O P Malik v. State Of Haryana & Others
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! $ "However, we are of firm view that a person cannot earn a promotion during the pendency of a punishment order. If a person has been punished with stopping of increments for a particular period, he cannot be granted promotion during that period, because on promotion, he would be entitled for increment. Both the things cannot go together."
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"12. In the instant case, the promotee respondents Nos. 6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when the respondents Nos. 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 the respondents Nos. 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 the respondents Nos. 6 to 23 cannot be made senior to the respondents Nos. 1 to 5 by the impugned Government orders as they entered into the said service by promotion after the respondents Nos. 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."
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"Conferment of a deemed seniority may result in a situation where a candidate secures seniority with effect from an anterior date on which "0 1""# "023
Such a consequence would be impermissible, at least in the absence of an express statutory provision to that effect.
31. 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 Recruit Class II Engineering Officers' Association v. State of Maharashtra, (1990) 2 SCC 715. The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath, 1991(2) S.C.T 603 : 1991 Supp (1) SCC 334 and State of Uttaranchal v. Dinesh Kumar Sharma, 2007(1) S.C.T. 393 : (2007) 1 SCC 683. In Pawan Pratap Singh v. Reeven Singh, 2011(2) S.C.T. 689 : (2011) 3 SCC 267, this Court revisited the precedents on the subject and observed:
"45. ... (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. (iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be
given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."
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sham Whether speaking/reasoned :Yes/No Whether reportable :Yes/No