Orissa High Court
Kalpana Dash vs State Of Odisha And Ors on 9 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos.12301 of 2021, 5790 of 2021 and 15912 of 2022
(In the matters of applications under Articles 226 and 227 of the
Constitution of India, 1950).
In W.P.(C) No.12301 of 2021
Kalpana Dash .... Petitioner
-versus-
State of Odisha and Ors. .... Opposite Parties
Advocates appeared in the case:
For Petitioner : Mr. Satyabrata Mohanty (1),
Adv.
Mr. T.K.Kamila, Adv.
-versus-
For Opposite Parties : Mr. Saswat Das, AGA
Md. G. Madani, Adv.
(for O.P.5)
Mr. J.K. Lenka, Adv.
(for O.P.6)
In W.P.(C) No.5790 of 2021
Dr. Sasmita Mohanty .... Petitioner
-versus-
State of Odisha and Ors. .... Opposite Parties
1 of 28
Advocates appeared in the case:
For Petitioner : Mr. Satyabrata Mohanty (1),
Adv.
Mr. T.K.Kamila, Adv.
-versus-
For Opposite Parties : Mr. Saswat Das, AGA
Mr. Subash Ch. Puspalaka, Adv.
Mr. A.K. Tarai,Adv.
Mr. T. Priyadarshini,Adv.
Mr. K. Choudhury, Adv.
(for O.Ps.4, 5, 6 & 9)
In W.P.(C) No.15912 of 2022
Kalpana Dash .... Petitioner
-versus-
State of Odisha and Ors. .... Opposite Parties
Advocates appeared in the case:
For Petitioner : Mr. Sameer Kumar Das, Adv.
-versus-
For Opposite Parties : Mr. Saswat Das, AGA
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CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-25.08.2022
DATE OF JUDGMENT:-09.01.2023
Dr. S.K. Panigrahi, J.
1. Since similar questions of law or facts are involved in all the
above writ petitions, all the matters were heard together.
However, this Court feels it appropriate to decide each case
on their respective merits and hence, the questions of fact
and law are dealt distinctly in each of these Writ Petitions
mentioned above. For the sake of clarity, it is pertinent to
mention here that the writ petitions- W.P.(C) No.12301 of
2021 and W.P.(C) No.15912 of 2022 have been filed by the
same petitioner (Kalpana Das). W.P.(C) No.5790 of 2021 has
been clubbed to the present matter owing to the fact that it
shares the same cause of action as that of W.P.(C) No.12301
of 2021.
I. Facts of the Case:
(In W.P.(C) No.12301 of 2021)
2. Shorn of unnecessary details, the substratum of matter
presented before this Court is that the Petitioner who is
serving as approved Principal-in-Charge-cum-Secretary of
Panchayat Women's Higher Secondary School, S. Rampur,
in the district of Subarnapur since 2011 has constrained to
file this Writ Petition challenging the legality of the OSWAS
No.HE-NCET-1-MISC 0148-2020/27964 dated 31.08.2020
issued by the Higher Education Department, Government
of Odisha, particularly the clause-2(iii) of the said
Guidelines. He also prays for quashing of 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 inasmuch as the same is without jurisdiction.
3. As per the provisions of the Odisha Education Act, 1969
and the Rules framed thereunder, in every private
educational institution, the Governing Body is the employer
irrespective of the fact whether the institution is aided or
unaided. For unaided institution, the Governing Body has
to appoint its staffs from its own selection as per the
prescribed yardstick of the State Government. Whereas in
aided institution though the power of appointment is
vested with the Management, the selection of the teaching
post has been taken away and vested with the State
Selection Board under the provisions of Odisha Education
(State Selection Board for the State) Rules, 1992. However
there is exception to such procedure in the event of failure
of State Selection Board to sponsor a candidate against any
vacancy of an aided institution, the same can be filled up by
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the Governing Body from its own selection on ad hoc basis
with the prior approval of the State Government.
