Orissa High Court
Bidyutlata Dixit vs State Of Odisha And Ors on 27 October, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.13965 of 2021
Bidyutlata Dixit .... Petitioner
Mrs. Sumitra Mohanty, Adv.
-versus-
State of Odisha and Ors. .... Opposite Party
Mr. P.M. Pattajoshi, SC
(for SC and ME Deptt.)
CORAM:
DR. JUSTICE S.K. PANIGRAHI
Order ORDER
No. 27.10.2022
08.
1. This matter is taken up through hybrid mode.
2. The present petition has been filed for quashing
Annexure-1 dated 08.02.2021 issued by the Opposite
Party No.3, by which the representation of the Petitioner
for consideration of her engagement with retrospective
effect has been rejected in view of the career
advancement policy prescribed in Resolution No. 15107
dated 01.08.2011. The Petitioner further seeks direction
to the Opposite Parties to appoint/engage her as Regular
Primary School Teacher in Janardanpur Primary School
of Nischintakoili Block.
Page 1 of 17
// 2 //
I. FACTS OF THE CASE
3. Shorn of unnecessary details, the substratum of matter
presented before this Court remains that the Petitioner
had applied for the post of "Shiksha Sahayak" in the
Salipur Education District under the Physically
Handicapped Category. After due scrutiny, the
provisional merit list for appointment of Shiksha
Sahayak was published and the Petitioner was found to
be selected. But, prior to the publication of the final
merit list, the Opposite Party No.1 issued letter dated
16.10.2012, directing all the Collectors to follow the
principle of reservation issued by the Govt. from time to
time in case of persons with Disability (PWD) categories.
Furthermore, directions were also issued towards not
entertaining the candidature of the applicants having
temporary disability certificate. Subsequently, the final
list of physically handicapped persons to be appointed
as Sikha Sahayak in the Salipur Education District was
published and in the said list the Petitioner's name was
not there.
4. The Petitioner approached this Court in WP(C) No.
20975/2012 and in the said petition, he challenged the
validity and legality of the final selection list challenging
Page 2 of 17
// 3 //
the final selection list debarring his selection. On
hearing the parties this Court was pleased to pass the
interim order dated 07.11.2012. The relevant portion is
extracted hereinunder for convenience:
"The post which is advertised for hearing
impaired persons shall not be filled up without
leave of Court."
5. Ultimately, after having gone through the letter of
District Project Coordinator and the disability certificate
issued by Appellate Medical Board, this Court disposed
of the writ petition on 21.03.2014 directing the Petitioner
to file representation before Opposite Party No. 2-
Collector and directed the Collector to take a decision on
the Petitioner's engagement in accordance to the
certificate of Appellate Medical Board within a period of
two months.
6. In compliance of the direction of this Court, the
Petitioner duly filed a representation along with all
relevant documents before the Collector/ Opposite Party
No. 2 on 25.03.2014. Thereafter, the Petitioner was
directed vide letter dated 07.06.2014 to appear
personally in the Court of Collector, Cuttack with all
records to substantiate her claim for the engagement as
Siksha Sahayak for 2011-12. Accordingly, the Petitioner
was ready with all relevant records before the Opposite
Page 3 of 17
// 4 //
Party No. 2 on the relevant date and substantiated her
case. But the Petitioner's candidature was rejected vide
order dated 13.06.2014 on the ground that addition of
any sort of eligibility criteria after the cut-off date cannot
be considered.
7. Thus, the Petitioner was again forced to approach this
Court in WP(C) No.12756/2014 challenging the order
dated 13.06.2014 passed by the Collector /Opposite
Party No. 2 in rejecting the Petitioner's engagement as
Shiksha Sahayak under P.H. Category. On 18.07.2014,
this Court was pleased to pass the interim order in M.C.
No. 11487/2014. The Court observed:
"One post of Shiksha Sahayak under P.H.
Category be kept vacant till the next date."
8. Ultimately, on 19.11.2014, the said writ petition was
allowed in favour of the Petitioner and the Opposite
Parties were directed to issue engagement order as
Shiksha Sahayak in favour of the Petitioner without
delay.
9. Despite the specific order of this Court under Annexure-
4 to issue engagement order in favour of the Petitioner
without any delay, the Opposite Parties sat over the
matter by not issuing any engagement order. The
Petitioner consistently approached the Opposite Party
Page 4 of 17
// 5 //
No. 2 and 3 with a prayer to comply with the order of
this Court by filing several applications. Thereafter, the
Collector vide communication dated 04.06.2016 issued a
letter to the Opposite Party No. 1 requesting therein for
approval of Govt. in School and Mass Education Dept.
in respect of the Petitioner's engagement as "Shiksha
Sahayak" wherein the Collector has specifically
submitted that the inordinate delay has already been
caused in the matter to issue engagement order in
compliance to this Court's order.
