Orissa High Court
Kamala Kanta Das vs State Of Odisha And Ors on 11 July, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.230 of 2022, W.P.(C) No.22650 of 2020, W.P.(C)
No.22681 of 2020, W.P.(C) No.22688 of 2020, W.P.(C) No.33716 of
2020, W.P.(C) No.35004 of 2020, W.P.(C) No.8435 of 2021, W.P.(C)
No.31226 of 2021, W.P.(C) No.41892 of 2021 and W.P.(C) No.9080
of 2022.
(In the matter of applications under Articles 226 and 227 of the
Constitution of India, 1950).
In W.P.(C) No.230 of 2022
Kamala Kanta Das .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Sameer Kumar Das, Adv.
-versus-
For Opp. Parties : Mr. R.N. Mishra, AGA
Mr. P. K. Mohapatra, Adv.
Mr. S.K. Nath, Adv.
(for O.P.4)
In W.P.(C) No.22650 of 2020
Dr. Jyotiranjan Samal .... Petitioners
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Sameer Kumar Das, Adv.
-versus-
For Opp. Parties : Mr. R.N. Mishra, AGA
Mr. Bibekananda Nayak, Adv.
Page 1 of 24
Mr. B.M. Bhuyan, Adv.
Mr. N.K. Mishra, Adv.
In W.P.(C) No.22681 of 2020
Subodha Chandra Barik .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Sameer Kumar Das, Adv.
-versus-
For Opp. Parties : Mr. R.N. Mishra, AGA
In W.P.(C) No.22688 of 2020
Pranati Barik .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Sameer Kumar Das, Adv.
-versus-
For Opp. Parties : Mr. R.N. Mishra, AGA
In W.P.(C) No.33716 of 2020
Sudhir Kumar Rout .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Sameer Kumar Das, Adv.
Page 2 of 24
-versus-
For Opp. Parties : Mr. R.N. Mishra, AGA
Mr. R.C. Pradhan, Adv.
Mr. S. Roy, Adv.
Mr. K.K. Swain, Adv.
Mr. P.N. Mohanty, Adv.
Mr. J.R. Khuntia, Adv.
Mr. D.K. Mohapatra, Adv.
In W.P.(C) No.35004 of 2020
Kamala Kanta Das .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Sameer Kumar Das, Adv.
-versus-
For Opp. Parties : Mr. R.N. Mishra, AGA
Mr. Budhadev Routray, Sr. Adv.
In W.P.(C) No.8435 of 2021
Nityananda Nath Sharma .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Dillip Ku. Mohapatra, Adv.
-versus-
For Opp. Parties : Mr. R.N. Mishra, AGA
Mr. B.K. Mohanty, Adv.
Mr. D.N. Rath, Adv.
Mr. A.K. Saa, Adv.
Page 3 of 24
In W.P.(C) No.31226 of 2021
Pranati Panda & Ors. .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Tapas Kumar Acharya, Adv.
-versus-
For Opp. Parties : Mr. R.N. Mishra, AGA
Mr. D.N. Rath, Adv.
Mr. Amit Ku. Saa, Adv.
In W.P.(C) No.41892 of 2021
Prasanta Kumar Rout .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Bibhu Prasad Nyak, Adv.
-versus-
For Opp. Parties : Mr. R.N. Mishra, AGA
Mr. Amit Kumar Saa, Adv.
In W.P.(C) No.9080 of 2022
Jaladhara Das .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Kunal Kumar Swain, Adv.
-versus-
For Opp. Parties : Mr. R.N. Mishra, AGA
Page 4 of 24
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-05.05.2022
DATE OF JUDGMENT:-11.07.2022
Dr. S.K. Panigrahi, J.
1. Since similar questions of law and fact are involved in all
the above writ petitions, all the matters were heard together.
However, this Court felt it appropriate to decide W.P.(C)
No.230 of 2020 first and whatever the outcome of the said
writ petition, the same will be covered to other similar writ
petitions mentioned above.
2. The petitioner challenges the legitimacy of the Government
Letter No.17 dated 01.01.2022 under Annexure-7 and
beseeches for invalidating the same on the ground that no
inter se seniority can be fixed on the basis of date of birth of
the employees instead of their valid date of joining.