4. Admittedly, the college in question is an aided educational
institution within the meaning of Section-3 (b) of the Orissa
Education Act, 1969. On opening of the institution, the then
Governing Body of the College invited applications for
filling up different teaching and non-teaching post
including the post of lecturer in Odia. Accordingly, the
Petitioner who is having the requisite qualification offered
her candidature for the post of lecturer in Odia. Thereafter,
the Governing body after following the due process of
selection appointed the Petitioner as Lecturer in Odia (1st
Post) in the College vide appointment order dated
21.01.1994. The Petitioner joined the post on 24.01.1994
which was duly accepted by the then Governing Body of
the college. Whereas one Madhumita Mishra (Opposite
Party No.6) Lecturer in Education, was appointed by the
Governing Body of the College and joined on 24.01.1994.
Date of birth of the Opposite Party No.6 is 03.05.1969 and
the date of birth of the Petitioner is 05.07.1969.
5. After the college became aided as per the Grant in-aid
Order 2017, vide Government Notification No.27578/HE,
dated 22.10.2017, the appointments of different eligible staff
including the Petitioner and Opposite Party No.6 have been
approved by the Opposite Party No.4 vide office order
No.3560 dated 23.03.2019. It can be seen from the approval
order issued by the Opposite Party No.4/ Director, Higher
Secondary Education, Odisha, Bhubaneswar where the
name of the Petitioner found place at Serial No.1 and her
date of joining has been mentioned as 24.01.1994, whereas
the name of the Opposite Party No.6 has been found place
at Serial No.2 and her date of joining in the college has been
mentioned as 24.01.1994, but in respect of age, the petitioner
is junior to the Opposite Party No.6, and in the meantime
both the Petitioner as well as the Opposite Party No.6 have
been granted the benefits of new Grant-in-aid as per the
Grant-in-aid Order 2017 with effect from 01.01.2018 vide
office order No.3560 dtd.23.03.2019 issued by the Opposite
Party No.4. Though the petitioner and the Opposite Party
No.6 joined on 24.01.1994 in the college, however, the
Opposite Party No.6 did not accept the post of Principal-In-
Charge due to her health problem. The Opposite Party No.6
also filed an Affidavit to that effect which was duly
accepted by the Governing Body vide Resolution dated
27.06.2011.
6. 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
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approved Lecturer of the College is to function as Principal-
in-charge-cum Secretary. The seniority of the person has
been fixed as per their date of joining. Accordingly, in view
of the direction of the Opposite Party No.5 as well as the
decision taken in the Governing Body, the Sub-Collector,
Sonepur recommended the name of the present Petitioner
for the post of Principal-in-charge-cum-Secretary of the
college as the petitioner is the senior most approved
teaching staff of the college vide letter No.2419 dated
29.06.2011. Thereafter, the Opposite Party No.3 who is the
prescribed authority has been pleased to approve the post
of the petitioner as Principal-in-charge-cum-Secretary of the
College vide office order No.28752 dated 15.07.2011.
Accordingly, the Petitioner has been taken the charge of
Principal-in-charge-cum-Secretary of the college from the
then Secretary of the G.B. and since then the Petitioner has
been performing her duty as Principal-in-charge-cum-
Secretary in addition to her post as lecturer in Odia in the
college smoothly without any interruption.
7. From the aforesaid facts on record the Petitioner being the
senior most approved lecturer of the institution is rightly
allowed to function as Principal-in-Charge of the College.
However, surprisingly, while the Petitioner was so
continuing, the Department of Higher Education,
Government of Odisha has issued order No.HE-NCET-1-
MISC-0148-2020/27964 dated 31.08.2020 prescribing
guideline for fixation of seniority of Teachers of non-
government colleges for the purpose of appointment of
Principal and Head of the Department. The aforesaid order
dated 31.08.2020 of the State Government supersedes the
earlier circulars and guidelines with regard to the
appointment of Principal in aided colleges so also for
determination of inter-se seniority. At the same time, the
guideline has been prescribed to determine the inter-se
seniority of the Teachers of aided colleges in seven
categories of Teachers. The categories of Teachers as
provided in Government letter dated 31.08.2020 reads thus:
"1. Seniority of Teachers will be determined in
descending order as follows:
Category-A: Teachers recruited by SSB prior to
the 1994 and Teachers in receipt of Grant-in-Aid
at par with UGC Scale of pay.