10.Ultimately, after approval of Opposite Party No.1, the
engagement order was issued to the Petitioner vide
letter No. 4101 dated 05.10.2016 and she was engaged as
"Shiksha Sahayak" in Janardanpur Primary School of
Nischintakoili Block w.e.f. 07.10.2016. The Petitioner had
been diligently discharging her duties as Shiksha
Sahayak from the date of joining with utmost sincerity.
11.It is pertinent to mention that the engagement order in
favour of the Petitioner was issued on 05.10.2016 i.e.,
almost 2 years after the order under Annexure 4. The
applicants who were engaged against 2011-12
recruitment year have already been regularized and
they have been appointed as Junior Teacher. Therefore,
the Petitioner filed an application dated 21.07.2018
Page 5 of 17
// 6 //
before the Collector/ Opposite Party No. 2, praying to
regularize her engagement / service as per Career
Advancement Policy in Govt. Resolution dated
01.08.2011 under Annexure-2 against 2011-12
recruitment year. But the Petitioner's application dated
21.07.2018 was rejected vide letter dated 12.10.2018 on
the ground that her appointment as Regular Primary
School Teacher may be considered on attaining 3 years
of engagement as Junior Teacher.
12.The Petitioner was appointed as Junior Teacher w.e.f.
06.10.2019 pursuant to "Performance Approval Report"
submitted by the Block Education Officer, Nischintakoili
and as per Govt. Resolution under Annexure-2 which
was communicated by the Opposite Party No. 3 vide
order dated 27.05.2020. Therefore, the Petitioner is
working as Junior Teacher in the concerned primary
school w.e.f. 06.10.2019 legitimately expecting for
regularization of her service against the recruitment
year of 2011-12. In pursuance of the same, the Petitioner
filed a representation dated 14.07.2020 before the
Collector/ Opposite Party No. 2 praying to regularize
her engagement as per Career Advancement Policy in
Govt. Resolution under Annexure - 2.
Page 6 of 17
// 7 //
13.The representation dated 14.07.2020 was rejected on the
ground that the engagement with retrospective effect is
not permissible in accordance with Career
Advancement Policy.
II. SUBMISSION ON BEHALF OF THE PETITIONER
14.It is submitted by Learned Counsel for the Petitioner
that the Petitioner's engagement should have been
considered along with other applicants for 2011-12
recruitment year. However, she was issued the
engagement order in the year 2016 due to the latches
and delay on the part of the Opposite Parties;
particularly when this Court vide order dated 19.11.2014
directed the Opposite Parties to issue engagement order
without delay.
III. SUBMISSION ON BEHALF OF THE OPPOSITE
PARTIES
15.Per Contra, it is contended by Learned Counsel for the
Opposite Parties that the Petitioner shall come under the
zone of consideration for regular appointment only after
completion of 6 years of continuous satisfactory service
i.e., after 05.10.2022. So, its quite apparent that the
prayer of the Petitioner for regular appointment is
completely premature, hypothetical and contrary to the
policy framed by the Government.
Page 7 of 17
// 8 //
IV. COURT'S REASONING AND ANALYSIS
16.On perusal of the above-mentioned pleadings, this
Court is of the view that Para-1 of "Career
Advancement Policy" stipulates the completion of 3
years of continuous and satisfactory engagement for the
purpose of being eligible for appointment as Junior
Teacher. Further, para-4.1 of the aforesaid policy
stipulates that a Junior Teacher after completion of 6
years of continuous satisfactory engagement as Shiksha
Sahayaka and Junior Teacher taken altogether shall be
eligible for appointment as Regular Primary School
Teacher. It can be ascertained that the term
"satisfactory" in the aforesaid policies mandates that the
elevation to Junior Teacher and subsequently, to
Regular Primary School Teacher is subject to scrutiny of
the appropriate authorities. It can also be interpreted to
mean that the selected candidates shall not be
regularized for merely holding the post for 6 years;
rather their regularization is subject to their
performance while being engaged as Shiksha Sahayaka.
