[Cites 9, Cited by 0]
Chattisgarh High Court
Deepak Sahu vs State Of Chhattisgarh on 17 April, 2026
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Page 1 of 21
(WPS No.1827/2020)
Digitally 2026:CGHC:17588
AFR
signed by
SISTA
SISTA SOMAYAJULU
SOMAYAJULU Date:
2026.04.17
16:44:16
+0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 1827 of 2020
Order reserved on: 06/04/2026
Order delivered on: 17/04/2026
Order (Full) uploaded on: 17/04/2026
1. Deepak Sahu, S/o Kedarnath Sahu, aged about 34 years, Assistant
Engineer (AE), Chhattisgarh State Renewable Energy Development
Agency (CREDA), District Office Janjgir-Champa, R/o House No.A-
35, Dream City, Near Rama Green City, Bilaspur, Chhattisgarh.
2. Savita Kashyap, W/o Gopi Kashyap, Aged about 35 years, Assistant
Engineer (AE), Chhattisgarh State Renewable Energy Development
Agency (CREDA), Regional Office Jagdalpur, District Bastar, R/o Lal
Bagh Aamaguda, Behind Durga Mandir, Jagdalpur, District Bastar,
Chhattisgarh - 494001.
3. Sana Parveen, D/o Ekhlaque Ahmed, aged about 29 years, Assistant
Engineer (AE), Chhattisgarh State Renewable Energy Development
Agency (CREDA), Regional Office Bilaspur, District Bilaspur, R/o
Barkat, Ward No.25, Sharda Nagar, Near Sai Mandir & Magneto
Mall, Bilaspur, Chhattisgarh.
4. Gopi Kashyap, S/o Balram Kashyap, Aged about 35 years, Assistant
Engineer, Chhattisgarh State Renewable Energy Development
Agency (CREDA), District Office Bastar, Chhattisgarh, R/o Lal Bagh
Aamaguda, Behind Durga Mandir, Jagdalpur, District Bastar,
Chhattisgarh - 494001.
5. Akash Sharma, S/o Ashok Sharma, aged about 30 years, Assistant
Engineer (AE), Chhattisgarh State Renewable Energy Development
Agency (CREDA), Head Office Raipur, District Raipur, R/o House
No.10, Phase-1, Mahadev Vatika Colony, Amleshwar, Post
Amleshwar, District Durg, Chhattisgarh.
6. Ravikant Bharadwaj, S/o Late S.S. Bharadwaj, Aged about 37 years,
Assistant Engineer (AE), Chhattisgarh State Renewable Energy
Development Agency (CREDA), District Office Narayanpur, R/o
Page 2 of 21
(WPS No.1827/2020)
Smriti Kunj, Jawahar Nagar Ward Metaguda, Jagdalpur, District
Bastar, Chhattisgarh.
... Petitioners
versus
1. State of Chhattisgarh, Through the Secretary, Department of Energy,
Mantralaya, Mahanadi Bhawan, Atal Nagar, New Raipur, District
Raipur, Chhattisgarh.
2. Chhattisgarh State Renewable Energy Development Agency
(CREDA), through the Chief Executive Officer, Near Energy
Education Part, VIP Road, Raipur, District Raipur, Chhattisgarh.
3. Chief Engineer (Administration), Chhattisgarh State Renewable
Energy Development Agency (CREDA), through the Chief Executive
Officer, Near Energy Education Part, VIP Road, Raipur, District
Raipur, Chhattisgarh.
4. Nandkishore Rai, S/o Shri B.N. Rai, aged about 41 years, posted as
Assistant Engineer at CREDA, District Office Korba, R/o Flat No.159,
Koshabadi, Korba, Police Station Rampur, District Korba,
Chhattisgarh
5. Abhishek Kumar Shukla, S/o Shri Ramprasad Shukla, aged about 39
years, posted as Assistant Engineer at CREDA, Head Office Raipur,
R/o Flat No.505, Shrizee Kalpataru Heights, Amlidih, Raipur,
District Raipur, Chhattisgarh
6. Rahul Gupta, S/o Shri Ramanand Gupta, aged about 47 years, posted
as Assistant Engineer at CREDA, Head Office Raipur, R/o Mogra 78,
Block-B, Talpuri International Colony, Bhilai, District Durg,
Chhattisgarh
... Respondents
For Petitioners : Mr. Manoj Paranjpe, Senior Advocate with Mr.