Category-B: Teachers in receipt of Grant in-Aid
under GIA Order, 1994.
Category-C: Teachers in receipt of Grant- in-Aid
in shape of block grant under GIA Order, 2004.
Category-D: Teachers in receipt of Grant in-Aid
in shape of block grant under GIA Order, 2008
(revised under GIA Order, 2017)
Category-E: Teachers in receipt of Grant in-Aid
in shape of block grant under GIA Order, 2009
(revised under GIA Order, 2017)
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Category-F: Teachers in receipt of Grant in-Aid
in shape of block grant under GIA Order, 2014
(revised under GIA Order, 2018)
Category-G: Teachers recruited by SSB after
2014."
8. Category-D of the Government order dated 31.08.2020 deals
with the inter-se seniority of Lecturers of the institutions
receiving block grant under GIA Order, 2008 which has
been revised under GIA Order, 2017. Para-2(iii) of the
aforesaid letter dated 31.08.2020 reads as follows:
"For category 'C' to 'F', inter-se seniority
within the respective category shall be
determined basing on the date of birth."
II. Facts and prayer in W.P.(C) No.15912 of 2022
9. In this Writ Petition, the Petitioner (Kalpana Dash)
challenges the legality of the order/ letter No.3001 dated
17.03.2022 issued by the Opposite Party No.2/ Director,
Higher Secondary Education, Odisha, Bhubaneswar
allowing the Opposite Party No.5 (Madhumita Mishra),
Lecturer in Education of the College to continue as
Principal-in-Charge-cum-Secretary of the said College
under Annexure-12 despite the fact that she is ineligible for
such post in view of submission of her unwillingness and
also the consequential order No.1965 dated 22.03.2022
issued by the Opposite Party No.3/Sub-Collector, Sonepur
under Annexure-13. The Petitioner further prays for a
direction from this Court to the State/ Opposite Parties to
allow her to continue as Principal-in-charge-cum-Secretary
of the institution in question. As the Opposite Party No.5
has lost her right to function or continue as Principal-in-
Charge of the institution due to her unwillingness
submitted by way of affidavit, as it has been stipulated in
the Government decision dated 23.03.2015 and 06.07.2017
that once a person shown her inability by way of writing to
continue as Principal/ Principal-in-charge, she cannot hold
the post in future and for all time to come.
III. Submission on behalf of the Petitioner
(in W.P.(C) No.12301 of 2021)
10. Learned counsel for the Petitioner submits that such a
stipulation fixing the inter-se seniority of lecturers on the
basis of their date of birth is something unknown to the
service law. It is worthwhile to mention here that when
persons were selected from a common merit list their inter-
se seniority always decided on the basis of the position in
the merit list not on the basis of date of joining. On the other
hand, when there was no merit list or two persons
appointed from different merit list then their inter-se
seniority is determined on the basis of their date of joining
into service. Only when both the employees joined on one
date then only their date of birth will determine the inter-se
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seniority. Since the Petitioner and Opposite Party No.6
joined service from two different selection lists and joined
on two different dates the criteria for determination of their
seniority should be date of joining not the date of birth.
Accordingly, the Petitioner was adjudged as senior to the
Opposite Party No.6 and allowed to function as Principal
in-charge since 2011. But by virtue of this Government
order dated 31.08.2020 now the person joined later to the
Petitioner is declared senior only because she was born
earlier which is something unknown to law and hence the
order dated 31.08.2020 is liable to be quashed.
