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Seniority (529-565)pgs

Topics Covered(as per .pdf sent on the batch group)


Seniority ................................................................................................................................................... 1
Principal governing fixation of seniority ................................................................................................... 1
Seniority of direct recruits: ....................................................................................................................... 2
Seniority of Promotees: ............................................................................................................................ 3
Seniority b/w Direct recruits and Promotees: ........................................................................................... 3
Basic Principles relevant for fixation of Seniority of Direct Recruits and Promotees: ................................ 3
The method of fixing seniority: ................................................................................................................ 4
Whether quota rule operates both at the stage of initial recruitment and at the stage of confirmation (till
citation 100): ............................................................................................................................................ 4
Fixation of seniority procedure: ............................................................................................................. 5

Seniority
most important condition of service
direct bearing on question of promotion to the next higher cadre.
Preference is given to seniors over juniors in promotions.

A) Sant Ram Sharma vs. State of Rajasthan


Where selection to next higher post is on the basis of merit and suitability, among equal
person, senior will be preferred.

B) SK Ghosh vs State of Rajasthan


Seniority is a civil right.

The constitutionality of seniority rules can be challenged on the grounds of their unreasonableness,
justness, and fairness.

Principal governing fixation of seniority


Seniority-

Length of service in similar grade and status.


A) AG Sainath Reddy vs Govt of AP
Seniority has to determined from the date of regular appointment under the rules and not from
the date of ad hoc or stop gap appointment made earlier to a post earmarked for direct
recruitment.

General principles fixing seniority - Counted from person holding similar post with similar status.

Official holding the post in the same cadre or grade :

a) State of West Bengal vs Aghore Nath Dey


Appointment upon regularisation is fresh appointment.

b) RS Garg vs State of UP
Where promotion requires some experience in particular post it is essential he should have
been substantially appointed against such lower post before he can be considered eligible on
ground of seniority for such promotion.

Seniority is calculated from the date of appointment and not the date of confirmation. This
rule would not apply where initial appointment is ad hoc in nature.
Persons holding permanent or substantive appointment are always treated as seniors as to
person holding appointments on temporary or officiating basis. Period of deputation would
also count towards seniority. Ad Hoc is no appointment.
Persons confirmed or substantively appointed, the date of confirmation or substantive
appointment is the basis of seniority.
Among persons holding temp or officiating appointments, length of service is fixation of
seniority.
Persons recruited through comp. exams seniority on the basis of rank.
a) Amanullah Khan vs UOI
Non cadre officer officiating in IFS cadre post - no approval from the govt.- held that
officiating appointment is of a fortuitous nature and such officiating period cant count
towards his seniority.

Seniority of direct recruits:


If given in the rules, seniority of direct recruits on the basis of the recommendation of the
public service commission, the arrangement of names in the order of merit by such authority
constitutes seniority.
a) P Srinivas vs M Radhakrishnan
Person ranked higher but joined later, cant take away his claim of seniority on the basis of it.
But direct recruit fails to report for duty within prescribed time he loses his claim for
seniority.
Seniority could be varied on the basis of confirmation.
Person got higher rank but didnt complete the probation satisfactorily within the time
allowed. If person with lesser rank confirmed earlier then he becomes senior.

Seniority of Promotees:
When promotion are made irregularly:
The seniority of the person promoted on officiating basis is the same as their seniority in the
substantive cadre.
When Promotions passed over and given later:
A senior official though promoted later will retain his seniority in the substantive cadre as
also in the higher cadre.
Seniority once acquired by a junior officer by supersession of his senior cant be allowed to be
upset subsequently. Even if senior is subsequently promoted he cant regain his seniority.
The appointing authority can promote the seniors retrospectively by giving deemed dates of
promotion.

Seniority b/w Direct recruits and Promotees:


Five judge bench judgment in the direct recruit case :

Once an incumbent is appointed to a post according to rule, his seniority has to be counted
from the date of his appointment and not according to the date of his confirmation.
If the initial appointment is not made by following the procedure laid down by the rules but
the appointee continues in the post uninterruptedly till the regularisation of his service in
accordance with the rules, the period of officiating service will be counted.
When appointments are made from more than once source it is permissible to fix the ratio for
recruitment from the different sources, and if rules are framed in this regard they must
ordinarily be followed strictly.
If it becomes impossible to adhere to the existing quota rule, it should be substituted by an
appropriate rule to meet the needs of the situation.
Where the quota rule has broken down and the appointments are made from one source in
excess of the quota, but are made after following the procedure prescribed by the rules for the
appointment, the appointees should not be pushed down below the appointees from the other
source inducted in the service at a later date.
Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a
presumption should be raised that there was such relaxation when there is a deviation from
the quota rule.
If the quota rule is prescribed by an executive instruction and is not followed continuously for
a number of years, the inference is that the executive instruction has ceased to remain
operative. (Direct Recruits Class II Engg Officers Assn vs State of Maharashtra)

