THE STATE OF BIHAR & ORS. versus ARBIND JEE

THE STATE OF BIHAR & ORS.

ARBIND JEE

(Civil Appeal No. 3767 of 2010)

SEPTEMBER 28, 2021

[R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]

Service law: Retrospective seniority – Claim for, from datewhen an employee was not even borne in service – Held:Retrospective seniority unless directed by court or expressly providedby the applicable Rules, should not be allowed, as in so doing,others who had earlier entered service, would be impacted –Seniority benefit can accrue only after person joins service – Inthe instant case, precedence of seniority was claimed by respondentover other regular employees who had entered service much beforehim – Respondent’s case was of compassionate appointment on theorder of court – The court’s direction to the State was to appointhim within one month without specifying that the appointment wouldhave retrospective effect – Respondent never raised any claimbefore the court for relating his appointment to an earlier date(1.8.1985) – Post appointment, he never raised any such grievancewithin reasonable time – Six years later, he made representationand same was rejected with the observation that on 1.8.1985, hewas yet to enter service – Respondent slept over his rights, andnever earlier pointedly addressed his present claim either beforethe court (in the earlier round) or to the State, soon after hisappointment – Moreover, his was compassionate appointmentwithout any element of competitive recruitment where the similarlyrecruited stole march over him – High Court was in error ingranting retrospective seniority to him – Service jurisprudence.

Allowing the appeal, the Court

HELD: 1.1 The respondent entered service only on10.2.1996 and yet under the impugned judgment, the High Courtdirected counting of his seniority from 20.11.1985 when he wasnot borne in service. The jurisprudence in the field of servicelaw advise that retrospective seniority cannot be claimed from adate when an employee is not even borne in service.

CDEF

ARetrospective seniority unless directed by court or expresslyprovided by the applicable Rules, should not be allowed, as in sodoing, others who had earlier entered service, will be impacted.[Para 10][51-F-G]

1.2 The compassionate appointment of the respondent isBnot being questioned here but importantly he is claiming senioritybenefit for 10 years without working for single day during thatperiod. In this situation, the seniority balance cannot be tiltedagainst those who entered service much before the respondent.Seniority benefit can accrue only after person joins service andto say that benefits can be earned retrospectively would beCerroneous. [Para 12][52-D-E]

Shitla Prasad Shukla v. State of UP and Ors. (1986)Suppl. SCC 185 : [1986] SCR 106 – held inapplicable.

C. Jayachandran v. State of Kerala (2020) 5 SCC 230D– distinguished.Ganga Vishan Gujrati And Ors. v. State of Rajasthanand Ors. (2019) 16 SCC 28 : [2019] 11 SCR 444 –referred to.

2. The present is case of compassionate order made onEthis court’s order. The respondent never raised any claim forrelating his appointment to an earlier date from this Court. Postappointment, he never raised any grievance within reasonabletime, for fixing his date of appointment as 20.11.1985. Six yearslater, only on 10.9.2002, he made representation and the sameFwas rejected with the observation that on 1.8.1985, the respondentwas yet to enter service. Thus, the respondent slept over hisrights, and never earlier pointedly addressed his present claimeither to the Supreme Court (in the earlier round) or to the State,soon after his appointment. The records reflect that the Statehave faithfully implemented the direction issued by this CourtGand appointed the respondent. Moreover, the action of theauthorities in determination of the respondent’s seniority fromthe date of entering service is found to be consistent with theapplicable laws. There could be individual cases where bunchof applicants are recruited through common competitiveprocess but for one reason or another, one of them is left outH

while others get appointed. When the denial of analogousappointment is founded to be arbitrary and legally incorrect, thebenefit of notional seniority may be conferred on the deprivedindividual. However, the present is not case of that category.The High Court was in error in granting retrospective seniorityto the respondent. [Paras 13, 14 and 15][53-E-G; 54-A-E]

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No.3767 of2010.

From the Judgment and Order dated 28.09.2008 of the High Courtof Judicature at Patna in LPA No.245 of 2008.

Abhinav Mukerji, Ms. Pratishtha Vij, Mrs. Bihu Sharma, AkshayC. Shrivastava, Advs. for the Appellants.

Satwik Misra, Ms. Udita Singh, Lakshmi Raman Singh, Advs. forthe Respondent.

The Judgment of the Court was delivered by

HRISHIKESH ROY, J.

1. This appeal is directed against the judgment and order dated29.9.2008 of the Patna High Court in LPA No. 245 of 2008.

2. The father of the respondent was working as Home guardand after he died in harness, the respondent applied for compassionateappointment. The concerned Committee recommended the respondentand others whereafter the order dated 20.11.1985 was issued by theCommandant, Bihar Home Guard forwarding the name of the respondentas one of the persons shortlisted for appointment on compassionate basis.The appointment was conditional upon physical fitness certificate issuedby the Civil Surgeon and it was made clear that appointment of theenlisted persons will be effective only after due satisfaction of theircapability, educational qualification etc.

