B.R. Sarangi,J. -
(1.) Subash Chandra Parija, a Senior Professor and Head of Department of Pharmacology & Toxicology, College of Veterinary Science and Animal Husbandry, Odisha University of Agriculture and Technology, Bhubaneswar, is the petitioner in both the above noted writ petitions.
By means of W.P.(C) No. 7084 of 2019, he seeks to quash the office order dated 07.03.2019 in Annexure-6; by which, in pursuance of letter dated 06.03.2019 of the Special Secretary to Chancellor, Raj Bhavan, Bhubaneswar, the opposite party no.5- Prof (Dr.) Lakshman Kumar Babu, Professor and Head, Department of Livestock Production and Management College of Veterinary Science and Animal Husbandry, Odisha University of Agriculture and Technology, Bhubaneswar was directed to remain in-charge of interim Dean of College of Veterinary Science and Animal Husbandry, Odisha University of Agriculture and Technology, Bhubaneswar in place of Dr. Pravat Kumar Roul; and consequential letter dated 08.03.2019 under Annexure-7, by which the opposite party no.5 assumed the charge of interim Dean of the College in question. Whereas, by way of W.P.(C) No. 10625 of 2019, he seeks to quash Annexure-8, the circular dated 11.06.2019 issued by the Orissa University of Agriculture & Technology inviting applications from amongst the Professors and persons of equivalent rank of the University for the post of Dean, Faculty of Veterinary Science & Animal Husbandry, Odisha University of Agriculture and Technology, Bhubaneswar, as per which the candidates should furnish, holding administrative posts with the supporting documents. Since both the writ petitions are analogous to each other, they are heard together and disposed of by this common judgment which will govern in both the cases.
(2.) The factual matrix, which lead to filing of above mentioned two writ petitions, in a nutshell is that the petitioner, having cleared Master Degree in Veterinary Science in Pharmacology and Toxicology from Indian Veterinary Research Institute, ICAR, Bareilly, Uttar Pradesh on 19.12.1989, was appointed, by following due procedure of selection, as Lecturer in the College of Veterinary Science and Animal Husbandry, Odisha University of Agriculture and Technology (OUAT), Bhubaneswar, vide office order dated 22.03.1990, pursuant to which he joined on 23.03.1990. He continued as such till 30.12.1999. Thereafter, he got promotion to the post of Associate Professor and joined on 31.12.1999. Subsequently, on receiving foreign fellowship and research exposure, he went for higher study for the period 2001-2003. After completion of such study, he joined in the OUAT and resumed his duty and continued till 30.12.2007. Thereafter, on 31.12.2007, he got promotion to the post of Professor on Career Advancement Scheme (CAS), as he had completed 8 years as Associate Professor. Since then, he has been remaining in charge of Head of Department of Pharmacology & Toxicology, College of Veterinary Science and Animal Husbandry of OUAT, Bhubaneswar.
2.1 The petitioner has got to his credit research and teaching experience of 29 years and three months from 23.03.1990. As Professor, he has acquired experience of 11 years and 6 months w.e.f. 31.12.2007. He has also got administrative experience of 11 years and 6 months as Head of Department from 31.12.2007. As such, he has rendered three numbers of funded projects, three numbers of students have undergone Ph.D under his guidance as major advisor, he has also guided 14 numbers of PG students as major advisor and he has 31 numbers of publications with international impact factor. The cumulative effect of above bio-data would indicate that the petitioner had better career, as he got research publications, which had been published in international journals.
2.2. On 04.08.2018, the Principal Secretary to Chancellor issued a letter to the Vice Chancellor, OUAT, Bhubaneswar stating the requisite qualification, career records, international publications and administrative proficiency for the appointment of Dean of the College of Veterinary Science and Animal Husbandry. For appointment of interim Dean in the College of Veterinary Science and Animal Husbandry, OUAT, Bhubaneswar, the Registrar forwarded a list of Professors and Professors designated under CAS as per seniority, where the name of the petitioner found place at serial no.3, whereas the name of opposite party no.5 found place at serial no.8. As the incumbent against serial no.1 of the said list was going to retire in next six months and the incumbent against serial no.2 had already been superannuated since 31.01.2019, the petitioner, whose name was found place at serial no.3, being the senior most person, should have been extended with the benefit of appointment as interim Dean or regular Dean, instead of appointing the opposite party no.5 as interim Dean w.e.f. 07.03.2019 vide Annexure-6 and he assumed the charge of interim Dean w.e.f. 07.03.2019 vide notification issued by himself on 08.03.2019 under Annexure-7.
