Seniority

C H A P I K R IV
SENIORITY*
Seniority is one of the most important matters relating to conditions of
service because it has a direct bearing on the question of promotion to the next
higher cadre. Where promotion to the next higher cadre is based on the principles
of seniority and merit, the seniority of an official is of utmost importance.
Where a senior official is suitable for promotion, he is entitled to promotion on
the basis of his seniority in preference to his juniors. Even in cases where
promotion is governed by the principles of selection, the seniority has its own
importance. Where persons are selected to the next higher post on the basis of
merit and suitability, from among persons of equal merit, the senior is entitled
to be preferred for appointment.1 Therefore, the seniority under the rules is a
civil right.2 The seniority of a civil servant does not depend upon how it is
fixed by the concerned authority. It stands automatically determined according
to the rules. The constitutionality of seniority rules can be challenged on the
grounds of their unreasonableness, justness and fairness.3
The preparation of seniority list by the authority concerned is only a formal
affair. If the authority commits any mistake in preparing the seniority list and
it is found that it is not in conformity with the rules it has to be corrected.4
The right for consideration for promotion according to seniority and in
preference to a junior in the case of seniority-cum-merit and along with a
junior in the case of promotion by selection is a part of fundamental right of
equality of opportunity in matters relating to employment under the state.
Therefore, the fixation of seniority is the very foundation for complying with
fundamental right guaranteed under article 16( 1) because without fixation of
seniority, there can be no consideration of the case of a civil servant according
to his seniority. Article 309 confers the power to the legislature or the Governor
of a state as the case may be to bestow or divest a right of seniority. There is
no vested right to seniority, and the determination of rules relating to seniority
are essentially a question of policy, and the state may vary the seniority, even
with retrospective effect if found necessary in the public interest.5 However,
* Revised by Kamala Sankaran, Research Professor. ILL

1 Sant Ram Sharma v. State ofRajasthan, AIR 1967 SC 1910 at 1916.
2 S.K.Ghosh v. Union of India, AIR 1968 SC 1385.
3 See R. /,. Bansal v. Union of India, 1992 Supp (2) SCC 318; Accountant General v. S.
Dorai Swami, AIR 1981 SC 783 .
4 Gaya Prasad v. State of Bihar, SLR 1973( 1) Pat 1.
5 Prafulla Kumar Das v State ofOrissa, (2003) 11 SCC 614.
530 Services under the State
it must be noted that proper determination of seniority is a service right, and

wrongful determination of seniority could be challenged. Yet this challenge
cannot be raised after a long period of time.6 Where a person had made
representations which had been rejected, this in itself would not disentitle him
from challenging the seniority list after a delay of some years.7
Principles governing fixation of seniority
Seniority — means length of service in similar grade and status: One of
the attributes of regular service is seniority. Seniority means a longer life in
service in comparison with another person. It means "the length of service".
The value of the right of seniority is the right for consideration of one's case
for the promotion to a higher post. In such cases, seniority taken into account
is the seniority in the grade immediately below the promotional post or in the
grade which is described as the grade from which promotions are to be made.
It proceeds upon the basis that the comparison for purpose of seniority is
between equals or those that are in the same grade or equated grades. Therefore,
seniority is a concept which involves a comparison between the length of
service in the same grade and not the overall length of service in different
grades. Where the rules provide for the computation of the length of service
from the date of appointment, it cannot be modified by executive instructions.8
In calculating the date of appointment, it is the date of substantive appointment
that marks the date of entry into service.9 Thus a regular appointment at a
later date cannot relate back to an earlier date oí ad hoc appointment.I0 Seniority
has to be determined from the date of regular appointment under the rules and
not from the date of ad hoc or stop gap appointment made earlier to a post
earmarked for direct recruitment.''
The inter se seniority of persons joining on the same date has also been a
matter for litigation. The courts have held that the inter se seniority of candidates
would depend on the rules governing the same. In the absence of rules, executive
instruction could be issued to fill the gap. In the absence of such executive
instructions, the courts may have to evolve fair and just principles, keeping in
mind the prevailing practise, to deal with the facts in a given case.12
The five judge bench of the court in Direct Recruit Class II Engineering
Officers Association v. State of Maharashtra^ has clarified that once a person
6 U.S. Bajwav State of Punjab, (1998)2SCC 523.

7 Kuldeep Chand v Union of India. (1995) 5 SCC 680.
8 K. Balasubramaniam (Ex-Capt.) v. State of Tamil Nadu, (1991) 2 SCC 708.
9 Major Yogendra Yadav v. Bideshwar Prasad, (1997) 2 SCC 150.
10 11N. Agarwal v. State ofMadhya Pradesh, AIR 1990 SC 13 31.
11 A.a Sainath Ready■v.Govt. ofA.P., (2003)4 SCC 65.
12 Bimlesh Tanwar v. State ofllaryana, (2003) 5 SCC 604.
13 Direct Recruit Class II Engineering Officers Association v. State of Maharashtra AIR
1990SC 1607
Seniority 531
is appointed to a post according to rules, his seniority has to be counted from

