Supreme Court on Retrospective Seniority or Notional Seniority

 

INTRODUCTION

 

Today, I will talk about the case of State of Bihar & Others v. Arbind Jee, Civil Appeal No. 3767 of 2010, wherein the Hon’ble Supreme Court discussed the concept of Retrospective Seniority or Notional Seniority. At the outset, it is made clear that in the Indian Jurisprudence, the terms ‘retrospective seniority’ and ‘notional seniority’ seem to have been used interchangeably.

 

MAIN ISSUE

 

In the case at hand, the chief issue was whether a person is entitled to claim seniority in service from a retrospective date when he was earlier denied appointment, or is he entitled for seniority from the date he entered the service.

 

The facts of the case are not relevant for the purposes of show and hence, the same are not being discussed here. In order to understand the concept of retrospective seniority or notional seniority in a better manner, let us go through the pertinent observations by the Supreme Court.

 

OBSERVATIONS BY THE COURT

 

Firstly, the Court noted that notional or retrospective seniority is usually granted in cases “where a bunch of applicants are recruited through a common competitive process but for one reason or another, one of them is left out while others get appointed. When the denial of analogous appointment is founded to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual.”

 

Secondly, the Court observed that the benefit of notional seniority must be claimed within time and should arise in cases of recruitment by selection and not in cases of compassionate appointment.

 

Thirdly, the Court opined that a person who intends to claim notional or retrospective seniority must be vigil and should not sleep over his rights. Claiming notional or retrospective seniority after considerable efflux of time makes such claims marred by delay or laches.

 

Fourthly, the Court cited the case of Shitla Prasad Shukla vs. State of UP and Ors., (1986) (Supp.) SCC 185, wherein it was observed that “the late comers to the regular stream cannot steal a march over the early arrivals in the regular queue” and the Courts will interfere only where the competent authority has not acted in good faith or has violated the principles of fairness and fair play.

 

Fifthly, according to the Court, “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” and “retrospective seniority unless directed by 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.”

 

CONCLUSION AND BASIC PRINCIPLES

 

And lastly, while concluding, the Court also cited the case of Ganga Vishan Gujrati v. State of Rajasthan, (2019) 16 SCC 28, wherein following principles relating to notional or retrospective seniority were laid down: -

 

a. “The effective date of selection has to be understood in the context of the Service Rules under which the appointment is made.”

 

b. “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 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.”

 

c. “Ordinarily, notional seniority may not be granted from the backdate 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.”

 

d. “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 been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.”

 

Therefore, I hope that the concept of notional seniority or retrospective seniority is clear by now.