The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 41391 OF 2023 In the matter of an application under Articles 226 & 227 of the Constitution of India. Braja Mohan Dash State of Odisha & Others -Versus- …. …. Petitioner Opp. Parties Advocates appeared in this case: For Petitioner : M/s. P.K. Tripathy & S. Pattanayak, Advocates For Opp. Parties
Legal Reasoning
: Mr. U.C. Behura, Addl. Government Advocate [OP Nos.1 to 3] Mr. A. Khandelwal, Advocate on behalf of Mr. D.R. Bhokta, Advocate [OP No.4) CORAM: THE HON’BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD J U D G M E N T ---------------------------------------------------------------------------------------- Date of hearing & judgment :: 25.08.2025 ---------------------------------------------------------------------------------------- Page 1 of 9 PER DIXIT KRISHNA SHRIPAD,J. The OP No.4 came to be placed in the seat of Principal of the Institution concerned on in-charge basis, vide order dated 23.11.2023 at Annexure-7, ignoring the claim of petitioner and therefore, he is knocking at the doors of Writ Court. 2. Learned counsel for the petitioner vehemently argues that ordinarily whenever vacancy arises in the office of the Principal, the senior most person eligible for promotion to the said post is placed on in- charge basis or independent charge basis subject to all just exceptions into which the case of his client would not fit; petitioner tops the seniority list whereas OP No.4 is at Sl. No.4, two more persons, being sandwiched, namely, at Sl. Nos.2 & 3, who are said to be unwilling to accept the offer of arrangement of the kind. Therefore, the impugned order be quashed coupled with a direction to award in-charge arrangement in favour of the petitioner, argues the counsel. 3. Learned AGA appearing for the official OP Nos.2 & 3 and learned counsel representing OP No.4-Mr. Khandelwal opposed the petition contending that the concepts like in-charge and independent in- charge arrangements are not alien to service jurisprudence; in making Page 2 of 9 such an arrangement, ordinarily, the seniority is not the thumb rule, a host of factors entering the fray of decision making process including the administrative efficiency of the candidate; arrangement of the kind is temporary in nature and therefore, much grievance cannot be made by the
Decision
seniors. So contending, they seek dismissal of the writ petition. 4. Having heard learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons: 4.1. Late Justice Rama Jois in his ‘Services under the State’, Indian Law Institute Publication, 1984 discussed about the concept of in- charge/independent charge arrangement as under: “In-charge arrangements and promotion are well understood in Civil Service. Posting an Officer in the lower post to discharge the duties of the higher post without promotion is only an in-charge arrangement. It is the exigencies of public service that will be the relevant consideration and not the consideration of seniority while making such arrangement. A person was posted on independent charge basis does not hold the post on promotion. Under Rule 32 of KCSR, any employee in the next below post/cadre can be placed in charge or independent charge of a higher post. Similarly, in accordance with Rule 68 of the K.C.S.R. a Government servant can be appointed to be in- charge of the current duties of an office in addition to his own duties. He need not be the senior most.” Page 3 of 9 That was the view prevalent decades back, when public administration was being run consistent with fairness standards. However, the fall in such standards is nowadays steep, is indisputable. Law cannot remain static and it has to keep pace with the changing times. Otherwise, it would not be living law of the people, to borrow the words of Eugen Ehrlich (14 September 1862 – 2 May 1922), an Austrian legal scholar. 4.2. The world is moving towards a normative regime, so that the arbitrary action of power-holders does not victimize the scrupulous employees committed to the job. The vacancy having arisen in the post of Principal of the Institution in question, the senior-most Member of the teaching staff, having qualification for holding the said post, ought to have been considered for placement on in-charge/independent charge basis, till a regular appointment is made. Admittedly, in the seniority list petitioner figures at the top and OP No.4 is at sl.no.4, two more persons being sandwiched between these two, who are not inclined to accept the offer of arrangement. The contention of learned AGA that there are some allegations against the petitioner and therefore, OP No.4 is preferred for the arrangement, is difficult to agree with in the absence of any disciplinary inquiry or criminal case pending against him. In his long Page 4 of 9 service since 1995, there is not even one black mark in Annual Confidential Rolls. Mere bald allegations emanating from some quarters would not do, in matters like this. An argument to the contrary would dampen the spirit of committed & long serving Lecturers and in turn that would affect the interest of community of the taught. This is not a happy thing to happen in the campus, to say the least. 