Orissa High Court
Dr. Bimal Prasad Mohanty vs Union Of India &Ors. ..... Opposite ... on 21 June, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.3176 of 2015
Dr. Bimal Prasad Mohanty ..... Petitioner
Mr.M. Banerjee, Advocate
-versus-
Union of India &Ors. ..... Opposite Parties
Mr. C.K. Pradhan, Sr. P.C.
CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
21.06.2024
Order No.13
1. This matter is taken up through hybrid mode.
2. Heard Mr. M. Banerjee, learned counsel for the Petitioner and
Mr. C.K. Pradhan, learned Sr. Panel Counsel appearing for the opp.
Party Nos. 1 to 3.
3. Petitioner has filed the present writ petition inter alia challenging
office order dtd.16.02.2015 so issued under Annexure-1 & 2
respectively. Vide the said order Petitioner was made to retire at the
age of 62 years, even though Petitioner being a Professor in the
establishment of Opp. Party No. 3 was eligible to continue till
attaining the age of 65 years.
4. Learned counsel for the Petitioner contended that Petitioner was
initially appointed as Physical Training Instructor vide office order
dtd.24.09.1979 under Annexure-3. The post of Physical Training
Instructor was subsequently re-designated as Lecturer vide office
order dtd.02.01.1993 so issued by Opp. Party No. 3 under
Annexure-4.
4.1. It is contended that Petitioner after being re-designated as a
Lecturer was allowed to teach the subject Physical Education so
reflected in office order dtd.28.11.1996 under Annexure-5. It is
contended that Petitioner while continuing as a Lecturer, he was
promoted to the post of Associate Professor (Physical Education)
and subsequently as Professor (Physical Education) vide office
order dtd.29.06.2013 under Annexure-6. Petitioner on being so
promoted to the rank of Professor (Physical Education), was also
allowed with the benefit of UGC scale of pay.
4.2. Learned counsel for the Petitioner contended that since
Petitioner was promoted to the rank of Professor and was allowed
UGC scale of pay, in view of the office order issued by Opp. Party
No. 2, he was eligible to continue till attaining the age of 65 years.
Office order dtd.25.07.2007 so issued by Opp. Party No. 2 under
Annexure-7 reads as follows:-
"Incompliance to the decision of the Govt. of India, Ministry of
Human Resource Development, Department of Higher
Education vide their letter No. 1-19/2006-U.II dated 23.3.2007
forwarded by Joint Secretary; UGC vide her letter No.3-
1/94PS/(Vol 9) dated 30.3.2007, the age of superannuation of
the teachers enjoying the UGC pay scales and were holding
the positions on regular basis against Sanctioned posts as on
15.3.2007 stands increased from present 62 years to 65
years."
4.3. Learned counsel for the Petitioner contended that since
Petitioner after being promoted to the rank of Professor was
sanctioned with the benefit of UGC scale of pay in view of the
office order issued under Annexure-7, he was eligible to continue
till attaining the age of 65 years. But illegally and arbitrarily
Petitioner was superannuated from his service on his attaining the
age of 62 years vide office order dtd.16.02.2015 under Annexure-1
& 2.
4.4. Challenging such action of Opp. Parties in making the
Petitioner to retire at the age of 62 years, the present writ petition
was filed and this Court while issuing notice of the matter vide
order dtd.24.02.2015, passed an interim order to the effect that any
action taken pursuant to Annexure-1 & 2 dated 16.02.2015 shall
abide by the result of the writ petition.
4.5. Learned counsel for the Petitioner contended that since the
Petitioner was eligible and entitled to continue till attaining the age
of 65 years, the action of the Opp. Parties in making him to retire at
the age of 62 years and thereby depriving him to continue for 3
years of more service, is not sustainable in the eye of law and
Petitioner is eligible to get all service and financial benefits as due
and admissible for the period in question. Petitioner in support of
his claim relied on a decision of the Hon'ble Apex Court in the case
of State of Kerala & Ors. Vs. E.K. Bhaskaran Pillai (2007) 6 SCC
524. Hon'ble Apex Court in para-4 of the said Judgment has held as
follows:-
"4. Learned counsel for the State has submitted that grant of
retrospective benefit on promotional post cannot be given to the
incumbent when he has not worked on the said post. Therefore,
he is not entitled to any benefit on the promotional post from
15.6.1972. In support thereof, the learned counsel invited our
attention to the decisions of this Court in Paluru Ramkrishnaiah
& Ors. Vs. Union of India & Anr. [(1989) 2 SCC 541], Virender
Kumar, G.M., Northern Railways Vs. Avinash Chandra Chadha
& Ors.[ (1990) 3 SCC 472] , State of Haryana & Ors. Vs. O.P.
