AJIT KUMAR RAY Vs. DIRECTOR HIGHER EDUCATION

JUDGEMENT

(1.) Since common questions of law and fact are involved in these two writ applications this order is passed which shall govern both the cases. For the sake of convenience we shall first tike up the case in OJC No. 339 of 1995.

(2.) PETITIONER Ajit Kumar Ray as well as opp. party No. 4 Smt. Sanghamitra Nayak are two Lecturers in Sociology of Lokanath Mahavidyalaya, Patkura. The controversy between them relates to inter se seniority for holding the second post in Sociology. This is the second round of litigation between the parties for resolution of the self -same dispute, the earlier being in OJC No. 8419 of 1992 which was filed by opp. party No. 4. While disposing of the aforesaid proceeding the Court directed that the Secretary of the college will convene a meeting of the Governing Body for consideration of the question of inter se seniority and the Governing Body will consider the same giving opportunity of hearing to the parties and determine the inter se seniority stating reasons. Thereafter, the Secretary would forward the decision of the Governing Body to the Director, Higher Education, within a week of the date of decision and the Director on receipt of the same would pass appropriate order according approval to the appointment of the person who is held to be entitled to hold the second post of Lecturer in Sociology. It was further observed that it would be open to the Director to hold such further enquiry as he deems proper giving opportunity of hearing to the parties concerned. For considering the question of fixation of inter se seniority among the teachers of aided educational institutions Court relied upon its earlier decision in the case of Sarat Kumar Mishra v. Managing Committee of Teisipur High School : 55(1983) CLT 446 and observed that 'there is no statutory rule or administrative instruction for fixation of inter se seniority among the teachers. It is, therefore, within the discretion of the appointing authority to determine the inter se seniority by general consideration of merit, educational qualification, age, past experience and several other factors'. Pursuant to the direction of the Court, the Governing Body in its special meeting held on 4 -6 -1994 examined the service records, age, past experience and educational qualifications of the petitioner vis -a -vis opp. party No. 4 and took an unanimous decision in favour of the petitioner holding him to be senior to opp. party No. 4. The decision of the Governing Body was communicated to the Director of Higher Education, but he instead of according approval to the said decision remanded the matter to the Principal -cum -Secretary of the college for fresh consideration. In pursuance of his direction the Governing Body again met on 24 -7 -1994 and by a majority decision resolved that the petitioner has an edge over opp. party No. 4 both in educational qualification and past experience and consequently out of 8 members of the Governing Body, 5 voted in favour of the petitioner to declare him as senior and 3 voted in favour of opp. party No. 4. The majority view taken in favour of the petitioner holding him as senior to opp. party No. 4 was communicated to the Director and on the basis of the said recommendation the Director should have approved the petitioner's appointment to the second post of Lecturer in Sociology. But without doing so, he at the behest of the father of opp. party No. 4. a political stalwart passed an order in the nature of judgment vide Aunexure -6 to the effect that opp. party No. 4 shall be deemed to be holding the second post and the petitioner, the third post in Sociology from the date of their Joining in the college. Such conclusion, urges the petitioner, was based on extraneous materials which are not germane for determination of the question in controversy. The Governing Body being the employer took a decision determining inter se seniority between the parties in accordance with direction of this Court, but the Director instead of approving the same took this own decision as aforesaid which is not supported by good reasons and therefore, the same being illegal and improper is not sustainable in jaw. Elaborating as to how he should be considered as senior to opp. party No. 4, the petitioner has urged that he is elder to opp. party No. 4, his date of birth being 5 -5 -1957 and opp. party No. 4's being 14 -2 -1960. So far as past experience is concerned, before joining Lokanath Mahavidyalaya, he was a Lecturer in Sociology from 2 -7 -1981 at Karilopatna, whereas opp. party No. 4 was a fresh candidate without any past experience. After joining Lokanath Mahavidyalaya he continued to perform his duty from the date of his joining uniterruptedly, but opp. party No. 4 had absented herself from the college for a long period from 14 -11 -1990 to 1 -5 -1994 and only on 2 -5 -1994 joined her duty on the direction of this Hon'ble Court in OJC No. 3419 of 1992. As regards educational qualification, he passed High School Certificate Examination in second division, I. A. in second division with Sociology, B. A. (Honours) with distinction in Sociology, M. A. First Class in Sociology in Grade -A and M. Phil in first division (third position in the merit) in Sociology ; whereas opp. party No. 4 though passed High School Certificate Examination and P. U. Acts in second division and B. A. with first class honours with distinction, but her honours subject was Political Science and not Sociology. So far as M. A. in Sociology is concerned, she passed in Grade -B. Further although she has acquired M. Phil, but the subject was Anthropology. So when compared, he is more qualified than opp. party No. 4. Added to it, he is senior to opp. party No. 4 because he joined on 7 -7 -1983 whereas opp. party No. 4 joined on 25 -7 -1983. In this view of the matter, the petitioner has urged that the decision of the Director, Higher Education vide Annexure -6 should be quashed and he should be declared as senior to opp. party No. 4 and consequently State of Orissa and the Director, Higher Education -opp. parties 1 and 2 should be directed to calculate and pay all the dues to which he is entitled.

(3.) IN the other OJC No. 4481 of 1935 Smt. Sanghamitra Nayak, opp. party No. 4 is the petitioner, in short, her claim is that since she is holding the second post in Sociology and is entitled to receive the salary under the Grant -in -aid Schema, but she has not been paid her dues as yet. So she seeks for a direction to the Director of Higher Education for payment of her salary under the Grant -in -aid Scheme.