Orissa High Court
Narayan Satpathy vs Utkal University And Others on 21 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 11724 of 2008
Applications under Articles 226 & 227 of Constitution of
India.
---------------
Narayan Satpathy ...... Petitioner
-Versus-
Utkal University and others ....... Opp. Parties
Advocate(s) appeared in this case:-
_______________________________________________________
For Petitioner : Mr. Budhadev Routray
(Sr. Advocate),
B.Singh,P.K.Dash,D.K.Mohapatra
B.N.Satapathy, B.B, Routray, D.
Mund, D. Routray, D. Mohapatra,
P.K. Sahoo, K. Mohanty, S. Das &
R.P. Dalai, Advocates.
For Opp. Parties : Mr.D. Mohapatra,
M. Mohapatra, G.R.MAhapatra &
S.P. Nath, Advocates
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
st
21 February, 2023
SASHIKANTA MISHRA, J.
The petitioner is aggrieved by the non fixation of his
salary in the scale of Deputy Controller of Examinations.
The brief facts of the case are that the petitioner joined
service in Utkal University as Junior Assistant on
03.05.1965. He was promoted as Senior Assistant on
20.08.1970 and thereafter as Section Officer Level-II on
03.08.1988. Again he was promoted as Section Officer
Level-I on 01.01.1997, which was regularized on
16.12.1999. According to the petitioner, he became
eligible for promotion to the rank of Assistant Registrar on
16.12.2000 but was granted such promotion only on
05.09.2003. Be that as it may, the Odisha Universities
(Recruitment and Promotion of Non-Teaching Employees)
Rules, 1991 contains provisions for promotion to the post
of Deputy/Assistant Registrar and equivalent post. Rule-
24 (2) is relevant in the present context, which is quoted
herein below:-
"(2) Assistant Registrars and their
equivalents will be eligible for promotion to
the posts of Deputy Registrar and its
equivalent posts to the extent of 25% of
vacancies at that level on completion of five
years of service as such 75% of posts of
Deputy Registrar and its equivalent posts
shall be filled up by direct recruitment
through open selection.
2. The petitioner claims eligibility through the 25%
promotion quota. It is his further case that despite being
eligible for promotion to the rank Assistant Registrar since
16.12.2000 the authorities considered his case belatedly
and accorded promotion on 05.09.2003. As a result, his
further promotion prospects were curtailed for which he
represented to the authorities time and again. Ultimately,
the Vice Chancellor vide letter dated 27.01.2007 (copy
enclosed as Annexure-2) wrote to the Chancellor of the
University highlighting the difficulties faced by the
University due to vacancies in the promotional cadre of
Deputy Controller of Examinations. It was further pointed
out that since even the senior most officers were not
eligible for promotion to the post of Deputy Controller of
Examinations, the same would have detrimental effect in
the conduct of examinations by the University. The DPC
constituted for the purpose therefore categorically held
that the University can ill afford to keep the post vacant
for long. Highlighting such facts, the Vice Chancellor,
basing on the minutes of the meeting of DPC
recommended relaxation of the qualifying service by two
years as prescribed under Rule-34 of the rules read with
Rule-24 (2) and Entry-1 (iii) of schedule-A in respect of
Officers holding posts equivalent to Assistant Registrar
and retiring from University Service during 2007 for
promotion to the post of Deputy Controller of
Examinations. While the matter stood thus, an office
order was issued on 31.01.2007, copy enclosed as
Annexure-3, which reads as follows:-
"No.Estt. II/700 (Vol.III) /7, Dated
31.01.07
Subject to approval of the Hon'ble
Chancellor of the proposal recommended by
the Vice Chancellor under Rule 34 of the
O.U.R.P. Rules, 1991 relating to relaxation of
experience criteria prescribed for promotion to
the post of Deputy Controller of Examinations
(equivalent to Deputy Registrar) and as per
the order dated 27.01.2007 of the Vice
Chancellor passed in administrative
exigency, Sri Narayan Satapathy,
Administrative Officer is given officiating
promotion to the post of Deputy Controller of
Examinations, Utkal University in the
existing vacancy with immediate effect.
REGISTRAR"
3. Be it noted here that the petitioner having joined in
the promotional post on the same day incidentally retired
from service on the same day also on attaining the age of
superannuation. Ultimately, the Chancellor by his order
dated 03.02.2007, relaxed the minimum period of
qualifying service of 5 years prescribed in Rule-24 (2) of
the Rules to 3 years of qualifying service at the level of
Assistant Registrar and its equivalent. For immediate
reference the letter of the Deputy Secretary to the
Chancellor is reproduced herein below:-
No. UI-9/07 84 SG(HE) dated February 3, 2007
From
Shri Deboraj Mishra, OAS(I) (SB),
Deputy Secretary to the Chancellor,
Orissa
To
The Vice-Chancellor,
Utkal University,
Vani Vihar
Sub:- Filling up the vacant post of Deputy
Controller of Examination, Utkal University by
promotion-relaxation of the provision relating to
experience-request regarding.