Basic Principles relevant for fixation of Seniority of Direct Recruits and Promotees:
a) Obedience to quota rule obligatory:
Rules of recruitment often fix specific quota for direct rec and promotion.
The quota cant be violated at the will and pleasure of the appointing authority.
Vacancies must be classified as direct recruitment and promotional vacancies.
The general category candidates cant be considered against a reserved post but when a
person belonging to a reserved category is considered for promotion, such a promote cant
be counted while calculating the reserved category quota post.

b) Clear vacancies in permanent and temporary posts should be classified:


The rules of recruitment and quota rules are applicable on to both permanent and
temporary posts. So the classification of vacancies must be clear of vacancies and not
fortuitous ones like leave or deputation vacancy.
c) When cadre is required to be filled up by direct recruitment and promotion and it consists
only of permanent posts, in calculating the quota only the permanent posts should be taken
into account.

The method of fixing seniority:


A Subraman AK vs UoI:

The seniority of a civil servant in the cadre will count form the date of initial appointment on
officiation (on promotion) or probation(on direct rec) provided the initial appointment is
within the quota.
The quota rule applies to vacancies in all posts except which are purely fortuitous.
The validity of appointment from one source does not depend upon the making of
appointment from the other source; direct recruits could be validly appointed against direct
recruitment vacancies without waiting for promotion and vice versa and so long as the
appointment is within the quota the appointee is entitled to count seniority from the date.
If the direct recruits are appointed against promotional vacancies or promotees are appointed
against direct recruitment vacancies, their appointment must be adjusted against clear
vacancies becoming available thereafter at any time and for purpose of seniority it is the date
on which the appointment is adjusted against a vacancy available.
Once the seniority of direct recruits and promotees when they are on probation officiating
basis is fixed according to the date of appointment, thereafter the source from which they are
recruited is not relevant for purposes of confirmation which has to be made strictly according
to seniority fixed in compliance with the quota rule and the date of appointment.

Whether quota rule operates both at the stage of initial recruitment and at the stage of
confirmation (till citation 100):
Three judge bench of SC in Subraman quota rule should operate only at the stage of initial
recruitment.
Two judge bench of court in Paramjit Singh held that quota rule should be operated at the
time of confirmation also.
Patawardhan and Mahal case also reiterated the ratio of Subraman.
SC in Goel vs State of UP followed Patawardhan and held than an earlier promote eithin the
quota is entitled to be confirmed at the earliest vacancy, provided he is eligible for
confirmation.
The court held that in the case of promotee officers the main criteria of confirmation are :
Availability of substantive vacancy post and suitability for the post.
Constitution bench of SC in BS Yadav vs State of Haryana finally settled down the
controversy:
In Paramjit case, this court held that the quota rule was operative both at the time of initial
recruitment and at the time of confirmation.
Whether the quota system has to be observed at both the time is not a matter of abstract law
but will depend on wording of the rules and the scheme of the rules under consideration.
Therefore, in the absence of any indication in the rules, that quota rule should be applied at
the time of confirmation also; the quota rule has to be applied only at the time of initial
recruitment.

Fixation of seniority procedure:


Seniority cant be altered without giving opportunity. Seniority once fixed , creates a right in
favour of a civil servant.
The right cant be taken away with retrospective effect by an executive order.
The seniority principle cant be given retrospective effect unless provided for
Seniority principles apply to all persons appointed subsequent to promulgation.
Provisional seniority - alteration: where a provisional seniority list is published on the basis
of principles set out in the notification and objections were called for only from the aggrieved
official, any alteration of the principles and ranking in the final list prepared to the
disadvantage of the officials who were not aggrieved by the provisional list would be opposed
to principles of natural justice.
The seniority of an officer on deputation outside the regular line or channel of promotion has
to be determined with reference to his substantive post.
Since the seniority of a civil servant is his civil right as his very right for promotion depends
upon the seniority, any order of the competent authority deciding the seniority between
officials has the effect of deciding the civil rights of the parties and therefore the order is
nature of a quasi judicial order. Therefore, it is incumbent on the part of an authority to
determine the question of seniority and to pass a speaking order.

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