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2023 Supreme(Online)(ORI) 10925
ORISSA HIGH COURT
S.K.PANIGRAHI, J
DR. SASMITA MOHANTY – Appellant
Versus
STATE OF ODISHA – Respondent
WP(C)/5790/2021
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.
Headnote:
SENIOR PRINCIPAL - [KEYWORD] - 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.
Fact of the Case:
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.
Finding of the Court:
The Court held 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.
Issues: 1. Whether the inter-se seniority should be considered from the date of joining or date of birth?2. Whether the Opposite Party No.5 is entitled to remain as in-charge Principal of the college?
Ratio Decidendi: 1. The principal mandate of the rule is that seniority is determined on the basis of date of appointment. 2. 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.
Final Decision: All the Writ Petitions are disposed of. No order as to cost.
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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
2 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
Page 3 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
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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
Page 5 of 28
the Governing Body from its own selection on ad hoc basis
with the prior approval of the State Government.
4. Admittedly, the c
