Utkal University must treat contractual lecturers as regular from date of joining and pay arrears with interest

A single-judge bench of Justice Biswanath Rath of the Orissa High Court heard a writ petition under Articles 226 and 227 challenging the contractual terms of appointment and seeking regularisation and service benefits for lecturers engaged in the University Department of Pharmaceutical Sciences (UDPS), Utkal University. The petitioners contested that the recruitment advertisement promised regular faculty positions with pay "as per AICTE norms" but the University issued contractual appointment orders and later regularised pay only notionally from 01.09.2008.

The Court allowed the writ petition and directed the University to treat the petitioners as regular employees from the date of their initial joining, 05.12.2003. The Court held that the advertisement and subsequent government sanction demonstrated that the posts were sanctioned as regular and pensionary; therefore the appointees could not be treated as contractual for purpose of denying consequential benefits. The Court directed that service books be opened with effect from 05.12.2003, confirmed admission of the petitioners to the CPF scheme (in place of GPF), and required the University to work out revision of pay (including benefit of pay commission revisions) and release arrears with interest. The Court observed that administrative action could not defeat the sanctioned nature of the posts and their pensionary character. The Court, in its reasoning, observed: "Reading the advertisement, it becomes clear that applicants therein were called for the faculty position in Lecturers in different departments ... When the advertisement depicts calling for applications for faculty position with UDPS there is absolutely no indication of filling up of posts under contractual basis. ... This Court here finds for petitioners already regularized since 05.12.2003 i.e. the date of their joining, both of them should be deemed to be entitled to regular scale with effect from 05.12.2003 till 31.08.2008." The Court also noted that the Government letter of 04.10.2003 showed the five lecturer posts were "sanctioned regular posts and are pensionery concurred by F.D.", and stated: "the post held by the petitioners not only regular post but the persons holding such post are also entitled to pension and cannot [be] discriminated otherwise."

Background The petitioners were selected through an advertisement for UDPS faculty in November 2003 which specified qualifications and salary "As per AICTE norms" and fixed an interview. Despite selection and issue of appointment letters dated 05.12.2003, the University engaged them on a consolidated remuneration of Rs.10,000 per month on a "purely contractual" basis. Subsequent communications showed that the posts were sanctioned as regular and pensionary by Government (Dept. of Higher Education letter dated 04.10.2003 with FD concurrence). In 2009 the University issued an office order allowing regular scales of pay with effect from 01.09.2008 but stating that services would be regularized "from the date of joining the post in the consolidated salary" and attaching other conditions (including an undertaking not to claim arrears). Petitioners sought declaration of regularisation from date of joining, opening of service books from that date, entitlement to provident/pensionary benefits, revision of pay (including 6th/7th Pay Commission benefits) and arrears. The High Court found the advertisement, appointment orders and government sanction taken together established the posts as regular and pensionary and that the University could not re-characterise them to deny benefits. The Court directed (i) declaration that petitioners are regularised from 05.12.2003; (ii) opening of service books from that date; (iii) confirmation of CPF membership and attendant benefits; (iv) recognition of entitlement to pension; (v) computation of pay revision benefits including consequences of pay commission recommendations and payment of arrears with interest at least @5% — the University was given four weeks to work out benefits and a further two weeks to release arrears with interest. The Court also observed that petitioners, being regular employees, should be considered for promotion under the Career Advancement Scheme if not already considered. The writ petition was allowed and disposed in terms of the directions given; no costs were imposed. The judgment applied and followed the directions made in W.P.(C). No.16721 of 2010, which involved identical factual matrix.

Case Details: Case No.: W.P.(C). Nos. 17597 of 2010 Case Title: Dr. Ranjit Mohapatra v. Utkal University & Ors. Appearances: For the Petitioner(s): Mr. U.K. Samal, C.D. Sahoo, M.R. Mohapatra, S.P. Patra & S. Naik (advocates) For the Respondent(s): Mr. G.P. Mohanty & Mrs. M.S. Mohanty (advocates)

Judge: Justice Biswanath Rath Date of Judgment: 01.02.2023