Gujarat High Court
Mansukhbhai Kanjibhai Gurjar vs State Of Gujarat on 3 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1308 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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MANSUKHBHAI KANJIBHAI GURJAR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR VAIBHAV A
VYAS(2896) for the Petitioner(s) No. 1
MS SURBHI BHATI, AGP for the Respondent(s) No. 1,2
MR DG SHUKLA(1998) for the Respondent(s) No. 3
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 03/09/2025
ORAL JUDGMENT
1. This petition is filed for the following prayers:
"6(A) declare and hold that the action of the respondent
authorities of showing the petitioner junior to such persons,
who could not have been legally continued in service, and in
any case those who could not have been legally appointed
before the petitioner as Police Sub-Inspector, is illegal and
arbitrary, and consequently quash and set aside the same,
and
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(B) quash and set aside the seniority list dated 16.6.2007,
Annexure-F to this petition, so far respondent No.3 is shown
senior to the petitioner as Police Sub-Inspector, and
(C) direct the respondent authorities to consider the case of
the petitioner for promotion on the post of Police Inspector
before respondent No.3, and
(D) pending admission and final disposal of this petition the
Honourable Court may be pleased to restrain the respondent
authorities from considering the case of such Police Sub-
Inspectors for promotion on the post of Police Inspector, who
could not have been legally appointed before the petitioner
as Police Sub-Inspector, before the case of the petitioner is
so considered, and
(E) award the cost of the petition, and
(F) xxxx"
2. The brief facts leading to this petition, as stated
in the petition, are such that the respondent authorities
invited applications for filling up 250 vacancies on the post of
Police Sub-Inspector, out of which, 67 posts were reserved for
SEBC candidates; after due process of selection a select list
of 232 candidates was prepared and recommended for
appointment; the cut off mark prescribed by selection board
for an unreserved category candidate was 273. It is stated
that out of the 67 SEBC candidates who were included in
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the said select list, 44 candidates were such who had secured
more than 273 marks and therefore, they were required to be
considered as the candidates against the general category;
instead of doing so, those 44 candidates were treated as the
candidates selected against the post reserved for SEBC
candidates and next 44 SEBC candidates who had secured
less than 273 marks where in-effect excluded from the select
list, who should have been there against the posts reserved
for SEBC candidates. That this gave rise to filing of number
of petitions before this Court, which were decided by this
Court vide judgment and order dated 23.4.2003.
2.1 It is stated that in view of the said judgment, the
persons who could not have been continued as Police Sub-
Inspector atleast in preference to the right of the petitioner,
are shown in the seniority list and the name of the
petitioner does not figure anywhere in the seniority list of
the cadre of the Police Sub-Inspector. Hence, this petition is
filed.
3. Heard learned advocates for the parties.
3.1 Learned senior advocate Mr.Mehta for the
petitioner has referred to the order passed by the coordinate
Bench of this Court in group of petitions being Special Civil
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Application No.9379 of 1999 along with other matters decided
on 23.4.2003 and has contended that in view of this order
and direction given in that order, the respondent authorities
are directed to prepare fresh select list as per the
Government Resolution and grant the benefits accordingly. He
has drawn attention of this Court towards the undertaking
filed by the Principal Secretary, Home Department in MCA
No.2367 of 2003 and harping on page nos.2 and 3, submitted
that it is mentioned in the said undertaking that "the
government has decided to retain those candidates belonging
to general category who have been given appointment in view
of the interim order passed by this Hon'ble Court keeping in
view the facts that they have already served for more than 2
years and they have also obtained pre-service training for
which the government have spent sizeable amount and
therefore they will be recommended as against vacant posts
available." He has contended that though this is the
situation, by referring to the seniority which is annexed with
the petition, that the name of the petitioner is found much
below than those candidates whose appointment cannot be
considered as legally appointed candidates in view of the
judgment passed by this Court as indicated earlier. However,
even if the government has decided to retain those candidates
then also, the seniority of the petitioner should not be
affected.
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3.2 Learned senior advocate further submitted, by
pointing out towards the facts of the case, that out of 250
posts advertised, 67 posts were reserved for SEBC candidates
and after due process of selection, list of 232 candidates was
prepared and recommended for appointment. He further
submitted that the cut-off marks prescribed by the selection
board for un-reserved category candidates was 273 and out of
67 SEBC candidates who were included in the said select
list, 44 candidates were such who has secured more than 232
marks and therefore they were required to be considered as
the candidate against general category. However, instead of
doing so, those 44 candidates were treated as candidates
selected against the post reserved for SEBC candidates, and
thereby, next 44 SEBC candidates who had secured less than
273 mark where in-effect excluded from the select list, who
should have been there against posts reserved for SEBC
candidates. This gives rise to the number of petitions before
this Court which are finally decided by the above mentioned
judgment dated 23.4.2003.