Gupta & Ors. [ (1996) 7 SCC 533], A.K. Soumini Vs. State Bank
of Travancore & Anr.[ (2003) 7 SCC 238] and Union of India &
Anr. Vs. Tarsem Lal & Ors. [ (2006) 10 SCC 145]. As against
this, the learned counsel for the respondent has invited our
attention to the decisions given by this Court in Union of India
& Ors. Vs. K.V. Jankiraman & Ors.[ (1991) 4 SCC 109], State
of A.P. Vs. K.V.L. Narasimha Rao & Ors.[ (1999) 4 SCC 181],
Vasant Rao Roman Vs. Union of India & Ors. [1993 Supp. (2)
SCC 324] and State of U.P. & Anr. Vs. Vinod Kumar Srivastava
[(2006) 9 SCC 621]. We have considered the decisions cited on
behalf of both the sides. So far as the situation with regard to
monetary benefits with retrospective promotion is concerned,
that depends upon case to case. There are various facets which
have to be considered. Sometimes in a case of departmental
enquiry or in criminal case it depends on the authorities to grant
full back wages or 50 per cent of back wages looking to the
nature of delinquency involved in the matter or in criminal cases
where the incumbent has been acquitted by giving benefit of
doubt or full acquittal. Sometimes in the matter when the person
is superseded and he has challenged the same before Court or
Tribunal and he succeeds in that and direction is given for
reconsideration of his case from the date persons junior to him
were appointed, in that case the Court may grant sometime full
benefits with retrospective effect and sometimes it may not.
Particularly when the administration has wrongly denied his
due then in that case he should be given full benefits including
monetary benefit subject to there being any change in law or
some other supervening factors. However, it is very difficult to
set down any hard and fast rule. The principle 'no work no pay'
cannot be accepted as a rule of thumb. There are exceptions
where courts have granted monetary benefits also. However, so
far as present case is concerned, as per directions given by the
Court, petitioner's case was considered and it was found that
persons junior to him were appointed and he was wrongly
denied. Therefore, the petitioner was promoted from
retrospective effect i.e. 15.9.1961 but he was not paid the benefit
of promotion in terms of arrears of salary. Therefore, he
approached the Court and learned Single Judge did not give
him the monetary benefit of the promotional post from
retrospective effect in terms of arrears of salary. In the review
application, the benefit was given from the date he filed O.P.
No. 585 of 1975 i.e. 15.6.1972. This appears to be reasonable.
The petitioner did not approach the Court for the back wages
from 15.9.1961 but he filed a petition dated 15.6.1972 and the
Court granted the benefit from the date of filing of the petition
before the Court i.e. 15.6.1972. The incumbent in the meanwhile
has retired on 31.7.1980. Therefore, looking to the facts and
circumstances of the case, the view taken by the High Court
appears to be justified and there is no ground to interfere in it".
5. Mr. C.K. Pradhan, learned Sr. Panel Counsel appearing for the
Opp. Party Nos. 2 & 3 on the other hand made his submission
basing on the stand taken in the counter affidavit so filed. Basing on
the stand taken in the counter affidavit, learned Sr. Panel Counsel
contended that Petitioner was never taking classes and even though
he was promoted to the rank of Professor, but his original post is
that of Director of Physical Education. It is contended that in view
of the guideline issued by the Govt. Of India, Ministry of Human
Resources Development on 17th August, 2012 vide Annexure-A/4
series, Petitioner is not eligible to continue beyond 62 years.
5.1. Mr. Pradhan relied on the following provisions contained in the
circular issued under Annexure-A/4 series:-
"Whereas the enhancement of the age of superannuation
for teachers engaged in class room teaching is intended to
attract eligible persons to a career in teaching and to meet
the shortage of teachers by retaining teachers in service
for a longer period, and whereas there is no shortage in
the categories of Librarians and Directors of Physical
Education, the increase in the age of superannuation from
the present sixty two years shall not be available to the
categories of Librarians and Directors of Physical
Education."
5.2. Mr. Pradhan accordingly contended that since Petitioner was
never taking classes and his post is that of Director of Physical
Education, Petitioner was rightly superannuated at the age of 62
years vide order under Ann exure-1 & 2. Mr. Pradhan also relied on
the documents enclosed vide Annexure-A/2 to the counter affidavit.
Placing reliance on the same, it is contended that since Physical
Education is not a subject in Sadashiva, Puri, it cannot be held that
Petitioner was providing teaching in the subject in question. It is
accordingly contended that no illegality or irregularity can be found
with the action of Opp. Parties in making the Petitioner retire at the
age of 62 years vide order issued under Annexure-1 & 2.
