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Judgment
Dr. D.P.Choudhury, J.
Challenge has been made to the inaction of the opposite parties for not releasing the differential amount of unpaid arrear salary from May, 2011 till
date.
The factual matrix leading to the writ petition is that the petitioner has joined as a Lecturer in Psychology in Ravenshaw University (hereinafter
called as ‘the University’) on 10.5.2011 in pursuance of the advertisement dated 23.2.2011 for appointment and recruitment of lecturers. The
University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and
others Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (hereinafter called as ‘the Regulations, 2010’) is
applicable to every university established or incorporated by or under a Central Act, Provincial Act or a State Act. So, according to such Regulations,
2010, the contract teachers shall not be paid less than a monthly gross salary drawn by a regularly appointed Assistant Professor.
Be it stated that the petitioner although was discharging her duty but she is receiving the salary much less than the gross salary of a regularly
appointed Assistant Professor. It is stated that the petitioner has been paid monthly consolidated pay of Rs.32,416/- by the University since the date of
her joining although the monthly gross salary would be much more as an Assistant Professor. So, the petitioner approached this Court for payment of
the differential amount of unpaid salary as arrear from May, 2011 till date.
SUBMISSIONS
Mr.Mishra, learned counsel for the petitioner submitted that the petitioner has been appointed in accordance with the offer of appointment dated
27.04.2011 vide Annexure-1. According to him, it has been clearly mentioned in the offer of appointment that the payment would be made as per the
State Government’s Revised scale of Pay for University Teachers (UGC Scale of pay) Rules, 2010 (in short ‘the Rules, 2010’). In support
of his submissions, he refers to Clause 13.1 of Regulations, 2010, which is placed in the following manner:
“13.1:- The teachers should be appointed on contract basis only when it is absolutely necessary and when the student-teacher ratio does not satisfy
the laid down norms. In any case, the number of such appointments should not exceed 10% of the total number of faculty positions in a
College/University. The qualifications and selection procedure for appointing them should be the same as those applicable to a regularly appointed
teacher. The fixed emoluments paid to such contract teachers should not be less than the monthly gross salary of a regularly appointed Assistant
Professor. Such appointments should not be made initially for more than one academic session, and the performance of any such entrant teacher
should be reviewed for academic performance before reappointing her/him on contract basis for another session.â€
Mr.Mishra, leaned counsel for the petitioner submitted that the petitioner is performing her duty as performed by the other regular teachers of the
University but her salary is not being paid in accordance with the Regulations, 2010. He drew attention of the Court to the arrear salary chart vide
Annexure-4 and submitted that for the year 2011, 2012, 2013, 2014, 2015 and 2016, there is difference of salary of Rs.43,632/-, Rs.97,200/-,
Rs.1,39,968/-, Rs.1,87,920/-, Rs.2,20,320/- and Rs.2,03,040/- respectively.
Since the arrear salary is being paid to the regular teachers although doing the equal work, the right of the petitioner is violated having not received
equal salary amount.
Mr.Mishra, learned counsel for the petitioner, relied on the decision in the case of Central Inland Water Transport Corporation Limited and another
â€"V- Brojo Nath Ganguly and another; AIR 1986 SC 1571 where Their Lordships have observed that there cannot be unequal treatments to the
equals. Relying on the decision in the case of State of Punjab and others â€"V- Jagjit Singh and others; (2017) 1 SCC 148, he submitted that equal pay
for equal work is a constitutional mandate. He also relied on the decision in the case of M.R. Gupta â€"V- Union of India and others; AIR 1996 SC
669 and submitted that there is no estoppels against law so far as the question of limitation is concerned. Accordingly, he submitted that the differential
arrear salary be paid to the petitioner.