3.3 In view of this background, learned senior
advocate further submitted that the action of the respondent
authorities for showing such persons as senior to the
petitioner as Police Sub Inspector who could not be legally
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continued on the post of Police Sub-Inspector is absolutely
illegal and arbitrary for which indulgence of this Court is
required and the prayers are required to be granted.
Therefore, he prayed to allow this petition.
3.4 Learned advocate for the petitioner has relied on
the following citations:
(1) Ranjan Kumar V/s State of Bihar reported in 2014(16)
SCC 187.
(2) State of Bihar V/s Akhouri Sachindra Nath reported in
1991(Supp.I) SCC 334.
(3) State of Uttaranchal V/s Dinesh Kumar Sharma
reported in 2007(1) SCC page 683.
(4) Nani Sha V/s State of Arunachal Pradesh reported in
2007(15) SCC 406.
4. Per contra, learned AGP Ms.Bhati appearing for
the respondent-state has submitted that the petitioners herein
are mainly praying to set aside the seniority list dated
16.6.2007, so far as respondent no.3 is shown senior to the
petitioner as Police Sub-Inspector and also a prayer to
consider the case of the petitioner for promotion on the post
of Police Inspector ahead of respondent no.3. She submitted
that the State Government has issued the advertisement on
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15.2.1999 for 250 vacancies for the post of Police Sub-
Inspector, out of which 117 posts were for the general
category, 25 posts for ex-servicemen, 67 posts for SEBC, 33
for SC and 8 for ST category. She has further submitted
that the petitioner applied under the OBC category and
respondent no.3 has applied under the general category and
the cut-off marks in the general category was 275 marks and
for OBC category 265 marks were required. The petitioner
secured 263 marks in OBC category while the respondent
no.3 secured 276 marks in general category. Therefore, the
respondent no.3 was appointed on 4.5.2001 and respondent
no.3 was at serial no.33 in the select list of first round. He
further submitted that the petitioner has secured 263 marks
and name of the petitioner neither mentioned in the first
select list nor in the revised select list, the name of the
petitioner was listed at serial no.22 of the revised waiting
list. She has further contended that some of the candidates
in the reserved category has filed Special Civil Application
No.9379 of 1999 for quashing and setting aside the first
select list wherein the Court has allowed the petition and
directed the respondent authority to publish a revised select
list. In the revised waiting list, the name of the petitioner
was mentioned and the petitioner was appointed on the post
of PSI on 15.7.2004. She further contended that at the time
of disposal of Special Civil Application No.9379 of 1999 this
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Court has observed that those who are already selected in
the year 2001, they may be continued in the service as they
have completed three years of service and therefore the
respondent no.3 was not removed from the service. She
further submitted that by way of subsequent development,
the respondent no.3 was promoted to the post of PI on
16.4.2010 and the petitioner was promoted to the post of PI
on 21.2.2012. Therefore, she has submitted that the petitioner
cannot claim deemed date of promotion as well as deemed
date seniority as per his choice.
4.1 She submitted further that the revised select list
is prepared in the year 2004 and the petitioner has preferred
the petition in the year 2010. Therefore, there is delay of six
years in filing of petition and therefore, this petition is
barred by delay and laches. Further, this petition is also
barred by non-joinder of parties as the petitioner has not
joined 120 effected persons as necessary parties considering
the select list. That the petitioner was not in the select list
and was in the waiting list at the relevant point of time.
She, therefore, submitted that this petition is required to be
dismissed.
4.2 In support of her contentions, she has relied on
the following judgments:
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(1) K.Meghachandra Singh V/s Ningam Siro reported in AIR
Online 2019 SC 1515.
(2) Pawan Pratap Singh & Ors V/s Reevan Singh & Ors.,
reported in 2011(3) SCC 267.
4.3 By relying on the same, learned AGP has
submitted that the retrospective seniority cannot be
conferred on those not yet borne in service as it would
unfairly prejudice those already appointed. That no one can
get seniority from a time when they were not even in the
cadre.
