Dushasan Jena vs State Of Odisha
2025 Latest Caselaw 5279 Ori

Orissa High Court

Dushasan Jena vs State Of Odisha on 24 March, 2025

               ORISSA HIGH COURT : CUTTACK

                   W.P.(C) No.10079 of 2012

                In the matter of an Application under
     Articles 226 & 227 of the Constitution of India, 1950

                            ***

Dushasan Jena Aged about 46 years Son of Raghunath Jena At: Barapada P.O: Sendatira, P.S.: Bonth District: Bhadrak At present working as Junior Engineer (Civil), L.I Section, Simulia, Under LI. Sub.Division Soro & LI. Division, Balasore, District: Balasore. ... Petitioner;

-VERSUS-

1. State of Odisha Represented through The Commissioner-cum-Secretary Government of Odisha Water Resources Department Rajeev Bhawan, Unit-5, Bhubaneswar District: Khordha.

2. Orissa Lift Irrigation Corporation Ltd.

A Government of Orissa Undertaking Plot No.: N-17/2, Nayapalli, P.B.No.155 Bhubaneswar - 12, District: Khordha Represented through its Managing Director

3. The Chairman Orissa Lift Irrigation Corporation Ltd. A Government of Orissa Undertaking Plot No.: N-17/2, P.B. No.155, Bhubaneswar-12, District: Khordha

4. The Managing Director Orissa Lift Irrigation Corporation Ltd. Plot No.: 17/2, Nayapalli, Bhubaneswar-12, District: Khordha

5. The Executive Engineer Lift Irrigation Division, Balasore, (OLIC) District: Balasore ... Opposite parties.

Counsel appeared for the parties:

For the Petitioner : Mr. Umesh Chandra Mohanty

For the Opposite party : Mr. Santosh Kumar Brahma, No.1 Additional Standing Counsel

For the Opposite party : None

P R E S E N T:

HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

Date of Hearing : 24.03.2025 :: Date of Order : 24.03.2025

O RDER

Challenging the Office Order No.IEA Adm 28/11 No.6151/OLIC, dated 21.05.2012 under Annexure-1, wherein the case of the petitioner, joined in the base

level post of Diploma Engineer of Odisha Lift Irrigation Corporation, was not considered for promotion to the post of "Assistant Engineer", this writ petition has been filed beseeching to invoke extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India, with the following prayer(s):

"In the aforesaid circumstances, it is humbly prayed that this Hon'ble Court may graciously be pleased to admit this writ application and issue Rule Nisi calling upon the Opp. Parties to show cause as to why this Writ application shall not be allowed and if the Opp. Parties fail to show cause or show insufficient cause, the said Rule may be made absolute and on hearing the parties through their counsel and on calling for records, this Hon'ble Court be further pleased to:

i. Issue appropriate writ/writs in declaring the order of rejection vide No.IEA (Admn.) 28/11-- 6151/OLIC Ltd., dated 21.05.2012 under Annexure-1 is illegal, arbitrary and discriminatory as such quash the same.

ii. This Hon'ble Court be further pleased to issue a writ of mandamus directing the opposite parties to appoint the petitioner against the post of Assistant Engineer (Civil) out of the available vacancies meant for the Direct Recruitment quota of 67% along with all consequential service benefits at par with the other similarly placed persons.

iii. This Hon'ble Court be further pleased to pass such other appropriate writ/writs, direction/directions,

order/orders as would be deem fit and proper in favour of the petitioner.

And for this act of kindness, the petitioner as in duty bound, shall ever pray.

2. Facts, as adumbrated by the writ petitioner, reveal that the petitioner, qualified Diploma holder in Civil Engineering under the State Council of Technical Education and Training, Odisha in the year 1986 and joined as a Junior Engineer (Civil) on 04.11.1987 in regular establishment vide Order No.29624, dated 28.10.1987 by the Order of the Chairman-cum-Managing Director of the Odisha Lift Irrigation Corporation Ltd. (for brevity, "OLIC"). Being permitted by competent authority to pursue higher studies, the petitioner successfully acquired B. Tech. (Civil) in the year 2009.

