Can appointing authority give seniority from retrospective date

504 votes

Deemed date of promotion as basis for seniority: The appointing authority
has the power to retrospectively promote the seniors by giving deemed dates
of promotion and to adopt the said date for fixing seniority of promotees,
where junior officials are promoted ignoring the claims of senior officials
wrongly on account of wrong fixation of seniority or other reasons

Seniority is one of the most important matters relating to conditions of
service because it has a direct bearing on the question of promotion to the next
higher cadre. Where promotion to the next higher cadre is based on the principles
of seniority and merit, the seniority of an official is of utmost importance.
Where a senior official is suitable for promotion, he is entitled to promotion on
the basis of his seniority in preference to his juniors. Even in cases where
promotion is governed by the principles of selection, the seniority has its own
importance. Where persons are selected to the next higher post on the basis of
merit and suitability, from among persons of equal merit, the senior is entitled
to be preferred for appointment.1
Therefore, the seniority under the rules is a
civil right.
The seniority of a civil servant does not depend upon how it is
fixed by the concerned authority. It stands automatically determined according
to the rules. The constitutionality of seniority rules can be challenged on the
grounds of their unreasonableness, justness and fairness.
The preparation of seniority list by the authority concerned is only a formal
affair. If the authority commits any mistake in preparing the seniority list and
it is found that it is not in conformity with the rules it has to be corrected.
The right for consideration for promotion according to seniority and in
preference to a junior in the case of seniority-cum-merit and along with a
junior in the case of promotion by selection is a part of fundamental right of
equality of opportunity in matters relating to employment under the state.
Therefore, the fixation of seniority is the very foundation for complying with
fundamental right guaranteed under article 16( 1) because without fixation of
seniority, there can be no consideration of the case of a civil servant according
to his seniority. Article 309 confers the power to the legislature or the Governor
of a state as the case may be to bestow or divest a right of seniority. There is
no vested right to seniority, and the determination of rules relating to seniority
are essentially a question of policy, and the state may vary the seniority, even
with retrospective effect if found necessary in the public interest.
However,it must be noted that proper determination of seniority is a service right, and
wrongful determination of seniority could be challenged. Yet this challenge
cannot be raised after a long period of time.6
Where a person had made
representations which had been rejected, this in itself would not disentitle him
from challenging the seniority list after a delay of some years.7

Advocate Siddhant Sharma LawRato