Mr.M.R.Mohanty, learned Senior Advocate for the University submitted that the petitioner was appointed for one year as per the offer of
appointment vide Annexure-1 against a regular vacancy. So, the petitioner’s appointment is being renewed in every year. After the year 2011, the
appointment of the petitioner has been made in every year for which the claim of the differential arrear salary for 2011 and onwards being barred by
limitation in the year 2016 cannot be paid. 9. Mr.Mohanty, learned Senior Advocate further submitted that in every year, the payment has been made
and the petitioner has not complained at all about less payment. Since there is no arrear left, the present petition is not maintainable. On the other hand,
the petitioner has no locus standi to file the present writ petition. He drew the attention of the Court to Annexure-A/2 series. The Orissa Revised
Scales of Pay for University Teachers (U.G.C. Scale of Pay) Rules, 2010 (hereinafter called as ‘the Rules, 2010’) being referred by the
petitioner shows that the said rule shall not be applied to the teachers engaged by the University on contract basis. So, the petitioner cannot avail the
benefit out of such Gazette Notification dated 15.2.2010 being a contract teacher.
Mr.Mohanty, learned Senior Advocate for the University further submitted that the petitioner is being paid the salary as per the Resolution dated
14.12.2009 made by the Government of Orissa in the Department of Higher Education whereunder the State Government extended the UGC pay
scale to the college teachers and University teachers with effect from 1.1.1986 and subsequently revised scales of pay with effect from 1.1.2006.
Under that scale, the petitioner is entitled to revised scale of Rs.15,600 + Rs.6,000/- as Academic Grade Pay. Since the appointment of the petitioner
is made in every year and such pay being the basic pay of regular teacher, is paid with required DA as available in 2011. So, there is no anomaly in
the salary as claimed by the petitioner. If the petitioner has got any claim of arrear salary in spite of all the arrears being cleared, she can approach the
Civil Court by filing a properly constituted money suit to claim the arrear amount.
In support of submissions, Mr.Mohanty, learned Senior Advocate for the University relied on the decisions in the case of Managing Committee of
the Kelikadamba High School and others â€"V- State of Orissa and others; ILR (1979) 1 CUT 504 and Secretary, State of Karnataka and others
â€"V- Umadevi and others; AIR 2006 SC 1806.
POINT FOR CONSIDERATION The main points for consideration are as follows: “(I) Whether the petitioner is entitled to arrear salary for
the period from May, 2011 till date; and
(II) Whether the writ petition filed by the petitioner is maintainable.â€
DISCUSSIONS It is admitted fact that the petitioner was appointed as contract Lecturer in Psychology in the University for a period of one year
on payment of consolidated amount as prescribed in Annexure-1. It is not in dispute that the petitioner has been continuing as such from year to year
till the date of filing of this writ petition. It is also admitted fact that the petitioner has already received the remuneration for all the years but claims to
be same fall short of the pay of an Assistant Professor appointed under UGC.
The offer of appointment (Annexur-1) shows that the same was issued on 27.04.2011 by the office of the Vice-Chancellor of the University with
the terms and conditions that she would be appointed for one year from the date of her joining with a consolidated pay which will be determined with
reference to Rules, 2010. It is also revealed from the offer of appointment that the appointment was made against a sanctioned post and her job is
contractual in nature and the same can be terminated with one month notice given by either side in writing.
The opposite parties no.2-University, in its counter affidavit, has categorically stated that in accordance with the Resolution dated 14.12.2009 made
by the Higher Education Department of Government of Orissa read with Rules, 2010, the pay of the petitioner was fixed up. But, the learned counsel
for the petitioner submitted that the petitioner was offered the appointment on the basis of Regulations, 2010. In support of his contention, he has filed
the copy of the Regulations, 2010 vide Annexure-3 to the writ petition.
Clause 13.1 of the Regulations, 2010 specifically enshrines that the fixed emoluments paid to teachers appointed on contract basis should not be
less than the monthly gross salary of a regularly appointed Assistant Professor. But Clause 1.2 of the Regulations, 2010 says that they shall apply to
every University established or incorporated by or under a Central Act, Provincial Act or a State Act, every institution including a constitutent or an
affiliated College recognized by the Commission, in consultation with the University concerned under Clause (f) of Section 2 of University Grants
Commission Act, 1956 and every institution deemed to be a University under Section 3 of the said Act. Not only this but also Clause 12.0 of the
Regulations, 2010 clearly states that the teaching posts in Universities should be Professor, Associate Professor and Assistant Professor but the same
do not at all speak about the appointment of Lecturer. On conjoint reading of the aforesaid clauses, it is clear that the Regulations, 2010 would apply to
the appointment of the Assistant Professor on contractual basis in the University/College. In the present case, the appointment of the petitioner is of a
Lecturer in Psychology on contract basis.