2.1. The petitioner requested the authority concerned for induction of Degree in Engineering in his Service Book and grant necessary incremental benefits as are extended to the similarly situated persons.

2.2. Pursuant to direction of this Court in OJC No.2920 of 1990 vide Judgment dated 14.01.1994, the Rural Development Department took a decision that "the 22 Graduate Engineers who are continuing as Junior Engineer in OLIC Ltd., may be accommodated against the vacant post of Assistant Engineers (Civil)" which was

communicated by Letter No. OLIC (OJC) 24/94-

21777/RD, dated 30.09.1994 and their seniority with their counterpart has been solved automatically.

2.3. Some Agricultural Engineers (Degree holders) who entered in the OLIC as Junior Engineer (Civil) have been appointed on regular basis and they were allowed to function as Assistant Engineers (Civil) subsequently. In O.J.C. No.6937 of 1994, challenge was laid as regards conditions of service and promotional avenue of Diploma Holders in Civil Engineering vis-à-vis Agricultural Engineering Graduates with a prayer to quash said decision of the Government in Letter dated 30.09.1994. The Agricultural Engineers who were continuing as Junior Engineers (Civil) had approached this Court in OJC No.13251 of 2001 praying for implementation of the decision in Letter dated 30.09.1994. OJC No.13251 of 2001 came to be disposed of by Order dated 14.12.2009 with a direction that the OLIC shall de novo reconsider the cases of the petitioners who were Graduate Engineers and intervenors who were Diploma Holder (Junior Engineers) in the light of the decision in Letter dated 30.09.1994. On 29.03.2010 in the proceeding of 157th Board Meeting of OLIC the Order dated 14.12.2009 was implemented.

2.4. On 10.08.2011 the Managing Director, OLIC issued order allowing AMIE Degree Engineers working as ad hoc or in-Charge Assistant Engineers (Civil) as regular Assistant Engineers (Civil) and AMIE Degree Engineers (Electrical) working as Junior Engineer (Electrical) to work as Assistant Engineers (Electrical) as per decision of the Board of Directors in 162nd Meeting. However, Chairman, OLIC by Order dated 19.08.2011 directed for keeping said Order dated 10.08.2011 in abeyance for the cases of all the writ petitions were not considered. Nonetheless, by that time the Order dated 10.08.2011 had already been implemented and all the persons joined in their respective places of posting being relieved and handing over of charges in the previous post. Thus, Order dated 10.08.2011 had attained finality.

2.5. Six Graduate Engineers, appointed as regular Assistant Engineers (Civil) & (Electrical), being aggrieved by Order dated 19.08.2011 of the Managing Director, OLIC challenged it before this Court in W.P.(C) Nos.24439 of 2011, 24440 of 2011, 22813 of 2011, 23360 of 2011, 22887 of 2011 & 22888 of 2011. The operation of said order dated 19.08.2011 was stayed vide Order dated 12.09.2011, thereby the orders issued by the Managing Director, OLIC, dated 10.08.2011 and dated 12.08.2011 attained its finality and the said writ petitions were pending before this Court.

2.6. On 15.03.2012 the OLIC Ltd., even though implemented the order dated 14.12.2009 in OJC No.13251 of 2001 and orders passed on 07.01.2010 in cases of six writ petitioners but did not implement the other Graduate Engineers who were functioning as Junior Engineers and filed different Review Petitions vide RVWPET Nos.102, 103, 104,105, 107, 111, 112, 113, 114, 115, 117, 118,119 and 120 of 2010 and RVWPET No.58 of 2012 which were disposed of by this Hon'ble Court vide Order dated 15.03.2012 holding that B. Tech. obtained by Open Distance Learning ("ODL") mode of the Junior Engineers during their in-service is a valid degree in the eye of law and as per O.S.E. Rules,1941, thereby the claim of the Corporation has been dismissed.