Sir,
In inviting reference to your letter No. VO-
17/07, dated 27.1.207 on the above subject, I am
directed to inform you that under the provision of
Rule-34 of the Orissa Universities Recruitment
and Promotion of Non-Teaching Employees Rules,
1991, the Hon'ble Chancellor has been pleased to
relax the minimum period of qualifying service of 5
years prescribed in Rule-24(2) of the said rules to
3 years of qualifying service at the level of Asst.
Registrar and its equivalent subject to the
condition that the said relaxation will be
applicable only for filling up of the post of Deputy
Controller of Examinations in Utkal University
during the year 2007."
Yours Faithfully,
Deputy Secretary to the Chancellor
Orissa."
4. Referring to the facts noted above, Mr. B. Routray,
learned Senior Counsel submits that the relaxation
granted by the Chancellor on 03.02.2007 must be treated
as a post-facto approval of the promotion of the petitioner
to the post of Deputy Controller of Examinations granted
vide order dated 31.01.2007. As such, the petitioner's last
pay drawn ought to be fixed in the scale applicable to the
post of Deputy Controller of Examinations.
5. Mr. Dayananda Mohapatra, learned counsel
appearing for the University has opposed the prayer of the
petitioner on the ground that there is no concept of post
facto approval of promotion inasmuch as promotion
cannot be granted retrospectively. Moreover, the order of
the Chancellor is not specifically relatable to the case of
the petitioner who was merely granted officiating
promotion.
6. The facts of the case being undisputed the only issue
that arises for consideration in the writ petition is,
whether the order of the Chancellor in relaxing the period
of qualifying service can have any retrospective effect. In
order to determine this it would be necessary to refer to
the request made by the Vice Chancellor in his letter
dated 27.01.2007, which has already been referred to
hereinbefore. In the said letter, after stating the relevant
facts, the Vice-Chancellor also took pain to inform the
Chancellor as follows:-
"I would like to bring to your kind notice that
3 senior most officers in the rank of Asst.
Registrar will retire from University service
during 2007 and one of them will retire on
31.01.2007. These officers stagnated for more
than 11 years in the rank of S.O. Level-II, as
S.O. Level-I posts were sanctioned by
Government at a belated stage. Consequently
their subsequent promotion to the rank of
Asst. Registrar has been delayed."
7. In so far as the petitioner is concerned, this Court
finds some force in the submission that he was eligible for
promotion to the rank of Assistant Registrar or equivalent
as on 16.12.2000 having completed the required length of
service in the feeder grade, i.e., Section Officer Level-I. The
authorities however for reasons best known to them
promoted him as Assistant Registrar only on 05.09.2003.
There was thus a delay of nearly three years for which the
petitioner cannot be blamed. More over the petitioner was
due to retire on 31.01.2007. Since the rules permit
relaxation of the qualifying period up-to two years by the
Chancellor, the DPC deemed it proper to recommend
extension of the said benefit to the petitioner. This is a
case where the petitioner was though promoted but
because of delay caused by the authorities themselves in
granting him promotion to the feeder post (Assistant
Registrar) earlier his further promotion prospects got
delayed. It goes without saying that for a qualified and
eligible candidate, consideration for promotion is a
legitimate expectation. The DPC as well as the Vice
Chancellor apparently being alive to such position passed
order on 31.01.2007 granting him officiating promotion
subject to approval of the Chancellor. The order of the
Chancellor was issued three days later but by such time
the petitioner had already retired on superannuation.
Reference to Rule-34 of the Rules 1991 reveals that it is
within the power of the Chancellor on the
recommendation of the Vice Chancellor to relax any of the
provision of the rules in respect of any case or class of
cases or class of persons. In the instant case by order
dated 03.02.2007, the Chancellor relaxed the minimum
period of qualifying service with the rider that it shall be
applicable only for filling of the post of Deputy Controller
of Examination in Utkal University during the year, 2007.
8. The petitioner, as already stated was given official
promotion as Deputy Controller of Examination on
31.01.2007. Therefore, the order dated 03.02.2007 of the
Chancellor squarely applies to the case of the petitioner.
As regards the contention raised by Mr. Mohapatra that
the order of the Chancellor shall have prospective effect
only, the same is not acceptable for the reasons indicated
above. It is reiterated that the Chancellor's order is
specifically applicable to all promotions granted to the
post of Deputy Controller of Examinations in the year
2007.
9. In such view of the matter, this Court finds
considerable force in the submission of learned counsel
for the petitioner that the Chancellor having decided to
relax the required period by two years, the same shall be
treated as post-facto approval of the officiating promotion
granted to the petitioner on 31.01.2007.
10. For the foregoing reasons therefore, the writ petition
is allowed. The opposite parties are directed to re-fix the
last pay drawn of the petitioner in the scale applicable to
the post of Deputy Controller of Examination and to re-fix
his pension appropriately in accordance with law. The
above exercise shall be completed within a period of two
months from the date of communication of this order or
on production of certified copy thereof by the petitioner.
.................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 21st February, 2023/ B.C. Tudu, Sr. Steno