6. To the stand taken in the counter affidavit, a rejoinder affidavit
has been filed by the Petitioner. Placing reliance on the stand taken
in the rejoinder affidavit, Mr. Banerjee, learned counsel appearing
for the Petitioner contended that as per the guideline issued by the
University Grants Commission vide Annexure-13 series, the age of
superannuation of Assistant Professor/Associate Professor in
Physical Education is 65 years. Since Petitioner by the time he was
made to retire was working as a Professor in Physical Education, he
was also eligible to continue till attaining the age of 65 years.
6.1. Mr. Banerjee also brought to the notice of this Court the
communication issued by the College in question on 20.12.2013
vide Annexure-13 series, wherein it has been indicated that
Petitioner was permitted to teach Sikshya Shastri (B.Ed.) Students
for the academic session 2013-14 till further orders.
6.2. Placing reliance on the aforesaid documents, Mr. Banerjee
contended that since Petitioner was allowed to take classes by the
Principal of the College, the stand taken by Opp. Party Nos. 2 & 3
that Petitioner was never taking classes is not acceptable. Mr.
Banerjee also relied on a decision of the Hon'ble Apex Court
rendered in the case of P.C. Modi Vs. The Jawaharlal Neheru
Vishwa Vidyalaya & Anr. (2023 (16) SCALE 709) in support of his
claim. Hon'ble Apex Court in Para 12 of the said Judgment has
held as follows:-
"12. In view of the aforesaid discussion, it is deemed
appropriate to quash and set aside the impugned order dated
14th December, 2009 and restore the judgment dated 26th April,
2005 passed by the learned Single Judge. It is declared that the
appellant, who was discharging the duties of a PTI/Sports
Officer, would fall within the definition of a "teacher" and would
have been entitled to be continued in service till completion of
62 years of age. As the appellant was prematurely retired by the
respondents at the age of 60 years, it is held that he shall be
entitled to all consequential and monetary benefits including,
arrear of salary, etc., had he continued in service up to the age
of 62 years. The retiral benefits of the appellant shall also be
computed on a presumption that his age of retirement was 62
years. The entire amount due and payable to the appellant shall
be computed by the respondents and paid over to him along with
a copy of the said computation within a period of six weeks from
today."
7. Having heard learned counsel appearing for the Parties and
considering the submission made, this Court finds that Petitioner
even though was appointed as against the post of Physical Training
Instructor vide order dtd.24.09.1979 under Annexure-3. But the said
post was re-designated as Lecturer (Physical Education) vide office
order dtd.02.01.1993 under Annexure-4. Vide office order
dtd.28.11.1996 issued under Annexure-5, Petitioner after being re-
designated as a Lecturer was allowed to teach the subject Physical
Education. It is also found that Petitioner while so continuing, he
was not only promoted to the post of Associate Professor (Physical
Education) but also subsequently vide office order dtd.29.06.2013
under Annexure-6, he was promoted to the rank of Professor
(Physical Education) and he was allowed with the UGC scale of
pay. This Court further finds that as per office order issued by Opp.
Party No. 2 on 25.07.2007 under Annexure-7 any lecturer getting
the benefit of UGC Scale of Pay is eligible and entitled to continue
till attaining the age of 65 years.
7.1. Placing reliance on the office order issued under Annexure-7
and the communication available at Annexure-5 as well as
Annexure-13 series and the decision in the case of P.C. Modi (as
cited supra), this Court is of the view that Petitioner was eligible
and entitled to continue till attaining the age of 65 years. The stand
taken by Opp. Party Nos. 2 & 3 that Petitioner was not providing
class room teaching is not supported by any document nor the stand
taken by Opp. Party Nos. 2 & 3 that the post of Professor, Petitioner
is holding, is that of Director of Physical Education. Therefore, this
Court is unable to accept the contention raised by Opp. Party Nos. 2
& 3 in support of the stand taken in the counter affidavit that
Petitioner was holding the post of Director of Physical Education.
7.2. In view of the aforesaid analysis, this Court is of the view that
Petitioner was eligible to continue till attaining the age of 65 years.
Therefore, this Court is inclined to quash office orders
dtd.16.02.2015 so issued under Annexure-1 & 2. While quashing
the same, this court is also of the view that since Petitioner after
being allowed to retire on 28.02.2015 was not discharging his duty,
this Court placing reliance on the decision in the case of E.K.
Bhaskaran Pilai, held the Petitioner entitled to get 50% of the
financial benefit as due and admissible for the period from
11.03.2015 to 28.02.2018. This Court directs Opp. Party Nos. 2 & 3
to calculate the entitlement of the Petitioner as directed and release
the same within a period of 2 (two) months from the date of receipt
of this order.
8. The writ petition is disposed of accordingly.
(BIRAJA PRASANNA SATAPATHY)
Judge
Sneha
Location: High Court of Orissa, Cuttack