2.7. On 04.05.2012 the OLIC filed different SLP (Civil) Nos.19807-08 of 2012, 19828-29 of 2012, 19830-31 of 2012, 19814-15 of 2012 (Satyanarayana Rana) and other similar SLP (Civil) before the Hon'ble Supreme Court of India and only confined their issue regarding validity of Degree obtained on ODL mode from Deemed Universities on the plea that the said Degrees are not valid without approval of the AICTE. On 15.05.2012 the Government of Odisha in Department of Water Resources with approval of the Law Department directed the MD, OLIC Ltd., for compliance of the different orders passed by this Court at the instance of in-service Junior

Engineers with Graduate Qualifications subject to challenge and final outcome of SLP (Civil) to be filed before the Hon'ble Supreme Court.

2.8. On 16.05.2012, the Managing Director, OLIC, issued Officer Order No.5981, dated 16.05.2012 in appointing the in-service Degree Holder Junior Engineers as Assistant Engineers on ad hoc basis including those six persons who were earlier appointed on regular basis and obtained stay orders from this Court against their regularization which was kept in abeyance, but all had joined in the respective place of posting and were continuing as ad hoc Assistant Engineers (Civil), (Electrical) & (Mechanical).

2.9. On 21.05.2012 the Petitioner's case has been rejected by the Managing Director, OLIC vide Letter No.6151 dated 21.05.2012 (Annexure-1).

2.10. On 06.07.2012, the petitioner filed the present writ petition challenging the decision of the Managing Director, OLIC, dated 21.05.2012 under Annexure-1.

3. Having thus chequered career, this matter is listed today for hearing on admission.

4. Sri Umesh Chandra Mohanty, learned Advocate appeared for the petitioner and Sri Santosh Kumar Brahma, learned Additional Standing Counsel appeared

for the opposite party No.1. Though Sri Satyabrata Mohanty-I and Tapan Ku. Kamila, Advocates filed Vakalatnama being executed by the OLIC, at the time of call none appeared for opposite party Nos.2 to 5-OLIC.

4.1. Since this matter is of the year 2012 and on consent of appearing counsel for both sides, this matter is disposed of.

5. Sri Umesh Chandra Mohanty, learned Advocate for the petitioner would submit that the facts narrated above are not in dispute, but he pressed into service certain further events.

5.1. On 29.12.2012, during pendency of the all different Civil Appeals before the Hon'ble Supreme Court, the OSE Rules, 1941 adopted by the OLIC, has been repealed by the Department of Water Resources and the Odisha Engineering Services (Methods of Recruitment and Conditions of Service) Rules, 2012 with saving clause to save actions taken under the old Rules has been promulgated.

5.2. On 20.11.2015, the OLIC filed additional affidavit along with documents and reiterated its stand that in absence of declaration regarding validity of Degree by AICTE the B. Tech. Degree acquired by the petitioner from JRN Vidyapitha, Rajasthan is not valid and the issue shall be

governed by the decision of the Hon'ble Supreme Court in the SLP (Civil) preferred by OLIC Ltd.

5.3. On 03.11.2017, the Hon'ble Supreme Court of India heard all SLP (Civil) [converted to Civil Appeals No.17869-17870 of 2017 along with other batch of cases including the present intervener's case as Civil Appeal No.17881-17882 of 2017] and disposed of vide judgement dated 03.11.2017 [reported as OLIC Ltd., Vrs. Rabi Sankar Patra & Others, (2018) 1 SCC 468 vide paragraphs 3, 4, 5, 27, 57, 58, 66 and 68].

5.4. Subsequently the said judgment was also clarified in the judgment reported in (2018) 2 SCC 298 vide paragraph 25, 26 and further clarified in the judgment reported in (2019) 8 SCC 280 at paragraphs 14, 15 & 16.

5.5. On 03.06.2018, the Petitioner appeared in the special Joint Examination held by the AICTE and the UGC as per the direction of the Hon'ble Supreme Court dated 03.11.2017 and declared as successful in his first attempt and his degree acquired in the year, 2009 has been stated to be valid and accordingly, he made representation to the OLIC along with the fresh validated certificate issued by the AICTE and the UGC jointly for reconsideration.

5.6. On 26.04.2019, the Member Secretary, AICTE issued instructions to the Chief Secretary of all State Governments, Union Territories and Vice-Chancellors of Technical Universities for implementation of judgment dated 03.11.2017 passed by the Hon'ble Supreme Court in Civil Appeal No.17869-17870 of 2017 along with other batch of cases.

