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