Sharad Mishra, Advocate.
For Respondent No.1/State : Mr. Pranjal Shukla, Panel Lawyer.
For Respondents No.2 & 3 : Mr. Harshwardhan Parganiha, Advocate.
For Respondents No.4 to 6 : Mr. Ashok Kumar Shukla and Mr. Ravi Singh,
Advocates.
Single Bench: -
Hon'ble Shri Justice Sanjay K. Agrawal
C.A.V. Order
For sake of exposition, this Order is divided in following parts:-
Page 3 of 21
(WPS No.1827/2020)
S.No. Particulars Page Nos.
1. Writ Petition 3
2. Factual Backdrops 3
3. Return by Respondents No.2 & 3 CREDA 6
4. Return by Private Respondents No.4 to 6 7
5. Submissions on behalf of the Petitioners 7
6. Submissions on behalf of Respondents No.2 & 3 CREDA 8
7. Submissions on behalf of Private Respondents No.4 to 6 9
8. Seniority 10
9. The object of assigning seniority 11
10. Service Rules Applicable 11
11. Discussion and Analysis 19
12. Relief and Cost 20
1. Writ Petition
Challenge in the writ petition is to the order dated 26-10-2019
(Annexure P-1) passed by respondent No.2 by which respondents No.
4 to 6 have been given notional seniority with effect from 1-1-2013 on
the post of Assistant Engineer and also the petitioners eventually seek
to quash the seniority list dated 13-2-2020 (Annexure P-2) in which
the private respondents No.4 to 6 have been shown senior to the
petitioners herein.
Factual Backdrops
2. Respondents No.4 to 6 were appointed on contract basis on the post of
Junior Engineer/Sub-Engineer on 1-4-2008, thereafter, on 26-5-2010,
respondent No.2 published final gradation list of Junior Engineers
Page 4 of 21
(WPS No.1827/2020)
(Sub-Engineers) showing position as on 1-4-2010 wherein the names
of private respondents No.4 to 6 were shown at Serial Nos.3, 5 and 6,
respectively, and thereafter, on 14-6-2010, the services of private
respondents No.4 to 6 were regularized on the post of Junior Engineer/
Sub-Engineer with effect from 1-4-2010 after completion of two years
of probation period. Again respondent No.2 published a final
gradation list of Junior Engineers (Sub-Engineers) showing position as
on 1-4-2011 in which respondents No.4 to 6 were shown at Serial
Nos.3, 5 and 6, respectively. In the year 2012, respondent No.2
amended the Service Rules and new Service Rules were enacted. As
per the said amended rules, the qualifying service for promotion to the
post of Assistant Engineer is 5 years of continuous service on the post
of Junior Engineer (Sub-Engineer).
3. Pursuant to the advertisement issued by respondent No.2 for the post
of Assistant Engineer, the present six petitioners were appointed on the
vacant and sanctioned posts of Assistant Engineer and order of
appointment dated 25-4-2013 was issued in their favour by respondent
No.2 CREDA whereby all the 10 vacant posts of Assistant Engineer
were filled. Thereafter, on 9-5-2013, respondent No.2 published final
gradation list of Junior Engineers showing the position as on 1-4-2013
in which the names of respondents No.4 to 6 were shown at Serial
Nos.3, 5 and 6, respectively. However, on 6-6-2013, respondent No.2
published final gradation list of Assistant Engineers showing the
Page 5 of 21
(WPS No.1827/2020)
position as on 1-4-2013 wherein the names of the private respondents
were not there in the said list, as they were working on the post of
Junior Engineer/Sub-Engineer. Similarly, on 23-5-2014, respondent
No.2 published final gradation list of Junior Engineers showing the
position as on 1-4-2014 wherein the names of the private respondents
were found at serial Nos.3, 5 and 6, respectively.