Rule-2(i) of the Rules, 2010 published in the Gazette Notification dated 15.02.2010 issued by the learned Chancellor enshrines that the said Rule is
not applicable to teachers engaged by the University on contract basis.
From the analogy of the aforesaid circulars and after going through the offer of appointment vide Annexure-1, it is made clear that the
appointment of the petitioner has been made under the Resolution of the Higher Education Department dated 14.12.2009. Clauses 4.3, 5.1 and 5.2 of
the said Resolution are placed in the following manner:
“4.3.Coverage:- The revised scales of pay and other related service benefits shall be applicable to all the full time teachers working in the
Universities, i.e, the Utkal University, the Berhampur University, the Sambalpur University, the Fakir Mohan University, Balasore, the North Orissa
University, Baripada, the Ravenshaw University, Cuttack, the Shree Jagannath Sanskrit University, Puri, Government Colleges and Non-Government
Aided Colleges under High Education Department who were in receipt of UGC scales of pay as on 01.01.2006.
5.1. Scales of Pay:
(i) There shall be two pay bands of Rs.15,600-Rs.39,100/- and Rs.37,400/- - Rs.67,000/- with appropriate “Academic Grade Pay (AGP in short)â€
(ii) No one shall be eligible to be appointed, promoted or designated as Professor unless he/she possesses the Ph.D and satisfied other academic
conditions as laid down by the University Grants Commission from time to time. This shall, however, not affect those who are already designated as
Professor.
5.2 Government Colleges:-
(i) Lecturer: Existing scale â€" Rs.8,000-275-13,500/-
Revision of Pay Scale â€" Rs.15,600- 39,100/- + AGP â€" Rs.6,000/-“
From the aforesaid provisions of the Resolution dated 14.12.2009, it appears that the petitioner has been receiving the minimum scale of
Rs.15,600/- + Rs.6,000/- (AGP) along with DA and other allowances which comes to Rs.32,416/-.
The Resolution dated 14.12.2009 issued by the State Government is based on the revision of scale of pay issued by the Ministry of H.R.D
(Department of Higher Education) dated 31.12.2008, which is available from the Resolution dated 14.12.2009 of the State Government.
It is the claim of the petitioner that Annexure-3 would apply to the University and as such, she is entitled to receive the pay or salary as applicable
to go the University teachers. On the other hand, Mr.Mohanty, learned Senior Advocate for the University submitted that appointment of the petitioner
has been made in accordance with the Resolution dated 14.12.2009 of the Higher Education Department of the State, which has been slated to action
by virtue of the Rules, 2010, which has been notified on 15.2.2010 in the Orissa Gazette by the Chancellor. According to him, the Rules, 2010 do not
apply to the teachers engaged by the University on contract basis and as such the appointment of the petitioner is illegal.
In order to remove the controversy between the parties, the best way is to go through the offer of appointment vide Annexure1, which has already
been described above and the same is clear to show that the petitioner has been appointed under the State Government’s Revised Scale of Pay
for University Teachers (UGC Scale of Pay) Rules, 2010. The Regulations, 2010 (Annexure-3) is a Gazette of India, which is applicable to the
University teachers. On the other hand, the State Government, in the Department of Higher Education, had issued Resolution on 14.12.2009, which
shows that the same has been issued for revision of pay scales for university and college teachers as per the recommendation of the Government of
India, Ministry of H.R.D (Department of Higher Education). In the Resolution dated 14.12.2009, there is no any restriction for appointment of
teachers on contract basis. There the scale of pay has been maintained for Government colleges and University teachers. The Gazette notification
dated 15.2.2010 issued by the Chancellor is clear to show that under Clause-2(i), the Rules, 2010 is not applicable to the teachers engaged by the
University on contract basis. So, there is difference between the Resolution dated 14.12.2009 and the Rules, 2010 so as to their applicability to the
teachers engaged on contract basis. It is admitted fact that the present petitioner is appointed on contract basis by the University. It is best known to
the University as to how the Rules, 2010 was issued in consonance with the Resolution dated 14.12.2009 of the State Government because there is
nothing found from the Rules, 2010 that it was issued keeping in view of the Resolution dated 14.12.2009.