the date of his appointment and not according to the date of confirmation.
Similarly it is impossible to postulate comparison between regularly
appointed government servants and irregularly appointed government servants.
Hence a person irregularly appointed cannot claim seniority against persons
appointed regularly.'4 Any order issued by the government to count irregular
service of persons rendered before they are appointed on regular basis would
be illegal.15
The expression "date of appointment" is distinguishable from the expression
"date of the order of appointment". Where the appointment order makes clear
that the date of appointment is from the date a person assumes charge, then
the order of appointment is treated as merely the date of order of appointment
and the date of appointment is the date when a person assumes charge. However
where the appointment order states that the person is appointed with immediate
effect, the date of appointment is made on the date the order is made and the
appointment takes immediate effect and does not depend on whether the person
assumes charge or not.16
General principles applicable for fixing seniority: Seniority is always
counted from among persons holding similar posts with similar status. Mere
length of service under the government is never the basis of seniority. The
general principles applicable for seniority are as follows:-
(i) The first condition for fixing seniority between the officials is that they
must be holding the posts in the same cadre or grade. A casual labourer is in
employment but is not holding a post until he is regularised.17 Appointment
upon regularisation is a fresh appointment.18 Further, if the rules do not indicate
that past services will count towards seniority, then such past service would
not be so considered.19 Where promotion of a person to a higher post requires
him to have certain experience in a particular post, it is essential that he should
have been substantively appointed against such lower post before he can be
considered eligible on grounds of seniority for such promotion.20 Where a
14 Chandramouli v. State of Mysore, 1970(2) Mys. LJ 187; Hombaiah v. State, 1972 Mys
LJ SN 60; B.H.Narayanaswamy v. Registrar, High Court of Mysore, W.P. No.6594/69
D 29-9-72; Arun Kumar v. Union of India, SLR 1976(1) Del 686; Sharma H.C. v.
Ml.Corpn. Delhi, SLR 1983(1) Del 706; T.Pillappav. State of Mysore, 1967 (2) Mys LJ
40; Dharma Paul v. State of Punjab, SLR 1984( 1) P&H 597.
15 See Hombaiah v. State, 1972 Mys LJ SN 60; B. H. Narayanaswamy v. Registrar, High
Court of Mysore, W.P. No.6594/69 D 29-9-72.
16 Amarjit Singh Ahluwaliav. State ofPunjab. AIR 1975SC984.
17 K. Trimurthulu v. MVN Murthy, (1998) 9 SCC 571,
18 State of West Bengal v. Aghore Nath Dey, (1993) 3 SCC 371.
19 Union of India v. KSavitri, 1998 4 SCC 358.
20 R.S. Garg v State of UP, (2006) 6 SCC 430.
532 Services under the State.
person has worked in a private college that was taken over by the government,
it has been held that the services of the respondent in the college prior to its
takeover could be taken into consideration for determination of seniority while
considering promotion from Lecturer to Reader, as per the relevant rules of
the Orissa Educational Service (College Branch) Recruitment Amendment Rules,
1993.2'
(ii) Seniority is to be fixed as between persons who hold similar status i.e.
officiating or substantive. Officiating normally means that a person has been
appointed to discharge work in a post (usually a higher one) where he/she has
not been substantially appointed. Normally a person officiates in a post when
he performs the duties of a post in which another person holds the lien;
however, in certain cases a person may be appointed to officiate in a vacant
post on which no other government servant holds lien.22 Normally when a
person is appointed to a post seniority is calculated from the date of appointment
and not the date of confirmation; this rule however would not apply where the
initial appointment is ad hoc in nature.23 This is because upon successful
completion of probation and confirmation, there is no fresh appointment that
takes place, and the appointment is completed upon being appointed on
probation.24 However where the initial appointment is not made by following
the procedure laid down by the rules but the appointee continues in the post
uninterruptedly till the regularisation of his service as per the rules, this
officiating period will be counted.25 Thus probationary period or the "in-
service periods" could also be counted towards seniority.26
(iii) Persons holding permanent or substantive appointment are always
treated as seniors to persons holding appointments on temporary or officiating
basis The period of deputation would also count towards seniority provided
that he performs his duty satisfactorily.26"
Unless authorised by the rules, ad hoc appointment is no appointment. As
a result the courts have disallowed the plea of employees for counting of their
ad hoc period of service towards their seniority.27 Where the government
gives retrospective regularisation to person working temporarily it would be
wrong to grant them seniority from their date of initial appointment on a
temporary basis against a post. The correct position would be to count their
21 State of Orissa v. Bikasendu Das, (2004) 13 SCC 783.

22 Fundamental Rules 9 (19).
23 Supra note 13.
24 High Court of Punjab & Haryana v. State ofHaryana, AIR 1975 SC 613.
25 Supra note 13.
26 State of HP v. J.L. Sharma, (1998) 1 SCC 727.
26a State of Mysore v. RN. Nanjundiah, (1969) 3 SCC 633.
27 State of West Bengal v. Aghore Nath Dey, (1993) 3 SCC 371.
Seniority 533
seniority from the date on which their services were regularised and not from
the date of their initial appointment on a temporary basis against a particular
post without following the recruitment rules.28 Even where ad hoc employees
were regularised by relevant rules after satisfying all tests for appointment and
considering eligible candidates, the court has held these to be fortuitous or
stop gap appointments, and the period of ad hoc service could not be counted
towards their seniority.29
(iv) As among persons who are confirmed or substantively appointed, the
date of confirmation or substantive appointment is the basis for seniority;
(v) From among persons holding temporary or officiating appointments.
the length of service in the cadre or grade is normally the basis for fixation of
seniority. Where a non-cadre officer is officiating for more than six months in
a Indian Forest Service cadre post without the requisite approval of the central
government, the court has held that the officiating appointment is of a fortuitous
nature, and such officiating period cannot count towards his calculating his
seniority in the service,30
(vi) In the case of persons who are recruited through a competitive
examination, the inter se seniority is determined on the basis of the rank assigned
by the Public Service Commission conducting the examination.31
(vii) Where qualifications are prescribed for appointment to a post, the
date of acquisition of such qualification can also determine seniority.32
While these general principles are usually incorporated in the rules regulating
seniority, the statutory rules framed for regulating fixation of seniority are
decisive.
Confirmation - secures substantive status: Generally, a direct recruit is
placed on a fixed period of probation. The rules also provide for the extension
of the period of probation. Similarly, a person promoted is normally placed on
officiation. During the period of probation or officiation an officer has no right
to hold the post and can be discharged or reverted on grounds of unsuitability
in accordance with the rules governing the conditions of service. After
satisfactory completion of probation or officiation, an official is entitled to
confirmation against a permanent vacancy existing or arising thereafter. On
confirmation, a person secures substantive appointment and gets a right to
hold the post until the same is terminated in accordance with law. As among
persons who are confirmed or substantively appointed, the seniority has to be
28 K. Madalaimuthu v. State of Tamil Nadu, (2006) 6 SCC 558.

29 Santosh Kumar v. G. R. Chawla, (2003) 10 SCC 513.
30 A Amanullah Khan v. Govt. of India, (2004) 7 SCC 586.
31 Union of India v. Mohan Lai Capoor, (1973) 2 SCC836.
32 Government ofAndhra Pradesh v. hi.A. Kareem, 1991 Supp (2) 183.
reckoned with reference to the date of confirmation or date of substantive

