Whether Retrospective Seniority can be Claimed from a Date when an Employee is not Even Borne in Service? SC answers (Read Judgment)

The Supreme Court Bench comprising Justice R. Subhash Reddy and Justice Hrishikesh Roy in the case titled State of Bihar v. Arbind Jee dated 28-09-2021 gives their views on whether retrospective Seniority can be claimed from a date when an employee is not even borne in service.

Facts of the case:

The father of the respondent was working as a Home guard and after he died in harness, the respondent applied for a compassionate appointment. The concerned Committee recommended the respondent and others whereafter the order dated 20.11.1985 was issued by the Commandant, forwarding the name of the respondent as one of the persons shortlisted for appointment on a compassionate basis. Later, the respondent was denied an appointment as he was found deficient in the physical standards. 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. Said SLP was allowed by the Supreme Court and 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 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.

High Court’s Observation and Judgment:

Said rejection order was then challenged and the Patna High Court in the respondent’s CWJC no. 6683/2003 directed the authority to consider the respondent’s seniority from 5.12.1985. The Division Bench has dismissed the appeal filed against said order and held that the appointment should relate back to the date of the initial order on 20.11.1985.

Issue to be Answered:

Whether the respondent is entitled to claim seniority in service from a retrospective date i.e. 20.11.1985 as was ordered by the High Court or whether he is entitled for seniority from the date he entered service?

Supreme Court’s Observation and Judgment:

After hearing the submissions of the parties, the Supreme Court has held that the principles enunciated in case Shitla Prasad Shukla v. State of UP  1986 Latest Caselaw 124 SC are applicable to the case at hand. The Supreme Court has held that

“The compassionate appointment of the respondent is not being questioned here but importantly he is claiming seniority benefit for 10 years without working for a single day during that period. In other words, precedence is being claimed over other regular employees who have entered service between 1985 to 1996. 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.”

The Supreme Court also held that the present is not a case of recruitment by selection and is a compassionate appointment made on this court’s order. The court’s direction to the State was to appoint within 1 month without specifying that the appointment should have a retrospective effect. 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. Moreover, his was a compassionate appointment without any element of competitive recruitment where the similarly recruited has stolen a march over him. The High Court was in error in granting retrospective seniority to the respondent.

Case Titled: State of Bihar v. Arbind Jee dated 28-09-2021       

Bench: Justice R. Subhash Reddy and Justice Hrishikesh Roy

Counsel: For Appellant - Advocate Abhinav Mukerji     

For Respondent: Advocate Satvik Misra                 

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