4.4 On the aspect of deemed date of promotion she
has referred to the following judgments:
(1) Union of India & Anr. V/s Manpreet Singh Poonam etc.
reported in 2022 Livelaw SC 254
(2) Bihar State Electricity Board and Others V/s Dharamdeo
Das in 2024 INSC 549
4.5 She therefore submitted that even on bare reading
of the prayers, such prayers are vague and not required to
be considered and accordingly required to be dismissed.
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5. Learned advocate Mr.Deepak Shukla appearing for
the respondent no.3 has supported the submission made at
the bar by learned AGP. Referring to the affidavit-in-reply
filed by respondent no.3 as well as additional affidavit, he
submitted that the effected parties are not joined in the
present petition and therefore this petition is required to be
dismissed. He has pointed out that the seniority list is
published on 16.6.2007 and the petition is filed on 4.2.2010.
Therefore, after almost 32 months, this petition is filed and
therefore on the ground of delay and laches, this petition is
required to be dismissed. In addition to that, the petition is
also required to be dismissed on the ground of non-joinder of
necessary parties. He submitted that promotion with
retrospective effect and retrospective seniority cannot be
granted when the person in the cadre is not yet borne and
therefore this petition is required to be dismissed.
5.1 Moreover, he has also read the prayers in the
petition and has submitted that the prayers are as vague as
they can be and therefore this petition is required to be
dismissed as no such prayers can be granted.
5.2 He further submitted that more than 120 persons
are affected if such prayers in the petition are granted.
Therefore, on this count also, in absence of those persons, the
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petition cannot be entertained and this petition is required to
be dismissed.
6. I have considered the rival submissions made at
the bar and also perused the prayers in the petition. The
prayers are worded in such a manner that it does not
specify who are `such persons' and also not specify anybody
by mentioning `those'. Prima facie, such prayers are not
required to be considered in the interest of justice.
6.1 Moreover, the select list is prepared on 16.6.2007
and on the perusal of the petition, the petition is filed on
4.2.2010 and there is no whisper about such delay of more
than 32 months.
6.2 Considering the nature of the grievance, the select
list is sought to be challenged by the petitioner, and on
perusal of the select list, it transpires that there are 120
persons in between the present petitioner and the respondent
no.3. Therefore, assuming for the sake of argument, if the
petition is allowed, more than 120 persons will get effected
by the order and in absence of such persons, the said
petition is not required to be considered on merits.
6.3 Referring to the contention that the petitioner is
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required to be placed on higher pedestrian than the
respondent no.3 in the seniority list, the judgments which are
cited by the parties, more particularly, the respondents are
required to be considered.
6.4 In the case of K. Meghachandra Singh (supra) it
is observed in paragraphs 29 to 31 and 40 thereof, which
read as under.
"29. Before proceeding to deal with the contention of
the appellants' Counsel vis-à-vis the judgment in N.R.
Parmar (Supra), it is necessary to observe that the
Law is fairly well settled in a series of cases, that a
person is disentitled to claim seniority from a date he
was not borne in service. For example, in J.C. Patnaik
(Supra) the Court considered the question whether the
year in which the vacancy accrues can have any
bearing for the purpose of determining the seniority
irrespective of the fact when the person is actually
recruited. The Court observed that there could be time
lag between the year when the vacancy accrues and
the year when the final recruitment is made.
Referring to the word "recruited" occurring in the
Orissa Service of Engineers Rules, 1941 the Supreme
Court held in J.C. Patnaik (Supra) that person cannot
be said to have been recruited to the service only on
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the basis of initiation of process of recruitment but he
is borne in the post only when, formal appointment
order is issued.
30. The above ratio in J.C. Patnaik (Supra) is followed
by this Court in several subsequent cases. It would
however be appropriate to make specific reference
considering the seniority dispute in reference to the
Arunachal Pradesh Rules which are pari materia to
the MPS Rules, 1965, (vide (2007) 15 SCC 406 - Nani
Sha and Ors. Vs. State of Arunachal Pradesh and
Ors.). Having regard to the similar provisions, the
Court approved the view that seniority is to be
reckoned not from the date when vacancy arose but
from the date on which the appointment is made to
the post. The Court particularly held that retrospective
seniority should not be granted from a day when an
employee is not even borne in the cadre so as to
adversely impact those who were validly appointed in
the meantime.
31. We may also benefit by referring to the Judgment
in State of Uttar Pradesh and others vs. Ashok
Kumar Srivastava and Anr 2. This judgment is
significant since this is rendered after the N.R.