3. In the present case, the Government letter No.17 dated
01.01.2022/ Annexure-7 relates to approval of opposite party
No.4-Sarita Malla as Lecturer in Political Science as
Principal-cum-Secretary of the College on the basis of
Government order dated 31.08.2020. It is clarified that the
said Government order dated 31.08.2020 has also been
challenged in other homogeneous writ petitions mentioned
above.
I. Facts of the case
4. The petitioner was appointed as a Lecturer in History of the
Kalyani Ray Mahavidyalaya, Rourkela in the district of
Sundargarh on 01.03.1994 pursuant to the order dated
25.02.1994 issued by the Secretary of the said College. The
Opposite Party No.4/Sarita Malla was appointed as a
Lecturer in Political Science in the said College on 25.07.1994
as per order dated 19.07.1994 emanated from the office of
the Secretary of the said College.
5. The College-in-question has come into the fold of grant-in-
aid under the provisions of Grant-in-aid order, 2008 and
accordingly approval was accorded to the staff members by
the Director, Department of Higher Education vide Order
No. 12142 dated 30.3.2019. The State Government has fixed
the criteria for appointment of Principal in the aided College
in different circulars/guidelines. It has been settled that the
senior most approved lecturer of the college is to function as
Principal- in -charge-cum-Secretary. As per usual practice,
the seniority of the person is fixed as per his date of joining.
Accordingly, the petitioner being the senior most lecturer of
the college and as such seniority was approved on the basis
of date of joining and he was allowed to function as the
Principal-in-charge of the College vide order dated
13.06.2019 issued by the Director of Higher Education,
Government of Odisha.
6. As per the guidelines of the State Government, the
petitioner being the senior most approved lecturer of the
College, he was allowed to function as Principal-in-charge-
cum-Secretary of the institution. However, while the
petitioner was so continuing, the State Government vide its
order No-27964 dated 31.08.2020 prescribing guidelines for
fixation of seniority of teachers of Non-Government
Colleges for the purpose of appointment of Principal and
Head of Department. The aforesaid order dated 31.08.2020
of the State Government superseded the earlier circulars and
guidelines apropos the appointment of Principal in aided
college so also for their determination of inter se seniority. At
the same time, the guideline was also prescribed to
determine the inter se seniority of the lecturers of the aided
colleges on seven categories of lecturers pertaining to seven
categories of institutions.
7. The State Government has come out with guidelines for
appointment of Principal-in-charge, but Rule - 8(3) of the
Orissa Education (Recruitment and Conditions of Service of
Teachers and Members of the staff of Aided Educational
Institutions) Rules, 1974 read with Section-10-C of the
Odisha Education Act, 1969( Hereinafter, referred to as Act)
read with the Inter Transferability Rules, 1979 also provide
the modality for appointment of Principal/Principal-in-
charge in aided Colleges and for fixation of inter-se
seniority. The State Government has issued guidelines for
fixation of inter se seniority from time to time through
various circulars. One of such circular trumpeted was that of
Circular dated 29.04.2019 wherein senior most teaching
member on the basis of date of earliest joining was the
modality to fixing inter se seniority. Later, another circular
dated 29.09.2018 was promulgated wherein it was
underlined that seniority would be determined on the basis
of "deemed date of joining" among the Readers. In case no
faculty of Reader grade was available, seniority would be
fixed among the Senior Lecturers and if no Senior Lecturer
was available, it would be among the Lecturers.
8. However, the guidelines for fixation of seniority of teachers
of non- Government aided colleges for the purpose of
appointment of Principals and HODs issued by the State
Government dated 31.08.2020 has fixed the inter se
seniority of the employees (especially in the category-C to F)
on the basis of their date of birth irrespective of date of
joining into service. However, in category -B colleges, the
seniority shall be determined on the basis of "deemed date
of joining."
9. On 24.06.2022 the guideline issued vide the Department of
Higher Education Letter No. 27964 dated 31.08.2020
regarding fixation of seniority of teachers of Non-
Government aided colleges for the purpose of appointment
of Principals and HODs which later underwent further
modification. After the 2nd Para of the above referred
Letter No. 27964 dated 31.08.2020, the following proviso will
be added. The said modification is extracted herein below:
xxxx xxx xxx
Provided that, to ensure the larger interest of
development of the institution, the person to be
appointed as Principal should have at least eighteen
months of residual period of service."
2- Clause 2 (i) shall be substituted
Within category B', inter-se-seniority shall be
determined basing on the date of coming into grant-
in-aid fold.