17.In Bengal Immunity Co. Ltd. v. State of Bihar & Ors1, it
was observed by a Constitution Bench of this Court that,
if there is any hardship, it is for the legislature to amend
1
AIR 1955 SC 661
Page 8 of 17
// 9 //
the law, and that the Court cannot be called upon, to
discard the cardinal rule of interpretation for the
purpose of mitigating such hardship. If the language of
an Act is sufficiently clear, the Court has to give effect to
it, however, inequitable or unjust the result may be. The
words, 'dura lex sed lex' which mean "the law is hard but
it is the law." may be used to sum up the situation.
Therefore, even if a statutory provision causes hardship
to some people, it is not for the Court to amend the law.
A legal enactment must be interpreted in its plain and
literal sense, as that is the first principle of
interpretation.
18.In the case of Rohitash Kumar v. Om Prakash Sharma2,
the Supreme Court observed:
"There may be a statutory provision, which
causes great hardship or inconvenience to either
the party concerned, or to an individual, but the
Court has no choice but to enforce it in full rigor.
It is a well settled principle of interpretation that
hardship or inconvenience caused, cannot be
used as a basis to alter the meaning of the
language employed by the legislature, if such
meaning is clear upon a bare perusal of the
Statute. If the language is plain and hence allows
only one meaning, the same has to be given effect
to, even if it causes hardship or possible
injustice."
2
(2013) 11 SCC 451
Page 9 of 17
// 10 //
19.In the instant case, the "Career Advancement Policy"
clearly provides for regularization after completion of 6
years of service to the satisfaction of the authorities,
therefore, the Petitioner cannot claim retrospective
seniority from the date when she was not even borne in
service. The Court is aware of the fact that there was a
delay of 2 years in providing appointment to the
Petitioner. However, such delay is attributable to
administrative reasons and the same cannot be
remedied by interpreting the policy enunciated under
Annexure-2 in a different way. Moreover, the
Petitioner's eligibility for appointment as Junior Teacher
was approved w.e.f. 06.10.2019, pursuant to
"Performance Approval Report" submitted by the Block
Education Officer, Nischintakoili. Therefore,
retrospective seniority cannot be extended specifically
when the Government has prescribed certain standards
and criteria for further elevation in service.
20.In State of Bihar v. Akhouri Sachindra Nath3, it was
held that retrospective seniority cannot be given to an
employee from a date when he was not even born in the
cadre. So also, seniority cannot be given with
retrospective effect so as to adversely affect others.
3
1991 Supp (1) SCC 334
Page 10 of 17
// 11 //
Seniority amongst members of the same grade must be
counted from the date of their initial entry into the
grade. The Supreme Court observed:
"In the instant case, the promotee respondents 6
to 23 were not born in the cadre of Assistant
Engineer in the Bihar Engineering Service,
Class II at the time when respondents 1 to 5
were directly recruited to the post of Assistant
Engineer and as such they cannot be given
seniority in the service of Assistant Engineers
over respondents 1 to 5. It is well settled that no
person can be promoted with retrospective effect
from a date when he was not born in the cadre so
as to adversely affect others. It is well settled by
several decisions of this Court that amongst
members of the same grade seniority is reckoned
from the date of their initial entry into the
service. In other words, seniority inter se
amongst the Assistant Engineers in Bihar
Engineering Service, Class II will be considered
from the date of the length of service rendered as
Assistant Engineers. This being the position in
law respondents 6 to 23 cannot be made senior to
respondents 1 to 5 by the impugned government
orders as they entered into the said service by
promotion after respondents 1 to 5 were directly
recruited in the quota of direct recruits. The
judgment of the High Court quashing the
impugned government orders made in
Annexures 8, 9 and 10 is unexceptionable."
// 12 //
21.This decision was cited with approval in Keshav
Chandra Joshi v. Union of India4. The Supreme Court
held that when a quota is provided for, then the
seniority of the employee would be reckoned from the
date when the vacancy arises in his/her quota and not
from any anterior date of promotion or subsequent date
of confirmation. It was observed that injustice ought not
to be done to one set of employees in order to do justice
to another set. It was said in Uttaranchal Forest
Rangers' Assn. (Direct Recruit) v. State of U.P5 , on
referring to these judgments that:
"We are also of the view that no retrospective
promotion or seniority can be granted from a
date when an employee has not even been borne
in the cadre so as to adversely affect the direct
recruits appointed validly in the meantime, as
decided by this Court in Keshav Chandra Joshi v.
Union of India6 held that when promotion is
outside the quota, seniority would be reckoned
from the date of the vacancy within the quota
rendering the previous service fortuitous. The
previous promotion would be regular only from
the date of the vacancy within the quota and
seniority shall be counted from that date and not
from the date of his earlier promotion or
subsequent confirmation. In order to do justice
to the promotees, it would not be proper to do
injustice to the direct recruits.
