Orissa High Court
Mangala Prasad Mohanty vs The Vice Chancellor on 25 June, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.6581 of 2017
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Mangala Prasad Mohanty .... Petitioner(s)
-versus-
The Vice Chancellor, Orissa .... Opposite Party (s)
University of Agriculture and
Technology, Bhubaneswar &Ors.
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. B.K. Parida, Adv.
For Opposite Party (s) : Mr. Sonak Mishra, ASC
Mr. Gouri Mohanty Rath, Adv.
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-18.04.2024
DATE OF JUDGMENT: -25.06.2024
Dr. S.K. Panigrahi, J.
1. The Petitioner has filed this Writ Petition challenging the impugned
order dated 22.03.2017 passed by the Opp. parties relating to the
approval for up-gradation of the Petitioner to the post of Asst. Engineer
to Asst. Executive Engineer and allowing the scale of pay attached to
the post although the proposal for approval is pending before the State
Location: ORISSA HIGH COURT, CUTTACK
Date: 25-Jun-2024 17:34:14
Government and such impugned action is highly arbitrary and
discriminatory.
I. FACTUAL MATRIX OF THE CASE:
2. The brief fact of the case as emanated from the material placed on
record and the arguments of the counsel for the Parties.
(i) The Petitioner initially joined before the Opp. Party Office as a Junior
Engineer (P.H), D.P.P Section and subsequently on 24.11.2006 got
promoted to the post of Assistant Engineer (P.H) at a pay scale of
Rs.6,500-200-10,500/- with usual allowances as was sanctioned from
time to time. Further, it was specifically mentioned in the joining letter
that the probation period was fixed for two years from the date of
joining and the post will be extended for such further period, if the
Petitioner work performance is found satisfactory.
(ii) On 30.09.2013 the Opp. Party made a Gazette Notification for
restructuring of the cadre of Odisha Engineering Service and diploma
Engineering Service whereby it was specifically decided that the entry
level post of the cadre of Odisha Engineering Service should be
Assistant Executive Engineer in Junior Class-I branch in the scale of pay
PB- 3, Rs.15,600-39,100/- with grade pay of Rs.5,400/- and the existing
post of AE & AEE and the newly created post 47 numbers of post will
be designated as the post of AEE (Assistant Executive Engineer).
Besides, it was specifically mentioned that 100% post of Asst. Engineer
is upgraded as the post of Asst. Executive Engineer.
(iii) Further, on 26.02.2014 one Notification was issued by the Department of
Housing and Urban Development wherein a decision was taken by the
Location: ORISSA HIGH COURT, CUTTACK
Date: 25-Jun-2024 17:34:14
Department enlisting the names of the Assistant Engineer (P.H.) who
were upgraded to the post of Assistant Executive Engineer (P.H.) in the
pay scale of PB-3, Rs.15,600-39,100/- and they were allowed to continue
in their present place of posting.
(iv) Moreover, on 15.11.2013, the Department of Housing and Urban
Development has accorded sanction to the upgradation of 397 posts of
Junior Engineer in the scale of pay of PB-2 Rs.9300-34800/- with grade
pay of Rs.4200/- under the Housing and Urban Development to that of
Assistant Engineer in the pay scale of P.B-2 Rs.9300-34,800/- with grade
pay of Rs.4600/- adopted in OUAT in case of those who are Junior
Engineer (P.H.) who is deputed to OUAT from the State Government.
(v) Owing to such upgradation to the post of Assistant Engineer to the post
of Assistant Executive Engineer, the issue was placed before the Board
Management meeting on 01.08.2014 wherein various issues were dealt
out of which one of the issue was in connection with the consideration
of the upgradation of the post of Assistant Engineer to the rank of
Assistant Executive Engineer which was duly approved and forwarded
to the Government for upgradation at par with other Government
norms. The said meeting was attended by the representative of the
Principal Secretary of Agriculture and Finance and University
Authority.