Example: Teacher X was allowed grant-in-aid (whether
1/3rd, 2/3rd or full) w.e.f. 01.06.1998 whereas Teacher
Y was allowed grant-in- aid (whether 1/3rd 2/3rd or
ful) w.e.f. 01.06. 1999. In this case, Teacher X will be
considered senior to Y. This means between two
teachers, irrespective of the quantum of grant-in-aid,
the teacher coming into grant-in-aid fold earlier shall
be considered senior to the other teacher.)
10. Later, in the case of the present petitioner, the order of the
State government has not been recalled or superseded.
Therefore, the Government vide Letter No.17 dated 01.01.2022
approved and appointed the O.P.No.4 as the Principal-in-
charge of the College. However, the order dated 13.06.2019 of
the Director, Department of Higher Education, approving the
petitioner as Principal-in-charge and also the OP No 4 which
breeds a chaotic situation and bereft of any basis. This give
rises to file the present writ petition.
II. Submission of the Petitioner:
11. Section-10-C of the Odisha Education Act, 1969 empowers
the State Government to constitute a common cadre of the
Lecturers of the Aided Colleges. The Odisha Aided
Education Institutions Employees Common Cadre and
Inter-transferability Rules, 1979 was framed in exercise of
Section-10-C of the Odisha Education Act. The Rule-3 of
1979 Rules authorizes the Director to prepare a gradation
list of the Lecturers and constitute a common cadre. Further,
Rule-4 provides for inter-se seniority, transfer, promotion
and confirmation, which shall confine to particular cadre.
Rule-5 provides for numbers of posts in the cadre and same
may be varied depending on addition of person joined
subsequently in service.
12. Learned Counsel for the petitioner submits that following
the Section-10-C of the Act and the Inter-transferability
Rules, 1979, the Division Bench of this Court in the case of
Akshaya Kumar Beura Vs. Director Higher Education,
Orissa and others1 has settled the law that once an
employee brought into the fold of grant-in-aid, he forms
part of the common cadre of lecturers. Following the
aforesaid judgment another Division Bench of this Court in
the case of Amit Kumar Pattayak Vs. State of Odisha and
other2, has also reiterated the same. In paragraph - 10 of the
said judgment, this Court has held that once the cadre is
constituted, appointment made thereafter to the service are
added to the cadre strength as it is related to their service
condition. The said position of law has been traced to
Section-10-C read with Rules 3, 4 and 5 of the Inter-
transferability Rules, 1979. The said judgement of this Court
spells out that Lecturers of the Aided College are to put in
the common cadre of Lecturers on the basis of their joining
in service. In other words, the date of appointment/joining is
the guideline for determination of inter-se seniority of
Lecturers.
1991 (II) OLR-87
2013 (11) OLR-332
13. In the case in hand as it evident from Annexure-3 in W.P.(C)
No. 230 of 2022, the petitioner- Kamala Kanta Das joined as
a Lecturer in History of the College on 01.03.1994, whereas
Sarita Malla joined as a Lecturer in Political Science of the
College on 25.07.1994. Thereby the opposite party No.4-
Sarita Malla is junior to the present petitioner.
14. Accordingly, in office order No. 23257 dated 13.06.2019, the
Director (Cadre Controlling Authority) has decided the
inter-se seniority between the petitioner and opposite party
No.4 and approved the petitioner-Kamala Kanta Das as the
Principal-in-charge cum-Secretary of the College being the
senior most approved teaching staff of the Institution.
15. While the matter stood thus the State Government has
brought in Government guideline fixing seniority of
teachers of non-Government Colleges for the purpose of
appointment of Principal and HODS on 31.08.2020. Para-1 of
the Govt. order dated 31.08.2020 which elucidates and
decides the category of teachers. The petitioner institution
comes under 'Category-D', as it has received block grant
under GIA Order, 2008. Para-2 (iii) of the Government order
dated 31.08.2020 provides that in "Category-C" to F", the
inter-se seniority within respective category shall be
determined on the basis of "date of birth". Such a provision
in Para-2 (iii) of Government order dated 31.08.2020 is
contrary to the statutory provisions of Section-10-C of the
Act and the Rules - 3, 4 and 5 of the Inter-transferability
Rules, 1979 and also the Division Bench judgements of this
Court in the case of Akshaya Beura (Supra) and Amit
Kumar Pattnayak (Supra). Hence the Government order
dated 31.08.2020 is unsustainable in law and liable to be
invalidated.
