The Concept of Seniority under Service Law
1. MEANING OF SENIORITY
Seniority,
in service law, connotes the precedence or preference in position of an
employee over other employees similarly situated. Seniority in simple English
means a longer life than of another thing or person taken for comparison. In
the case of a Government servant, it means ‘the length of service’. If the
service of one person is longer than that of another the first names person is
called senior to the other.
According to Black’s Law Dictionary[1]
“seniority” means:
“Precedence
or preference in position over others similarly situated. As used, for example,
with reference to job seniority, worker with most years or service is first
promoted within range of jobs subject to seniority, and is the last laid off,
proceeding so on down the line to the youngest in point of service”
In
Andhra Pradesh Cooperative Oil Seeds
Growers Federation Ltd. Vs. D. Achyuta Rao[2],
the Supreme Court has held that seniority
confers a very valuable right on an employee and his entire future career is at
times dependent upon such seniority. Seniority, therefore, must be determined
by rules validly framed or norms enunciated and/or followed which are
consistent with the principles enshrined in Articles 14 and 16 of the
Constitution of India.
In State of Uttaranchal vs. Madan Mohan Joshi[3],
the Supreme Court held that as seniority or inter se seniority is not a
fundamental right but a civil right the persons whose seniority might be
effected are necessary parties and such rights are to be determined in their
presence.
In State of U.P. vs. Dinkar Sinha[4]
and Suresh vs. Yeotmal District Central
Cooperative Bank Ltd.[5],
the Supreme Court held that although seniority may not be a fundamental right
but a civil right, the infringement of this right is permissible only if there
are validly framed rules to this effect. If however, any such rules takes away
such right it has to receive a strict construction. But even if on such strict
interpretation such civil right cannot be saved then it may amount to arbitrary
destruction of the right violating Articles 14 and 16 of the Constitution.
Since it is civil right, the Supreme Court has held that the questions of
seniority cannot be effectively adjudicated upon unless the persons who are
shown senior to the aggrieved employee are impleaded as parties.
In N.K. Chauhan vs. State of Gujarat[6],
the Supreme Court observed that although length of services the generally
accepted norm for determining seniority, it is obvious that in some cases
length of service cannot be the basis for determining seniority e.g. when two
or more persons join a service on the same date. Therefore other norms like
merit or age have been adopted to meet such situations where the criteria of
length of service cannot be applied.
The question of assigning of seniority arises
only in relation to employees who are similarly situated i.e. where they are
functioning in the same rank, grade or cadre. This is because seniority is a
comparative or relative concept. The comparison obviously has to be between
employees who are equally circumstanced. If the employee belongs to two
distinct classes, the question of inter se seniority between the members of
such distinct classes cannot arise.[7]
2. THE OBJECT OF
ASSIGNING SENIORITY
A system of promotion is the essence of
modern management and when a person is recruited in an organization he must be
given an opportunity to advance. The object of assigning seniority is to
facilitate the filling of promotional posts. Although under many statutory
rules or administrative instructions seniority is not the sole factor in
granting promotion e.g. when the rules provide for seniority-cum-merit or
merit-cum-seniority, yet it is difficult to find rules or instructions which
completely ignore seniority in relation to promotion. Even in cases of
selection posts the seniority in the feeder grade from which the selection is
to be made can be an important factor because employees of a given seniority
are treated in the zone of consideration while granting promotion to the
selection posts.[8]
3. FIXATION OF
SENIORITY
Where statutory provisions (including rules)
or administrative instructions provide for the factors to be taken into
consideration and the manner to be adopted in fixation of seniority, then
subject to such provisions or instructions being constitutionally or otherwise valid,
seniority has to be fixed in accordance with such provisions or instructions.[9]
3.1 The Primacy of
Statutory Provisions
As in other fields of service law, the first
step in resolving a disputed question of seniority is to ascertain whether
there are any statutory provisions operating in the field. If statutory
provisions exist then they will have primacy. By statutory provisions is meant
an Act of the legislature or rules, regulations, orders, notifications etc.
issued in exercise of powers conferred by the Act. If there is a statute or Act covering the
field of seniority then rules whether made under Article 309 or otherwise would
be ineffective or invalid.[10]
3.2 Absence of Rules:
Executive Order
In the absence of rules relating to seniority
or any particular aspect of principles
relating to the law governing seniority, the employer is entitled to fill up
the gap by an executive order.