(vi) In connection with the said Board meeting referred above, a letter dated
05.09.2014 was issued to the Opp. Party No.2 for consideration of the
proposal of upgradation from Assistant Engineer to Assistant Executive
Engineer (Junior class-I) which was passed in the Board meeting dated
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Date: 25-Jun-2024 17:34:14
01.08.2014 under the Resolution No.3870 sought for concurrence as the
proposal was approved and moved to the Government for upgradation
at par with the Government norms.
(vii) Vide letter dated 20.12.2014, the necessity to upgrade the petitioner
along with other three employees to the post of Assistant Executive
Engineer was provided as the Petitioner was working in the post of
Assistant Engineer (P.H.) since last 8 years carrying higher
responsibilities with higher technical knowledge for which the present
post of the Petitioner is required to be upgraded to the higher post i.e.
Assistant Executive Engineer (P.Н.).
(viii) The action of the Opp. Parties in not upgrading the post of the
Petitioner from Assistant Engineer (P.H.) to Assistant Executive
Engineer (P.H.) is alleged to be highly arbitrary and violative of Articles
14 and 16 of the Constitution of India. Beside the other State
Government undertakings like Bhubaneswar Development Authority,
Bhubaneswar, Municipal Corporations have already adopted the said
upgradation as per the said Gazette Notification. Hence, the present
Writ Petition.
I. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions:
(i) The statute of OUAT mandates to give position of OUAT employees at
par with counter parts of the State Government and after restructuring
100% post of A.E. upgraded to the rank of A.E.E. in Government.
Location: ORISSA HIGH COURT, CUTTACK
Date: 25-Jun-2024 17:34:14
(ii) The Board of OUAT resolved to upgrade the post of A.E. to A.E.E in
OUAT par with the Government norms where the Additional Secretary
to both Agriculture and Finance Department were members in OUAT
Board and the Board of Management resolved to upgrade A.E (P.H) to
A.E.E. (P.H) for the Petitioner.
(iii) The Registrar, OUAT requested the Opp. Party No.3 for concurrence
which was denied for which the Petitioner filed W.P.(C) No.520 of 2017
wherein this Court directed the Opp. Parties to take a decision on the
resolution under Annexure-5 within 45 days. Accordingly, the
impugned order was issued stating that without the cadre rule, up-
gradation is not possible and proposal was rejected.
(iv) The J.E. (P.H) deputed to OUAT from Government was upgraded in
Government and allowed to continue in OUAT though there is a
reservation of 50% of J.E. upgraded to A.E. where 100% of A.E
upgraded to A.E E not implemented in case of the Petitioner and the
A.E.E became base level post in place of A.E. and due to non-up-
gradation, the Petitioner automatically downgraded.
(v) In the year 2006 the Opp. Party No.3 upgraded the post of Junior
Engineer (Elect.) to the post of Asst. Executive Engineer (Elect.) which
was submitted by the Opp. Parties in the form of affidavit before this
Court. However, in this case, there was no implementation of cadre rule
but in the case of Petitioner the Opp. Parties not considering the matter
where 100% up-gradation to the post of Asst. Executive Engineer after
being implementation of cadre rule in the year 2014.
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(vi) In such view of the matter, he contended that the impugned order
under Annexure- 7 may be quashed.
II. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY :
4. Learned counsel for the Opposite Party No.2 earnestly made the
following submissions in support of his contentions.
(i) It is abundantly clear in the backdrop of facts stated that Agriculture
Department, Government of Odisha is the Administrative Department
of OUAT and also provides all the funds for the functioning of the
University. It is pertinent to mention here that approval and
concurrence of the concerned department of Government of Odisha is
required for any decision for filling up the posts or upgradation of posts
in the university. Since the Department of Agriculture, Government of
Odisha considered the application of the OUAT in respect of the
Petitioner and declined the same, the Opp. Party No.1 and 2 cannot take
any further action.
