Orissa High Court

Kabita Mohapatra vs State Of Odisha And Ors on 20 September, 2022

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                   W.P.(C) Nos.20773 and 25344 of 2021

         Kabita Mohapatra                    ....            Petitioner
         (in W.P.(C) No.20773 of 2021)
                                      Mr. Budhadev Routray, Sr. Adv.
                                   -versus-
         State of Odisha and Ors.            ....      Opposite Parties
                                              Mr. Saswat Das, AGA
                                                     (for O.Ps.1 to 4)
                                        Mr. Sameer Kumar Das, Adv.
                                                   (for O.Ps.5 and 6)

         Kabita Mohapatra                        ....          Petitioner
         (in W.P.(C) No.25344 of 2021)
                                                  Mr. K.K. Swain Adv.
                                     -versus-
         State of Odisha and Ors.              ....     Opposite Parties
                                                Mr. Saswat Das, AGA
                                                      (for O.Ps.1 to 3)
                                          Mr. Sameer Kumar Das, Adv.
                                                            (for O.P.4)

                   CORAM:
                   DR. JUSTICE S.K. PANIGRAHI
Order                                ORDER
No.                                 20.09.2022
 11.
        1.

Both the matters are taken up through hybrid mode.

2. Both the Writ Petitions have been filed by the same

Petitioner. W.P.(C) No.20773 of 2021 has been filed

challenging the order dated 13.07.2021 under Annexure-

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12 passed by the Director, Higher Secondary Education

wherein the Opposite Party No.4 relying upon the

guidelines dated 31.08.2020 fixed the seniority of the

Opposite Party No.6 based on her date of birth above

the present Petitioner and consequentially appointed the

Opposite Party No.6 as the Principal-in-charge-cum-

secretary of Rani Sukadei Mahila Higher Secondary

School, Banki, Cuttack. W.P.(C) No.25344 of 2021 has

been filed challenging the revised seniority list of

Teachers of the said School prepared by the then

Principal-In-Charge placing the Petitioner at serial No.2

of the said list.

3. Shorn of unnecessary details, the substratum of matter

presented before this Court remain that the pursuant to

appointment order dated 30.06.1993, the Petitioner was

appointed to the post of Lecturer in Economics. The

Petitioner received Block Grant Aid with effect from

20.01.2009 as per GIA Order, 2008.

4. The Opposite Party No.6 was appointed to the post of

Lecturer in Odia vide appointment order dated

17.07.1993 and she received Block Grant Aid with effect

from 20.01.2009 as per GIA Order, 2008. Subsequently,

both the Petitioner as well as the Opposite Party No.6

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were allowed to receive the regular grant vide GIA

Order 2017 with effect from 01.01.2018.

5. The Government vide letter No.27964 dated 31.08.2020

issued guidelines towards fixing the seniority of

teachers of Non-Govt. Aided Colleges for the

appointment of Principal and HODs. In the said

notification, it was clarified that the seniority will be

determined on the basis of date of birth.

6. After the issuance of letter dated 31.08.2020, the

Opposite Party No.6 who is senior in terms of age, tried

to get her name approved as the Principal(I/C) of Rani

Sukadei Mahila Higher Secondary School, Banki,

Cuttack, ahead of the Petitioner. Furthermore, the

revised format seniority list of the teachers of the college

prepared by the Principal also enlisted the name of the

Petitioner in Sl. No. 2 with her date of joining mentioned

as 05.07.1993 whereas the name of the Opposite Party

No.6 has been reflected in Sl. No.1 and her date of

joining is mentioned as 17.07.1993.

7. In the meantime, Mr. Shyama Sundar Rout, Reader of

Banki College who was posted in the Petitioner's college

retired on 30.06.2021 and before the retirement of Mr.

Rout, the Sub-Collector by referring to guidelines dated

31.08.2020 recommended the name of the Opposite

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Party No.6 even though she is junior to the Petitioner in

terms of date of entry into service.

8. It is submitted by learned Counsel for the Petitioner that

the guidelines dated 31.08.2020 under Annexure-8 is

arbitrary and discriminatory and vide order dated

11.07.2022, the same has already been quashed by this

court in Kamala Kanta Das v. State of Odisha & Ors1.

9. Per Contra, it is contended by Learned Counsel for the

Opposite Parties that Rani Sukadei Mahila Higher

Secondary School is a junior college and the office order

dated 31.08.2020, issued by the Department of Higher

Education, Odisha cannot be made applicable to the

current set of facts.

10.On perusal of the abovementioned pleadings, this Court

is of the view that in the matter of adjudging seniority of

the teachers, the principle of initial date

of appointment/continuous officiation or date of entry

into service is the valid principle for adjudging inter se

seniority of the teachers. This principle was iterated in

the case of Sudhir Kumar Atrey v. Union of India2. The

Supreme Court observed:

"We are also of the view that in the matter of adjudging seniority of the candidates selected

W.P.(C) No.230 of 2022

(2022) 1 SCC 352

// 5 //

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."

11.In the case of Ram Janam Singh v. State of U.P.3, the

Supreme Court observed that:

"From time to time controversy regarding inter se seniority is raised between persons recruited from different sources to the same service. In past, notional seniority used to be given to one group of officers, purporting to mitigate their hardship or to rectify any alleged wrong done to them in the process of recruitment or promotion. Ultimately it was realised that if liberty is given to fix seniority of an officer or group of officers belonging to a particular category with reference to a notional date, that will lead to great uncertainty in public service.

The date of entry into a particular service was considered to be the most safe 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. After referring to different judgments of this Court, a Constitution Bench in the case of Direct Recruit Class II

(1994) 2 SCC 622

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Engineering Officers' Assn. v. State of Maharashtra4 came to the same conclusion. The same has been reiterated in the case of State of W.B. v. AghoreNathDey5. It is now almost settled that seniority of an officer in service is determined with reference to the date of his entry in the service which will be consistent with the requirement of Articles 14 and 16 of the Constitution."

12.Similarly, in another instance, the Supreme Court in the

case of Prem Kumar Verma v. Union of India6 , 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 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

(1990) 2 SCC 715

(1993) 3 SCC 371

(1998) 5 SCC 457

// 7 //

on the basis of their dates of appointment, is justified by Rule 27 in this case", and hence, dismissed the appeals."

13. With respect 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, the

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 apparatus

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 and having poor legal sustainability index.

Difficulty in following a certain 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.

// 8 //

14.From the above, the legal position with regard to

determination of seniority in service, it 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.

15.In the light of above discussions, and guided by the

precedents narrated hereinabove and in accordance to

decision of this court in Kamala Kanta Das (supra), this

Court hereby quashes the Guidelines dated 31.08.2020

issued by the Department of Higher Education,

Government of Odisha containing the mechanism for

fixing the seniority of teachers of non-Government

Colleges for the purpose of appointment of Principal and

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HODs and directive issued by the State Government

whereby the inter se seniority was to be adjudged

according to the date of birth.