4. On 5-2-2015, respondent No.2 conducted a meeting of the
Departmental Promotion Committee (DPC) wherein recommendation
was made for promotion of the private respondents on the post of
Assistant Engineer and pursuant to the said recommendation of the
DPC, on 11-2-2015, respondents No.4 to 6 herein were promoted to -
the post of Assistant Engineer with effect from 11-2-2015. On 27-5-
2015, respondent No.2 published the gradation list of Assistant
Engineers showing position as on 1-4-2015, wherein the names of the
petitioners were kept above the private respondents showing the names
of the petitioners at Serial Nos.26, 31, 30, 29, 25 and 27, respectively,
whereas the names of the private respondents were shown at serial
Nos.33, 34 and 35, respectively. The private respondents challenged
the aforesaid position in the seniority list by filing representations
which respondent No.2 rejected by order dated 18-3-2016. The private
respondents were still aggrieved and not satisfied with the order passed
on their representations and thus, they again made representation
which respondent No.2 considered by forming a committee for
Page 6 of 21
(WPS No.1827/2020)
redressing the grievance raised by them, however, the said committee
found the seniority position to be just and proper leading to filing of
WPS No.6272/2019 in which this Court by order dated 20-8-2019
directed respondent No.2 to consider the case of the petitioners therein
i.e. the private respondents herein on its own merit in respect of their
entitlement for promotion/seniority on the post of Assistant Engineer
with effect from 1-1-2013. Thereafter, the impugned order was passed
on 26-10-2019 granting the representation of the private respondents
giving notional seniority to them with effect from 1-1-2013 on the post
of Assistant Engineer and gradation list was issued on 13-2-2020
showing them seniors to the present petitioners.
Return by Respondents No.2 & 3 CREDA
5. Return has been filed by respondent No.2 stating inter alia that the
present petition is not maintainable in view of the existence of an
effective alternative remedy available to the petitioners, as appeal was
preferred but that has been withdrawn and respondents No.4 to 6 were
appointed on the post of Junior Engineer/Sub-Engineer and they were
regularised with effect from 1-4-2008, and the applicable promotion
regime is governed by the amended CREDA Service Rules of 2004
(clauses 12.3 and 12.4). It has been further stated that respondents
No.4 to 6 had completed 5 years of service on 1-1-2013 and were
eligible for promotion in accordance with the amended mandatory
Page 7 of 21
(WPS No.1827/2020)
Rules and it has never been the petitioners' case that they were not
eligible and as such, the writ petition deserves to be dismissed.
Return by Private Respondents No.4 to 6
6. Respondents No.4 to 6 have filed their separate returns stating inter
alia that a duly constituted committee has recommended the grant of
notional seniority to respondents No.4 to 6, the petitioners have not
approached the Court with clean hands and moreover, the
examination/enquiry committee report dated 15-2-2016 has not been
subjected to challenge. It has further been stated that the writ petition
suffers from delay and laches and grant of notional seniority is a
corrective measure, not a favour to the private respondents. It has also
been stated that the delay in convening DPC was caused by CREDA
which is a purely administrative lapse, hence respondents No.4 to 6
cannot be penalised for the inaction on the part of CREDA and as such,
the writ petition deserves to be dismissed.
Submissions on behalf of the Petitioners
7. Mr. Manoj Paranjpe, learned Senior Counsel appearing on behalf of
the petitioners, would submit that respondents No.4 to 6 were
promoted on the post of Assistant Engineer only on 11-2-2015, as
such, they have to be treated to be born in the cadre of Assistant
Engineer with effect from 11-2-2015, whereas the petitioners were
appointed on the post of Assistant Engineer with effect from 25-4-
Page 8 of 21
(WPS No.1827/2020)
2013, as such, they are admittedly and undisputedly seniors to
respondents No.4 to 6 on the post of Assistant Engineer, therefore,
merely on the ground that the alleged vacancy was there since the year
2008, respondents No.4 to 6 cannot claim seniority with effect from
11-1-2013. He would rely upon the decision of the Supreme Court in
the matter of Bihar State Electricity Board and others v.
Dharamdeo Das1 to contend that a promotion is effective from the
date it is granted and not from the date when a vacancy occurs on the
subject post or when the post itself is created.