4.3. The vehement submission of learned AGA that a Coordinate Bench of this Court, vide interim order dated 30.04.2024 having stayed the impugned order, another Lecturer from some other Institution has been placed in the office of Principal on in-charge basis and therefore, the same be continued, does not merit acceptance. Here is a Lecturer, who has put in three decades of service. It is not certain whether he would ever occupy the seat of Principal in the regular promotion/recruitment process. This Court has come across several cases wherein raw juniors are preferred to the seniors while making appointment by way of in-charge arrangement. The Apex Court in E.P. Royappa v. State of Tamilnadu,1 has observed that all actions of the State & its instrumentalities should be animated with reason, logic & fairness; otherwise they run the risk of being invalidated on the ground of arbitrariness which Article 14 of the 1 AIR 1974 SC 555 Page 5 of 9 Constitution of India shuns. It hardly needs to be stated that a junior being placed on a higher pedestal of service would create a lot of heartburn to the deserving seniors. The State, being a Model Employer, should ensure that it does not happen. ‘Shrukra Neeti’, a Hindu Scripture, injuncts the King to treat his subjects in general and servants in particular, fairly & kindly and without arbitrariness. 4.4. Added to the above, the interim arrangement was made by the Coordinate Bench so that there was vacuum in the office of Principal, when impugned order was stayed. It is a matter of common knowledge, personnel ordinarily should not be outsourced to the prejudice of in- service candidates. The lis essentially was between the petitioner and OP No.4. How awarding the interim arrangement to a third party would serve the cause of justice, is difficult to comprehend. The cause of justice would be better served by placing the petitioner on in-charge basis instead of outsourcing. This view broadly gains support from the decision of Karnataka High Court in H.P. Lakshminarayana v. Karnataka Forest Division Corporation,2. Of course, this Court notes that the said decision essentially related to deputation from outside. 2 ILR 2000 KAR 5089 Page 6 of 9 4.5. Learned counsel for the petitioner has placed on record a copy of State policy dated 08.11.2024 providing for appointment to the post of Principal, of course, on regular basis, which prescribes certain terms and conditions of eligibility & qualification. The relevant part of the said policy reads as under: However, For 488 Category Colleges Only teachers from the Common Cadre of Readers “Appointment Criteria and Process A. 1. Eligibility: • Grade are to be appointed as Principal. • if no eligible and willing readers are available, eligible and willing senior most lecturers can be appointed as Principal. • The following eligibility conditions are to be met: • The Reader must be willing and explicitly given consent to shoulder additional responsibilities along with their primary duties including changes of headquarters. • The Performance Appraisal Report (PAR) / Confidential Character Roll (CCR) for the last five years must be up-to-date and free from adverse remarks. • No vigilance cases, disciplinary proceedings, or criminal proceedings, audit para is pending against him/her or he has not been punished / convicted in the past in any vigilance cases, disciplinary proceedings, or criminal proceedings. Selection Process: 2. • The selection will be based on seniority among the eligible and willing Readers across the State subject to availability of vacancy in respective subject in the concerned college. 3. • be appointed as Principal. Procedure: Among the willing Readers, the senior-most Reader will Page 7 of 9 • If one is unwilling to take on the role, he/she must submit an affidavit stating the reasons thereof and he/she will not be considered for the position for at least three years from the date of submitting the affidavit.” It is desirable that the pith & substance of this policy should be kept in view while making placement on in-charge/independent charge arrangement, so that the process would be normative and that would minimize the possibility of pick & choose, at the whims & fancy of the ‘authorities that be’. 4.6. The argument of learned AGA that such an arrangement is short living and therefore, much hue & cry should not be raised by the employees like petitioner, does not impress the Court, which has seen cases of similar arrangements unjustifiably running for years, whatever be the reason therefor. True it is that in-charge/independent charge arrangement is organized in the discretion of the administration. However, discretion does not mean making decision as per whims & fancies of the decision maker. Lord Halsbury in SHARP v. WAKEFIELD,3 observed that discretion means according to rules of reason & justice. The Principal of any educational institution functions as its ‘conscience keeper’ and the administration largely depends upon 3 (1891) AC 173 Page 8 of 9 him/her. Therefore, such arrangements, ideally speaking, should not continue for long periods, say beyond six months. The authorities concerned should undertake the process for regular appointment, inasmuch as person holding an office on in-charge/ independent charge cannot ordinarily discharge the substantive functions of that office, vide B.N. Dhotrad v. The Board of Directors Land Army Corporation,4. In the above circumstances, this writ petition succeeds; A Writ of Certiorari issues quashing the impugned order dated 23.11.2023 at Annexure-7. A Writ of Mandamus issues to OP No.3 to place the petitioner in the office of Principal of the Institution on in-charge basis forthwith, and report compliance to the Registrar General of this Court within an outer limit of four (4) weeks. It is made clear that this arrangement would continue only till after a regular candidate is appointed. Now, no costs. Web copy of this judgment to be acted upon by all concerned. Orissa High Court, Cuttack The 25th day of August, 2025/Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: Orissa High Court Date: 26-Aug-2025 18:16:00 4 ILR 2006 KAR 3163 Dixit Krishna Shripad Judge Page 9 of 9