appointment. Where the date of confirmation is the same among promoted
officers, the seniority in the lower cadre prevails and in the case of direct
recruits it will be in the same order in which they are selected.33 Therefore,
when persons are appointed on probation, they secure substantive appointment
only on confirmation. A person so confirmed will be junior to persons appointed
substantively before that date of confirmation. A probationer though appointed
against a substantive vacancy acquires substantive status only from the date
of confirmation and not from the date on which he was appointed on
probation.34
Where a person is appointed against non-existent posts or posts which
were not available, there could be no question of a substantive appointment or
appointment to the service, so such appointees could not be granted the benefit
of seniority from this purported date of appointment.35
Earlier confirmation gives right for seniority: Where directly recruited
persons are required to pass departmental examinations and a person appointed
later passes the departmental examinations earlier and gets confirmed prior to
the person appointed earlier, he becomes senior to persons appointed earlier.
Even in the absence of any specific rule applicable to such a case, a person
who passes the examination earlier and gets confirmed earlier has to be treated
as senior to persons who remain unconfirmed or get confirmed later though
appointed earlier.36 The same position holds for promotees.37 Where a person
did not pass the departmental exams within even the period of extension of
probation granted, the appointing authority could fix the date of confirmation
from the date that he subsequently passed the test and fix his seniority at a
level lower to those who passed the departmental examination within the
extended period of probation and whose date of confirmation was fixed as the
date when the original period of probation was completed.38 It has also been
held that the date of examination is distinct from the date of passing the
examination. Seniority is to be counted from the date of passing the
examination.39
33 B.K. Panduranga Sharma v. State of Mysore, 1963( 1) Mys LJ 441; Seenambhat Joshi
v. State of Mysore, 1974(1) Kar LJ SN 13; Union of India v. N.R.Sundaram, SLR
1982(2) Del 393.
34 Veerabhadraiah v. State of Mysore, 1971 (2) Mys LJ SN 13 3.
35 SanjayKSinha-IIv. State of Bihar, (2004) 10 SCC 734.
36 Seenambhat Joshi v. State of Mysore, 1974 (1) Kar LJ SN at 13.
37 B.K. Panduraga Sharma v. State & Mysore, 1963 (I) Mys LJ 441.
38 Om Prakash Srivastava v State ofMadhya Pradesh, (2005) 11 SCC 488.
39 Mohan Lai v. State ofHtmachal Pradesh, (1997) 4 SCC 416; DR. Diwan v. State of
Uttar Pradesh, (2005) 10 SCC 607.
Seniority 535
Confirmation takes effectfromdate of completion ofprobation: The date

of satisfactory completion of probation or officiation is of crucial importance
for confirmation. If on the date on which a civil servant satisfactorily completes
the probation or officiation, a clear vacancy in permanent post exists, he acquires
the right to be confirmed as on that date. In the nature of things, the declaration
of satisfactory completion of probation and ordering confirmation could be
made only on some date subsequently. However, confirmation even if made
subsequently, takes effect from the date of the satisfactory completion of
probation even in the absence of specification of the date of confirmation.40
An order confirming a civil servant with retrospective effect41 can be
made by an officer competent to pass the order on the date of confirmation
even when on the date of passing the order, the civil servant may not be
working within his jurisdiction.4)2
Substantive appointment without confirmation: If a civil servant has been
initially appointed substantively, he could claim that he was a permanent civil
servant even without an order of confirmation.43
Fixation of seniority in officiating position to precede confirmation: Where
the rules prescribe the manner in which seniority has to be fixed among the
officiating officers and further provide that seniority of confirmed officers
shall be in accordance with date of confirmation, the seniority of officers in
the officiating position should befixedin thefirstinstance. Infixingthe seniority
in the officiating position the seniority of promotees and direct recruits should
be fixed having regard to the quota prescribed in the rule and the confirmation
should be made in the same order.44
Cancellation of confirmation: On confirmation, a person acquires a
substantive right to hold the post to which he is confirmed. Therefore, the
cancellation of confirmation will have the effect of taking away the substantive
right to hold the post. Hence an order of cancellation of confirmation can be
passed only after complying with the provisions of article 311(2).45
Void orders of confirmation confers no right: Persons even when armed
with confirmation orders, do not acquire any right if the posts are non-existent.
The purported confirmations are void. Even the creation of supernumerary
posts to provide liens for officers so confirmed does not alter the position.
Since the order of confirmation was itself devoid of any legal foundation, it
40 Malhotra v. State of Punjab, AIR 1975 SC 1598.

41 Dattatreya v. Union of India, AÍR 1976 Bom 42.
42 Katoch v. State ofJ&K, 1979 L&I Cases 645.
43 Chandhari L. G v. Secretary, L. S. G. Dept, AIR 1983 SC 3 83.
44 V.B. Badami v. State of Mysore, SGR 1975(2) Kar 295.
45 Beni Madhab v. State ofAssam, AIR 1968 A&N 18; SLR 1968 A& N 616; N.S Mathur
v. State ofRajasthan, AIR 1983(2) Raj 791.
confers no right on the civil servant concerned. Hence, no notice to show

cause is necessary to pass such an order of cancellation and provisions of
Article 311(2) are not attracted.46
As a general principle, it can be stated that a settled seniority position
should not be unsettled.47 Where a person challenges the seniority of a person
wrongly decided and the disposal of the case is delayed, the rights of the
aggrieved party cannot be ignored merely on the grounds that the seniority
wrongly determined ought not to be unsettled because of long delay.48
Confirmation made by mistake can be corrected: An order of confirmation
is an administrative order and if it is passed by mistake, the authority can, and
indeed, ought to revise the order and correct the mistake.49
Seniority of direct recruits
(1) Where the seniority rules require the fixation of the seniority of direct
recruits on the basis of the recommendation of the public service commission
or the selecting body, the arrangement of names in the order of merit by such
authority by itself constitutes recommendation regarding the seniority. The
appointing authority has to fix seniority of the officials directly recruited in the
same order; it cannot determine the seniority in any other manner.50 Seniority
is not determined by mere fortuitous reporting for duty earlier and the date of
the joining report; seniority would be determined on the basis of the ranking
done by the Selection Board and as arranged in the roster.51 Where the selection
process has ranked the candidates, merely because a person ranked higher
had a later date of joining, within the stipulated period or extended period of
joining granted by the authorities, cannot change the seniority based on
performance in the selection board. A mere delay in joining, particularly when
it was for eight days and for reasons beyond the candidate's control cannot
change his seniority.52
(2) But where the rules provide that if the direct recruit fails to report for
duty within the prescribed time, he has to take seniority from the date of
joining duty. By not joining duty within the prescribed time he loses his claim
for seniority on the basis of the select list.53
46 State of Punjab v. Jadgip Singh. AIR 1964 SC 521: ! 964(4) SCR 964.
47 Bimlesh Tanwar v. State ofllaryana. (2003) 5 SCC 604.
48 K. P Sudhakaran v. State of Kerala, (2006) 5 SCC 3 86.
49 KB. Sharma v. Transport Commissioner, SLR 1968 All 830.
50 M. Savithri v. State of Mysore, 1972(1) Mys LJ 45; Syed Shamim Ahmed v. State, SLR
1981(l)Raj 100.
51 Chairman, Puri Grmaya Bank v. Ananda Chandra Das, (1994) 6 SCC 301.
52 P. Srnivas v. M. Radhakrishna Murthy, (2004) 2 SCC 459.
53 JoshiS.R. v. State of Karnataka, l983(l)Kar LJ 373.
Seniority 537
(3) The seniority of direct recruits is always determined on the basis of

