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Retrospective seniority, unless directed by the court or expressly provided by the applicable Rules, should not be allowed: Supreme Court of India

Retrospective seniority unless directed by the 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 as held by Justice Hrishikesh  Roy in the case of The State Of Bihar & Ors. Vs Arbind Jee[CIVIL APPEAL NO. 3767 OF 2010]. The respondent was represented by Mr. Satvik Misra, learned counsel, and the learned counsel appearing for the appellants was Mr. Abhinav Mukerji.

The brief facts of the case are that the father of the respondent was working as a Home guard and after he died in harness, the respondent applied for a compassionate appointment but the respondent was denied appointment as he was found deficient in the physical standards. Thus 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, he challenged the High Court order through SLP(C) No. 6437 of 1993. By the order of the Supreme Court, the respondent was appointed “Adhinayak Lipik’ on 27.2.1996.

Six years after joining service, an application was made on 10.9.2002 by the respondent claiming seniority from 5.12.1985 but the authorities rejected the claim on 20.11.2002 on the ground that the respondent was appointed on 27.2.1996 on the direction of the Supreme Court and that he was not borne in service as on 5.12.1985. The rejection order was then challenged and the Patna High Court directed the authority to consider the respondent’s seniority from 5.12.1985. The above order passed by the learned Single Judge was challenged by the State.

To challenge the conferment of retrospective seniority, the learned counsel for the appellant has cited Shitla Prasad Shukla vs. State of UP and Ors where the court speaking through Justice M. P. Thakkar rightly held that “The latecomers to the regular stream cannot steal a march over the early arrivals in the regular queue.” The principles enunciated in Shitla Prasad Shukla are applicable to the case at hand as he is claiming seniority benefit for 10 years without working for a single day during that period.

The learned counsel for respondent relies on C. Jayachandran vs. State of Kerala, to argue for retrospective seniority. Here, the bench speaking through Justice Hemant Gupta in the context of a diligent litigant observed that: “The appellant has submitted the representation on 11-4-2012 i.e. within 1 year and 2 months of his joining and submitted reminder on 18-9-2014. It is the High Court that has taken time to take a final call on the representation of the appellant and other direct recruits. The appellant was prosecuting his grievances in a legitimate manner of redressal of grievances. Therefore, it cannot be said that the claim of the appellant was delayed as he has not claimed the date of appointment as 30-3-2009.”

After hearing both sides, the Hon’ble Supreme Court observed that the respondent never raised any claim for relating his appointment to an earlier date from this Court. Post appointment, he never raised any grievance within a reasonable time, for fixing his date of appointment as 20.11.1985. Six years later, only on 10.9.2002, he made a representation and the same was rejected with the observation that on 1.8.1985, the respondent was yet to enter service. Proceeding with these facts, it is clearly discernible that the respondent has slept over his rights, and never earlier pointedly addressed his present claim either to the Supreme Court (in the earlier round) or to the State, soon after his appointment.

The Hon’ble Court while quashing the impugned orders passes by the Patna High Court, held that “The action of the authorities in the determination of the respondent’s seniority from the date of entering service is found to be consistent with the applicable laws. There could be individual cases where a bunch of applicants is recruited through a common competitive process but for one reason or another, one of them is left out while others get appointed. When the denial of an analogous appointment is founded to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual. However, the present is not a case of that category.”

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Judgment reviewed by – Aryan Bajaj

 

 

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