A3. The recommended persons appeared in the Home GuardHeadquarter as directed, but the respondent was denied appointment ashe was found deficient in the physical standards. Thus aggrieved, therespondent moved and obtained relief from the Patna High Court forappointment in Class IV post. As the respondent was shortlisted for thepost of Adhinayak Lipik, he challenged the High Court order throughBSLP(C) No. 6437 of 1993. The resultant Civil Appeal No. 220 of 1996was allowed by the Supreme Court with the following direction:-

“….We, therefore, allow this appeal and direct the respondents toappoint the appellant to the post of ‘Adhinayak Lipik’ in theHomeguard Department, State of Bihar within one month fromCthe date of communication of this order.”

4. Following the above direction of the Supreme Court, therespondent was appointed on 27.2.1996 by the order No. 108 of 1996dated 10.2.1996 issued by the Commandant of the Bihar Home GuardBn., Patna. Six years after joining service, an application was made onD10.9.2002 by the respondent claiming seniority from 5.12.1985 but theauthorities rejected the claim on 20.11.2002 on the ground that therespondent was appointed on 27.2.1996 on direction of the SupremeCourt and that he was not borne in service as on 5.12.1985. The rejectionorder was then challenged and the Patna High Court in the respondent’sECWJC no. 6683/2003 directed the authority to consider the respondent’sseniority from 5.12.1985.

5. The above order passed by the learned Single Judge waschallenged by the State and the Division Bench on 29.9.2008 whiledismissing the LPA no. 245 of 2008 noted that the respondent was deniedFappointment, (as proposed on 20.11.1985), on the ground that he did notconform to the physical standards applicable to Constable and eventuallythe Supreme Court directed appointment of the respondent as AdhinayakLipik in the Home Guard Department. Therefore, the appointment shouldrelate back to the date of the initial order on 20.11.1985. With thisobservation, the State’s LPA was dismissed by the order impugned inGthis appeal.

6. We have heard Mr. Abhinav Mukerji, learned counsel appearingfor the appellants. The respondent is represented by Mr. Satvik Misra,learned counsel.

7. The issue to be answered here is whether the respondent isentitled to claim seniority in service from retrospective date i.e.20.11.1985 as was ordered by the High Court or whether he is entitledfor seniority from the date he entered service.

8. It is important to bear in mind that the order No. 1169/1985,whereby the respondent along with few others were shortlisted forcompassionate appointment, did not materialize and was in fact refusedfor the respondent as he failed to meet the physical standards. Eventually,following the direction issued by this Court on 2.1.1996 to appoint therespondent within one month from the date of communication of theSupreme Court’s order, the respondent was appointed on 10.2.1996.The respondent joined service without demur and made no claim for anyretrospective effect to his appointment, until addressing the representationon 10.9.2002, to claim seniority from 5.12.1985.

9. In the previous round before this Court, the respondent wasconcerned about securing appointment as Adhinayak Lipik and directionwas issued to appoint him, specifying the time limit of one month. Butthere was no direction for allowing retrospective benefit to the appointee.In such circumstances, the High Court in our view should not havetravelled beyond the order passed by this Court to hold in favour of therespondent that his seniority should be counted from 5.12.1985 althoughhe entered service decade later only on 10.2.1996. Moreover, therespondent even after entering service did not immediately claim thebenefit of retrospective appointment, and only on 10.9.2002 he appliedto the Commandant to claim seniority from 5.12.1985 which claim washowever rejected by the Authority on 20.11.2002.

10. As earlier noted, the respondent entered service only on10.2.1996 and yet under the impugned judgment, the High Court directedcounting of his seniority from 20.11.1985 when he was not borne inservice. The jurisprudence in the field of service law would advise usthat retrospective seniority cannot be claimed from date when anemployee is not even borne in service. It is also necessary to bear inmind that retrospective seniority unless directed by court or expresslyprovided by the applicable Rules, should not be allowed, as in so doing,others who had earlier entered service, will be impacted.11. To challenge the conferment of retrospective seniority, thelearned counsel for the appellant has cited Shitla Prasad Shukla vs.