Submissions on behalf of respondents No.2 & 3 CREDA
8. Mr. Harshwardhan Parganiha, learned counsel appearing on behalf
of respondents No.2 & 3/Chhattisgarh State Renewable Energy
Development Agency (CREDA), would submit that the CREDA
Service Rules of 2004 were amended with effect from 9-7-2012 and
the qualifying service for promotion was reduced from 8 years to 5
years, therefore, respondents No.4 to 6, whose services were
reckonable from 1-4-2008, completed 5 years by 1-1-2013 and
became eligible for promotion to the post of Assistant Engineer. As
such, it is absolutely clear that the date from which the seniority of
respondents No.4 to 6 was to be considered for promotion to the post
of Assistant Engineer was 1-4-2008, as they had completed 5 years of
service on 1-1-2013 and were eligible for promotion in accordance
with the amended Rules and it has never been the petitioners' case
1 2024 SCC OnLine SC 1768
Page 9 of 21
(WPS No.1827/2020)
that they were not eligible. Therefore, notional seniority has rightly
been granted to respondents No.4 to 6 with effect from 1-1-2013.
Submissions on behalf of Private Respondents No.4 to 6
9. Mr. Ashok Kumar Shukla, learned counsel appearing on behalf of
respondents No.4 to 6, would vehemently submit that the enquiry
report dated 15-2-2016 of the committee has not been subjected to
challenge by the petitioners and the writ petition suffers from delay
and laches. He would further submit that the private respondents
No.4 to 6 were entitled for promotion with effect from 1-1-2013 prior
to the petitioners' appointment dated 25-4-2013 and the
Department's failure to convene the DPC cannot be held against
respondents No.4 to 6. He would also submit that respondent
No.2/employer has the power to rectify such administrative failure
and lapses and since respondents No.4 to 6 were eligible for
promotion with effect from 1-1-2013, but they were wrongly denied
promotion due to administrative lapses, notional seniority can be
granted from the date of eligibility. He would rely upon the decisions
of the Supreme Court in the matters of Haryana Staff Selection
Commission v. Priyanka and others etc. etc. 2, C.
Jayachandran v. State of Kerala and others 3, Union of India
and others v. N.R. Parmar and others4, Union of India and
another v. Hemraj Singh Chauhan and others 5 and S.D.
2 (2021) 7 SCR 667
3 (2020) 5 SCC 230
4 (2012) 13 SCC 340
5 2010 AIR SCW 2103
Page 10 of 21
(WPS No.1827/2020)
Raghunandan Singh v. State of Karnataka 6 to buttress his
submissions. As such, the writ petition deserves to be dismissed.
10. I have heard learned counsel for the parties and considered their
rival submissions made herein-above and also gone through the
record with utmost circumspection.
Seniority
11. Seniority, in service law, connotes the precedence or preference in
position of an employee over other employees similarly situated.
According to Black's Law Dictionary "seniority" means:
"Precedence or preference in position over others
similarly situated. As used, for example, with reference to job
seniority, worker with most years of service is first promoted
within range of jobs subject to seniority, and is the last laid off,
proceeding so on down the line to the youngest in point of
service."7
Again Collins Cobuild English Language Dictionary8 says:
"A person's seniority in an organisation is their degree of
importance and power as compared to other people who work
there."
12. The Supreme Court has recognized that seniority confers a valuable
right on the employee and his entire future career at times is
dependent upon such seniority (see Andhra Pradesh
Cooperative Oil Seeds Growers Federation Ltd v. D Achyuta
Rao9). As seniority or inter se seniority is not a fundamental right but
a civil right and the persons whose seniority might be affected are
6 1994 Supp (2) SCC 526
7 6th Edn, p 1362.
8 Indian Reprint 1991, p 1315.
9 (2007) 13 SCC 320.
Page 11 of 21
(WPS No.1827/2020)
necessary parties and such rights are to be determined in their presence
(see State of Uttaranchal v. Madan Mohan Joshi10). Since seniority
can be a determinative factor in consideration for promotion, it also
becomes a facet of Article 16(1) of the Constitution of India (see Ajit
Singh v. State of Punjab11).
The object of assigning seniority
13. The object of assigning seniority is to facilitate the filling of
promotional posts. The question of assigning of seniority arises only
in relation to employees who are similarly circumstanced i.e. where
they are functioning in the same rank, grade or cadre.
