Jharkhand High Court
Bhagwan Das vs The State Of Jharkhand on 9 April, 2025
Author: Ananda Sen
Bench: Ananda Sen
2025:JHHC:10862
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.390 of 2018
-----
Bhagwan Das, Son of Sri Krishna Das Clerk in the Office of the Ex. Dy.
Director, Panchayet Raj, Palamau Block Medininagar, Palamau, Dist-
Palamau, R/o Medininagar, P.O & P.S- Medininagar (Sadar) Dist-
Palamau, Pin no. 822101
... Petitioner(s).
Versus
1.The State of Jharkhand.
2.Panchayat Raj Directorate, Jharkhand, Ranchi, P.O P.S.- Sadar, Dist.-
Ranchi, Pin no. 834001.
3.Director-cum-Spl. Secretary, Rural Development Department,
Panchayat Raj, Jharkhand Govt. P.O & P.S-Ranchi (Sadar) Dist.- Ranchi,
Pin no. 834001.
4.Deputy Director, Panchayati Raj Department, Bihar, Patna, P.O & P.S-
Patna, Dist.-Patna.
5.Dist. Panchayat Raj Training Institute, Hazaribagh, P.O. & P.S-
Hazaribagh, Dist.- Hazaribagh, Pin no-825301 ...... Respondent(s)
......
PRESENT : SRI ANANDA SEN, J.
------
For the Petitioner(s) : Ms. M.M. Pal, Sr. Advocate
Ms. Manjusri Patra, Advocate
For the Resp.-State : Ms. Soumya S. Pandey, AC to AAG-I
..........
ORDER
Reserved on: 04.03.2025 Pronounced On: 09/04/2025
Heard, learned Senior counsel for the petitioner and learned counsel for
the State.
2. In this writ petition, the petitioner has prayed for the following reliefs:-
(A) The Respondent be directed to determine his seniority on the basis of the
date of his initial appointment at par with the same and similarly situated
persons and to pass the final order within a stipulated period.
(B) The Respondents be directed to correct the seniority position of this
petitioner mentioned in the seniority list dated 21.12 2016 on the basis of his
initial date of appointment i.e. on and from 17.11.1981 and to give all
consequential benefits there on.
(C) The Respondents be directed not to discriminate the petitioner and to extend
the same benefits to the petitioner at par with the same and similarly situated
persons.
(D) The Respondents be directed to give the promotional benefits including the
benefits of pay Commissions Report on the basis of his seniority on and from the
date of his initial appointment.
3. Undisputed facts of this case are that the petitioner was appointed on
17.11.1981 on the post of Assistant in the office of District Panchayat on daily
1
2025:JHHC:10862
wages. The Deputy Director Panchayati Raj, vide order dated 05.01.1990
(Annexure-2 to the writ petition) regularized the services of the petitioner and
one other person named Sri Sachidanand Sahay from the date of the order
which was subsequently cancelled by the Director Panchayati Raj. Thereafter,
the petitioner approached the Hon’ble Patna High Court, Ranchi Bench in
C.W.J.C. No.1663 of 1990(R) for setting aside the cancellation order in which
the direction was given to dispose of the matter. The respondents issued
seniority list on 21.06.2016 in which the name of the petitioner is at serial
No.7. Admittedly, the petitioner superannuated on 31.05.2017.
4. Learned Senior counsel appearing on the behalf of petitioner submitted
that on 21.06.2016, the Jharkhand Government issued a final seniority list
where the petitioner’s name figured at Sl. No.7, with his appointment date
showing as 05.01.1990, instead of his actual initial appointment date of
17.11.1981. He submitted that this action of respondents placing the petitioner
below to his juniors, who were appointed later is bad. She further submitted
that despite several correspondences asking for his seniority date to be
corrected, no final order has been issued, and he has been denied
consequential benefits. She further argued that the petitioner’s case is similar
to the case of one Ashok Kumar Mishra in C.W.J.C. No.8402 of 2005.
5. Learned Counsel appearing on behalf of the respondents summitted that
Memo No.06 issued on 05.01.1990 by the Deputy Director of Panchayat Raj,
which regularized the services of the petitioner from 17.11.1981 (his initial
appointment date) to 05.01.1990, was beyond his jurisdiction and therefore
the Director of Panchayat Raj, Bihar, cancelled the said order. He further
submitted that the petitioner was appointed on 05.01.1990 pursuant to the
order passed in C.W.J.C. No.1663 of 1990 R and was given ACP and other
benefits. He further submitted that the case of this petitioner is different from
the case of Ashok Kumar Mishra in C.W.J.C. No.8402 of 2005 as the
petitioner in this case has already been given the benefit of A.C.P. which was
not in Ashok Kumar Mishra’s case. He lastly submitted that since the service
book shows no regular salary was being paid to the petitioner before
05.01.1990, so his representation was not considered.
2
2025:JHHC:10862
6. Admittedly, the petitioner has been superannuated in this case. The
Hon’ble Supreme Court in a catena of judgements has held that no
retrospective promotion or seniority can be granted from a date when an
employee is not even borne in the cadre as it will adversely affect other direct
recruits.