IV. Submissions on behalf of the Petitioner:
(in W.P.(C) No.15912 of 2022)
11. Learned counsel for the Petitioner submitted that the
Petitioner prayed for quashing of the order of approval of
the Opposite Party No.5 as Principal-in-charge-cum-
Secretary of the Institution in question under Annexure-12
and 13 on the ground that it is in clear violation of the
Government resolution No.6890 dated 23.03.2015 and the
consequential order No.7914 dated 06.03.2017 under
Annexure-6. In the aforesaid Government Resolution under
Annexure-5 it has been clearly provided that once a person
submitted his/her unwillingness to hold the post of
Principal-in-charge-cum-Secretary, he/ she cannot hold
such post in future.
12. In view of the aforesaid clear position of law as laid down
under Annexures-5 and 6 by the Government, the orders
under Annexures-12 and 13 and the claim of the Opposite
Party No.5 to function as Principal-in-Charge is
unacceptable, as she has submitted her unwillingness
through an affidavit under Annexure-3 followed with the
Staff Council Resolution dated 27.06.2011 under Annexure-
4. In such view of the matter, he submitted that the
Opposite Party Nos.1 and 2 may be directed to allow the
Petitioner to function as Principal-in-charge-cum- Secretary
of the College by restoring the order of her approval dated
15.07.2021 under Annexure-7.
V. Submissions on behalf of Opposite Party No.5/ Sub-
Collector, Sonepur:
(in W.P.(C) No.12301 of 2021)
13. Learned counsel for the Opposite Party No.5 submitted
that the Petitioner has no cause of action to file the aforesaid
Writ Petition. He further submitted that the plea of the
Petitioner that no inter-se-seniority can be fixed on the basis
of date of birth of the employees rather based on their valid
date of joining challenging the Government Order No HE-
NCET-1-MISC-0148-2020/27964 dated 31.08.2020 at Clause-
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2 (iii) is not maintainable, as the Petitioner has not cited any
rule of law nor any valid grounds to challenge the same.
14.It was further submitted that the Petitioner Kalpana Dash
has joined in Panchayat Women's Higher Secondary School
as lecturer in Odia on 24.01.1994. Madhusmita Mishra the
Opposite Party No. 6 has also joined as Lecturer-in-
Education on 24.01.1994. Both were appointed by the
Secretary Panchayat Women's College, Rampur vide order
No. 33/PWC dated 21.01.1994 and Order No.50 dated
24.01.1994 under Annexure-B/5 & C/5 respectively.
15.He also submitted that the Opposite Party No.6 did not
accept the post of Principal-in-charge of Panchayat
Women's College, Rampur due to her health problem and
also filed an affidavit to that effect which was accepted by
the Governing Body vide resolution dated 27.06.2011.
16. He further submitted that the plea of the Petitioner is that
the State Government has fixed the criteria for appointment
of Principal in Aided College in different circular and
guidelines and it has been settled that the senior most
approved Lecturer is to function as Principal-in-charge-
cum-Secretary and the seniority of the person has been
fixed as per their date of the joining is wrong as vide
OSWAS No./HE-NCET-1-MISC-0148 -2020 27964 Dt.
31.08.2020 at point No. 1 and 2 (iii), Government of Odisha
Higher Education Department guidelines for fixation of
seniority of teacher in Non-Govt. aided College for the
purpose of appointment of Principal and HODs, it is stated
that for category C to F inter-se- seniority within the
category shall be determined based on the date of the birth.
Hence, the plea of the Petitioner that she is the senior most
approved lecturer of the college to function as Principal-in-
charge-cum-Secretary and the seniority of the person has
been fixed as per their date of the joining is false.
17.Further, the Sub-Collector, Sonepur recommended vide
letter No.2419 dated 29.06.11 the name of the present
Petitioner for the post of Principal-in-charge-cum- Secretary
of the college as the senior most teaching approved staff of
the college is an eye wash as the senior most staff of the
College Madhusmita Mishra submitted affidavit stating
that due to her health problem, she is unwilling to take
charge of Principal and she has no objection if Kalpana
Dash Lecturer of Odia becomes the Principal. This was
resolved in the Staff Council meeting held on 27.06.2011.
