Supreme Court: The bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that retrospective seniority cannot be claimed from a date when an employee is not even borne in service.
- The father of the respondent was working as a Home guard and after he died in harness, the respondent applied for compassionate appointment.
- On 20.11.1985, order was issued by the Commandant, Bihar Home Guard forwarding the name of the respondent as one of the persons shortlisted for appointment on compassionate basis.
- The appointment was conditional upon physical fitness certificate issued by the Civil Surgeon and the respondent was denied appointment as he was found deficient in the physical standards.
- The recommended persons appeared in the Home Guard Headquarter as directed, but aggrieved, the respondent moved and obtained relief from the Patna High Court for appointment in Class IV post.
- As the respondent was shortlisted for the post of Adhinayak Lipik, directed that the respondent be appointed to the post of ‘Adhinayak Lipik’ in the Homeguard Department, State of Bihar.
- Following the above direction of the Supreme Court, the respondent was appointed on 27.2.1996.
- Six years after joining service, an application was made on 10.9.2002 by the respondent claiming seniority from 1985 but the same was rejected by the authorities on the ground that the respondent was appointed in 1996 and not in 1985.
Noticing that the respondent entered service only on 10.2.1996, the Court made clear that,
“The jurisprudence in the field of service law would advise us that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules, should not be allowed, as in so doing, others who had earlier entered service, will be impacted.”
Stating that the respondent was claiming seniority benefit for 10 years without working for a single day during that period, the Court held that precedence was being claimed over other regular employees who had entered service between 1985 to 1996.
It was, hence, held,
“In this situation, the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous.”
Shitla Prasad Shukla vs. State of UP, (1986)(Supp.) SCC 185
“The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the Court will not overturn the determination unless it would be unfair not to do so…”
Ganga Vishan Gujrati And Ors. Vs. State of Rajasthan, (2019) 16 SCC 28
“… retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade.”
[State of Bihar v. Arbind Jee, 2021 SCC OnLine SC 821, decided on 28.09.2021]
For appellant: Advocate Abhinav Mukerji
For respondent: Advocate Satvik Misra
*Judgment by: Justice Hrishikesh Roy