5.7. On 06.01.2019, the Petitioner filed I.A. No.631 of 2019 before this Court along with the extract of judgment of the Hon'ble Supreme Court and B. Tech. Certificate jointly issued by the AICTE and the UGC restoring the B. Tech. Degree acquired in the year, 2009 as valid and prayed for issuance of appropriate direction of the Corporation to extend similar benefit on promotion and appointment from the grade of Junior Engineer to the grade of Assistant Engineer with effect from 10.08.2011/ 16.05.2012 as per the direction of the Hon'ble Supreme Court as observed in the Judgment reported in (2018) 1 SCC 468 (OLIC Ltd., Vrs. Rabi Sankar Patra & Others) at paragraphs-3, 4, 5, 27, 57, 58, 66 & 68 and as clarified in (2018) 2 SCC 298, at paragraph 25 & 26 and further clarified in the judgment in (2019) 8 SCC 280 at paragraphs 14, 15 & 16.

5.8. With the above backdrop Sri Umesh Chandra Mohanty, continued to submit that the opposite party Nos.2 to 5-

OLIC should have granted the benefit as extended to similarly situated employees. Having ignored the case of the petitioner, the functionaries of the OLIC have violated the provisions of Articles 14 and 16 of the Constitution of India. Therefore, he submitted that Office Order dated 21.05.2012 (Annexure-1) is untenable in the eye of law.

5.9. Amplifying further, he placed reliance on the decision rendered by a Coordinate Bench of this Court in the case of Satyanarayan Rana Vrs. Union of India and others, W.P.(C) No.14253 of 2023 vide judgment dated 26.04.2024 to urge that the case of similarly situated persons has been considered by this Court and the issue involved in the present case petitioner is squarely covered.

6. Sri Santosh Kumar Brahma, learned Additional Standing Counsel appearing for the Water Resources Department (opposite party No.1) conceded the position as obtained in Satyanarayan Rana Vrs. Union of India and others, W.P.(C) No.14253 of 2023 vide judgment dated 26.04.2024 of this Court and Rabi Sankar Patra (supra).

7. This Court having faced with such situation has taken note of the following Order dated 06.07.2012 on perusal of record:

"W.P.(C) No.10097 of 2012 & M.C. No.8761 of 2012

Heard.

Let a copy of the brief be served on the learned counsel for the State appearing for O.P.1.

Let notice go to O.Ps.2 to 4 by special messanger, cost of which shall be assessed and deposit made by 9th July, 2012. Accept one set of special messanger cost.

Let notice to O.P.5 by registered Post with A.D. Requisites shall be filed by 9th July, 2012. Accept one set of process fee.

Put up this matter on 6th August, 2012.

As an interim measure, we direct that one post of Assistant Engineer (Civil) shall not be filled up without leave of this Court till next date."Having gone through the judgment dated 26.04.2024 passed in W.P.(C) No.14253 of 2023 (Satyanarayan Rana Vrs. Union of India), it is learnt that the issue of status of B. Tech. Degree in Civil Engineering Branch obtained through Open Distance Learning Mode from the JRN Bidyapitha, Rajasthan (Deemed University) has been considered by this Court. Relevant portions of the said judgment read as follows:

"24. The Counter affidavit further reveals that on 31.08.2018 the registration for the second examination started. After being extended on two occasions, the same was closed on 21.10.2018 (midnight). Finally, the examination for the second test was held on 10th & 16th December, 2018 for PG/ UG students respectively at selected centers

followed by practical examination. The result of such second phase test was declared in February, 2019. All successful candidates were provided online mark list as well as certificates. Further, a list of successful candidates was posted on AICTE website vide letter dated 26.04.2019 and the same was communicated to all concerned parties. It has further been specifically stated in the counter of Opposite Party No.3 that the petitioner chose not to appear in the first such degree validation examination held during June, 2018, but appeared in the second examination held in December, 2018. Although, the Petitioner has been issued with a certificate validating his degree in civil engineering.

