner

submitted his representation on 12th October, 2011,

but by order dated 17th October, 2011, the Petitioner

was intimated that as per the decision of the

Syndicate, his services are no more required in the

University as his performance is not satisfactory. It is

stated that the Petitioner has been rendering service

uninterruptedly to the best satisfaction of his superiors

and there is no blemish whatsoever in his career.

3. The case of the Opposite Party (University) is that

the Petitioner was a contractual appointee but was

engaged on 89 days basis with one day break. The

Syndicate in its meeting held on 31st October, 2008

observed that the services of the Petitioner are far from

satisfaction and he will be repatriated to his parent

department, but to continue until a substitute is

provided. The Government was also moved accordingly.

He was thus, relieved on 21st September, 2011. Since

this Court directed for his continuance for 15 days, he

was allowed to continue. It is further stated that the

Petitioner9s performance was not satisfactory and that

a vigilance enquiry was conducted regarding

misappropriation of Government funds in execution of

renovation work of toilet of quarters in the campus.

4. Heard Mr. S.K.Mishra, learned counsel for the

Petitioner, Mr. D. Mohapatra, learned counsel

appearing for the Utkal University and Mr.

B.P.Tripathy, learned Addl. Government Advocate for

the State.

5. It is submitted by Mr. Mishra that the Petitioner is

an employee of the Utkal University as clarified by the

Opposite Party No.4. There is absolutely no allegation

levelled or proved against him. Therefore, the

resolution of the Syndicate in describing his

performance as not satisfactory cannot be justified in

any manner. Moreover, even assuming that there was

some doubt as regards his performance, the same

should have been brought to his notice giving him

opportunity to have his say in the matter. Since the

impugned order directly affects his right to livelihood,

the principles of natural justice are required to be

followed, which the authorities have not done.

6. Mr. D. Mohapatra, on the other hand, submits that

the Petitioner cannot be treated as an employee of the

University having been sponsored by the Opposite

Party No.4 from the common pool of Diploma

Engineers prepared by him. In any case, he was a

contractual employee and since his performance was

not satisfactory, his case could not have been

considered for regularization. The Syndicate therefore,

rightly took the decision to relieve him from service.

Since he is a contractual employee having no lien on

the University, the principles of natural justice are not

required to be followed.

7. There seems to be no dispute that a pool of

Diploma Engineers (Civil) was prepared by Opposite

Party No.4. Such Engineers were sponsored to different

departments on requisition. Obviously, this is not a

case of deputation but a mere sponsoring of name for

appointment by the Requisitioning Authority. To such

extent therefore, the contention that the Petitioner

being sponsored by Opposite Party No.4 is not an

employee of the University is erroneous. As regards the

applicability of the Resolution dated 22nd September,

2008 of the Government in Works Department to the

University, it is argued by Mr. Mohapatra that the

same cannot be made applicable since the resolution

itself mentions the names of the Departments to which

it would apply. This Court is unable to accept such

contention for the reason that acting upon the

representation submitted by the Petitioner for

enhancement of his remuneration as per the

Resolution dated 22nd September, 2008, the Syndicate

took a decision to grant such enhancement basing on

the resolution. This would also imply that the

Petitioner would be entitled to claim regularization of

his services contingent upon fulfillment of the

conditions laid down therein.

8. As regards the decision taken by the Syndicate to

treat the performance of the Petitioner as 8far from

satisfaction9, meaning thereby not satisfactory, the

same comes out as entirely vague and non-specific

inasmuch as not a shred of material has been placed

before this Court to justify such a view being taken.

Though the University has attempted to justify its

decision by referring to some vigilance enquiry in its

counter but in the absence of any reference whatsoever

to such enquiry either in the resolution of the

Syndicate or in the impugned order, the same cannot

be accepted. Law is well settled that no party is

permitted to improve upon its case by supplementing

the reasons justifying its actions in the counter.

Reference may be had to the decision of the Apex Court

in this regard in the case of Mohinder Singh Gill and

another v. The Chief Election Commissioner; 1978

AIR 851.

9. The effect of the impugned order under Annexure-

15 is plain and simple termination of service of the

Petitioner. It is contended that he being a contractual

employee, the principle of natural justice are not

required to be followed. This Court is of the view that

even in case of contractual employee, the principles of

natural justice cannot be given a go-bye before visiting

him with an order of termination of his service because

the right to livelihood is included within the right to life

enshrined under Article 21 of the Constitution of India.

It is not disputed that the Petitioner has not been

informed as to the reasons for treating his performance

unsatisfactory nor afforded any opportunity to have his

say in the matter. Moreover, the very order clearly

comes out as a stigmatic termination. Under such

circumstances, the impugned order cannot be

countenanced in law.

10. From the conspectus of the analysis of facts,

contentions raised and law involved, this Court holds

that the impugned order under Annexure-15 being

unsustainable in the eye of law, warrants interference.

11. In the result, the Writ Petition is allowed. The

impugned order under Annexure-15 is hereby

quashed.

.................................. Sashikanta Mishra, Judge

Ashok Kumar Behera