the select list prepared by the public service commission or any recruitment
committee or authority appointed for the purpose. The circumstances under
which the seniority arranged in that manner could be varied is on the basis of
the date of confirmation. This may happen on account of a person who has
secured a higher rank in the list of selected candidates not completing the
period of probation satisfactorily or not fulfilling the conditions of confirmation,
within the time allowed and his period of probation is extended. In such cases,
the person though placed lower in the list of selected candidates by completing
the period of probation satisfactorily and also fulfilling other requirements
(such as passing of departmental examination) within the time allowed gets
confirmed earlier, the seniority gets altered and the person so confirmed becomes
senior.54
Seniority of promotees
When promotions are made irregularly: The seniority of persons promoted
to the higher cadre is normally according to date of promotion. But where
promotions are made irregularly and out of turn without considering the cases
of seniors or on the basis of a provisional seniority list, the seniority of the
persons promoted on officiating basis is the same as their seniority in the
substantive cadre.55
Where a seniority list made subsequently is held to be invalid and the
earlier seniority list affirmed by a state administrative tribunal, and has attained
finality, any order of the courts in subsequent proceedings permitting the raising
of a distinct cause of action relating to the seniority order in its implementation,
cannot allow the petitioner to challenge the validity of the earlier seniority list
before the tribunal. The earlier order of the administrative tribunal would operate
as res judicata on the petitioner.56
The court has ordered the payment of cost for wrongful denial of seniority
to the aggrieved party. Where due to a writ petition filed by the respondent,
she was promoted as principal and the appellant wrongly reverted from that
post, and it was subsequently held that the respondent was not entitled by
seniority to the post, the court had ordered the respondent to pay Rs. 5000 to
the appellant for this wrongful denial of promotion.57
When promotion was passed over and given later: Similarly, in cases where
the case of a senior official is not considered for promotion as on the date
54 B.K. Panditranga Sharma v. State of Mysore, 1963(1) Mys LJ 441; Venkataswamy v.

State of Mysore, W.P.No.2243/1966 D 27-9-1968 (Mys).
55 Giriyappa Patil v. State of Mysore, 1964 Mys LJ Suppl 573.
56 Sarat Chandra Mishra v. State ofOrissa. (2006) 1 SCC 638.
57 R. Sulochana Devi v. D. M. Sujatha, (2005) 9 SCC 335.
when his immediate junior is promoted, on account of the pendency of

departmental enquiry or on account of the senior official being on deputation
or such other reason, a senior official though promoted later will retain his
seniority in the substantive cadre as also in the higher cadre, i.e. the seniority
of an officer promoted later unless he was superseded has to be fixed in the
higher cadre just above the junior official though promoted earlier.58
Seniority—when juniors and seniors are still officiating in higher cadre:
Similarly, where the rules provide that though the senior official gets promoted
later and junior official promoted earlier on account of his passing departmental
examination earlier, the seniority in the higher cadre has to be fixed according
to the seniority in the substantive cadre, as long as the junior promoted earlier
has not been confirmed, the senior official promoted later gets his seniority in
the higher cadre above his junior promoted earlier.59 But the position will be
different when the rules specifically provide that the senior stopped at the
qualification bar and superseded by his junior with the requisite qualification
becomes junior to his junior so promoted. In such a case junior promoted to
the higher cadre becomes senior to his erstwhile senior whom he superseded
permanently.60
Superseded officer cannot regain seniority: When senior officers are
considered unfit for promotion and the junior officers are promoted the latter
acquire seniority. To revise the seniority position after the erstwhile seniors
have acquired the qualification or eligibility for promotion would result in
disruption of seniority of all persons who had been regularly promoted and it
would introduce utter uncertainty for an indefinite period of time regarding the
ranking of officers in higher category. Therefore, seniority once acquired by a
junior officer by supersession of his senior cannot be allowed to be upset
subsequently.61 Even if the senior is subsequently promoted he cannot regain
the seniority.62 Even if subsequently the junior so promoted is reverted for
want of post, etc., he still ranks senior in the lower cadre above his erstwhile
senior and will have preference for promotion when occasion arises once
again.63
58 Mahantayya Maharudraiah Hirehmath v. Inspector General/Police, 1963 Mys LJ SN

92; T.S. Sundararaja lyengar v. State of Mysore, 1969 Mys L.I SN 9; M.Zameer
Ilussain v. C. TO., Bangalore, W.P.No.6160/1969 D 22-11 -72; H.M. Murudeshwar v.
State ofKarnataka, W.P.No.722/73 D 31-7-74 (Mys); Tejinder Singh v. State of Punjab,
1978 L&I Cases 1181; Maloom Lawrence v. Union of India, SLR 1975(2) SC 255.
59 Gangaramw. Union of India, MR 1970 SC 2178: (1970) 3 SCR 481.
60 C.K.Naraimhaiah v. Divisional Commissioner, Mysore, W.P.No. 1966/1963 D 19-9-
1966(Mys).
61 Sreedharan Pillai v. State of Kerala, SLR 1973(1) Ker 478.
62 State ofUttar Pradesh v. Omkamath Tandon, (1993) Supp (3) SCC 202.
63 Bachittar Singh M. State of Punjab, SLR 1973(1) P&H 863. See also Joginder Nath v.
Union of India, AIR 1975 SC 633.
Seniority 539
Seniority acquired by selection cannot be altered: Where a promotion is

made on selection based on the merit and suitability of the officers in the lower
cadre, a person selected and appointed earlier gets seniority over the persons
selected later. In such a case, even a revision of seniority in the lower cadre
cannot be taken as the basis for altering the seniority of persons who are
selected and appointed.64
Deemed date of promotion as basis for seniority: The appointing authority
has the power to retrospectively promote the seniors by giving deemed dates
of promotion and to adopt the said date for fixing seniority of promotees,
where junior officials are promoted ignoring the claims of senior officials
wrongly on account of wrong fixation of seniority or other reasons.65
Retrospective promotion must not exceed number ofvacancies: In a review
of promotions which had ignored just claims of retrospective promotion, these
should be limited to the then existing vacancies. If there were no vacancies,
then the only course open to the appointing authority is to review the entire
position and revert the juniors or give them a later date of promotion, and give
earlier deemed dates of promotion to the seniors. The appointing authority
cannot resort to any method of rectifications which results in larger number
of promotions than warranted by the actual promotional vacancies. Any such
retrospective promotion measure which affects the seniority of others
subsequently appointed is illegal.66
Denial of retrospective confirmation and seniority on retrospective
promotion illegal: When a wronged senior is promoted with retrospective
effect from the date of the promotion of his juniors there is no justification for
the state to deny him confirmation and seniority from the said date. A
retrospective promotee is also entitled to be confirmed in preference to his
junior and to be placed in the seniority list above the junior promoted earlier.
This accords with the result if the normal process of promoting the senior
was not infringed in the first place.67
Seniority between direct recruits and promotees
The manner of fixation of seniority as between direct recruits and promotees
has given rise to several disputes relating to seniority. The disputes have arisen
firstly, for the reason that direct recruitments are not made regularly by the
64 S. K. Ghosh v. Union of India, AIR 1968 SC 1385; Harikishan Singh v. State of Punjab,
AIR 1971 SC 1602: SLR 1971 SC 373.
65 Shanthalya v. State of Mysore, W.P.No. 1976/66 D 24-1-1967; Rohini v. Director of
Public Instructions, W.P.No. 1212 to 1215/66 D 7-7-1969 (Mys.)
66 PN. Hosalappa v. State of Mysore, W.P.No.2293/1967 D 28-8-1969; T.L.Krishnaiah v.
State of Mysore, 71 (1) Mys U 168.
67 K. P. Srinivasan v. Financial Adviser, SLR 1970 (Mys) 166.
appointing authorities. Secondly, the disputes relate to the fixation of quota