Service Rules Applicable
14. Rule 26 of the CREDA Service Rules of 2004 (amended) speaks
about Seniority. It states as under: -
26- ofj"Brk %&
26-1 ØsMk ds v/khu fdlh in ij dk;Zjr fdlh deZpkjh dh ofj"Brk dh x.kuk
mlds }kjk ml in ij dh xbZ fujarj lsok dh frfFk ls dh tk,xhA fdarq ;fn ml
in ij nks ;k vf/kd deZpkfj;ksa us ,d gh frfFk dks dk;ZHkkj xzg.k fd;k gks rks mudh
ikjLifjd foj"Brk p;u lwph ds xq.kkuØe ds vk/kkj ij fu/kkZfjr dh tk,xhA ,sls
ifjoh{kk/khu deZpkjh tks fdlh dkj.k ls ifjoh{kk vof/k dh lekfIr ij fu;fer u
fd;s x;s gks] ofj"Brk dze esa mu ifjoh{kk/khu deZpkfj;ksa ls uhps j[ks tk;saxs ftUgsa
muls igys fu;fer fd;k tk pqdk gksA
26-2 ;fn fdlh deZpkjh dk fuEu in ij izR;kofrZr fd;k x;k gks rks mls] tc td l{ke
vf/kdkjh }kjk vU;Fkk vknsf'kr u fd;k tk,] mls fuEu in dh ofj"Brk lwph esa
lcls mij j[kk tk;sxkA
26-3 ,sls izfrfu;qfDr ij dk;Zjr deZpkjh dh ofj"Brk ftldh lsokvks a dk ØsMk es a
lafofy;u dj fy;k x;k gks] ØsMk ds v/khu mldh lsokvksa ds lafofy;u ds fnukad
ls fu/kkZfjr dh tk,xhA ,sls deZpkjh dks] lafofy;u dh frfFk dks lacaf/kr laoxZ ds
dfu"Bre deZpkjh ds Bhd ckn ds LFkku ij ofj"Brk nh tk,xhA
10 (2008) 6 SCC 797.
11 (1999) 7 SCC 209.
Page 12 of 21
(WPS No.1827/2020)
15. The true english translated version of Rule 26 of the CREDA Service
Rules of 2004 states as under: -
"26. Seniority: -
26.1 The seniority of an employee working on any post under
the cadre shall be determined from the date of continuous
service rendered by him on that post. However, where two or
more employees assume charge of the same post on the same
date, their inter se seniority shall be determined on the basis of
their order of merit in the selection list. A probationer who, for
any reason, is not confirmed upon completion of the probation
period shall be placed below those probationers in the seniority
list who have already been confirmed earlier.
26.2 If an employee is reverted to a lower post, he shall, unless
otherwise directed by the competent authority, be placed at the
top of the seniority list of that lower post.
26.3 The seniority of an employee working on deputation,
whose services have been absorbed in the cadre, shall be
determined from the date of such absorption under the cadre.
Such an employee shall be placed in seniority immediately
below the last (junior-most) employee of the concerned cadre
as on the date of absorption."
16. A careful perusal of Rule 26.1 of the CREDA Service Rules of 2004
would show that the seniority of an employee working on any post
under the cadre shall be determined from the date of continuous
service rendered by him on that post.
17. The Supreme Court in the matter of Sunaina Sharma and others
v. State of Jammu and Kashmir and others 12 has held that a
person is entitled to seniority only from the date when he actually
joins the post and retrospective seniority can be granted only if the
rules enable retrospective appointment/promotion in terms of the
applicable service rules. Further, their Lordships of the Supreme
12 (2018) 11 SCC 413
Page 13 of 21
(WPS No.1827/2020)
Court relied upon the earlier decisions in the matters of State of
Bihar v. Akhouri Sachindra Nath13, Kaushal Kishore Singh
v. Director of Education14 and State of Uttaranchal v. Dinesh
Kumar Sharma15 to conclude that seniority has to be reckoned only
from the date the person entered into that service and retrospective
promotion/seniority can be granted in terms of the applicable service
rules, and observed as under: -
"15. From the judgments referred to hereinabove it is
apparent that the normal rule is that a person is entitled to
seniority only from the date when the said person actually joins
the post. True it is, that there are exceptions and sometimes "in
service" candidates can be granted promotion from a date
anterior to their being regularly promoted/appointed.
However, this can be done only if the rules enable retrospective
appointment and on fulfilling the other requirement of the
Rules."
