The judgments elaborated below shed light on the concept of seniority and seniority-cum-merit in matters related to promotion. A promotion based on seniority connotes that an employee has been promoted in the organization because of the duration of their service. Employees promoted based on their seniority have more experience than other candidates and may or may not have more merit.
The judgments decide upon the following issues:
When can a person claim seniority in service?
Do services rendered as an ad-hoc employee form part of seniority?
Can a senior employee have priority even if they lack merit?
The Supreme Court has held that a person cannot claim seniority from the date when they joined service. The benefit of seniority can arise only when a person joins a service. Saying that benefits can be earned retrospectively would be erroneous. Seniority can be claimed only when the incumbent is borne in the cadre. “[...] a person is disentitled to claim seniority from a date he was not borne in service,” observed the Supreme Court.
The Supreme Court has reiterated that if an ad-hoc employee renders any service before their regularization, that service shall not count towards their seniority. The Court has also observed that the ad-hoc services rendered by a judge will not count towards the seniority of the District Judge.
The Supreme Court has observed that even if the senior has less merit, they shall have priority. Further, the ‘seniority-cum-merit’ criterion often cited in promotion matters means that provided the minimum necessary merit for effective administration is present, a senior shall have priority even if they are less meritorious. “Other things being equal between competing candidates, seniority is to be given due weightage,” held the Supreme Court.
Supreme Court of India
State Of Bihar vs Arbind Jee on 28 September 2021
Author: Hrishikesh Roy
Bench: R. Subhash Reddy, Hrishikesh Roy
[REPORTABLE]
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3767 OF 2010
THE STATE OF BIHAR & ORS.
VERSUS
ARBIND JEE
JUDGMENT
Hrishikesh Roy, J.
1. This appeal is directed against the judgment and order dated 29.9.2008 of the Patna High Court in LPA No. 245 of 2008.
2. The father of the respondent was working as a Home guard and after he died in harness, the respondent applied for Signature Not Verified compassionate Digitally signed by Rajni Mukhi appointment. The concerned Committee Date: 2021.09.28 13:32:22 IST Reason: recommended the respondent and others whereafter the order dated 20.11.1985 was issued by the Commandant, Bihar Home Guard forwarding the name of the respondent as one of the persons shortlisted for appointment on compassionate basis. The appointment was conditional upon physical fitness certificate issued by the Civil Surgeon and it was made clear that appointment of the enlisted persons will be effective only after due satisfaction of their capability, educational qualification etc.
3. The recommended persons appeared in the Home Guard Headquarter as directed, but the respondent was denied appointment as he was found deficient in the physical standards. Thus aggrieved, the respondent moved and obtained relief from the Patna High Court for appointment in Class IV post. As the respondent was shortlisted for the post of Adhinayak Lipik, he challenged the High Court order through SLP(C) No. 6437 of 1993. The resultant Civil Appeal No. 220 of 1996 was allowed by the Supreme Court with the following direction:- We, therefore, allow this appeal and direct the respondents to appoint the appellant to the post of Adhinayak Lipik in the Homeguard Department, State of Bihar within one month from the date of communication of this order.
4. Following the above direction of the Supreme Court, the respondent was appointed on 27.2.1996 by the order No. 108 of 1996 dated 10.2.1996 issued by the Commandant of the Bihar Home Guard Bn., Patna. Six years after joining service, an application was made on 10.9.2002 by the respondent claiming seniority from 5.12.1985 but the authorities rejected the claim on 20.11.2002 on the ground that the respondent was appointed on 27.2.1996 on direction of the Supreme Court and that he was not borne in service as on 5.12.1985. The rejection order was then challenged and the Patna High Court in the respondents CWJC no. 6683/2003 directed the authority to consider the respondents seniority from 5.12.1985.
5. The above order passed by the learned Single Judge was challenged by the State and the Division Bench on 29.9.2008 while dismissing the LPA no. 245 of 2008 noted that the respondent was denied appointment, (as proposed on 20.11.1985), on the ground that he did not conform to the physical standards applicable to a Constable and eventually the Supreme Court directed appointment of the respondent as Adhinayak Lipik in the Home Guard Department. Therefore, the appointment should relate back to the date of the initial order on 20.11.1985. With this observation, the States LPA was dismissed by the order impugned in this appeal.
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Statutory provisions, such as legislative Acts, rules, regulations, orders, notifications, administrative instructions, or executive orders provide for factors that must be taken into consideration and the manner of fixing seniority. Primarily, statutory provisions must be taken into account if they exist. If not, executive orders must be resorted to. The statute, rules, and orders being adhered to must be constitutionally valid.
The principle of seniority-cum-merit is quite likely to be taken into consideration at the time of promotion. As a result, there might be other competitive candidates who want to challenge the promotion of an employee. Disputes in service can often arise on matters related to seniority-based promotion. For the resolution of these disputes, statutory provisions, administrative instructions, and executive orders are often referred to. In such disputes, it is advisable that you consult an expert service lawyer who is well-versed with such matters and relevant laws, rules, and regulations.