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Parmar (Supra) decision. Here the Court approved the
ratio in Pawan Pratap Singh and Ors. Vs. Reevan
Singh and Ors. 3, and concurred with the view that
seniority should not be reckoned retrospectively unless
it is so expressly provided by the relevant service
Rules. The Supreme Court held that seniority cannot
be given for an employee who is yet to be borne in
the cadre and by doing so it may adversely affect the
employees who have been appointed validly in the
meantime. The law so declared in Ashok Kumar
Srivastava (supra) being the one appealing to us, is
profitably extracted as follows :
"24. The learned Senior Counsel for the
appellants has drawn inspiration from the recent
authority in Pawan Pratap Singh v. Reevan
Singh where the Court after referring to earlier
authorities in the field has culled out certain
principles out of which the following being the
relevant are produced below:"
"45. (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
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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.
... "
45. (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."
40. The Judgment in N. R. Parmar (Supra) relating
to the Central Government employees cannot in our
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opinion, automatically apply to the Manipur State
Police Officers, governed by the MPS Rules, 1965. We
also feel that N.R. Parmar (Supra) had incorrectly
distinguished the long-standing seniority determination
principles propounded in, inter-alia, J.C. Patnaik
(Supra), Suraj Prakash Gupta and Ors. vs. State of J
and K and Ors. 5and Pawan Pratap Singh and Ors.
Vs. Reevan Singh and Ors.(Supra). These three
judgments and several others with like enunciation on
the law for determination of seniority makes it
abundantly clear that under Service Jurisprudence,
seniority cannot be claimed from a date when the
incumbent is yet to be borne in the cadre. In our
considered opinion, the law on the issue is correctly
declared in J.C. Patnaik (Supra) and consequently we
disapprove the norms on assessment of inter-se
seniority, suggested in N. R. Parmar (Supra).
Accordingly, the decision in N.R. Parmar is overruled.
However, it is made clear that this decision will not
affect the inter-se seniority already based on N.R.
Parmar and the same is protected. This decision will
apply prospectively except where seniority is to be
fixed under the relevant Rules from the date of
vacancy/the date of advertisement."
In the case of Pawan Pratap Singh (supra), as
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under.
"37. A two-Judge Bench of this Court in
Jagdish Ch. Patnaik (AIR 1998 SC 1926 : 1998
AIR SCW 1757), while construing the word
'recruited' occurring in Orissa Service of Engineers
Rules, 1941, held that a direct recruit is recruited
when formal appointment order is issued and not
when recruitment process is initiated. This is
what this Court said:
"34. The only other contention which
requires consideration is the one raised by
Mr Raju Ramachandran, learned Senior
Counsel appearing for the intervenors, to
the effect that the expressions "recruitment"
and "appointment" have two different
concepts in the service jurisprudence and,
therefore, when Rule 26 uses the
expression "recruited" it must be a stage
earlier to the issuance of appointment
letter and logically should mean when the
selection process started and that appears
to be the intendment of the rule-makers in
Rule 26. We are, however, not persuaded
to accept this contention since under the
scheme of Rules a person can be said to
be recruited into service only on being
appointed to the rank of Assistant
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Engineer, as would appear from Rule 5
and Rule 6. Then again in case of direct
recruits though the process of recruitment
starts when the Public Service Commission
invites applications under Rule 10 but until
and unless the Government makes the final
selection under Rule 15 and issues
appropriate orders after the selected
candidates are examined by the Medical
Board, it cannot be said that a person has
been recruited to the service. That being
the position it is difficult for us to hold
that in the seniority rule the expression
"recruited" should be interpreted to mean
when the selection process really started.
That apart the said expression "recruited"
applies not only to the direct recruits but
also to the promotees. In case of direct
recruits the process of recruitment starts
with the invitation of application by the
Commission and in case of promotees it
starts with the nomination made by the
Chief Engineer under Rule 16. But both in
the case of direct recruits as well as in the
case of promotees the final selection vests
with the State Government under Rules 15
and 18 respectively and until such final
selection is made and appropriate orders
passed thereon no person can be said to
have been recruited to the service. In this
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view of the matter the only appropriate
and logical construction that can be made
of Rule 26 is the date of the order under
which the persons are appointed to the
post of Assistant Engineer, is the crucial
date for determination of seniority under
the said Rule........."
40. This Court emphasized in the case of
Uttaranchal Forest Rangers' Association (2006 AIR
SCW 5337) that no retrospective promotion can
be granted nor any seniority can be given on
retrospective basis from a date when an employee
has not even born in the cadre. In this regard,
the Court relied upon earlier decisions of this
Court in State of Bihar and Ors. v. Akhouri
Sachindra Nath and Ors. 11and Jagdish Ch.