(ii) The Department of Housing and Urban Development, Government of
Odisha has issued Notification regarding up-gradation of Assistant
Engineer to Assistant Executive Engineer. However, the same Assistant
Engineer being the employee of the Government can avail the benefits
of the notification. Since the notification is not related to OUAT, the
Opp. Party No.1 and 2 cannot apply the same in case of the Petitioner.
(iii) The petitioner was appointed on 30.08.1997 as Junior Engineer (PHD) in
Director, Physical Plants under OUAT. Subsequently the Petitioner was
appointed on 24.11.2006 as Assistant Engineer (PH) on promotion in the
Location: ORISSA HIGH COURT, CUTTACK
Date: 25-Jun-2024 17:34:14
scale of pay Rs.6500-200-10,500/-. While the Petitioner served as the
Assistant Engineer, a Gazette Notification dated 30.09.2013 was notified
wherein the restructuring of the Cadre of Odisha Engineering Service
was done. According to the new structure the entry level post of the
cadre of Odisha Engineering Service shall be Assistant Executive
Engineer in Junior Class-1 branch in the scale of pay PB-3, Rs.15,600-
39,100/- with grade pay of Rs.5400/-.
(iv) The Petitioner sought from the Opp. Party Nos.1 & 2 an upgradation in
accordance with the said notification. The Opp. Party Nos.1 & 2 placed
the same proposal of upgradation before the Board of Management for
consideration. The Board of Management came to the conclusion that
the proposal regarding upgradation should be moved to the
Government. The Department of Agriculture, Government of Odisha
communicated vide letter No.11864/Ag. dated 14/07/2016 stated that
since there is no cadre rule of Assistant Engineer and junior Engineer in
OUAT, the proposal for upgradation of Assistant Engineer to Assistant
Executive Engineer may not be possible.
(v) The decision of the Government in Department of Agriculture and
Farmers Empowerment, Odisha regarding restructuring of the cadre of
Odisha Engineering Service which was published in the Odisha Gazette
vide Resolution No.1891 dated 30.09.2013 was applicable to
Departments at the discretion of the Government. The University and
specifically Opp. Party Nos.1 and 2, without prior sanction of the
Government, cannot take any decision in furtherance to that
notification.
Location: ORISSA HIGH COURT, CUTTACK
Date: 25-Jun-2024 17:34:14
III. COURT'S REASONING AND ANALYSIS:
5. The part II of the chapter-II of the Statute of the Agricultural
Department dated 05.11.1966 deals with the appointment, powers and
duties of the officers of the University wherein it is specifically stated in
Chapter II clause 2(1x) that:-
"The qualification of the Ministerial staff and other
employees shall be the same as for similar posts under the
Government of Orissa bearing the same or equivalent scales
of pay."
Further, Chapter-II clause 3(iii) deals with the "Ministerial Staff and
other Employees" which is quoted herein below:-
"The scales of pay of the ministerial staff and other employees
relating to posts of various categories in the University Office
and all offices sub-ordinate to it, shall be the same as those of
the staff of the Secretariat relating to similar post. The
minimum qualifications at the entry point shall be equalised
with that of Secretariat."
Thus, it clearly states that the scale of pay of the staffs of the OUAT shall
be at par with those serving in other Government sectors in the similar
post.
6. Furthermore, after the order passed by this Court, on earlier round the
Petitioner submitted the certified copy of the order along with the brief
as directed by this Court to the Opp. Party No.3 to consider the
resolution of the OUAT and take a decision on the request made by the
Registrar OUAT to the Government within a period of 45 days, by a
reasoned order, after affording reasonable opportunity of hearing to the
Petitioner.