16. Furthermore, the basic tenets of the service law state that the
date of entry into a service/cadre determines the seniority
and not the date of birth. From the aforesaid clear position
of law coupled with the fact emerges out from the
appointment order, joining report, and the approval order
of the petitioner and opposite party No.4, the opposite party
No.4 -Sarita Malla is undisputedly junior to the present
petitioner and therefore the Government order dated
01.01.2022 approving Sarita Malla as Principal-cum-
Secretary is illegal and also unsustainable in law and liable
to be quashed.
17. Learned Counsel for the Opposite party No.1 & 2 submitted
that the impugned Guidelines dated 31.08.2020 vide
Annexure-4 to the writ petition prescribes for fixing of
seniority for the purpose of appointment as Principal-in-
Charge and H.O.Ds as an interim measure. The said
guidelines neither creates nor takes away any of the vested
rights of the petitioners and accordingly there is no reason
to be aggrieved by the above said guidelines. Hence the
petitioners cannot be said to be persons aggrieved to
approach the portals of this Hon'ble Court under article 226
of the constitution of India. The guidelines dated 31.08.2020
regarding fixation of seniority for principal-in-charge, which
is not a substantive post, but only an interim arrangement.
Fixation of seniority on the basis of date of birth does not
affect any of their vested rights and one being posted as
principal-in charge is not entitled to any additional benefits.
18. Learned Counsel further contended that disputes regarding
fixation of seniority in the present writ petition relates to the
Teachers working in Category-III colleges. All the Teachers
working in category -III colleges are in receipt of grant-in-
aid in the shape of block grant. There is no cadre rule
framed governing there service conditions. Hence, the
petitioner has no statutory right to the appointment as
Principal-in Charge.
19. He has further maintained that till date no service
conditions are framed for the employees of Block Grant
Institutions and "The Odisha Education (Recruitment and
Conditions of Service of Teachers and Members of the Staff
of Aided Educational Institutions) Rules, 1974 is not
applicable to the employees of Block Grant Institutions. the
petitioner has relied upon Rule-8 of the above said Rule to
substantiate his claim but the provision of the above said
rule is not applicable to the case of the petitioner as she is
working in a Block Grant Institution, but the above said
provision of rule is applicable to the aided colleges under
the fold of the 'system of direct payment of the full salary
cost. Since the petitioner is not coming under the fold of the
system of direct payment of full salary cost, accordingly
reliance of the petitioner on the above said provision is of no
consequence.
20. Additionally, the petitioner has also relied in his writ
petition on the provision of Section-10-C of the Odisha
Education Act and also the Inter-transferability Rules, 1979
i.e. Odisha Aided Educational Institutions Employees
Common Cadre and Inter-transferability Rule, 1979. The
provision of Section-10-C provides for constitution of
common cadre and its consequences. Since no common
cadre in respect of Block Grant Institutions are formed till
date and the above said provision is not applicable to the
case of the petitioner.
21. In regards to the fixation of seniority in regards to the "date
of birth", the State contends that in the category of teachers
receiving block grant and working in category-III colleges
their date of appointment varies from the date of
admissibility of the post in many cases. Their individual
service record needs to be verified/scrutinized relating to
admissibility of the individual posts. Since a cut-off date is
provided in the GIA order for appointment on or before
such cut-off date the consequential entitlement for Block
Grant for all such employees also fall on a single date. It will
be highly difficult on part of the department to assess the
eligibility date by scrutinizing each and every individual
post of such colleges. Therefore, a common device has been
adopted to fix the date of birth of the employees concerned
of the college for determination of seniority inter-se. It is
pertinent to mention here that date of appointment become
irrelevant unless in each case date of admissibility of the
post is determined. Further, the senior person by age should
also get the benefit since he/she is going to retire earlier,
particularly when the appointment of Principal-in charge is
an interim arrangement. The policy has been framed
keeping all the employees of the state in mind and no
individual can claim to be prejudiced by such decision. It is
already made clear that the employees receiving Block
Grant cannot be equated with employees getting full grant-
in-aid, therefore comparison between two categories do not
arise at all.
