The State of Bihar & Ors. Vs Arbind Jee - (Supreme Court) (28 Sep 2021)

Retrospective seniority cannot be claimed from a date when an employee is not even borne in service

MANU/SC/0716/2021

Service

Present appeal is directed against the judgment and order of the High Court. The issue to be answered here is whether the Respondent is entitled to claim seniority in service from a retrospective date i.e. 20th November, 1985 as was ordered by the High Court or whether he is entitled for seniority from the date he entered service.

The High Court should not have travelled beyond the order passed by present Court to hold in favour of the Respondent that his seniority should be counted from 5th December, 1985 although he entered service a decade later only on 10th February, 1996. Moreover, the Respondent even after entering service did not immediately claim the benefit of retrospective appointment, and only on 10th September, 2002 he applied to the Commandant to claim seniority from 5th December, 1985 which claim was however rejected by the Authority on 20th November, 2002.

The Respondent entered service only on 10th February, 1996 and yet under the impugned judgment, the High Court directed counting of his seniority from 20th November, 1985 when he was not borne in service. The jurisprudence in the field of service law provides 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.

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 reasonable time, for fixing his date of appointment as 20th November, 1985. Six years later, only on 10th September, 2002, he made a representation and the same was rejected with the observation that on 1st August, 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. Moreover, his was a compassionate appointment without any element of competitive recruitment where the similarly recruited has stolen a march over him.

The records here reflects that, the State have faithfully implemented the direction issued by present Court and appointed the Respondent. Moreover, the action of the authorities in determination of the Respondent’s seniority from the date of entering service is found to be consistent with the applicable laws. The High Court was in error in granting retrospective seniority to the Respondent. The impugned orders passed by the High Court are set aside and quashed. The appeal is accordingly allowed.

Tags : SENIORITY GRANT LEGALITY