Case BriefsSupreme Court

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.

Factual Background

  • 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.

Analysis

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.”

Important rulings

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]

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Counsels:

For appellant: Advocate Abhinav Mukerji

For respondent: Advocate Satvik Misra


*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Case BriefsSupreme Court

Supreme Court: The bench of R. Subhash Reddy* and Hrishikesh Roy, JJ has held that without positive act on the part of the accused to instigate or aid in committing suicide, no one can be convicted for offence under Section 306, IPC.

“To proceed against any person for the offence under Section 306 IPC it requires an active act or direct act which led the deceased to commit suicide, seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.”

The ruling came in a case where the deceased had consumed poison in from of the house of the appellant. Except the statement that the deceased was in relation with the appellant, there was no material at all to show that appellant was maintaining any relation with the deceased.

In fact, the statement of the SI disclosed that the deceased was stalking the appellant and was continuously calling her and proposing that she should marry him with a threat that he will die otherwise. The appellant, along with her father, had made a complaint about the same.

Having regard to such material placed on record and in absence of any material within the meaning of Section 107 of IPC, the Court held that there was absolutely no basis to proceed against the appellant for the alleged offence under Section 306 IPC.

“It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever.”

Some important rulings

Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), (2009) 16 SCC 605

There should be an intention to provoke, incite or encourage the doing of an act by the accused. Each person’s suicidability pattern is different from the other and each person has his own idea of self-esteem and self-respect. Further, is impossible to lay down any straightjacket formula dealing with the cases of suicide and each case has to be decided on the basis of its own facts and circumstances.

Amalendu Pal @ Jhantu v. State of West Bengal, (2010) 1 SCC 707

In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.

In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide.

[Kanchan Sharma v. State of UP, 2021 SCC OnLine SC 737, decided on 17.09.2021]

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Counsels:

Advocate Sanchit Garga, for the appellant

Advocate Aviral Saxena, for the State


*Judgment by: Justice R. Subhash Reddy

Know Thy Judge| Justice R. Subhash Reddy