18. In the matter of Pawan Pratap Singh v. Reevan Singh 16, the
Supreme Court has clearly held that retrospective seniority cannot be
granted to an employee from a date when the employee was not
borne on a cadre and seniority amongst members of the same grade
has to be counted from the date of initial entry into the grade and
relying upon the Constitution Bench decision of the Supreme Court
in the matter of Direct Recruit Class II Engg. Officers' Assn. v.
State of Maharashtra17, it has been observed as under: -
"(i) to (iii) xxx xxx xxx
(iv) The seniority cannot be reckoned from the date of
occurrence of the vacancy and cannot be given retrospectively
13 1991 Supp (1) SCC 334
14 (2002) 9 SCC 634
15 (2007) 1 SCC 683
16 (2011) 3 SCC 267
17 (1990) 2 SCC 715
Page 14 of 21
(WPS No.1827/2020)
unless it is so expressly provided by the relevant service rules.
It is so because seniority cannot be given on retrospective basis
when an employee has not even been borne in the cadre and by
doing so it may adversely affect the employees who have been
appointed validly in the meantime."
19. Similarly, in the matter of Union of India and another v.
Manpreet Singh Poonam and others 18, the Supreme Court
relying upon its earlier decision in the matter of Ganga Vishan
Gujrati v. State of Rajasthan19 held that retrospective seniority
cannot be granted to an employee from a date when the employee
was not borne on a cadre, and observed as under: -
"21. Similarly, this Court in Ganga Vishan Gujrati v. State of
Rajasthan, (2019) 16 SCC 28 has held that: (SCC pp. 52-53,
para 45)
45. A consistent line of precedent of this Court
follows the principle that 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. This principle emerges from the decision of
the Constitution Bench of this Court in Direct Recruit Class
II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2
SCC 715. The principle was reiterated by this Court in State
of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334
and State of Uttaranchal v. Dinesh Kumar Sharma, (2007)
1 SCC 683. In Pawan Pratap Singh v. Reevan Singh,
(2011) 3 SCC 267, this Court revisited the precedents on the
subject and observed: (Pawan Pratap Singh case, SCC pp.
281-82, para 45)
'45. ... (i) The effective date of selection has to
be understood in the context of the service rules under
which the appointment is made. It may mean the date
on which the process of selection starts with the
issuance of advertisement or the factum of preparation
of the select list, as the case may be.
18 (2022) 6 SCC 105
19 (2019) 16 SCC 28
Page 15 of 21
(WPS No.1827/2020)
(ii) Inter se seniority in a particular service has to
be determined as per the service rules. The date of
entry in a particular service or the date of substantive
appointment is the safest criterion for fixing seniority
inter se between one officer or the other or between one
group of officers and the other recruited from different
sources. Any departure therefrom in the statutory rules,
executive instructions or otherwise must be consistent
with the requirements of Articles 14 and 16 of the
Constitution.
(iii) Ordinarily, notional seniority may not be
granted from the backdate and if it is done, it must be
based on objective considerations and on a valid
classification and must be traceable to the statutory
rules.
(iv) The seniority cannot be reckoned from the
date of occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by the
relevant service rules. It is so because seniority cannot
be given on retrospective basis when an employee has
not even been borne in the cadre and by doing so it may
adversely affect the employees who have been
appointed validly in the meantime.'
This view has been re-affirmed by a Bench of three Judges
of this Court in P. Sudhakar Rao v. U. Govinda Rao, (2013)
8 SCC 693."
20. Similarly, in Bihar State Electricity Board (supra), the Supreme
Court has clearly held that a promotion is effective from the date it is
granted and not from the date when a vacancy occurs on the subject
post, and observed as under: -
"18. It is no longer res integra that a promotion is effective
from the date it is granted and not from the date when a
vacancy occurs on the subject post or when the post itself is
created. No doubt, a right to be considered for promotion has
been treated by courts not just as a statutory right but as a
fundamental right, at the same time, there is no fundamental
right to promotion itself. In this context, we may profitably cite
a recent decision in Ajay Kumar Shukla v. Arvind Rai20 where,
20 (2022) 12 SCC 579
Page 16 of 21
(WPS No.1827/2020)
citing earlier precedents in Director, Lift Irrigation
Corporation Ltd. v. Pravat Kiran Mohanty21 and Ajit Singh v.