between direct recruits and promotees and the recruitment made in disregard
of the quota rule. Persons promoted even against the direct recruitment
vacancies are continued for several years. Thereafter, when direct recruitment
is made, direct recruits naturally claim seniority in accordance with quota
rules. The promotees regard this as humiliation. All this can be avoided by
making direct recruitment promptly every year as and when vacancies arise.
But this does not seem to be a preferred policy with the governments in India;
a factor which contributes to the burgeoning service jurisprudence. The five
judge bench judgment in the direct recruit case settled many of the long pending
areas. To summarise, the court held:
(A) Once an incumbent is appointed to a post according to rule, his seniority
has to be counted from the date of his appointment and not according to
the date of his confirmation.
The corollary of the above rule is that where the initial appointment is
only ad hoc and not according to rules and made as a stopgap
arrangement, the officiation in such post cannot be taken into account
for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid
down by the rules but the appointee continues in the post uninterruptedly
till the regularisation of his service in accordance with the rules, the
period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible
to fix the ratio for recruitment from the different sources, and if rules
are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be
substituted by an appropriate rule to meet the needs of the situation. In
case, however, the quota rule is not followed continuously for a number
of years because it was impossible to do so the inference is irresistible
that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made
from one source in excess of the quota, but are made after following the
procedure prescribed by the rules for the appointment, the appointees
should not be pushed down below the appointees from the other source
inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to
the quota, ordinarily a presumption should be raised that there was such
relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed
by executive instructions, if the rules are silent on the subject.
Seniority 541
(H) If the quota rule is prescribed by an executive instruction, and is not

followed continuously for a number of years, the inference is that the
executive instruction has ceased to remain operative/8
Another distinction that needs to be kept in mind while determining the
seniority of person is the mode of appointment and the application of the quota
and rota rule. Briefly put, under the quota system specific posts could be
earmarked for a specific category, under the rota rule, vacancies as and when
they arise are rotated on the basis of order/sequence among different registers
on a roster basis.
Basic principles relevant for fixation of seniority of direct recruits and
promotees:
(a) Obedience to quota rule obligatory: The rules of recruitment often fix
specific quota for direct recruitment and promotion. The quota cannot be
violated at the will and pleasure of the appointing authority. Vacancies must be
classified as 'direct recruitment' and 'promotional' vacancies and recruitment
must be made from the respective source.69
The matter of inter se seniority of reserved category of employees who
get promoted under a quota vis-á-vis general category of employees has been
a vexed one. The courts have held that general category candidates cannot be
considered against a reserved post, but when a person belonging to a reserved
category is considered for promotion, such a promotee cannot be counted
while calculating the reserved category quota posts.70 It was initially felt that
if a reserved category employees get promoted earlier than the general category
employee of similar seniority in the feeder cadre, there would not be any
accelerated seniority; inter se seniority would be determined on the basis of
rank in the feeder cadre.71 The court held that the "earlier promotion of the
Scheduled Caste/ Scheduled Tribes candidate in such a situation does not
confer upon him seniority over the general candidate even though the general
candidate is promoted later to that category." In a later case, Ajit Singh II, the
court clarified that roster point promotees in the reserved category cannot be
treated a senior to general category candidates who were senior to them in the
lower category but promoted later, provided the reserved category employees
has not been further promoted.72
68 Direct Recruits Class 11 Engg Officers 'Assn v. State of Maharashtra, (1990)2 SCC 715
at 745.
69 Jaisinghani v. Union of India, AIR 1967 SC 1427; Hachan Singh v. Union of India, AIR
1973SC441.
70 R. K. Sabherwal v. State of Punjab, AIR 1995 SC 1371.
71 Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 648 .
72 Ajit Singh //v. State of Punjab, AIR 1999 SC 3471. Also sec M. G. Badappanavar v. State
ofKarnataka, AIR 2001 SC 260.
Elaborating, the court had held that:

It must be noted that whenever a reserved candidate goes for
recruitment at the initial level (say Level 1), he is not going through
the normal process of selection which is applied to a general candidate
but gets appointment to a post reserved for his group. That is what is
meant by reservation. That is the effect of reservation.
"Now in a case where the reserved candidate has not opted to contest
on his merit but has opted for the reserved post, if a roster is set at
Level I for promotion of the reserved candidate at various roster
points to Level 2, the reserved candidate, if he is otherwise at the end
of the merit list, goes to Level 2 without competing with general
candidates and he goes up by a large number of places. In a roster
with 100 places, if the roster points are 8, 16, and 24 etc. at each of
these points the reserved candidate if he is at the end of the merit list,
gets promotion to Level 2 by sidestepping several general candidates.
That is the effect of the roster-point promotion.
"It deserves to be noticed that the roster points fixed at Level 1 are
not intended to determine any seniority at Level 1 between general
candidates and the reserved candidates.... The roster point merely
becomes operative whenever a vacancy reserved at Level 2 becomes
available. Once such vacancies are all filled, the roster has worked
itself out. Thereafter other reserved candidates can be promoted only
when a vacancy at the reserved points already filled arises. That was
what was decided in R.K. Sabharwal v. State of Punjab P
It had also been held that seniority in itself is not a fundamental right, but
only a civil right. Merely because a person was appointed under the provisions
of article 16(4) it does not provide any right to seniority on the basis of roster
points. Thus when under a roster system vacancies are allotted to different
categories of employees, the roster in itself was held not to determine the
seniority of persons appointed against vacancies determined by the roster.74
The 81st Constitutional Amendment Act, 2000 has the effect of nullifying
the Ajit Singh //decision by enabling the state to make provisions for reservations
"in matters of promotion with consequential seniority, to any class or classes
of posts" in the services under the state in favour of Scheduled Castes and the
Scheduled Tribes which, in the opinion of the state are not adequately
represented in the services under the state (article 16 (4-A).
(b) Clear vacancies in permanent and temporary posts should be classified:
Generally, in respect of each cadre, permanent as also temporary posts are
73 Ajit Singh [I v. State of Punjab, AIR 1999 SC 3471 at 3483-84.

