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IN THE HIGH COURT OF ORISSA AT CUTTACK
S.K. PANIGRAHI, J.
Kamala Kanta Das – Appellant
Versus
State of Odisha and Ors. – Respondents
W.P.(C) No.230, 9080 of 2022, 22650, 22681, 22688, 33716, 35004 of 2020, 8435, 31226, 41892 of 2021
Decided on : 11-07-2022
Seniority - Government Guidelines - Odisha Education Act, 1969, Inter-transferability Rules, 1979 - Circulars and Guidelines - Principal-in-charge Appointment - Date of Appointment - Date of Birth - Quashing of Guidelines and Directive
Fact of the Case:
The petitioner challenges the legitimacy of the Government Letter No.17 dated 01.01.2022, which approved the appointment of the Opposite Party No.4 as the Principal-in-charge of the College based on the guidelines issued by the State Government. The petitioner contends that the guidelines for fixing seniority based on date of birth are contrary to the statutory provisions of the Odisha Education Act, 1969 and the Inter-transferability Rules, 1979. The petitioner asserts that the date of entry into service should determine seniority, not the date of birth.
Finding of the Court:
The Court found that the guidelines for fixing seniority based on date of birth were unsustainable in law and quashed the Guidelines dated 31.08.2020 and the directive issued by the State Government. The Court directed the State to issue fresh guidelines accommodating the principle of seniority as enunciated by the Supreme Court of India.
Issues: The main issue was the validity of the Government guidelines for fixing seniority based on date of birth and its impact on the appointment of the Principal-in-charge.
Ratio Decidendi: The Court held that the date of entry into service should determine seniority, as established by the Odisha Education Act, 1969 and the Inter-transferability Rules, 1979. The Court also emphasized the need for a consistent, fair, and transparent approach by the State in dealing with its employees to minimize litigations.
Final Decision: The Court quashed the guidelines for fixing seniority based on date of birth and invalidated the appointment of the Opposite Party No.4 as Principal-in-charge. The State was directed to issue fresh guidelines accommodating the principle of seniority as enunciated by the Supreme Court of India.
JUDGMENT :
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 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 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 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 issui
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