In Union of India vs. H.R. Patankar[11],
the Supreme Court held that it is now well settled law that even if there are
no statutory rules in force for determining seniority in a service or even if
there are statutory rules but they are silent on any particular subject, it is
competent to the Government by an executive order to make appropriate Seniority
Rules or to fill in the lacuna in the statutory rules by making an appropriate
seniority rule in regard to the subject on which the statutory rules are
silent.
3.3. The statute, the
rules and the executive instructions must be constitutionally or otherwise
valid
It is axiomatic that the statute or the rules
or executive instructions governing seniority must be valid both,
constitutionally or otherwise. As far as constitutional validity is concerned
although, generally speaking, the relevant provision is tested against Article
14 and 16, yet in some cases they might have to pass the test in the context of
other constitutional provisions namely, Article 309 or Article 148 of the
Constitution. The rules may be invalid if they transgress the provisions of the
Act under which they are framed. Executive instructions might have to be tested
against Article 14 and 16 as well the provisions of Article 73 and 162 which
delineate the extent of executive powers of the Centre and the State
respectively.[12]
4. PRINCIPLES FOR
DETERMINATION OF SENIORITY
Following
are the principles governing the determination of the seniority:-
4.1 General
Principles
Where there are no rules or administrative
instructions for fixation of seniority, the general principles evolved by
judicial precedents would be applicable.
4.2 Length of Service
The fundamental principle which has gained
favour is that in determining inter se seniority of employees, the length of
actual service rendered in the same cadre or grade would be the generally
accepted criterion. It is not an absolute principle, for example, where the
initial as hoc appointment was not in accordance with the rules, seniority
would have to be determined form the date of regularization and not the date of
initial entry. It follows that the length of service must be rendered in the
same grade or cadre except in cases relating to transfer or deputation where
the services in an equivalent grade might also be taken into consideration.[13]
In computing the length of service the
authorities can prescribe different points of time from which the service was
or is deemed to have commenced. Although the length of service is the generally
accepted principle, the principles to be applied for computing such length will
necessarily depend on varying circumstances. More particularly, the problem
which the Courts have to face is the point of time from which the length of
service has to be determined. For example, whether the length is to be computed
from the date of probationary appointment or substantive appointment, from
officiating promotion or substantive promotion, from the date of transfer to a
department or date of appointment in the original department etc. and although
the computation problems have arisen mostly in cases where recruitment to a
cadre has been from two sources i.e. direct recruitment and promotion.[14]
·
From the date of appointment
The date of appointment is, normally, the starting point of the
computation of the length of service. The date of appointment would mean the
date of substantive appointment, and that will be the date of entry into the
service. An employee cannot be granted seniority prior to him. Late comers to
regular stream cannot steal a march over early arrivals who are already in
regular queue. Service rendered by virtue of wrong appointment/promotion which
is subsequently set aside does not count for seniority.[15]
·
From the date of continuous officiation
There is no substantial qualitative difference between the previous
heading and the present heading. But the courts have had to reconcile and
resolve competing claims of computation based on continuous officiation and the
date of appointment because in many areas of service law appointment is taken
to mean sub-substantive appointment as opposed to officiating appointment.[16]
According to its ordinary connotation the word officiating is generally
used when a servant having held one post permanently or substantively, is
appointed to a post post in a higher rank, but not permanently or substantively,
while still retaining his lien on his substantive post i.e. officiating in that
post till his confirmation. Such officiating appointment may be made when there
is a temporary vacancy in a higher post due to the death or retirement of the
incumbent or otherwise. Officiating service or appointment has been appointed
to discharge the functions of another post pending his regular substantive
appointment.[17]
As regards to seniority is concerned it is the actual service rendered,
whether officiating or otherwise, which will be the yardstick for measuring the
length of service for the purpose of seniority.[18]
·
From the date of probationary appointment
In computing the length of service the period during which the employee
is under training or probation is to be reckoned.
In High Court of Punjab &
Haryana vs. State of Haryana[19],
the Supreme Court held that confirmation of an officer on successful completion
of his period of probation is neither a fresh appointment nor completion of
appointment.
In L. Chandrakishore Singh vs.
State of Manipur[20], the Supreme
Court held that in cases of probation or officiating appointments followed by
confirmation, unless a contrary rule is shown, service rendered during
officiation or probation cannot be ignored for reckoning seniority.
