THE STATE OF BIHAR & ORS. versus ARBIND JEE

Citation: [2021] 9 S.C.R. 47 · Decided: 28-09-2021 · Supreme Court of India · Bench: R. SUBHASH REDDY · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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THE STATE OF BIHAR & ORS.
v.
ARBIND JEE
(Civil Appeal No. 3767 of 2010)
SEPTEMBER 28, 2021
[R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
Service law:  Retrospective seniority – Claim for, from a date
when an employee was not even borne in service – Held:
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, would be impacted –
Seniority benefit can accrue only after a person joins service – In
the instant case, precedence of seniority was claimed by respondent
over other regular employees who had entered service much before
him – Respondent’s case was of compassionate appointment on the
order of court – The court’s direction to the State was to appoint
him within one month without specifying that the appointment would
have a retrospective effect – Respondent never raised any claim
before the court for relating his appointment to an earlier date
(1.8.1985) – Post appointment, he never raised any such grievance
within reasonable time – Six years later, he made a representation
and same was rejected with the observation that on 1.8.1985, he
was yet to enter service – Respondent  slept over his rights, and
never earlier pointedly addressed his present claim either before
the court (in the earlier round) or to the State, soon after his
appointment – Moreover, his was a compassionate appointment
without any element of competitive recruitment where the similarly
recruited stole a march over him –  High Court was in error in
granting retrospective seniority to him – Service jurisprudence.
Allowing the appeal, the Court
HELD: 1.1 The respondent entered service only on
10.2.1996 and yet under the impugned judgment, the High Court
directed counting of his seniority from 20.11.1985 when he was
not borne in service. The jurisprudence in the field of service
law advise that retrospective seniority cannot be claimed from a
date when an employee is not even borne in service.
[2021] 9 S.C.R. 47
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SUPREME COURT REPORTS
[2021] 9 S.C.R.
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.
[Para 10][51-F-G]
1.2 The compassionate appointment of the respondent is
not being questioned here but importantly he is claiming seniority
benefit for 10 years without working for a single day during that
period. In this situation, the seniority balance cannot be tilted
against those who entered service much before the respondent.
Seniority benefit can accrue only after a person joins service and
to say that benefits can be earned retrospectively would be
erroneous. [Para 12][52-D-E]
Shitla Prasad Shukla v. State of UP and Ors. (1986)
Suppl. SCC 185 : [1986]  SCR 106 – held inapplicable.
C. Jayachandran v. State of Kerala (2020) 5 SCC 230
– distinguished.
Ganga Vishan Gujrati And Ors. v. State of Rajasthan
and Ors. (2019) 16 SCC 28 : [2019] 11 SCR 444 –
referred to.
2. The present is a case of compassionate order made on
this court’s order. The respondent never raised any claim for
relating his appointment to an earlier date from this Court. Post
appointment, he never raised any grievance within reasonable
time, for fixing his date of appointment as 20.11.1985. Six years
later, only on 10.9.2002, he made a representation and the same
was rejected with the observation that on 1.8.1985, the respondent
was yet to enter service. Thus, the respondent slept over his
rights, and never earlier pointedly addressed his present claim
either to the Supreme Court (in the earlier round) or to the State,
soon after his appointment. The records reflect that the State
have faithfully implemented the direction issued by this Court
and appointed the respondent. Moreover, the action of the
authorities in determination of the respondent’s seniority from
the date of entering service is found to be consistent with the
applicable laws. There could be individual 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
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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. However, the present is not a case of that category.
The High Court was i

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