Rajasthan High Court

Suraj Prakash Mittal S/O Shri ... vs The State Of Rajasthan on 21 April, 2022

Bench: Inderjeet Singh

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 3439/2019
Suraj   Prakash      Mittal       S/o     Shri     Satya      Prakash     Mittal,   R/o
Mahukalan, Tehsil Gangapur City, District Sawai Madhopur (Raj.)
                                                                         ----Petitioner
                                        Versus
1.      The State Of Rajasthan, Through The Director Cum
        Special Secretary, Rural Development And Panchayat Raj
        Department, Government Of Rajasthan, Jaipur.
2.      The      Chief     Executive         Officer,      Zila      Parishad,   Sawai
        Madhopur
3.      The Chief Executive Officer, Zila Parishad, Karauli
4.      The Block Education Officer, Panchayat Samiti, Karauli
        (Raj.)
                                                                      ----Respondents

For Petitioner(s) : Mr. Arvind Kumar Sharma For Respondent(s) :

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

21/04/2022 Instant writ petition has been filed by the petitioner with the

following prayers:-

It is, therefore, respectfully prayed that this Hon'ble Court may kindly be pleased to accept and allow this writ petition and further be pleased to :-

i) issue an appropriate writ order or direction in the nature thereof and thereby direct the Respondents to assign proper seniority to the petitioner from the date his juniors were appointed in pursuance to the Advertisement No. 1/92 issued by Zila Parishad Sawai Madhopur; and

ii) issue an appropriate writ order or direction in the nature thereof and thereby direct the Respondents to fix the petitioner on pay scale which his

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juniors are getting and also pay arrears of salary; and

iii) issue any other appropriate order or direction which the Hon'ble Court deems just and proper may also be passed in favour of the petitioner and cost of the writ petition be also awarded in favour of the petitioner.

In the first round of litigation, earlier the petitioner filed S.B.

Civil Writ Petition No.1432/1994, which was decided by the Co-

ordinate Bench of this Court vide order dated 15.02.2000 with the

following directions:-

"परिणामतः रिट याचिका स्वीकाि ककी जातवी हह तथाा वि्पक्वीगण कको ननिरर श दरया जाता हह कक ्ि ग्ामवीण वि्कास ए्वं पवंिायतवी िाज वि्भाग , िाजसथाानि कि परिपत्र दरनिावंक २६.२.1991 ककी पालनिा किति हुए पाथाार्थीगण ण द्ािा पसतुत ककयि गए अनिभु ् पमाण पत्रत्रों कि आ आधाि पि उ उनह अवंक परानि किति हुए दरनिावंक १२.२.१९९२ कको ततृ वीया शिणवी अधयापक ककी - तहयाि ककी यकोगयता ससचि कको पाथाार्थीगण ककी सवीमा तक सवंसकोच आधत किगि औि उ उनह यकोगय पाए जानिि पि उ उनह अधयापक तत ृ वीय शिणवी कि पर पि ननियुकुत रिति हुए उनिकि ननियुकुत आरिश जातवी किगि । इस आरिश ककी पालनिा आरिश पाकपत सि रको माह कि भवीति भवीति ककी जा्िगवी। पकिण ककी तथय ए्वं परिकसथायत्रों म याचिका का वयय पक्काि स्यवं अपनिा अपनिा ्हनि किगि।"

Thereafter, the respondents appointed the petitioner on the

post of Teacher Grade-III on 29.04.2000.

By this writ petition, the petitioner is claiming his seniority

from the date when his juniors were appointed.

Counsel for the petitioner submits that the similarly situated

persons filed S.B. Civil Writ Petition No.430/2002 titled as Baijnath

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Sharma Vs. The State of Rajasthan & Ors. decided on 24.11.2008,

who were appointed along with the petitioner and the writ petition

was allowed as well as also given the benefit of seniority.

Counsel further submits that the petitioner be also given the

benefit of seniority from the year 1992 in pursuance to the

advertisement No.01/1992.

Heard counsel for the petitioner and perused the record.

The Hon'ble Supreme Court in the matter of State of Bihar

and Ors. Vs. Arbind Jee, reported in 2021 SCC 821, where in

paras No.7, 10, 12 & 16 held as under:-

7. The issue to be answered here is 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.

10. As earlier noted, the respondent entered service only on 10.2.1996 and yet under the impugned judgment, the High Court directed counting of his seniority from 20.11.1985 when he was not borne in service. The jurisprudence in the field of service law would advise us 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.

12. The principles enunciated in Shitla Prasad Shukla (supra) are applicable to the case at hand. 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

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be erroneous. Such view was expressed in many cases and most recently in Ganga Vishan Gujrati And Ors. Vs. State of Rajasthan and Ors. 2. Justice Dr. D. Y. Chandrachud speaking for the Court opined as under:-

"41. 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 2 (2019) 16 SCC 28 Recruit Class II Engineering Officers' Association v State of Maharashtra3. The principle was reiterated by this Court in State of Bihar v Akhouri Sachindra Nath4 and State of Uttaranchal v Dinesh Kumar Sharma.5"

16. Supported by our above discussion, we are of the considered opinion that the High Court was in error in granting retrospective seniority to the respondent. The appeal is accordingly allowed and the impugned orders passed by the High Court are set aside and quashed. With this order the case is disposed of leaving the parties to bear their own cost.

This writ petition filed by the petitioner deserves to be

dismissed; for the reasons, firstly, the petitioner was appointed by

the respondents vide order dated 29.04.2000 and the petitioner

filed this writ petition in the year 2019 claiming the seniority from

an earlier date, which, in my considered view, cannot be granted

to the petitioner, when he was not borne in the service, secondly,

the petitioner filed this writ petition claiming the seniority from an

earlier date of his appointment after a delay of 19 years, thirdly,

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acceptance of the present writ petition by this Court at this

belated stage will disturb the seniority and the promotion of the

employees in the Department and the same amounts to unsettling