·
From the date of passing examination
The rules may provide the date of passing an examination as the
determining criteria for inter se seniority in the promotional grade.
·
Including the period of deputation
So long as the service of the employee in the new department is
satisfactory and he is obtaining the increments and promotions in that
department in stands to reason that the satisfactory service and the manner of
its discharge in the post he actually holds should be deemed to be rendered in
the parent department also so as to entitle him to such promotions which have nay
nexus with seniority i.e. seniority cum merit. But on the question as to
whether a deputationist will carry with him the seniority of parent cadre it
has been held in the negative in S.P.
Indu vs. Metro Railways[21],
wherein the court was of the view that the deuptationist would be treated as
junior as he was holding a lien in his parent cadre.
·
From the date of absorption
In Director, Central Bureau of
Investigation vs. D.P. Singh[22],
where an office memorandum provided that ‘in the case of a person who is
initially taken on deputation and absorbed later, his seniority in the grade in
which he is absorbed will normally be counted from the date of absorption’, the
contention that seniority of employee who has been holding the post of DSP in
CBI since 24.11.77 from that date must be counted was rejected since it would
render the provision of instruction redundant.
·
Transfer from one cadre to an equivalent
cadre
When a person is transferred from one cadre to another equivalent cadre
in order to secure greater efficiency, he cannot be made to forfeit the benefit
of the period of service rendered by him in the erstwhile cadre. The same
principle applies to integration of cadre. Benefit of past services cannot be
denied even if there has been transfer to a new department. In H.S. Shivalingaiah vs. State of Mysore[23],
the Division Bench of the Mysore High Court upheld the validity of a rule which
permitted a Government servant o change his cadre and provided for reckoning
service rendered in the erstwhile cadre to be counted for seniority.
·
Break in Service
When an
employee takes up a job in some other service he loses his lien on the previous
service and thus there was a break in service and for the purpose of his
seniority and eligibility for promotion his services would be reckoned from the
date of his rejoining the fresh service.
4.3 The Rotational System
(Rota Rule)
When recruitment to a service is from two or
more sources, the authorities can adopt the rotational system in fixing the
seniority. The rotational system implies that after the recruitment has taken
place from two groups e.g. Direct Recruits and Promotees, the list is arranged
in such a way that there is one person from the Direct Recruits and one person
from the promotes alternatively. Of course, the precise manner of rotation i.e.
whether it will be 1:1 or 2:1 or something else would depend on the relevant
rules or administrative instructions.[24]
In
Mervyn Continho vs. Collectors of
Customs, Bombay and others[25],
the Supreme Court while considering the Circular of 1959 with
respect to relative seniority of direct recruits and promotees. It provides
that relative seniority of direct recruits and promotees shall be determined
according to the rotation of vacancies between direct recruits and promotees
which shall be based on the quota of reservation for direct recruitment and
promotion respectively in the recruitment rules. It was further explained that
a roster should be maintained based on the reservation for direct recruitment
and promotion in the recruitment rules. Where for example the reservation for
each method is 50 per cent the roster will run as follows - (1) promotion (2)
direct recruitment (3) promotion (4) direct recruitment and so on. Appointments
should be made in accordance with this roster and seniority determined
accordingly.
4.4 Quota System: The
Quota Rule
When recruitment to service is to be
made from two or more sources the statutory provisions or administrative
instructions governing such recruitment must fix a quota in respect of each of
the sources according to which such recruitment is to take place. For example,
if the recruitment to a cadre is to be made by direct recruitment from the open
market and also by promotion from in service candidates, a quota specifying the
number of direct recruits and the promotes might be fixed. The quota might have
reference to the number of vacancies e.g. when it says that 50 percent of the
vacancies will be filled up by direct recruitment and 50 percent of the
vacancies will be filled up by promotion; or, it might say that the
recruitments shall be in such manner so as to ensure that the total strength of
the cadre is distributed equally amongst direct recruits and promotes at any
given point of time.[26]
In Arvinder Singh Bains vs. State of Punjab[27],
the Supreme Court held that it is mandatory to apply rota and quota rule in
determining seniority where the same is provided for under the Rules. Rota and
Quota must necessarily be reflected in the seniority list and any seniority
list prepared in violation of rota and quota is bound to be negated.