74 Bimlesh Tanwar v. State of Haryana, (2003) 5 SCC 604, overruling P.S. Gahlaut v. State
ofMaryana, (1995) 5 SCC 695.
Seniority 543
sanctioned. Permanent posts are those sanctioned without the limit of time.
Temporary posts are sanctioned for a specified period and continued from
time to time. The rules of recruitment which prescribe the qualification for
and the method of recruitment to any cadre are applicable to both permanent
and temporary posts. This being the position, the quota prescribed as between
direct recruitment and promotion cannot be confined to permanent posts. It
applies to temporary posts as well. However, the classification of vacancies
must be of clear vacancies, and not fortuitous ones like leave or deputation
vacancy.75
(c) Fixation of quota when only permanent posts are included in the cadre
strength: When a cadre is required to be filled up by direct recruitment and
promotion and it consists only of permanent posts, in calculating the quota
only the permanent posts should be taken into account. Temporary posts
created for the training period of direct recruitment, while allowing the
promotees promoted in excess of the quota to continue in the permanent posts
earmarked for direct recruits, cannot be taken into account in calculating the
quota. This is particularly so when the rules clearly indicate that direct recruits
are entitled to permanent vacancies, after the satisfactory completion of
probation. In such a case, calculation of quota and confirmation made only in
respect of permanent posts is valid 76
The method of fixing seniority: The method of fixing the seniority of
direct recruits and promotees in compliance with the recruitment rules fixing
the quota and the rules of seniority requiring the fixation of seniority from the
date of appointment have been clearly laid down by the Supreme Court in
Subraman77 which is as follows:
i. The seniority of a civil servant in the cadre concerned will count
from the date of initial appointment on officiation (on promotion) or
probation (on direct recruitment) provided the initial appointment is
within the quota;
ii. The quota rule applies to vacancies in all posts, permanent or temporary
included in the sanctioned strength of the cadre, except vacancies
which are purely fortuitous or adventitious;
iii. The validity of appointment from one source does not depend upon
the making of appointment from the other source; direct recruits
could be validly appointed against direct recruitment vacancies without
waiting for promotion and vice versa and so long as the appointment
is within the quota the appointee is entitled to count seniority from
75 B.S Gupta v. Union of India, AIR 1972 SC 2627.

76 Badami V.B. v. State ofKarnataka, AIR 1980 SC 1561: SLR 1975(2) SC629.
77 A. Subraman A. K. v. Union of India, AIR 1975 SC 483 at 494.
that date. This rule should be distinguished in cases where the rota
system of appointment is applicable. Thus where persons are appointed
on a rota basis and are drawn from different registers, such as direct
recruits, and recruits from other sources, their seniority would count
from their date of the order of appointment and not from the date of
individual appointment. Thus when under the rules appointments were
to be made under different registers, that would be the date to determine
seniority. To read the "date of order of appointment"' as the "date of
appointment" would place direct recruits at a disadvantage as such
appointments usually took longer compared to the appointments of
those drawn from registers of those already in employment. Quota
and rota must be thus reflected in the seniority lists that are
prepared.78
iv. If the direct recruits are appointed against promotional vacancies, or
promotees are appointed against direct recruitment vacancies, their
appointment must be adjusted against clear vacancies becoming
available thereafter at any time, and for purpose of seniority it is the
date on which the appointment is adjusted against a vacancy available
for that source which counts for seniority and not the date of
appointment made in violation of the quota.
v. Once the seniority of direct recruits and promotees when they are on
probation/officiating basis isfixedaccording to the date of appointment,
thereafter the source from which they are recruited is not relevant for
purposes of confirmation which has to be made strictly according to
seniority fixed in compliance with the quota rule and the date of
appointment.
These principles have been reiterated in all the subsequent decisions by
the Supreme Court and followed by the High Courts.79
78 Arvinder Singh Bains v. State of Punjab (2006) 6 SCC 673.

79 Jogindarnath v. Union of India. AIR 1975 SC 633; Dr.Amarjit v. State of Punjab, AIR
1975 SC 984; V.B.BadamiM. State of Mysore. SLR 1975(2) SC 629: AIR 1980 SC 156;
SB. Patwardhan v. Union of India, AIR 1977 SC 2051: N.K.Chauhan v. State oj
Gujarat, AIR 1977 SC 251: RChittaranjan Menon v. A.Balakrishna. SLR 1977(2) SC
289: Goel v. State ofU.P, AIR 1979 SC 228; Kamal Kanti v. Union of India. SLR
1980(2) SC 62: AIR 1980 SC 2057; K.Dheenadayalan v. State of Tamil Nadu. SLR
1980(2) SC 409; Rajendra Narain v. State of Bihar. AIR 1980 SC 1246: B.S Yadav v
State ofHaryana, AIR 1981 SC 561; Janardhana v. Union of India, SLR 1983(2) SC
113;//. V.Pardasani v. Union ofIndia, AIR 1985 SC 781; Bhagwan Das v. I.C.A.R, AIR
1985 SC 1192; Karam Pal v. UnionofIndia. AIR 1985 SC 774; Mahal PS. v. Union of
India, AIR 1984 SC 1291; Sethi A.S. v. Punjab Agricultural University, SLR 1982(2)
P&H 278: Brij Kishore Bhatia & Others, SLR1985(1)P&H121; Association ofScientific
Workers v. Unionof India, SLR 1980(2) MP 339; Manjappa Rai v. Union of India, SLR
1977(1) AP 721; Sawkar v. Director of Agriculture. SLR 1979(2) Kar 249: Surinder
Kumar v. State ofHaryana. SLR 1979(2) P&H 301.
Seniority 545
The quota system has been used for instance in the Shetty Commission
appointed for fixation of pay scales for judicial officers. This was in issue in
the All India Judges Association case where the court directed as follows:
[Tjhat recruitment to the Higher Judicial Service i.e. the cadre of
District Judges will be:
(I)(a) 50 per cent by promotion from amongst the Civil Judges (Senior
Division) on the basis of principle of merit-cum-seniority and passing
a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit through
limited competitive examination of Civil Judges (Senior Division)
having not less than five years qualifying service; and
(c) 25 per cent of the posts shall be filled by direct recruitment from
amongst the eligible advocates on the basis of the written and viva
voce test conducted by respective High Courts.
(2) Appropriate rules shall be framed as above by the High Courts as
early as possible."80
Where persons were promoted as additional district and sessions judges
against posts meant for direct recruits because recruitments had not been
made and sufficient candidates were not available, such persons cannot claim
seniority over those directly recruited in the same year.8!
However the rigours of the quota system have been reduced somewhat in
court judgements. Thus the five judge bench in the direct recruits case has
held that if appointments from one source are made in excess of the quota, but
in a regular manner and after following the prescribed procedure, there is no
reason to push down the appointees below the recruits from the other source
who are inducted in the service subsequently. This is particularly the case
where the rules themselves permit a change in the ratios of the quotas.82
Period in respect of which the classification should be made: For the
purposes of the classification of vacancies between direct recruitment and
promotion, the specification of the period is essential. Without it, the
classification of vacancies is not possible and quota rule is unworkable. When
the rules prohibit the making of temporary promotion against direct recruitment
vacancies beyond one year, the clear indication is that the quota rule must be
worked out on an annual basis. Similarly, if the rules require the fixation of
seniority and publication of seniority lists every year, it means the quota rule
must be implemented, taking the vacancies arising in a year as the unit.83
80 (2002) 4 SCC 247 at 270.