25. In the ultimate analysis of the factual background as well as the legal position involved in the present writ application, this Court is of the considered view that there is little area left for adjudication. The dispute in the present writ application is basically with regard to interpretation of application of the judgment of the Hon'ble Supreme Court. Keeping in view the directions given by the Hon'ble Supreme Court in both the judgments as well as the factual position, as emerged from the counter affidavit of the AICTE (Opposite Party No.3), this Court is also of the considered view that the Opposite Parties are required to consider the case of the Petitioner keeping in view the directions of the Hon'ble Supreme Court and by taking into consideration the results of the special test conducted by the AICTE pursuant to the direction of the Hon'ble Supreme Court. Further, this Court would like to reiterate the directions of the Hon'ble Supreme Court that the candidates who have

cleared the examination in the first attempt, their degrees will have revalidated and they shall be allowed to retain all service benefits including their positions. Similarly, the candidates who could not appear in the first test or have failed in the first test and consequentially, appeared in the second test conducted by AICTE in December, 2018 and the result of which was published in February, 2019, in the event such candidates have cleared the test as per the result published by the AICTE in its official website, their degree shall be revalidated, however, they shall not be entitled to the benefit of the exception as carved out by the Hon'ble Supreme Court in para-26 of the second judgment. Accordingly, the Opposite Parties are directed to re- examine the case of the Petitioner and similarly situated other persons in light of the aforesaid analysis and strictly in terms of the first judgment of the Hon'ble Supreme Court and accordingly they shall take a final decision within a period of three months from the date of communication of a certified copy of this judgment by the Petitioner. It is, however, further made clear that the Petitioner shall be entitled to such relief as has been prescribed in the first judgment of the Hon'ble Supreme Court reported in (2018) 1 SCC 468 as per para-66.6.

26. With the aforesaid observations/ directions the writ application stands disposed of."

7.2. It is brought to the notice of this Court by Mr. Umesh Chandra Mohanty, learned counsel for the petitioner that the direction of this Court in the aforesaid judgment

has been given effect to which is emanating from the Letter dated 20.12.2024, contents of such letter reads as follows:

"Government of Odisha Department of Water Resources *** No.WR-LI-CASEOP-0021-2024-- 35022/WR Bhubaneswar dated 20.12.2024

From Smt. Lina Kumari Xess, OAS (SAG) Additional Secretary to Government.

To The Managing Director Odisha Lift Irrigation Corporation Ltd., Bhubaneswar.

Sub.: Clarification/direction for compliance of the order dated 26.04.2024 passed by the Hon'ble High Court in W.P.(C) No.14253/2023 filed by Satyanarayan Rana -vrs- Union of India & others, No.29890/2023 filed by Sudarsan Sadangi -vrs- Union of India & others & No.29888/2023 filed by Nimai Charan Behera -vrs- Union of India & others in terms of the judgment of the Hon'ble Supreme Court reported in 2018 (1) SCC 468.

Sir,

In inviting reference to your office letter No.5389/OLIC dtd.21.08.2024 on the subject cited above, I am directed to say that the Hon'ble High Court vide order dtd.26.04.2024 passed in W.P.(C) No.14253/2024 have made categorical observation

(Para-22) to the effect that the candidates who took admission in the Academic Sessions 2001-2005 (as in case of the petitioners) are to be given two chances to revalidate their degrees and would be entitled to get the service benefits as per the judgment dtd.03.11.2017 reported in (2018) 1 SCC

468. As per Para-66.6 of the judgment dtd.03.11.2017 of the Hon'ble Apex Court reported in (2018) 1 SCC 468, if the students clear the test within the stipulated time, all the advantages/ benefits shall be restored to them and their degrees will stand revived fully.

After careful examination and in consultation with Law department in the matter, the following clarification/instructions are hereby communicated so as to comply the order dated 26.04.2024 passed by the Hon'ble High Court in the aforesaid writ petitions:

1) the B.Tech Degrees obtained by the petitioners during the year 2007, 2008 and 2009 via ODL mode from the J.R.N. Bidyapitha, Rajasthan (Deemed University) shall be considered as a valid degree from the date of acquiring the degree certificate in terms of the para-66.6 of the judgment of the Hon'ble Supreme Court reported in 2018 (1) SCC 468 and clarification issued by the AICTE vide Circular dated 19.09.2022 and dated 09.06.2020.