In V.B. Badami vs. State of Mysore[28],
the Supreme Court emphasized that the quota rule should be strictly followed
and if it was violated in favour of a particular group of recruitment in excess
of the quota, then the excess recruits could not take advantage of the
infraction by claiming seniority on the basis of their earlier entry into
service compared to those of the denied group whose entry was deferred by such
illegal usurpation.
4.5 On The Basis Of
Merit
Service rules very often provide
that when a recruitment takes place through selection or competitive
examination, the inter se seniority of the recruited candidates should be
determined on the basis of merit i.e. the results of the selections or examination.
The scheme of the regulations may disclose that seniority will have to be fixed
accordance with merit.
4.6 Prior Selection
In the area of selection, an employee who is
included in a select list on the basis of a prior selection would be entitled
to seniority over those selected pursuant to a latter selection.
4.7 The Date of
Acquisition Of Qualification
The date of acquisition of qualification for
the entry into a cadre can also be a basis for determination of seniority. It
has been recognized by the Supreme Court in Government
of Andhra Pradesh vs. M.A. Kareem[29].
4.8 On Integration Of
Two Services
When two services are integrated the
authorities can adopt a principle different from computing seniority on the
basis of length of service.
4.9 Giving Of
Weightage
It is now well settled in the case of Devi Prasad vs. Government of A.P.[30]
that the Government can, on relevant considerations, give weightage to a
particular category of Government servants out of two or more such categories
although they were rendering somewhat similar kind of service. There may be
many relevant considerations for giving such wieghtage e.g. experience, special
qualifications etc.
4.10 Inter Se
Seniority Between Reserved And General Category Candidates
Where reserved candidates have been promoted
earlier to a general candidate, their seniority in the cadre will rank from the
date of joining on promotion and this seniority is not and cannot have the
effect of getting wiped out after the promotion and of general candidates[31].
But the question as to whether roster point promotions given to reserved
candidates from the feeder category to the promoted category will give them
seniority in the promoted category was re-examined by a Constitution Bench of
Supreme Court in Ajit Singh vs. State of
Punjab[32].
The principle laid down is where the promotional rules are based on quality or
equal opportunity involving evaluation of comparative merits of the candidates
concerned, it will not be permissible to delink the seniority rule from the
recruitment (or promotional) rule based on equal opportunity and apply it to promotions
made on the basis of the roster. This is because roster promotions are for
different class viz. reservations who already had the benefit of accelerated
promotion outside the equality principle and, the balancing exercise required
that they should not be allowed to fall back and take advantage of general
seniority rule which adopts the principle of continuous officiation for
computation of length of service in the promotional cadre.
5. MERGER AND
INTEGRATION
When there is a merger of two or more establishments
or intergration of two or more cadres, the inter se seniority amongst the
employees in the merged establishment or the integrated cadre has to be
determined on some rational principle. The mere fact that some hardship has
been caused to members who are integrate will not render such a rule for
determination of seniority invalid.[33]
In service law ‘Cadre’ means the
strength of a service or a part of a service sanctioned as a separate unit.
There may be a single cadre or more than one cadre in a service.
An employer has a right to merge or
integrate different cadres into one single cadre or to spilt a single cadre
into different cadres for rationalizing administration. There may also be a
transfer of establishment by reason of one employer taking over the establishment
of another employer e.g. Government of India taking over the Central Workshop
of the Irrigation Department of the State of Punjab.
The rules or administrative orders
which bring about integration might provide for principles and manner in which
the seniority of the integrated employees are to be determined. Needless to say
such rules or orders must pass the test of constitutionality which particularly
implies that they must be based on some fair, just and rational principle. But
what would be fair, just and rational principle will vary according to the
facts and circumstances of the case and particularly the historical background
of the integration.
In K. Thimmappa and others vs. Chairman, Central Board of Directors, SBI[34], the Supreme Court held that if the Competent
Authority on relevant and all germane factors, takes a decision in the matter
of placement or fitment, whenever a restructuring of the cadre is made, then
the Court will not be justified in examining the basis of such placement or
fitment in a mathematical scale and would not ordinarily interfere with such
decision, unless it is established beyond doubt that the decision is totally
arbitrary or has been mala fidely
taken.