Basing on this resolution and Letter No.38/PWC dated
28.06.2011 the Sub-Collector, Sonepur recommended the
name of Kalpana Dash, the Petitioner for the post of
Principal-cum-Secretary of the College vide Letter No.2419
dated 29.06.2011 and subsequently vide order No.28752
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dated 15.07.11 the name of the Petitioner has been approved
as Principal-cum- Secretary of the Panchayat Junior
Women's College, Rampur by order of D.H.E., Odisha,
Bhubaneswar.
18. It was further submitted that both the Petitioner and the
Opposite Party No.6 joined in the institution on 24.01.1994
as Lecturer in Odia and Lecture in Education respectively
and not on two different dates as claimed by the Petitioner.
The Petitioner was never adjudged senior to the Opposite
Party No.6 to function as Principal-in-charge since 2011 as
the Sub-Collector, Sonepur recommended the name of
Kalpana Dash for approval as Principal-in-charge vide
letter No.2419 dated 29.06.2011 based on the resolution of
the Staff Council Meeting dated 27.06.2011 and letter
No.28/PWC dated 28.06.2011 of Principal Panchayat
Women's College S. Rampur.
19. He further submitted that the impugned Government
Order bearing No. HE-NCET-1-MISC-0148-2020/27964
dated 31.08.2020 to be quashed is baseless so also the prayer
of the petitioner to restore the seniority of her over the
Opposite Party No. 6 and others who have joined later to
her and allow her to continue as Principal-in-charge-cum-
Secretary as being the senior most teaching staff is in
contradiction to the guideline issued by Higher Education
Department, Government of Odisha vide No.OSWAS No.
/HE-NCET-1-MISC-0148 - 2020 27964 dated 31.08.2020.
20.In view of the above submissions, he submitted that the
prayer made in the Writ Petition is devoid of merit and
liable to be rejected.
VI. Submissions on behalf of the Opposite Party No.6:
21. Learned counsel for the Opposite Party No.6 the prayer of
the petitioner is not maintainable at behest of the Petitioner
against the impugned guideline for fixation of Seniority
dated 31.08.2020, as the aforesaid guideline was issued by
the Department of Higher Education, is meant for
appointment of Principal and HODs in Aided Degree
Colleges. The Department of Higher Education,
Government of Odisha is the only authority for the degree
colleges and, hence, such an order/ guideline dated
31.08.2020 is also meant for only Degree Colleges. The
College has already been defined under Section-3 (d) of the
Orissa Education Act, 1969, which reads as follows:
"3. Definitions
(d) College means an educational institution
imparting instructions in higher general
education leading to any degree conferred by
any of the Universities established under the
Odisha Universities Act, Act 5 of 1989."
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22. The present institution in question i.e. Panchayat Women's
Higher Secondary School, At./Po.-S.Rampur, Dist.
Subampur is a Junior College Higher Secondary School
imparting education to only +2 Stream students as defined
under Section-3(j) and 3(j-1) of the said Orissa Education
Act, 1969. For better appreciation of the case definition of
Section- 3(j) and 3(j-1) of Orissa Education Act, 1969 are
quoted as hereunder :
"3(j) Higher Secondary School means an
educational institution imparting instructions
in Higher Secondary courses as defined in the
Odisha Higher Secondary Education Act, 19 of
1982 and may have Standards or Classes VIII,
IX and X attached;
3(j-1) Junior College means an educational
institution imparting instructions in Higher
Secondary Courses as defined in the Odisha
Higher Secondary Act, 1982."
23.By operation of law pursuant to the Government Resolution
dated 24.05.2016 administration of the all junior
colleges/Higher Secondary Schools of the State has been
taken away from the administrative control from the
Department of Higher Education and vested with the
School and Mass Education Department. The Director
Higher Secondary Education, Odisha has been introduced
the powers and functions as the Heads of the Department
of all the Junior Colleges/ Higher Secondary Schools of the
State as per notification dated 24.05.2016. Therefore, after
such notification dated 24.05.2016, the Department of
Higher Education, Odisha will have no authority on the
Junior Colleges/ Higher Secondary Schools. Further, School
and Mass Education Department has not taken any
decision/resolution adopting the order dated 31.08.2020
issued by the Higher Education Department. In the
premises, the guideline/order dated 31.08.2020 of the
Department of Higher Education/ Junior Colleges, with
regard to appointment of Principal has no application to the
Higher Secondary School (petitioner's institution).