Patnaik (AIR 1998 SC 1926 : 1998 AIR SCW
1757). 11. (1991 (Suppl) 1 SCC 334 : (AIR
1991 SC 1244 : 1991 AIR SCW 1196).
41. In the case of Dinesh Kumar Sharma
(2006 AIR SCW 6371), this Court was concerned
with U.P. Agriculture Group 'B' Service Rules,
1995 and the 1991 Rules. With reference to Rule
8 of the 1991 Rules, this Court held that
seniority cannot be reckoned from the date of
occurrence of the vacancy and should be reckoned
only from the date of substantive appointment to
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the vacant post under the Rules and not
retrospectively from the date of occurrence of
vacancy.
44. From the above, the legal position with
regard to determination of seniority in service can
be summarized as follows :
(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.
(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 the 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 back date 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.
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(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 born in the
cadre and by doing so it may adversely affect the
employees who have been appointed validly in the
mean time."
6.5. In the case of Union of India versus Manpreet
Singh Poonam reported in 2022 LiveLaw (SC) 254. The
relevant paras are as under.
"18. A mere existence of vacancy per se will
not create a right in favour of an employee for
retrospective promotion when the vacancies in the
promotional post is specifically prescribed under
the rules, which also mandate the clearance
through a selection process. It is also to be borne
in mind that when we deal with a case of
promotion, there can never be a parity between
two separate sets of rules. In other words, a
right to promotion and subsequent benefits and
seniority would arise only with respect to the
rules governing the said promotion, and not a
different set of rules which might apply to a
promoted post facilitating further promotion which
is governed by a different set of rules. In the
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present case, the authority acting within the rules
has rightly granted promotion after clearance of
DPC on 17.04.2012 with effect from 01.07.2011,
when the actual vacancies arose, which in any
case is a benefit granted to the Respondent in
Civil Appeal No.518 of 2017. In our view, this
exercise of power by the authority of granting
retrospective promotion with effect from the date
on which actual vacancies arose is based on
objective considerations and a valid classification.
19. This Court in the case of Union of India
v. KK Vadhera and Ors., 1989 Supp (2) SCC 625
has clearly laid down that the promotion to a
post should only be granted from the date of
promotion and not from the date on which
vacancy has arisen, and has observed that:
"5..We do not know of any law or any rule
under which a promotion is to be effective
from the date of creation of the
promotional post After a post falls vacant
for any reason whatsoever, a promotion to
that post should be from the date the
promotion is granted and not from the date
on which such post falls vacant. In the
same way when additional posts are
created, promotions to those posts can be
granted only after the Assessment Board
has met and made its recommendations for
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promotions being granted. If on the
contrary, promotions are directed to become
effective from the date of the creation of
additional posts, then it would have the
effect of giving promotions even before the
Assessment Board has met and assessed
the suitability of the candidates for
promotion. In the circumstances, it is
difficult to sustain the judgment of the
Tribunal."
20. Similarly, this Court in the case of Ganga
Vishan Gujrati and Ors. v. State of Rajasthan,
(2019) 16 SCC 28 has held that:
"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
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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: (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.
(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
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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.""
6.6. In the case of Bihar State Electricity Board versus
Dharamdeo Das reported in 2024 INSC 549. The relevant
paras : 20, 21, 23, 28 and 29 thereof are as under.
"20. In State of Bihar and Others vs. Akhouri
Sachindra Nath and Others, 1991 Supp (1) SCC
334 , 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
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can seniority be given with retrospective effect as
that might adversely affect others. The same view
was reiterated in Keshav Chandra Joshi and
Others vs. Union of India and Others, 1992 Supp
(1) SCC 272 , 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)
and Others vs. State of U.P. and Others, (2006)
10 SCC 346 , 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 and Others v. Union of India and
Other 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
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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." (emphasis added)
21. In Nani Sha and Others vs. State of
Arunachal Pradesh and Others, (2007) 15 SCC
406 , it was observed that mere existence of a
vacancy is not sufficient for an employee to claim
seniority and the date of actual appointment has
to be in accordance with the prescribed procedure.
