Supreme Court of India
State Of Bihar vs Arbind Jee on 28 September, 2021Author: Hrishikesh Roy

Bench: R. Subhash Reddy, Hrishikesh Roy








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


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

Digitally signed by
Rajni Mukhi appointment. The concerned Committee
Date: 2021.09.28
13:32:22 IST

recommended the respondent and others whereafter the order

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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


“….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

Page 2 of 11
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 respondent’s CWJC no. 6683/2003

directed the authority to consider the respondent’s

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

Page 3 of 11
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 State’s LPA

was dismissed by the order impugned in this appeal.

6. We have heard Mr. Abhinav Mukerji, learned counsel

appearing for the appellants. The respondent is represented

by Mr. Satvik Misra, learned counsel.

7. The issue to be answered here is whether the respondent

is entitled to claim seniority in service from a

retrospective date i.e. 20.11.1985 as was ordered by the

High Court or whether he is entitled for seniority from the

date he entered service.

8. It is important to bear in mind that the order No.

1169/1985, whereby the respondent along with few others were

shortlisted for compassionate appointment, did not

materialize and was in fact refused for the respondent as he

failed to meet the physical standards. Eventually,

following the direction issued by this Court on 2.1.1996 to

appoint the respondent within one month from the date of

communication of the Supreme Court’s order, the respondent

Page 4 of 11
was appointed on 10.2.1996. The respondent joined service

without demur and made no claim for any retrospective effect

to his appointment, until addressing the representation on

10.9.2002, to claim seniority from 5.12.1985.

9. In the previous round before this Court, the respondent

was concerned about securing appointment as Adhinayak Lipik

and direction was issued to appoint him, specifying the time

limit of one month. But there was no direction for

allowing retrospective benefit to the appointee. In such

circumstances, the High Court in our view should not have

travelled beyond the order passed by this Court to hold in

favour of the respondent that his seniority should be

counted from 5.12.1985 although he entered service a decade

later only on 10.2.1996. Moreover, the respondent even after

entering service did not immediately claim the benefit of

retrospective appointment, and only on 10.9.2002 he applied

to the Commandant to claim seniority from 5.12.1985 which

claim was however rejected by the Authority on 20.11.2002.

10. As earlier noted, 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

Page 5 of 11
when he was not borne in service. 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. It is also necessary to bear in

mind that 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.

11. To challenge the conferment of retrospective seniority,

the learned counsel for the appellant has cited Shitla

Prasad Shukla vs. State of UP and Ors.1 where this court

speaking through Justice M. P. Thakkar rightly held that:

“10. ……The late comers to the regular stream
cannot steal a march over the early arrivals in
the regular queue. On principle the appellant
cannot therefore succeed. What is more in matters
of seniority the Court does not exercise
jurisdiction akin to appellate jurisdiction
against the determination by the competent
authority, so long as the competent authority has
acted bona fide and acted on principles of
fairness and fair play. In a matter where there is
no rule or regulation governing the situation or
where there is one, but is not violated, the Court
will not overturn the determination unless it
would be unfair not to do so…”

1 (1986)(Supp.) SCC 185

Page 6 of 11
12. The principles enunciated in Shitla Prasad Shukla

(supra) are applicable to the case at hand. 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 other words, precedence is being claimed

over other regular employees who have entered service

between 1985 to 1996. 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. Such view

was expressed in many cases and most recently in Ganga

Vishan Gujrati And Ors. Vs. State of Rajasthan and Ors. 2.

Justice Dr. D. Y. Chandrachud speaking for the Court opined

as under:-

“41. A consistent line of precedent of this Court
follows the principle that retrospective seniority
cannot be granted to an employee from a date when
the employee was not borne on a cadre. Seniority
amongst members of the same grade has to be
counted from the date of initial entry into the
grade. This principle emerges from the decision of
the Constitution Bench of this Court in Direct

2 (2019) 16 SCC 28

Page 7 of 11
Recruit Class II Engineering Officers’ Association
v State of Maharashtra3. The principle was
reiterated by this Court in State of Bihar v
Akhouri Sachindra Nath4 and State of Uttaranchal v
Dinesh Kumar Sharma.5”

13. The learned counsel for respondent relies on C.

Jayachandran vs. State of Kerala6, to argue for

retrospective seniority. The bench speaking through Justice

Hemant Gupta in the context of a diligent litigant observed


“41 ……..The appellant has submitted the
representation on 11-4-2012 i.e. within 1 year and
2 months of his joining and submitted reminder on
18-9-2014. It is the High Court which has taken
time to take a final call on the representation of
the appellant and other direct recruits. The
appellant was prosecuting his grievances in a
legitimate manner of redressal of grievances.
Therefore, it cannot be said that the claim of the
appellant was delayed as he has not claimed the
date of appointment as 30-3-2009. The appellant
having been factually appointed vide communication
dated 22-12-2010, he could not assume or claim to
assume charge prior to such offer of appointment.
The appellant has to be granted notional seniority
from the date the other candidates were appointed
in pursuance of the same select list prepared on
the basis of the common appointment process.”

3 (1990) 2 SCC 715.
4 1991 Supp. (1) SCC 334.
5 (2007) 1 SCC 683.
6 (2020) 5 SCC 230

Page 8 of 11
As can be seen from the above extracted passage, the

benefit of notional seniority was claimed within 1 year from

date of actual appointment. This was also a case where the

contesting parties were recruited through a common

competitive process. But the present is not a case of

recruitment by selection and is a compassionate appointment

made on this court’s order. The court’s direction to the

State was to appoint within 1 month without specifying that

the appointment should have a retrospective effect. 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. Proceeding with

these facts, it is clearly discernible that the respondent

has 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. Moreover, his was a compassionate appointment

without any element of competitive recruitment where the

Page 9 of 11
similarly recruited has stolen a march over him. Therefore,

the ratio in C. Jayachandran (supra) will be of no

assistance to the respondent as that case is distinguishable

on facts.

14. The records here reflects 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 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.

15. Supported by our above discussion, we are of the

considered opinion that the High Court was in error in

granting retrospective seniority to the respondent. The

appeal is accordingly allowed and the impugned orders passed

Page 10 of 11
by the High Court are set aside and quashed. With this order

the case is disposed of leaving the parties to bear their

own cost.



SEPTEMBER 28, 2021

Page 11 of 11


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