Therefore, the Petitioner cannot question the legality and
propriety of such an order/ guideline dated 31.08.2020 in
the present Writ Petition as it never affect her in any
manner whatsoever. Therefore, the Writ Petition is devoid
of merit and not maintainable against the Government
order/ guideline dated 31.08.2020.
24. He further submitted that the Petitioner has challenged the
Clause-2(iii) of guideline dated 31.08.2020 and fixation of
seniority over the Petitioner and claimed seniority on the
basis of valid date of joining. Admittedly, both the
Petitioner and Opposite Party No.6 joined on 24.01.1994
and the Opposite Party No.6 (Madhumita Mishra) being
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senior in age than the Petitioner is entitled to seniority over
the Petitioner in view of Clause-2(iii) of the guideline as the
college in question in respect of grant-in-aid in the shape of
block grant order under 2008 grant-in-aid with effect from
20.01.2009 vide order dated 18.06.2011 and revised grant in
aid with effect from 01.01.2018 vide order dated 23.03.2019.
As the Opposite Party No.6 is senior to the Petitioner, she is
entitled to remain as in-charge Principal of the college, but
by making and filing false affidavit, the Petitioner shown
unwillingness of the Opposite Party No.6 and managed to
remain in-charge Principal of the college. In this connection
the Opposite Party No.6 made several representations to
the State Opp. parties but to no response.
25. He further submitted that because of dispute regarding
inter-se-seniority in respect of teachers of aided Colleges,
the Government in order to streamline the matter and
supersession of all previous circulars, guidelines issued in
the past has formulated the guideline/principle for
determining the seniority of College teachers while
considering appointment of Principal and Head of the
Department in non-Govt. Aided Colleges. Therefore, the
guideline dated 31.8.2020 is perfectly valid in law and there
is no ambiguity and the said guideline is in conformity with
Odisha Education Act and Rules made thereunder. The
petitioner has failed to point out in which provision of the
Act and Rules, the Government violated while framing the
guidelines. The guideline is in conformity with the odisha
Education Act and rules framed thereunder. Even if the
guideline dated 31.08.2020 is applicable to Higher
Secondary School, as there is no ambiguity regarding
fixation of seniority in the said guidelines.
26. He further submitted that in similar circumstances in the
case of Kabita Mohapatra Vrs. State of Odisha and others
in W.P. (C) No.18405 of 2021, this Court has passed the
order dated 02.08.2021 as follows:
"1. Undisputedly the Teacher involved herein is
not a teacher under the Higher Education
Department. For this reason the petitioner has no
locus standi to challenge the circular involving
Government of Odisha in Higher Education
department since applies to teachers under Higher
Education department.
2. The writ petition is not maintainable.
3. If the petitioner has any grievance in relation to
his seniority, he may approach in an independent
writ application and with involvement of proper
parties.
4. With this observation the writ petition is
disposed of. However keeping the issue open to be
adjudicated in appropriate proceeding.
Urgent certified copy be issued on proper
application."
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27.The Hon'ble Supreme Court, in the case of D.P. Dash Vrs.
Union of India has held that determination of seniority of
the officers who are joined on same day, the age is the only
valid and fair basis and as such their seniority should be
decided on the basis of the age of the candidates.
28. In view of the facts mentioned above, the Opposite Party.
No.6 is senior than the Petitioner and as such the Petitioner
has no legal right to claim the in-charge of Principal and
also seniority over the Opposite Party No.6. The impugned
guidelines dated 31.08.2020 is perfectly valid and was made
in consonance with Education Act. In the circumstances, the
Writ Petition may be dismissed.
