Retrospective seniority can't be claimed from date when employee is not even borne in service: SC

Retrospective seniority cannot be claimed from a date when an employee is not even borne in service, the Supreme Court Tuesday said while allowing an appeal by the Bihar government challenging retrospective seniority to a man.

The apex court said it is also necessary to bear in mind that retrospective seniority unless directed by the 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.

"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," a bench of Justices R Subhash Reddy and Hrishikesh Roy said.

The top court was hearing an appeal filed by the Bihar government challenging the order of the Patna High Court which allowed a plea by a state resident seeking retrospective seniority.

The top court noted that his father was working as a Home guard and after he died in harness, the son applied for a compassionate appointment. The concerned Committee recommended his name along with others in 1985 as one of the persons shortlisted for appointment on a compassionate basis.

After being found unfit on physical standards, he moved to the high court which allowed his appointment for Class IV post.

As he was shortlisted for the post of Adhinayak Lipik, he challenged the High Court order which was allowed by the apex court and he was appointed on February 27, 1996, by the order issued by the Commandant of the Bihar Home Guard.

Six years after joining service, an application was made in 2002 by him claiming seniority from December 5, 1985, but the authorities rejected the claim on the ground that he was appointed in 1996 and that he was not borne in service as of 1985.

The rejection order was then challenged and the Patna High Court directed the authority to consider his seniority from December 5, 1985.

The apex court noted that 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 benefits can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous," the bench said.

The bench said that the present is not a case of recruitment by selection and is a compassionate appointment made on this court's order. The court's direction to the State was to appoint within one month without specifying that the appointment should have a retrospective effect, it said.

The bench said that the respondent never raised any claim for relating his appointment to an earlier date.

"Six years later, only on September 10, 2002, he made a representation, and the same was rejected with the observation that in 1985, the respondent was yet to enter service.
"Proceeding with these facts, it is clearly discernible that the respondent has slept over his rights, and never earlier pointedly addressed his present claim either to the Supreme Court (in the earlier round) or to the State, soon after his appointment," the bench said.

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