81 D. Ganesh Rao Patnaik v. State ofJharkhand, (2005) 8 SCC 454 .
82 Direct Recruits Class II Engg Officers' Assn, supra note 68.
83 Chikkabaravaiah v. State ofKarnataka. ILR 1979(1) Kar 250 at 274.
Steps to be taken to ensure obedience to quota rule and proper fixation of

seniority: In order to ensure the implementation of the quota rule, and to fix
seniority in accordance with law laid down by the Supreme Court, following
steps need always to be taken.84
i. The clear vacancies available in respect of permanent and or temporary
posts at the commencement of a given year should be apportioned between
direct recruitment and promotion in accordance with the quota prescribed in
the recruitment rules and similar apportionment should be made as and when
fresh vacancies arise during the year and appointments should be made
accordingly.
ii. Once the proper classification and recruitment is made, the vacancies
arising thereafter out of a direct recruit vacating the post should be made
available only for a direct recruit and the vacancy arising out of the vacating of
the post by a promotee should be made available for a promotee only and it
should not be taken up for reclassification. Any stop gap arrangement made to
the contrary should be subject to future adjustment.
iii. Appointments either by way of promotion or by direct recruitment
should be made as far as possible only against clear vacancies classified for
that particular source and this fact should be indicated in the appointment
orders.
iv. Whenever promotions are made against direct recruitment vacancies,
the orders themselves should specifically indicate that the promotions are made
against these vacancies.
v. Whenever promotions are made against stop-gap or fortuitous vacancies,
the appointment orders should specify that the promotions are made against
such vacancies. However where a person applies for voluntary retirement and
another is promoted in his place during his absence, but subsequently he is
allowed to withdraw his request for voluntary retirement, the person who is
so permitted has the locus to challenge the permission to withdraw the request
for voluntary retirement, and the Central Adminstrative Tribunal has the
jurisdiction to hear the matter. Such promotion and consequent seniority are
not a mere windfall.85
vi. In cases where initially promotions are made either against direct
recruitment vacancies or stop-gap or fortuitous vacancies and are subsequently
adjusted against promotional vacancies, fresh orders should be given as and
when persons so promoted or adjusted against clear vacancies reserved for
promotion indicating the date with effect from which the promotion is made
regular.
84 Id. at 283-85.
85 P. Lai v. Union of India, (2003) 3 SCC 393.
Seniority 547
After following the aforesaid procedure in making appointments, the

adjustment of vacancies as between direct recruitment and promotion should
be done annually in the following manner;
(i) The number of vacancies available for classification between direct
recruitment and promotion for the year should be calculated by taking the total
of the following figures as on the last day of that year;
(a) the number of promotees promoted after first day of the year upto
and occupying the posts as on the last day of the year;
(b) The number of direct recruits appointed on and after first day of that
year and actually occupying the posts as on the last day of the year;
(c) The number of clear vacancies in permanent or temporary posts, if
any, available as on the last day of the year.
The total of the three figures should be taken as the number of vacancies
available for classification between direct recruits and promotees. The above
method will also avoid the taking of repetition vacancies either among direct
recruits or promotees for the purpose of calculation and also ensure the
maintenance of proper proportion of direct recruits and promotees.
(ii) After classifying the vacancies in the above manner, the number of
promotees and direct recruits, who are appointed within the quota alone should
be included in the seniority list according to the date of their appointments as
on first January every year. The persons, either promotees or direct recruits,
found in excess of the quota in the previous year should be kept separately
below the seniority list.
(iii) The excess promotees or direct recruits, if any, should be absorbed
as against vacancies available for their absorption in the next year as and when
vacancies become available.
(iv) The direct recruitment vacancies or promotional vacancies which
remain unfilled during the preceding year up to the last day of the year should
be added in favour of the respective source for the next year and the vacancies
should be made available only for that source in addition to the vacancies
becoming available for the respective source during the year concerned.
(v) After fixing the seniority, the confirmation should be made strictly
according to seniority against clear vacancies arising only in permanent posts.
This will, however, be subject to the other conditions precedent for
confirmation, such as suitability and eligibility. The seniority fixed earlier to
confirmation stands altered if only a junior is confirmed in preference to a
senior in accordance with law and in such cases date of confirmation becomes
basis for seniority after such confirmation.
Whether calculation of quota should be made with reference to actual
appointments: While confirming the judgment oí Chikkahasavaiah, the division
bench of Karnataka High Court held that the calculation of the quota should be
made with reference to the actual appointment made and not with reference to
the actual number of vacancies which arose during a particular period.86 This
view is contrary to the decision of the Supreme Court in Subraman. The
apportionment of vacancies between direct recruitment and promotion has to
be made having due regard to the vacancies arising during the recruitment
period, say one year. It cannot be calculated on the basis of actual appointments
made, as such a calculation would result in rendering even the appointments
made within the quota invalid. For example, if 12 vacancies arose in a given
year in respect of a cadre and according to the recruitment rules 50 per cent
of its required to be filled up by direct recruitment and 50 per cent by promotion.
and if during that year no direct recruitment is made but 6 persons are appointed
by promotion though the appointments are within the promotional quota three
out of six promotions would have to be declared beyond the quota on the
application of the division bench ruling. This result is contrary to Subraman
which has gone unnoticed by the division bench.
Classification of posts essential to ensure proper proportion of direct recruits
and promotees: In Chikkabasavaiah, after considering the problem in the
matter of classification of vacancies between direct recruits and promotees,
the court observed that once all the posts available for direct recruitment and
promotion arefilledup, in the prescribed proportion, the vacancies arising out
of a direct recruit post must be filled up by direct recruitment and the vacancy
arising out of a promotee post must be filled up by promotion in order to
ensure that at all times the prescribed proportion is maintained. The division
bench disagreed with the view, giving following illustration:
If in a year 16 direct recruits and 8 promotees go out of the cadre of
Assistants by retirement, promotion to higher cadre, resignation,
dismissal or removal, how should those 24 vacancies in the cadre of
Assistant be filled? According to the view expressed by the learned
single Judge, 16 vacancies should be filled by direct recruitment and
8 vacancies by promotion because the proportion between direct
recruits and promotees has to be maintained in the cadre. According
to the contention of the State, 12 vacancies should be filled by direct
recruitment and 12 vacancies by promotion because the Recruitment
Rules provide for the ratio of 50:50 between these two sources of
recruitment.
The Supreme Court in Paramjit SinghS7 has also observed that the
procedure of making available the vacancy arising out of a direct recruit post
for direct recruitment and the vacancy arising out for a promotee post for
86 Chikkabasavaiah v. State of Karnataka, ILR 1979( I) Kar 250 at 274.

