Orissa High Court
Kalpana Dash vs State Of Odisha And Ors. .... Opposite ... on 9 January, 2023
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
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 2 of 28 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 Page 3 of 28 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 4 of 28 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 Page 5 of 28 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 6 of 28 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, Page 7 of 28 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)
8 of 28 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 Page 9 of 28 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 10 of 28 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 Page 11 of 28 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-
12 of 28 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 Page 13 of 28 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 14 of 28 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 Page 15 of 28 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."
16 of 28
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 Page 17 of 28 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 18 of 28 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 Page 19 of 28 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."
20 of 28
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.
Page 21 of 28 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 1 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 2 (1998) 5 SCC 457 3 1994 AIR 1722 Page 23 of 28 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 4 1990 AIR 1607.
24 of 28 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 Page 25 of 28 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 26 of 28 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 Page 27 of 28 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 28 of 28