18 Feb 2011

Principles for determining seniority: Supreme Court

Revisited its earlier decisions, the Supreme Court in a recent decision [Pawan Pratap Singh & Ors. v. Reevan Singh & Ors.] has formulated the legal principles for determining seniority of Government servants. The Court was dealing with the question relating "to determination of seniority between two groups of direct recruits to the posts of Deputy Jailor (Group ‘C’ post), one appointed in 1991 through the selection made by Uttar Pradesh Subordinate Services Selection Commission and the other in 1994 by Uttar Pradesh Public Service Commission".

The Court revisited the law to cull out the principles in the following terms;
20. It is now appropriate to consider the authorities cited at the Bar and a couple of other decisions. In Rafiquddin, this Court in the context of U.P. Civil Service (Judicial Branch) Rules, 1951 made general observations that seniority in the service is determined on the basis of the year of the competitive examination irrespective of the date of appointment and inter se seniority of candidates recruited to the service is determined on the basis of their ranking in the merit list. 
21. In A.P. Public Service Commission, this Court was concerned with the Andhra Pradesh Police Service Rules, 1966. While dealing with the word ‘selection’ in rule 5(A)(i) of the said Rules, this Court observed as follows :
“If the word ‘selection’ is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps. When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific, and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications. It would be, therefore, unreasonable to construe the word selection only as the factum of preparation of the select list. Nothing so bad would have been intended by the rule making authority.”
Pertinently, the aforesaid observations of this Court with regard to the word ‘selection’ are in the context of the age eligibility as the provision under consideration read, ‘has completed the age of 21 years and had not completed the age of 26 years on the first day of July of the year in which the selection is made’. The aforesaid observations, therefore, have to be read in the context of the provision under consideration before this Court.
22. In Ram Janam Singh v. State of U.P. and Anr. , this Court reiterated that the date of entry into a service is the safest rule to follow while determining the inter se seniority between one officer or the other or between one group of officers and the other recruited from the different sources. It was observed that this is consistent with the requirement of Articles 14 and 16 of the Constitution. It was, however, observed that if the circumstances so require, a group of persons can be treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority, but, normally such classification should be by statutory rule or rules framed under Article 309.
23. A two-Judge Bench of this Court in Jagdish Ch. Patnaik, 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 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 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………”
24. While dealing with the dispute relating to inter se seniority of Munsifs—one set of Munsif recruited on the basis of 15th examination held by the Public Service Commission under the Bihar Judicial Service (Recruitment) Rules, 1955 and another set of Munsifs appointed under the Bihar Civil Service (Judicial Branch) Ad hoc Recruitment Rules, 1974, in Surendra Narain Singh, this Court held that candidates recruited against earlier vacancies shall rank senior to those recruited against the later vacancies. 
25. In Ajit Kumar Rath, this Court followed Jagdish Ch. Patnaik and did not accept the contention that those who were appointed against the vacancies of the earlier years although, appointed later in point of time, must rank senior to the appointees of the vacancies of the subsequent years though appointed in prior point of time.
26. This Court emphasized in the case of Uttaranchal Forest Rangers’ Association 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 & Ors. v. Akhouri Sachindra Nath & Ors. and Jagdish Ch. Patnaik.
27. In the case of Dinesh Kumar Sharma, 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 the vacant post under the Rules and not retrospectively from the date of occurrence of vacancy.
28. The dispute in Balwant Singh Narwal related to seniority of the Principals, some of whom were appointed between 1995 and 2000 and others on May 26, 2000. The Principals who were appointed on May 26, 2000 were given seniority with retrospective effect from June 2, 1994. This Court while relying upon a decision in Surendra Narain Singh8 held as under :
“9. There is no dispute about these general principles. But the question here is in regard to seniority of Respondents 4 to 16 selected on 1-10-1993 against certain vacancies of 1992-1993 who were not appointed due to litigation, and those who were selected against subsequent vacancies. All others from the same merit list declared on 1-10-1993 were appointed on 2-6-1994. Considering a similar situation, this Court, in Surendra Narain Singh v. State of Bihar held that candidates who were selected against earlier vacancies but who could not be appointed along with others of the same batch due to certain technical difficulties, when appointed subsequently, will have to be placed above those who were appointed against subsequent vacancies.”
29. The Constitution Bench of this Court in Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra & Ors. stated the legal position with regard to inter se  seniority of direct recruits and promotees and while doing so, inter alia, it was stated that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
30. 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.
(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.

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