1992 Supp (1) SCC 272
(2006) 10 SCC 346
1992 Supp (1) SCC 272
// 13 //
This Court has consistently held that no
retrospective promotion can be granted nor any
seniority can be given on retrospective basis
from a date when an employee has not even
borne in the cadre particularly when this would
adversely affect the direct recruits who have been
appointed validly in the meantime."
22.In the case of Pawan Pratap Singh v. Reevan Singh7, all
relevant precedents on the subject were considered,
including the Constitution Bench decision in Direct
Recruit Class II Engg. Officers' Assn. v. State of
Maharashtra8 and the legal position was summarized
(by Lodha, J.) 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 different sources. Any
departure therefrom in the statutory rules,
executive instructions or otherwise must be
(2011) 3 SCC 267
(1990) 2 SCC 715
// 14 //
consistent with the requirements of Articles 14
and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be
granted from the backdate and if it is done, it
must be based on objective considerations and on
a valid classification and must be traceable to the
statutory rules.
(iv) The seniority cannot be reckoned from the
date of occurrence of the vacancy and cannot be
given retrospectively unless it is so expressly
provided by the relevant service rules. It is so
because seniority cannot be given on
retrospective basis when an employee has not
even been borne in the cadre and by doing so it
may adversely affect the employees who have
been appointed validly in the meantime."
23.In service jurisprudence, a direct recruit can claim
seniority only from the date of his regular appointment.
He/She cannot claim seniority from a date when he/she
was not borne in the service. This principle is well
settled. In N.K. Chauhan v. State of Gujarat9, Krishna
Iyer, J. stated:
"Later direct recruit cannot claim deemed dates
of appointment for seniority with effect from the
time when direct recruitment vacancy arose.
Seniority will depend upon length of service."
(1977) 1 SCC 308
// 15 //
24.In Shitla Prasad Shukla vs. State of UP and Ors10, the
Supreme Court speaking through M. P. Thakkar, J held
that:
"The late comers to the regular stream cannot
steal a march over the early arrivals in the
regular queue. On principle the appellant cannot
therefore succeed. What is more in matters of
seniority the Court does not exercise jurisdiction
akin to appellate jurisdiction against the
determination by the competent authority, so
long as the competent authority has acted bona
fide and acted on principles of fairness and fair
play. In a matter where there is no rule or
regulation governing the situation or where
there is one, but is not violated, the Court will
not overturn the determination unless it would
be unfair not to do so..."
25.In the case of Ganga Vishan Gujrati and Ors. vs. State
of Rajasthan and Ors11, D. Y. Chandrachud, J speaking
for the Court opined as under:-
"A consistent line of precedent of this Court
follows the principle that retrospective seniority
cannot be granted to an employee from a date
when the employee was not borne on a cadre.
Seniority amongst members of the same grade
has to be counted from the date of initial entry
into the grade. This principle emerges from the
decision of the Constitution Bench of this Court
in Direct Recruit Class II Engineering Officers'
Association v. State of Maharashtra(supra). The
(1986 SCR (3) 106
(2019) 16 SCC 28
// 16 //
principle was reiterated by this Court in State of
Bihar v Akhouri Sachindra Nath(supra) and
State of Uttaranchal v Dinesh Kumar Sharma12"
26.Further, in the case of State of Bihar v. Arbind Jee13, the
Supreme Court observed:
"As earlier noted, the respondent entered service
only on 10.2.1996 and yet under the impugned
judgment, the High Court directed counting of
his seniority from 20.11.1985 when he was not
borne in service. The jurisprudence in the field of
service law would advise us that retrospective
seniority cannot be claimed from a date when an
employee is not even borne in service. It is also
necessary to bear in mind that retrospective
seniority unless directed by court or expressly
provided by the applicable Rules, should not be
allowed, as in so doing, others who had earlier
entered service, will be impacted."
27.In conspectus of the facts and guided by the precedents
herein stated above, this Court is of the view that
seniority cannot be given on retrospective basis when an
employee has not even been borne in the service as
doing so will adversely affect the rights of the
employees who have been appointed validly in the
meantime.
28.In the final analysis, this Court is of the opinion that the
Writ Petition is devoid of merits for the foregoing
(2007) 1 SCC 683
Civil Appeal No. 3767 of 2010
// 17 //
reasons and is, accordingly, liable to fail. The Writ
Petition is, accordingly, dismissed
(Dr. S.K. Panigrahi)
Judge
B.Jhankar