Although Ravenshaw University has got the status of an University but the appointment of the petitioner is made under the Resolution dated
14.12.2009 issued by the Government of Orissa and as such, the scale of pay she is receiving of Rs.21,600/- + necessary DA in 2011.
In the counter affidavit, the opposite party no.2-University has claimed that since the appointment of the petitioner is illegal, the amount the
petitioner has already received should be refunded. On the other hand, it is the University who has offered the appointment to the petitioner but it is
not the petitioner, who has opted for such scale of pay. It is the University who has allowed to give the consolidated pay as per the Gazette notification
dated 15.2.2010 issued by the Chancellor although Rules, 2010 does not permit engagement of contract teachers. When the Vice-Chancellor of the
University is at fault in engaging the petitioner, throwing the ball to the court of the petitioner by saying about her illegal appointment is absolutely
dangerous plea of the opposite party no.2-University.
The petitioner has filed another writ petition, i.e, W.P.(C) No.7617 of 2016 challenging the issuance of advertisement dated 23.2.2011. The record
of that writ petition was called for and on perusal of the same, it appears that on 9.5.2016, this Court had passed an interim order allowing the
petitioner to continue in her post and she shall not be terminated therefrom without leave of this Court. Nothing found from that record that the
University has tried its best to vacate the interim order passed by this Court or has appointed any regular teacher till date. When by virtue of the order
of this Court passed in W.P.(C) No.7617 of 2016, the petitioner is continuing as a Lecturer on contract basis, she would be entitled to the salary for
the work done by her.
In terms of the above discussion, it is clear that the engagement of the petitioner is only renewed by the University by virtue of the order of this
Court and when she has already been adjusted on contract basis with consolidated pay, she has to be satisfied with the minimum scale of pay with
Academic Grade Pay and DA as applicable to contract teachers under State Government circulars. It is stated that the petitioner has already been
paid all dues. 27. It has been prayed in the writ petition that that the petitioner should be paid the differential amount as per the chart prepared by the
petitioner, which is available at Annexure-4. On going through Annexure-4, it appears that the petitioner has been paid the basic pay, academic grade
pay and the DA as on May, 2011. Only the HRA and the differential DA, as applicable to the Government employees, has not been paid to the
petitioner. The DA is always increasing basing on the cost index of present commodity. The University or the Government takes care of its employees
by increasing the DA to meet the inflation of the commodity as spent by the concerned employees. So, the petitioner is entitled to the DA as
applicable to the Government teachers even if she is appointed on contract basis because she was getting the DA at rate of 51% at the time of her
initial appointment and the same is continuing. It is needless to say that the service of the petitioner has been renewed from time to time because of
the interim order of this Court passed in the other writ petition filed by the petitioner, i.e, W.P.(C) No.7617 of 2016, as stated above.
It is reported in State of Punjab (Supra) where Their Lordships, at paragraph-60, have observed in the following manner: “60.Having traversed
the legal parameters with reference to the application of the principle of ‘equal pay for equal work’, in relation to temporary employees (daily-
wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our
determination is, whether the employees concerned (before this Court), were rendering similar duties and responsibilities, as were being discharged by
regular employees holding the same/corresponding posts..........â€
With due respect to the aforesaid decision of the Hon’ble Supreme Court, it appears that even the contractual employees are entitled to the
principles of equal pay for equal work. Although the petitioner is being paid equal pay, but she is not paid the equal DA even if she is working like any
other teacher of the University. Therefore, she is entitled to the DA as available to other teachers working in the University being increased from time
to time and as such, the petitioner is entitled to the differential DA.
Hence, the petitioner is entitled to the differential DA. There is no any provision to allow the HRA to the employees appointed on contract basis
and the same has also not been proved by the petitioner. So, she is not entitled to HRA.
In terms of the above discussion, the writ petition is disposed of with a direction to the University to pay the differential DA to the petitioner within
a period of three months from today after due calculation of the same.