Location: ORISSA HIGH COURT, CUTTACK
Date: 25-Jun-2024 17:34:14
7. However, on 22.03.2017, the Opp. Party No.3 issued a reply against this
Court's direction stating that till now no cadre rule framed for Assistant
Engineer and Junior Engineer of QUAT. As such, the proposal for up-
gradation of the post of Asst. Engineer to the rank of Asst. Executive
Engineer may not be possible., It reveals that the proposal for
upgradation for the post of Asst. Engineer and Junior Engineer in
OUAT, the proposal for upgradation for the post of Asst Engineer to the
rank of Asst Executive Engineer may not be possible since there is no
cadre rule of Asst Engineer and Junior Engineer in OUAT. Since the
Petitioner was under deputation to the University and in the absence of
any encadrement in the University, he should get all benefits like any
other similarly placed employee in the Government.
8. Though there were ample instances where the upgradation of the post
from Asst. Engineer to Asst. Executive Engineer have been made in
terms of University Statute keeping in view the designation of the
Government from time to time. Since Statute is very clear that the
Engineer and other employees working in the University will be placed
as per the restructuring and position of the Government employees
according to the Notification issued by the Government from time to
time. Moreover, undisputedly, the State Government have restructured
the cadre as redesignated the Asst Engineer as "Asst Executive Engineer
(P.H)", thus there cannot be any confusion for placing the petitioner by
re- designating him as Asst. Executive Engineer (P.H).
9. The position being very clear and un-ambiguous, the Opp. Parties, the
OUAT authorities cannot in any manner escape from such position and
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they are bound under the law to place the Petitioner and re-designate
him as Asst Executive Engineer (P.H.) in terms of the Government
notification as the University Statute mandates for the same. The
impugned order by the Authority after the disposal of the earlier Writ
Petition clearly spells out the malafide and deliberate action in
depriving the Petitioner from his legal entitlement as such, the
impugned order dated 22.03.2017 is completely unwarranted, uncalled
for as is also unsustainable in the scrutiny of law. Further, the
impugned order as above is highly illegal and discriminatory and is
liable to be quashed.
10. Moreover, as clarified by the Petitioner, the Petitioner never approached
the Registrar, OUAT for getting his benefits but the issue was placed
before the Board Management meeting dated 01.08.2014 under
Annexure-5 of the Writ Petition where the post of the Petitioner from
Asst. Engineer to the rank of Asst. Executive Engineer was duly
approved and was forwarded to the Government for upgradation at par
with other Government norms and in the said meeting the
representative of the Principal Secretary of Agriculture and Finance was
present.
11. The Government issued a letter on 18.11.2006 regarding the proposal for
approval for up- gradation of the post of Junior Engineer (Elect.) to the
post of Asst. Engineer (Electrical) and Asst. Engineer (Elect.) to Asst.
Executive Engineer (Elect) by strictly observing the rules and conditions
of the OUAT Employees statutes, 1989.
Location: ORISSA HIGH COURT, CUTTACK
Date: 25-Jun-2024 17:34:14
12. After the restructuring 50% of the total post of Junior Engineer
upgraded to the rank of Asst. Engineer and one P.K. Pattanik who was
deputed to OUAT as J.E. (P.H) after restructuring he was also upgraded
to the post of Asst. Engineer (PH) and he was continuing in the said
post since 2013. On the other hand, 100% post of Asst. Engineer
upgraded to Asst. Executive Engineer in Government. But, the Opp.
Parties did not bother to upgrade the post of the Petitioner from Asst.
Engineer to the rank of Asst. Executive Engineer which is totally
unreasonable in the eyes of law.
13. In the light of the aforesaid discussion, this Court is inclined to quash
the order dated 22.03.2017 passed by the Opp. Parties relating to the
approval for up-gradation of the Petitioner to the post of Asst. Engineer
to Asst. Executive Engineer. Further, the Opposite Party No.1 is
directed to upgrade the Petitioner's post to the post of Asst. Executive
Engineer within a period of three months from the date of presentation
of this order.
14. Accordingly, the Writ Petition is allowed.
(Dr. S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 25th June, 2024/
Location: ORISSA HIGH COURT, CUTTACK
Date: 25-Jun-2024 17:34:14