22. Ld Counsel for the Opposite party No.4 Mr. P.K. Mohapatra
submitted that as per the letter No, HE-NCET 1 Misc -
0151/2020/17 dated 1.1.2022 of the Higher Education
Department, Govt. of Odisha, the Op No. 4 had already
been joined on 3.1.2022 as Principal I/C cum Secretary of
Kalyani Ray Degree Mahavidyalaya, Hamirpur. Pursuant to
the guidelines dated 31.8.2020 of Govt. of Odisha, Higher
Education Department for fixation of seniority of teachers of
the Non Govt.-aided Colleges for the purpose of
appointment of Principal and HODs. The Govt. of Odisha,
Department of Higher Education vide letter dated
14.12.2021 sought for proposal from the President
Governing Body Kalyani Ray Degree Mahavidyalaya,
Hamirpur and Sub Collector, Panposh, Rourkela for
appointment of new Principal. Accordingly, Department of
Higher Education vide letter dated 1.1.2022 approved the
appointment of the opposite party No.4 as Principal cum
Secretary of Kalyani Ray Degree Mahavidyalaya Haripur.
Pursuant to the said letter dated 1.1.2022, opposite party No.
4 joined on 3.1.2022 before the President, Governing Body,
K.R.D. Mahavidyalaya cum Sub Collector, Panposh and
now continuing as such.
23. The College has come into the fold of grant -in -aid under
the provisions of Grant- in- aid order, 2008. Accordingly,
approval was accorded to the Staff members of the college
w.e.f. 20.1.2009 vide letter dated 30.3.2019 of the Directorate
of Higher Education, Odisha, Bhubaneswar. The petitioner
and opposite party No.4 post has been approved w.e.f.
20.01.2009 in a same order and as the date of birth of
opposite party No.4 is 30.07.1964 and the petitioner date of
birth is 08.09.1966 rightly the appointment has been given to
the opposite party No.4 as Principal as per the prevailing
guidelines.
24. It is further emphasised that Rule 8(3) of the 1974 Rules read
with Section 10-C of the Odisha Education Act provides the
modalities for appointment of Principal in Aided Colleges
and fixation of Inter-se seniority as such there is no specific
provision and as per the Government guidelines in force the
appointment of opposite party No.4 has been made vide
order dated 01.01.2022. Hence, as per the Govt. guidelines
dated 31.8.20202 the opposite party No.4 duly appointed as
Principal in charge-cum Secretary vide letter dated
01.01.2022 and as such no error, illegality has been
committed to issue the said letter.
V. Analysis and Reasoning:
25. Plainly, the principal mandate of the rule is that seniority is
determined on the basis of date of appointment ("shall be
fixed from the date of their appointment"). The State has
contended that the said guidelines neither creates nor takes
away any of the vested rights of the petitioners and
accordingly there should be no reason for the petitioner to
be aggrieved by the above said guidelines. However, lack of
attached vested rights does not allow the State to deviate
from the principal mandate upheld by the Supreme Court.
Hon'ble Supreme Court in the case of Sudhir Kumar Atrey
vs Union Of India3 held that
"We are also of the view that in the matter of
adjudging seniority of the candidates selected in one
and the same selection, placement in the order of
merit can be adopted as a principle for determination
of seniority but where the selections are held
separately by different recruiting authorities, the
principle of initial date of appointment/continuous
officiation may be the valid principle to be considered
for adjudging inter se seniority of the officers in the
absence of any rule or guidelines in determining
seniority to the contrary."
26. Similarly, in another instance, the Supreme Court in the case
of Prem Kumar Verma v. Union of India4, held that
"the principal mandate of the rule is that seniority is
determined on the basis of date of appointment.
Proviso (2) lists out two rules. The first is that those
selected and appointed through a prior selection
would rank senior to those selected and appointed
SLP(Civil) No(s).6572 OF 2014.
(1998) 5 SCC 457
through a later selection process.....The second limb
of the second proviso clarifies that when merit based,
or seniority based promotions are resorted to, the
applicable norm would be seniority in the feeder
cadre, to forestall any debate about the rule of merit
(in the selection) being the guiding principle".
Further, the court observed that "the advertisements
were issued one after the other, and more importantly,
that this was the first selection and recruitment to a
newly created cadre, the delay which occurred on
account of administrative exigencies (and also the
completion of procedure, such as verification of
antecedents) the seniority of the promotees given on
the basis of their dates of appointment, is justified by
Rule 27 in this case", and hence, dismissed the
appeals."