2.3 When the petitioner enquired into, it came to light that as he had remained unauthorized absent for the period from 09.03.2001 to 16.02.2003, a disciplinary proceeding was initiated against him on the allegation of gross misconduct, willful absent from duty and disobedience of the order, and that in the said proceeding, vide order dated 28.05.2003, it was directed that the period of unauthorized absent from 09.03.2001 to 16.02.2003 would be treated as leave without pay and would not be counted towards his pensionary benefit nor towards seniority. But, however, subsequently, vide resolution dated 26.11.2005 of the Board of Management, OUAT, the absent period was treated as leave as due and admissible and he was warned for having remained absent from the University without prior permission, as has been recorded in his service book on 29.12.2005. Therefore, even though he was senior to opposite party no.5, because of the punishment imposed on him, he was neither given the post of interim Dean nor steps were taken for his appointment as regular Dean. However, subsequently, he was promoted to the post of Professor on 31.12.2007 on CAS, after remaining eight years as Associate Professor w.e.f. 31.12.1999.
2.4 The petitioner, being aggrieved by the action taken by the University in appointing opposite party no.5 as interim Dean, pursuant to letter dated 07.03.2019 in Annexure-6, and consequential joining of opposite party no.5 on 08.03.2019 vide Annexure-7, had approached this Court by filing W.P.(C) No. 7084 of 2019. When the matter was subjudice before this Court for adjudication, a circular was issued on 11.06.2019 inviting applications from amongst the Professors and persons of equivalent rank of the University for the post of Dean, Faculty of Veterinary Science & Animal Husbandry, OUAT, Bhubaneswar specifying that the candidates should furnish, "holding of administrative post with the supporting documents" so as to consider them for the post of Dean, which has been impugned in W.P.(C) No. 10625 of 2019 as Annexure-8.
(3.) Mr. S.K. Nayak, learned Senior Counsel appearing along with Mr. D. Nayak, learned counsel for the petitioner contended that if the petitioner has got international fellowship and prosecuted his study to acquire higher qualification for the period from 09.03.2001 to 16.02.2003, the OUAT should not have initiated proceeding against him. In any case, even though the proceeding was initiated against the petitioner, in view of explanation offered by the Board of Management vide resolution dated 26.11.2005, the period of absence was treated as leave as due and admissible and he was warned for the absence from the University without prior permission, and subsequently, the petitioner was promoted to the post of Professor on CAS on 31.12.2007. Therefore, the so-called warning to the petitioner cannot be construed to be a punishment for him. More so, the petitioner pursued his research at Cardiff University, on being awarded with prestigious Welcome Trust Travelling Research Fellowship (United Kingdom) through international competition in the year 2001, which brings reputation to the University. Therefore, the period of so-called unauthorized absence, during which the petitioner had prosecuted his study, should not have been considered for issuance of warning. In any case, issuance of warning without any addendum for specific period without repetition is not at all construed as punishment under service rule.
It is further contended that for appointment of interim Dean though name of the petitioner was found place at Sl. No.3 and he was senior to opposite party no.5, his case has been ignored and the benefit has been given to opposite party no.5 to function as interim Dean, which is contrary to the provision of law. Thereby, in W.P.(C) No.7084 of 2019 he seeks to quash the order dated 07.03.2019 in Annexure-6 and consequential notification dated 08.03.2019 in Annexure-7, whereby opposite party no.5 assumed the charges of interim Dean.
It is further contended that to fill up the post of regular Dean, a circular was issued on 11.06.2019 in Annexure-8 to W.P.(C) No.10625 of 2019, wherein it was stipulated that the candidate should furnish, "holding administrative posts with the supporting documents" to be eligible for the post of Dean, Faculty of Veterinary Science and Animal Husbandry, which is contrary to the provisions of the Statute. As such, the Statute does not require one should have got administrative experience to continue in the post of Dean, Faculty of Veterinary Science and Animal Husbandry, OUAT, Bhubaneswar. Thereby, the authorities have acted with mala fide and in gross bias against the petitioner, and the entire endeavour has been made in putting the condition of furnishing "holding administrative posts with the supporting documents" in order to engage opposite party no.5 as regular Dean. Thereby, such action of the authorities is arbitrary, unreasonable and contrary to the provision of law. Therefore, the said circular dated 11.06.2019 under Annexure-8 cannot sustain in the eye of law.
More so, the essential requirements for the post of Dean have been provided under the Statute and if the petitioner otherwise satisfies such requirements, he should not have been debarred to be considered for appointment as Dean along with others. But, putting restriction with regard to administrative experience has caused prejudice to the petitioner. Thereby, such clause should be deleted from the circular.
It is further contended that the statutory rules can be supplemented by circular, but cannot be supplanted. It is further contended that after exoneration from punishment by issuing warning and in view of subsequent promotion, the warning should be treated as condoned and subsequently cannot be considered as a ground for any disadvantage to the employee. If a case of bias and mala fide can be proved, then the order so passed cannot sustain in the eye of law.
To substantiate his contentions, he has relied upon Lal Audhraj Singh Lal Rampratap Singh v. State of Madhya Pradesh , 1967 2 LLJ 531; Badrinath v. Govt. of Tamil Nadu , 2000 AIR(SC) 3243 : 2008 SCC 395; and Sarva Uttar Pradesh Gramin Bank v. Manoj Kumar Chak , 2013 6 SCC 287.