29. He further submitted that the Sub-Collector who is the
president of the Governing Body as per the order dated
16.03.2021 communicated on 31.03.2021, while considering
the representation of the Opposite Party No.6 (Madhumita
Mishra) Lecturer in Education for appointment of the
Principal-cum-Secretary of the Panchayat Women's Higher
Secondary School mentioned that as per the settled law, the
Governing Body is the competent authority to decide the
inter-se-seniority of the teaching staff and the petitioner
accepted the said order passed by the President of the
Governing body of the college. Hence, she is estopped for
raising the said issue.
VII. COURT'S REASONING AND ANALYSIS
30.The primary issue in the matters of W.P.(C) No.12301 of
2021 and W.P.(C) No.5790 of 2021 is whether the inter-se
seniority should be considered from the date of joining or
date of birth. This Court has already covered this issue in
the case of Kamala Kanta Das v. State of Odisha & Ors.
(WPC 230 of 2022).
31.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 does
it take away any of the vested rights of the petitioners.
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 India1 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
SLP(Civil) No(s).6572 OF 2014.
22 of 28
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."
32.Similarly, in another instance, the Supreme Court in the case
of Prem Kumar Verma v. Union of India2, 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 on the basis of
their dates of appointment, is justified by Rule 27
in this case", and hence, dismissed the appeals."
33.Moreover, in Ram Janam Singh v. State of U.P. and Anr3, it
was iterated that the date of entry into a service is the safest
rule to follow while determining the inter se seniority
(1998) 5 SCC 457
1994 AIR 1722
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,
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.
34.The Constitution Bench of Supreme Court in Direct Recruit
Class II Engineering Officers' Association v. State of
Maharashtra & Ors.4 stated the legal position with regard to
inter se seniority of direct recruits and promotes. 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.
35.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. The date of
appointment varies from the date of admissibility of the
post in many cases. It will be highly difficult on the part of
the department to assess the eligibility date by scrutinizing
each and every individual post of such colleges. Hence, they
1990 AIR 1607.
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have adopted a common device to fix the date of birth of the
employees of the college for determination of seniority
inter-se. However, this approach of the State seems
extremely fallacious. Difficulty in following a certain
rigorous procedure does not allow a State department to
deviate from principal mandate 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.
36.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.
37.Additionally, it is the opinion of this Court 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
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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 appropriate to
suggest the State to appoint permanent Principals instead of
principal-in-charge by following a proper seniority
principle.
38.In W.P.(C) No.15912 of 2022, the Petitioner prayed for
quashing of the order of approval of the Opposite Party
No.5 as Principal-in-charge-cum-Secretary of the Institution
in question on the ground that it is in clear violation of the
Government resolution No.6890 dated 23.03.2015 and the
consequential order No.7914 dated 06.03.2017. In the
aforesaid Government Resolution it has been clearly
provided that once a person submitted his/her
unwillingness to hold the post of Principal-in-charge-cum-
Secretary, he/ she cannot hold such post in future.
39.The Opposite Party No.5 has submitted her unwillingness
through an affidavit under Annexure-3 followed with the
Staff Council Resolution dated 27.06.2011 under Annexure-
4. In view of the same, the petitioner has rightfully
contended that appointment of Opposite Party No.5 as
Principal-in-Charge is violative of the Government
resolution No.6890 dated 23.03.2015 and the consequential
order No.7914 dated 06.03.2017.
40.Considering the facts and circumstances of the cases and
the precedents cited hereinabove, this Court is of the
opinion that clause-2(iii) of OSWAS No.HE-NCET-1-MISC
0148-2020/27964 dated 31.08.2020 issued by the Higher
Education Department, Government of Odisha is illegal
and not in accordance with the principles of service
jurisprudence. In the light of the above discussions, all the
Writ Petitions are disposed of. No order as to cost.
( Dr. S.K. Panigrahi )
Judge
Orissa High Court, Cuttack,
Dated the 9th Jan., 2023/B. Jhankar
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