AState of UP and Ors.[1] where this court speaking through Justice M. P.Thakkar rightly held that:

“10. ……The late comers to the regular stream cannotsteal march over the early arrivals in the regular queue. Onprinciple the appellant cannot therefore succeed. What is moreBin matters of seniority the Court does not exercise jurisdictionakin to appellate jurisdiction against the determination bythe competent authority, so long as the competent authorityhas acted bona fide and acted on principles of fairness andfair play. In matter where there is no rule or regulationgoverning the situation or where there is one, but is notCviolated, the Court will not overturn the determination unless

it would be unfair not to do so…”

12. The principles enunciated in Shitla Prasad Shukla (supra)are applicable to the case at hand. The compassionate appointment ofthe respondent is not being questioned here but importantly he is claimingDseniority benefit for 10 years without working for single day duringthat period. In other words, precedence is being claimed over other regularemployees who have entered service between 1985 to 1996. In thissituation, the seniority balance cannot be tilted against those who enteredservice much before the respondent. Seniority benefit can accrue onlyEafter person joins service and to say that benefits can be earnedretrospectively would be erroneous. Such view was expressed in manycases and most recently in Ganga Vishan Gujrati And Ors. Vs. Stateof Rajasthan and Ors.[2]. Justice Dr. D. Y. Chandrachud speaking forthe Court opined as under:-F“41. consistent line of precedent of this Court follows the

F“41. consistent line of precedent of this Court follows theprinciple that retrospective seniority cannot be granted to anemployee from date when the employee was not borne on acadre. Seniority amongst members of the same grade has tobe counted from the date of initial entry into the grade. Thisprinciple emerges from the decision of the Constitution BenchGof this Court in Direct Recruit Class II Engineering Officers’Association v State of Maharashtra[3]. The principle was

1 (1986)(Supp.) SCC 185

2 (2019) 16 SCC 28

H3 (1990) 2 SCC 715.

reiterated by this Court in State of Bihar v Akhouri SachindraNath[4] and State of Uttaranchal v Dinesh Kumar Sharma.[5]"

13. The learned counsel for respondent relies on C. Jayachandranvs. State of Kerala[6], to argue for retrospective seniority. The benchspeaking through Justice Hemant Gupta in the context of diligent litigantobserved that:

“41 ……..The appellant has submitted the representation on11-4-2012 i.e. within 1 year and 2 months of his joining andsubmitted reminder on 18-9-2014. It is the High Court whichhas taken time to take final call on the representation of theappellant and other direct recruits. The appellant wasprosecuting his grievances in legitimate manner of redressalof grievances. Therefore, it cannot be said that the claim ofthe appellant was delayed as he has not claimed the date ofappointment as 30-3-2009. The appellant having beenfactually appointed vide communication dated 22-12-2010,he could not assume or claim to assume charge prior to suchoffer of appointment. The appellant has to be granted notionalseniority from the date the other candidates were appointedin pursuance of the same select list prepared on the basis ofthe common appointment process.”As can be seen from the above extracted passage, the benefit ofnotional seniority was claimed within 1 year from date of actualappointment. This was also case where the contesting parties wererecruited through common competitive process. But the present is nota case of recruitment by selection and is compassionate appointmentmade on this court’s order. The court’s direction to the State was toappoint within 1 month without specifying that the appointment shouldhave retrospective effect. The respondent never raised any claim forrelating his appointment to an earlier date from this Court. Postappointment, he never raised any grievance within reasonable time, forfixing his date of appointment as 20.11.1985. Six years later, only on10.9.2002, he made representation and the same was rejected withthe observation that on 1.8.1985, the respondent was yet to enter service.Proceeding with these facts, it is clearly discernible that the respondent

4 1991 Supp. (1) SCC 334.

5 (2007) 1 SCC 683.

6 (2020) 5 SCC 230

Ahas slept over his rights, and never earlier pointedly addressed his presentclaim either to the Supreme Court (in the earlier round) or to the State,soon after his appointment. Moreover, his was compassionateappointment without any element of competitive recruitment where thesimilarly recruited has stolen march over him. Therefore, the ratio inC. Jayachandran (supra) will be of no assistance to the respondentBas that case is distinguishable on facts.

14. The records here reflects that the State have faithfullyimplemented the direction issued by this Court and appointed therespondent. Moreover, the action of the authorities in determination ofthe respondent’s seniority from the date of entering service is found toCbe consistent with the applicable laws. There could be individual caseswhere bunch of applicants are recruited through common competitiveprocess but for one reason or another, one of them is left out whileothers get appointed. When the denial of analogous appointment isfounded to be arbitrary and legally incorrect, the benefit of notionalDseniority may be conferred on the deprived individual. However, thepresent is not case of that category.

15. Supported by our above discussion, we are of the consideredopinion that the High Court was in error in granting retrospective seniorityto the respondent. The appeal is accordingly allowed and the impugnedEorders passed by the High Court are set aside and quashed. With thisorder the case is disposed of leaving the parties to bear their own cost.

Devika Gujral

Appeal allowed.