2) the order No.2657 dtd.22.03.2018 issued by the OLIC Ltd. for reversion of the petitioners from the post of Assistant Engineer to Junior Engineer shall be revoked.

3) the petitioners shall be entitled to all financial/ service benefits attached to the post of Assistant Engineer with effect from 16.05.2012 as the degree certificate stand valid from the date of acquiring such degree.

It is, therefore, requested to take appropriate action in the matter accordingly for early compliance of the Orders of the Hon'ble High Court of Orissa to avlid further legal complicacy.

This may be treated as Most Urgent.

Yours faithfully, Sd/-

Additional Secretary to Government"

7.3. Attention of this Court is drawn by learned counsel for the petitioner that Managing Director of Odisha Lift Irrigation Corporation Limited has passed the following order consequent upon aforesaid communication of the Water Resources Department:

"Order No.XEA-23/2024-- 437/OLIC Date-15/1/25

In pursuance to Order dated 26.04.2024 passed by the Hon'ble High Court of Orissa in W.P.(C) No.14253/2023 filed by Sri Satyanarayan Rana, W.P.(C) No.29888/2023 filed by Nimai Charan Behera & W.P.(C) No.29890/2023 filed by Sudarsan Sadangi & followed with the Letter No.35022 dtd.20.12.2024 of Additional Secretary to Govt. DoWR, this office Order No.2657 dated 22.03.2018 is hereby revoked.

2. As such the petitioners are hereby allowed all financial/Service benefits attached to the post of Assistant Engineer with effect from 16.05.2012.

Sd./-

Managing Director

7.4. Sri Santosh Kumar Brahma, learned Additional Standing Counsel appearing for the opposite party No.1 has not disputed the aforesaid position as referred to, relied on and argued by Sri Umesh Chandra Mohanty, learned counsel for the petitioner.

8. Faced with the aforesaid situation, in view of judgment of the Hon'ble Supreme Court of India in the case of OLIC Vrs. Rabindra Shankar Patro, (2018) 1 SCC 468 and subsequent clarifications as referred to hitherto, the impugned Order dated 21.05.2012 (Annexure-1) and refusal of consideration of representation of the petitioner for promotion to the post of Assistant Engineer for having acquired B. Tech. Degree in ODL Mode cannot withstand judicial scrutiny. Therefore, such Order is liable to be set aside.

8.1. It is also noteworthy that the opposite parties are now required to consider the case of the petitioner in the light of judgment dated 26.04.2024 of this Court in the case of Satyanarayan Rana (supra) keeping in view that the direction contained therein has been implemented by granting all financial and service benefits attached to the

post of Assistant Engineer as is made available to other similarly situated employees vide Department of Water Resources Letter No.35022-- WR-LI-CASEOP-0021- 2024/WR, dated 20.12.2024 read with Order No.437-- XEA-23/2024/OLIC, dated 15.01.2025 issued by Managing Director of the Odisha Lift Irrigation Corporation Ltd.

8.2. It is needless to observe that the opposite parties shall keep in view the interim Order dated 06.07.2012 passed by this Court in the present writ petition directing not to fill up one post of Assistant Engineer (Civil) without leave of this Court.

8.3. Since the petitioner has been waiting for relief for more than decade, it is felt expedient to direct the opposite parties to take pragmatic approach by completing the entire exercise within a period of three months from the date of receipt of copy of this order to be communicated by the petitioner to all the opposite parties.

9. In the result, with the aforesaid observations and directions, the writ petition stands disposed of, but in the circumstances there shall be no order as to costs.

Signed by: ASWINI KUMAR SETHY                                      (MURAHARI SRI RAMAN)
Designation: Personal Assistant
(Secretary-in-Charge)
Reason: Authentication                                                   JUDGE
Location: ORISSA HIGH COURT,
CUTTACK
Date: 25-Mar-2025 10:48:56


                           High Court of Orissa, Cuttack
                           The 24th March, 2025/Aswini