27. Additionally, the State has provided that there is no
provision for a common cadre in respect to Block Grant
Institutions and therefore the general provisions of inter-se
seniority shall not be applicable on the petitioner. However,
in Ram Janam Singh v. State of U.P. and Anr5, it was
iterated that the date of entry into a service is the safest rule
to follow while determining the inter se seniority between
one officer or the other or between one group of officers and
the other recruited from the different sources. It was
observed that this is consistent with the requirement of
Articles 14 and 16 of the Constitution. It was, however,
1994 AIR 1722
observed that if the circumstances so require, a group of
persons can be treated a class separate from the rest for any
preferential or beneficial treatment while fixing their
seniority, but, normally such classification should be by
statutory rule or rules framed under Article 309.
28. The Constitution Bench of Supreme Court in Direct Recruit
Class II Engineering Officers' Association v. State of
Maharashtra & Ors.6 stated the legal position with regard to
inter se seniority of direct recruits and promotees and while
doing so, inter alia, it was stated that once an incumbent is
appointed to a post according to rules, his seniority has to
be counted from the date of his appointment.
29. In regards to the issue of "date of birth", the State has
contended that in the category of teachers receiving block
grant and working in category-III colleges their date of
appointment varies from the date of admissibility of the
post in many cases. It will be highly difficult on part of the
department to assess the eligibility date by scrutinizing each
and every individual post of such colleges. Hence, they have
adopted a common device to fix the date of birth of the
employees concerned of the college for determination of
inter-se seniority. However, this approach of the State seems
to be extremely fallacious. Difficulty in following a certain
1990 AIR 1607.
rigorous procedure does not allow a State department to
deviate from the principal logic established by the Supreme
Court. Moreover, the date of entry in a particular service or
the date of substantive appointment is the safest criterion
for fixing seniority inter se between one officer or the other
or between one group of officers and the other recruited
from the different sources.
30. From the above, the legal position with regard to
determination of seniority in service can be summarized as
follows:
(i) The effective date of selection has to be understood in
the context of the service rules under which the
appointment is made. It may mean the date on which
the process of selection starts with the issuance of
advertisement or the factum of preparation of the
select list, as the case may be.
(ii) Inter se seniority in a particular service has to be
determined as per the service rules. The date of entry
in a particular service or the date of substantive
appointment is the safest criterion for fixing seniority
inter se between one officer or the other or between
one group of officers and the other recruited from the
different sources. Any departure therefrom in the
statutory rules, executive instructions or otherwise
must be consistent with the requirements of Articles
14 and 16 of the Constitution.
31. Before parting, this Court discern that the question of
seniority is the most common litigation amongst the
employees but a model employer like the state need to
minimize such litigations by giving consistent, fair and
transparent deal with its employees. It may further be
underlined that the state should desist from undertaking ad
hoc exercise instead of giving regular appointment of
principals. When a State indulges in ad hocism, it not only
invites litigation with its own employees, but also creates
causes and generates litigations among its employees, which
results in bitterness among the employees and is bound to
affect the organizational efficiency of the institution
concerned and it leads to animosity, jealousy and anguish
among the employees. Thus, ad hocism creates litigations not
only between the employer and the employees, but also
between those, who receive the benefits of ad hocism, and
those, who feel aggrieved for not being given the benefit of
such ad hocism. This is not a hall mark of a sound personnel
policy. It is bound to have serious repercussions on the
educational institutions and the students studying there.
This spoil system of ad hocism must come to an end as it is
retrograded and antithesis of Article-14 of the Constitution.
In the above circumstances, this Court feels it appropriate to
suggest the State to appoint permanent Principals instead of
principal-in-charge by following a proper seniority principle
as established by law.
32. In the light of above discussions, and guided by the
precedents narrated hereinabove, this Court hereby quashes
the circular dated 31.08.2020 issued by the Department of
Higher Education, Government of Odisha containing the
guidelines fixing the seniority of teachers of non-
Government Colleges for the purpose of appointment of
Principal and HODs and directive issued by the State
Government whereby the inter se seniority was to be
adjudged according to the date of birth. It is further
clarified that all the appointments made following the said
circulars be made afresh by taking into consideration of date
of entry into service as the basis for seniority. The writ
petition is accordingly allowed. No order as to cost.
33. Accordingly, all the Writ Petitions are disposed of.
(Dr. S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 11th of July, 2022/B. Jhankar