State of Punjab22, a three Judge Bench observed thus:
41. This Court, time and again, has laid emphasis on right
to be considered for promotion to be a fundamental right,
as was held by K. Ramaswamy, J., in Director, Lift
Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty in para 4
of the report which is reproduced below:
"4...........There is no fundamental right to promotion,
but an employee has only right to be considered for
promotion, when it arises, in accordance with relevant
rules. From this perspective in our view the conclusion
of the High Court that the gradation list prepared by the
corporation is in violation of the right of respondent-
writ petitioner to equality enshrined under Article 14
read with Article 16 of the Constitution, and the
respondent-writ petitioner was unjustly denied of the
same is obviously unjustified."
42. A Constitution Bench in Ajit Singh v. State of Punjab,
laying emphasis on Article 14 and Article 16(1) of the
Constitution of India held that if a person who satisfies the
eligibility and the criteria for promotion but still is not
considered for promotion, then there will be clear violation
of his/her's fundamental right. Jagannadha Rao, J.
speaking for himself and Anand, C.J., Venkataswami,
Pattanaik, Kurdukar, JJ., observed the same as follows in
paras 22 and 27:
"Articles 14 and 16(1) : is right to be considered
for promotion a fundamental right
22. Article 14 and Article 16(1) are closely
connected. They deal with individual rights of the
person. Article 14 demands that the 'State shall not
deny to any person equality before the law or the equal
protection of the laws'. Article 16(1) issues a positive
command that:
'there shall be equality of opportunity for all citizens
in matters relating to employment or appointment
to any office under the State'.
21 (1991) 2 SCC 295
22 (1999) 7 SCC 209
(WPS No.1827/2020)
It has been held repeatedly by this Court that
clause (1) of Article 16 is a facet of Article 14 and that it
takes its roots from Article 14. The said clause
particularises the generality in Article 14 and identifies,
in a constitutional sense "equality of opportunity" in
matters of employment and appointment to any office
under the State. The word "employment" being wider,
there is no dispute that it takes within its fold, the
aspect of promotions to posts above the stage of initial
level of recruitment. Article 16(1) provides to every
employee otherwise eligible for promotion or who
comes within the zone of consideration, a fundamental
right to be "considered" for promotion. Equal
opportunity here means the right to be "considered" for
promotion. If a person satisfies the eligibility and zone
criteria but is not considered for promotion, then there
will be a clear infraction of his fundamental right to be
"considered" for promotion, which is his personal right.
"Promotion" based on equal opportunity and
seniority attached to such promotion are facets of
fundamental right under Article 16(1)
* * *
27. In our opinion, the above view expressed in
Ashok Kumar Gupta [Ashok Kumar Gupta v. State of
U.P.23, and followed in Jagdish Lal [Jagdish Lal v. State
of Haryana24, and other cases, if it is intended to lay
down that the right guaranteed to employees for being
"considered" for promotion according to relevant rules
of recruitment by promotion (i.e. whether on the basis
of seniority or merit) is only a statutory right and not a
fundamental right, we cannot accept the proposition.
We have already stated earlier that the right to equal
opportunity in the matter of promotion in the sense of a
right to be "considered" for promotion is indeed a
fundamental right guaranteed under Article 16(1) and
this has never been doubted in any other case before
Ashok Kumar Gupta [Ashok Kumar Gupta v. State of
U.P.], right from 1950."
20. In State of Bihar v. Akhouri Sachindra Nath, it was held
that retrospective seniority cannot be given to an employee
from a date when he was not even borne in the cadre, nor can
23 (1997) 5 SCC 201
24 (1997) 6 SCC 538
(WPS No.1827/2020)
seniority be given with retrospective effect as that might
adversely affect others. The same view was reiterated in
Keshav Chandra Joshi v. Union of India25, where it was held
that when a quota is provided for, then the seniority of the
employee would be reckoned from the date when the vacancy
arises in the quota and not from any anterior date of promotion
or subsequent date of confirmation. The said view was restated
in Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State
of U.P., in the following words:
"37. We are also of the view that no retrospective promotion
or seniority can be granted from a date when an employee
has not even been borne in the cadre so as to adversely
affect the direct recruits appointed validly in the meantime,
as decided by this Court in Keshav Chandra Joshi v. Union
of India held that when promotion is outside the quota,
seniority would be reckoned from the date of the vacancy
within the quota rendering the previous service fortuitous.