7. The Hon’ble Supreme Court in the case of Uttaranchal Forest
Rangers’ Assn. (Direct Recruit) v. State of U.P. reported in (2006) 10 SCC
346 dealing with the aforesaid issue at paragraphs 37 and 38 has held as
under:-
37. We are also of the view that no retrospective promotion or seniority
can be granted from a date when an employee has not even been borne in
the cadre so as to adversely affect the direct recruits appointed validly in
the meantime, as decided by this Court in Keshav Chandra Joshi v. Union
of India [1992 Supp (1) SCC 272 : 1993 SCC (L&S) 694 : (1993) 24 ATC
545] held that when promotion is outside the quota, seniority would be
reckoned from the date of the vacancy within the quota rendering the
previous service fortuitous. The previous promotion would be regular only
from the date of the vacancy within the quota and seniority shall be
counted from that date and not from the date of his earlier promotion or
subsequent confirmation. In order to do justice to the promotees, it would
not be proper to do injustice to the direct recruits. The rule of quota being
a statutory one, it must be strictly implemented and it is impermissible for
the authorities concerned to deviate from the rule due to administrative
exigencies or expediency. The result of pushing down the promotees
appointed in excess of the quota may work out hardship, but it is
unavoidable and any construction otherwise would be illegal, nullifying the
force of the statutory rules and would offend Articles 14 and 16(1) of the
Constitution.
38. This Court has consistently held that no retrospective promotion can be
granted nor any seniority can be given on retrospective basis from a date
when an employee has not even borne in the cadre particularly when this
would adversely affect the direct recruits who have been appointed validly
in the meantime. In State of Bihar v. Akhouri Sachindra Nath [1991 Supp
(1) SCC 334 : 1991 SCC (L&S) 1070 : (1991) 16 ATC 936] this Court
observed that: (SCC pp. 342-43, para 12)
“12. In the instant case, the promotee Respondents 6 to 23 were not
borne in the cadre of Assistant Engineer in the Bihar Engineering
Service, Class II at the time when Respondents 1 to 5 were directly
recruited to the post of Assistant Engineer and as such they cannot
be given seniority in the service of Assistant Engineers over
Respondents 1 to 5. It is well settled that no person can be promoted
with retrospective effect from a date when he was not borne in the
cadre so as to adversely affect others. It is well settled by several
decisions of this Court that amongst members of the same grade
seniority is reckoned from the date of their initial entry into the
service. In other words, seniority inter se amongst the Assistant
Engineers in Bihar Engineering Service, Class II will be considered
from the date of the length of service rendered as Assistant
Engineers. This being the position in law Respondents 6 to 23 cannot
be made senior to Respondents 1 to 5 by the impugned government
3
2025:JHHC:10862orders as they entered into the said service by promotion after
Respondents 1 to 5 were directly recruited in the quota of direct
recruits. The judgment of the High Court quashing the impugned
government orders made in Annexures 8, 9 and 10 is
unexceptionable.”
8. Further, recently the Hon’ble Supreme Court in the case of
Government of West Bengal and Others versus Dr. Amal Satpathi and
Others reported in 2024 SCC OnLine SC 3512 has reiterated the aforesaid
law and further held that the promotion becomes effective from the date it is
granted, rather than from the date a vacancy arises or the post is created.
9. Regarding the question of determination of date of seniority, the
Hon’ble Supreme Court has observed that in case of ad-hoc appointed,
seniority should be determined from the date of regularization and not from
the date of initial appointment. The Hon’ble Supreme Court in the case of
Rashi Mani Mishra v. State of U.P., reported in (2021) 17 SCC 399 at
paragraph 23 has observed as under-
23. The sum and substance of the above discussion would be that on a fair
reading of the 1979 Rules, extended from time to time; initial appointment
orders in the year 1985 and the subsequent order of regularisation in the year
1989 of the ad hoc appointees and on a fair reading of the relevant Service
Rules, namely, Service Rules, 1993 and the Seniority Rules, 1991, our
conclusion would be that the services rendered by the ad hoc appointees prior
to their regularisation as per the 1979 Rules shall not be counted for the
purpose of seniority, vis-à-vis, the direct recruits who were appointed prior to
1989 and they are not entitled to seniority from the date of their initial
appointment in the year 1985. The resultant effect would be that the
subsequent redetermination of the seniority in the year 2016 cannot be
sustained which was considering the services rendered by ad hoc appointees
prior to 1989 i.e. from the date of their initial appointment in 1985. This
cannot be sustained and the same deserves to be quashed and set aside and
the seniority list of 2001 counting the services rendered by ad hoc appointees
from the date of their regularisation in the year 1989 is to be restored.
10. Considering the facts of this case and judgement of the Hon’ble
Supreme Court, since the petitioner has already been superannuated, I am of
the opinion that no benefit can be given to the petitioner and thus, this writ
petition stands dismissed.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated 09/04/2025
NAFR /R.S./ Cp 03.
4
[ad_1]
Source link