In New Bank of India Employees’
Union and another vs. Union of India[35],
legal position is fairly settled that no scheme of amalgamation can be fool
proof and a Court would be entitled to interfere only when it comes to the
conclusion that either the scheme is arbitrary or irrational or has been framed
on some extraneous consideration.
In R.K. Sethi vs. Oil &
Natural Gas Commission[36],
the Supreme Court held that when there is a merger of cadres, the earlier
service in the cadre which carried a lower scale could be equated with service
of those in the cadre with a higher pay scale and, therefore, it would be in
order to place those in such lower cadre below those in the higher cadre in
fixing seniority of the merged employees.
6. GRADATION OR
SENIORITY LIST
The seniority of an employee, is generally, indicated
in a list commonly referred to as a Gradation List or a Seniority List. A
Gradation List has to be prepared in accordance with the principles of
seniority and in the manner provided in rules or executive instructions.
6.1 Object Of
Gradation List
An employee must know his exact seniority
position vis-à-vis other employees. It is also important for the employer to
readily locate the precise seniority position of an employee at any given point
of time. This is obviously because one of the important incidence of a service
career namely, promotion, is either fully dependent on seniority or seniority
plays a very important role in the consideration of the promotional process. An
invariable practice has thereof developed of publication of a gradation or a
seniority list showing the respective seniority placements of the employees.
Such gradation list are published from time to time in accordance with the
frequency, if any, stipulated in the rules or administrative instructions.
6.2 Must Reflect The
Principles Of Seniority
A gradation list has to be prepared in
accordance with the principles of seniority laid down either statutorily or by
executive instructions or rules, and normally the validity of such a list is
required to be judged by reference to such principles of seniority. Since the
seniority is normally determined amongst those in the same cadre, the list must
also be confined to those who belong to that cadre e.g., if the cadre consists
of direct recruits only, then the list must reflect the direct recruits only
and not others.
7. CONCLUSION
Seniority,
in service law, connotes the precedence or preference in position of an
employee over other employees similarly situated. Seniority means a longer life
than of another thing or person taken for comparison. In the case of a
Government servant, it means ‘the length of service’. If the service of one
person is longer than that of another the first names person is called senior
to the other.
If there are statutory provisions or rules or
directions providing the manner in which seniority is to prepared, then a list
which not prepared in accordance with such provisions or rules or directions
will be invalid.
[1] 6th Ed., page 1362
[2] 2007, (13), SCC, 320
[3] 2008, (6) SCC, 797
[4] 2007, (10), SCC 548
[5] 2008, (12) SCC, 558
[6] 1977, (1), SCC, 750
[7] Bag, R.K., Service law of Government Employees, Eastern Law House,
2013
[8] ibid
[9] Pal, Samaraditya, Law Relating to Public Service, Lexis Nexis, 3rd
Edition, 2013
[10] ibid
[11] 1984 AIR, SC, 1587
[12] Pal, Samaraditya, Law Relating to Public Service, Lexis Nexis, 3rd
Edition, 2013
[13] Bag, R.K., Service law of Government Employees, Eastern Law House,
2013
[14] Pal, Samaraditya, Law Relating to Public Service, Lexis Nexis, 3rd
Edition, 2013
[15] ibid
[16] ibid
[17] Pal, Samaraditya, Law Relating to Public Service, Lexis Nexis, 3rd
Edition, 2013
[18] ibid
[19] 1975 AIR, SC, 613
[20] 1999 (8) SCC 287
[21] 2007 (11) SCC, 500
[22] 2010 (1) SCC 647
[23] 1971 (1) SLR, 326
[24] Pal, Samaraditya, Law Relating to Public Service, Lexis Nexis, 3rd
Edition, 2013
[25] 1967 AIR (SC), 52
[26] Pal, Samaraditya, Law Relating to Public Service, Lexis Nexis, 3rd
Edition, 2013
[27] 2006 (6) SCC 673
[28] 1976 (6) SCC, 901
[29] 1991 Supp (2) SCC 183
[30] 1980 AIR (SC) 1185
[31] Jagdish lal vs. State of Haryana, 1997 (5) JT, 387
[32] 1997, SCC (L&S), 1239
[33] Pal, Samaraditya, Law Relating to Public Service, Lexis Nexis, 3rd
Edition, 2013
[34] 2001 AIR (SC), 467
[35] 1996 (2) SCT, 584
[36] 1997 (10) SCC 616
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