The previous promotion would be regular only from the
date of the vacancy within the quota and seniority shall be
counted from that date and not from the date of his earlier
promotion or subsequent confirmation. In order to do
justice to the promotees, it would not be proper to do
injustice to the direct recruits.......
38. This Court has consistently held that no
retrospective promotion can be granted nor can
any seniority be given on retrospective basis from a
date when an employee has not even been borne in
the cadre particularly when this would adversely
affect the direct recruits who have been appointed
validly in the meantime."
21. Thereafter, the principles of law laid down in Bihar State
Electricity Board (supra) were followed in the matter of
Government of West Bengal and others v. Dr. Amal
Satpathi and others26 and their Lordships have noticed paragraph
38 of the decision in the matter of Uttaranchal Forest Rangers'
Assn. (Direct Recruit) v. State of U.P.27, which states as under: -
25 1992 Supp (1) SCC 272
26 2024 SCC OnLine SC 3512
27 (2006) 10 SCC 346
(WPS No.1827/2020)
"38. This Court has consistently held that no retrospective
promotion can be granted nor can any seniority be given on
retrospective basis from a date when an employee has not even
been borne in the cadre particularly when this would adversely
affect the direct recruits who have been appointed validly in the
meantime."
Discussion and Analysis
22. Thus, from the aforesaid principles of law laid down by their
Lordships of the Supreme Court in the aforementioned decisions, it
is quite vivid that no seniority can be granted with retrospective
effect when the employee is not even borne in the cadre particularly
when this would adversely affect the direct recruits who have been
appointed validly in the meantime and if applicable service rule does
not provide for grant of retrospective seniority.
23. Coming to the facts of the present case, it is quite vivid that
respondents No.4 to 6, who were appointed on the post of Sub-
Engineer initially on contractual basis, were regularised in service on
1-4-2008 and thereafter, they had completed their probation period
of two years on 14-6-2010, however, the petitioners were directly
appointed on the post of Assistant Engineer on 25-4-2013 and
respondents No.4 to 6 were promoted on the post of Assistant
Engineer on 11-2-2015, as such, they will be treated to be borne in the
cadre of Assistant Engineer on 11-2-2015 and thereafter, order has
been passed by respondent No.2 granting notional seniority to
respondents No.4 to 6 with effect from 1-1-2013. As such,
respondents No.4 to 6 were granted retrospective seniority from the
date when they have not borne on the cadre on the post of Assistant
(WPS No.1827/2020)
Engineer and more so applicable service rules do not provide for
grant of retrospective seniority. This would adversely affect the
petitioners who are direct recruits on the post of Assistant Engineer.
As such, in light of the principles of law laid down in the aforesaid
judgments, it is quite vivid that the order passed by respondent No.2
granting seniority to respondents No.4 to 6 over and above the
petitioners is clearly impermissible in law and is in violation of the
principles of natural justice, as without affording opportunity of
hearing the order impugned Annexure P-1 was passed.
24. In view of the above, the submissions raised on behalf of the private
respondents and the official respondents that notional seniority has
rightly been granted to respondents No.4 to 6 with effect from 1-1-
2023, the enquiry report dated 15-2-2016 of the committee has not
been subjected to challenge by the petitioners and the writ petition
suffers from delay and laches, deserve to be rejected, and the case
laws cited on behalf of the private respondents are quite
distinguishable on facts to the present case.
Relief and Cost
25. Since the order impugned is not only in violation of the principles of
law, but also impermissible in law to grant retrospective seniority
over and above the petitioners who are direct recruits on the post of
Assistant Engineers, the order impugned dated 26-10-2019
(Annexure P-1) is hereby quashed and the order dated 13-2-2020
(Annexure P-2) is also hereby quashed. Respondent No.2 is directed
(WPS No.1827/2020)
to issue fresh seniority list giving the petitioners their due seniority
over and above respondents No.4 to 6.
26. The writ petition is allowed to the extent indicated herein-above
leaving the parties to bear their own cost(s).
Sd/-
(Sanjay K. Agrawal)
Judge
Soma