In Dinesh Kumar Sharma (supra), the following
pertinent observations were made :
"34. Another issue that deserves
consideration is whether the year in which
the vacancy accrues can have any relevance
for the purpose of determining the seniority
irrespective of the fact when the persons
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are recruited. Here the respondent's
contention is that since the vacancy arose
in 1995-1996, he should be given promotion
and seniority from that year and not from
1999, when his actual appointment letter
was issued by the appellant. This cannot
be allowed as no retrospective effect can be
given to the order of appointment order
under the Rules nor is such contention
reasonable to normal parlance. This was
the view taken by this Court in Jagdish
Ch. Patnaik vs. State of Orissa, (1998) 4
SCC 456 ."
23. The view that seniority can neither be
reckoned from the date when a vacancy arises,
nor can it be granted retrospectively unless the
service rules specifically provide for such a
situation, is fortified by the decision of this Court
in K.K. Vadera (supra) which has emphasised in
no uncertain terms the settled position in law
that promotion to a post should only be granted
from the date of the promotion and not from the
date on which a vacancy may have arisen. In
Ganga Vishan Gujarati vs. State of Rajasthan,
(2019) 16 SCC 28 , this Court had reiterated the
principle that retrospective seniority cannot be
granted to an employee from the date when she
was not even borne on the cadre. This principle
has been built upon by a line of precedents
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starting with 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 , followed in Akhouri Sachindra
Nath (supra), Dinesh Kumar Sharma (supra) and
several other cases.
28. We do not find any error in the stand taken
by the appellant-Board in terms of its Resolution
dated 9th June, 2005, whereby the respondents
plea for shifting his date of promotion to the post
of Joint Secretary from 5th March, 2003 to 29th
July, 1997 was rejected for the reason that there
was no vacant post of Joint Secretary during the
period between 29th July, 1997 to 5th March,
2003 on account of the fact that after the
bifurcation of the erstwhile State of Bihar into
the present State of Bihar and Jharkhand, vide
Resolution dated 6/8th December, 2003 the
appellant-Board had taken a calibrated decision to
slash the number of sanctioned posts of Joint
Secretary from six to three at the headquarters
at Patna. The subsequently issued Office Order
dated 24th December, 2003 gave effect to such an
intention and declared that from out of the
reduced posts of Joint Secretary, one would be
manned by an Officer of suitable rank from the
Bihar Administrative Service, one from the
Ministerial Officer of the Board Secretariat Cadre
and the third from the Engineering Cadre.
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29. In the instant case, records reveal that there
was no vacancy to the post of Under Secretary in
the appellant-Board on the said post being
reduced from six to three. This step was taken
by the Board due to administrative exigencies. We
do not find any infirmity in the said decision.
Even otherwise, assuming that there was a
vacancy to the subject posts, it would not have
automatically created a valuable right in favour of
the respondent for claiming retrospective
promotion to the next higher post. It is only
when an actual vacancy arose that the respondent
was granted the benefit of accelerated promotion
and that too on going through the prescribed
process."
6.7. Considering the above judgments which are
squarely applicable to the facts of the present case, it
transpires that the petitioner was nowhere in the picture as
respondent no.3 was appointed on 4.5.2001 and after actual
completion of training, he was given the charge on 31.7.2002.
The petitioner was appointed on 15.7.2004 and has completed
the training and taken charge on 22.11.2005 and therefore he
is placed at serial no.3180 in the list.
6.8 Considering all the aspects and the ratio of the
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above mentioned judgments, it clearly comes out on the
record that seniority cannot be granted retrospectively from
the date of vacancy of occurrence of vacancy requisition, it
must flow only from the date of actual appointment to the
cadre. It is also undisputed position of law that retrospective
seniority cannot be conferred on those not yet borne in the
service. It would unfairly prejudice to those already
appointed.
6.9 It also transpires from the above mentioned
judgments that the Hon'ble Apex Court has also considered
that the aspect of the `recruitment' and `appointment' as
distinct stages for seniority, clarifying that recruitment is
complete only upon issuance of the appointment order by the
government. It also transpires from the record that the
seniority depends only on the date when a person actually
enters service through a valid appointment and no one can
get seniority from a time when they were not even in the
cadre.
6.10 In view of the above, this petition is required to
be dismissed on the ground of delay and laches as it is
hopelessly time barred, as well as non-joinder of parties and
in view of the settled position of law, no prayers which are
prayed in the petition are required to be granted. As such
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there is no illegality or impropriety found in the action taken
by the respondent in preparing the select list and no case is
made out pointing out any violation of Articles 14 and 16 of
the Constitution of India. Therefore, this petition is found
meritless and required to be dismissed. Accordingly, dismissed
with no order as to costs.
(SANDEEP N. BHATT,J)
SRILATHA