87 Paramjit Singh v. Ram Rakha. AIR 1979 SC 1073.
Seniority 549
promotion is not correct. The above view has been taken on the basis that
such a method would result in the violation of the quota rule and result in
imbalance in the proportion of direct recruits and promotees. But actually the
position is other way around. If the vacancies arising from persons recruited
from one source is classified and apportioned between the two sources, it
results in the disturbance of the prescribed proportion. The following illustration
will make the point clear.
Take a cadre, in which in a given year, out of hundred posts required to be
filled up to the extent of 50 per cent by direct recruitment and 50 per cent by
promotion, there are already 50 promotees and 50 direct recruits. If 16 direct
recruits and 8 promotees go out of the cadre (as pointed out in paragraph 28
of the judgment of the Division Bench extracted above) even if 16 persons are
directly recruited and 8 are promoted, the position will be only 50 promotees
and 50 direct recruits in the cadre. If, on the other hand, all the 24 vacancies
are classified and 12 vacancies are made available for direct recruitment and
12 vacancies for promotion, the result would be thereafter there will be 54
promotees and 46 direct recruits, though the quota fixed between direct
recruitment and promotion is 50:50. The resultant position would disturb the
prescribed proportion between direct recruitment and promotion. If the same
procedure is followed year after year, the object of having direct recruits and
promotees in equal proportion will be defeated.
Normally it is the promotees who vacate the posts with greater frequency,
mostly on account of retirement. The following illustration would make the
point clear. In a given case if out of 100 posts 50 are promotees and in the first
year 10 promotees retire from service if they are direct recruits and 50 are
classified, 5 vacancies will go to direct recruits and 5 to promotees. At the end
of first year there will be 45 promotees and 55 direct recruits. If in the second
year again another 10 vacancies occur by retirement or further promotion of
promotees, if 5 posts are made available for direct recruitment and 5 posts for
promotees, at the end of the second year, there will be 60 direct recruits and
40 promotees, though according to the rules of recruitment, the quota fixed
between the two sources is 50:50. Such a consequence has been highlighted
by the 49th Report of the Committee of Rajya Sabha on Petitions while dealing
with the petitions presented by the promoted officers of the Income-tax
Department. According to the rules regulating the recruitment to the cadre of
income-tax officers class-1,50 percent are to be appointed by direct recruitment
and 50 per cent by promotion. The result which had ensued as a result of not
appointing the posts as between direct recruitment and promotion has been as
follows:
According to one chart in 1981, out of 1146 Assistant Commissioners,
939 would be direct recruits and only 207 would be promotees and
there would not be any promotee Commissioner or Member of the
Board. In 1987, the position would be so bad that out of 1847 Assistant
Commissioners, only 11 would be promotees and 1836 direct recruits

and there would not be any promotee Commissioner or Member of
the Board. The Government when asked to send its comments on
this issue, had indirectly admitted its correctness, though it has tried
to hedge its reply with the view that due to expansion of the
Department and other factors the situation may not be exactly like
this. The direct recruits have not give their view on this chart, though
they were given their view on this chart, though they were given the
same when their evidence was recorded and they were specifically
asked to send their views on it.88
Therefore, the only way to ensure the maintenance of the prescribed
proportion of direct recruits and promotees is to classify the posts, and make
available a vacancy caused by direct recruit for direct recruitment and the
vacancy caused by the vacating of the post by a promotee for promotion.
It is necessary to reiterate the obvious that persons with superior
qualifications cannot be expected to join the lower rungs of service. Just as
the fixation of a quota for direct recruitment serves to bring fresh talent to
services the quota for promotion rewards proven ability and merit within the
services. Efficiency of the services requires the prescription of a proportion
of the experienced personnel promoted from the lower rungs and of younger
talent with higher academic qualifications who are directly recruited. This can
be achieved only by apportioning vacancies in the direct recruitment quota to
further direct recruitment and those in the promotional quota for further
promotion. If such a procedure is followed at all times the number of direct
recruits and promotees in a cadre will be in conformity with the quota prescribed
for the respective sources of recruitment, and there will be no scope for
discontentment among a section of the services.
The state may make rules permitting a diploma holder who acquires a
degree while in service to be promoted as a diploma holder or degree holder.
Such an option could be exercised by the employee who has acquired a degree.
But if he opts to join the stream of degree holders he would be placed at the
bottom of the seniority list of degree holders.89
Whether vacancies earmarked for direct recruitment or promotion lapses
after three years: In Kadli90 a division bench of the Karnataka High Court held
that in view of the following sentence in lyer?x "Reasonable period for the
88 Report of the Committee ofRajya Sabha on Petitions in Forty-Ninth Report -~9 January.
1976.
89 Chandravathi P.K. v. C.K. Saji, (2004) 3 SCC 734.
90 KaJli v. State of Karnataka, 1982(2) Kar LJ 453.
91 AS. Iyer v. Union of India, AIR 1980 SC 452 at 466: SLR 1980( 1) SC 89.
Seniority 551
carry forward scheme is three and not more" though according to the
recruitment rules a specific quota is fixed for direct recruitment and promotion,
the pushing down of promotees or direct recruits in excess of the quota made
during a particular year cannot be beyond three years.
This view defeats the statutory rules prescribing specific quota between
promotion and direct recruitment. For example, if out of 100 posts 50 are to
be filled up by direct recruitment and they are not filled up in a given year and
the same position continues for a period of three years, the 50 direct recruitment
vacancies would have to be reclassified as 25 direct recruitment vacancies
and 25 promotional vacancies. The result would be there would be 75 promotees
and 25 direct recruits in the cadre in spite of the quota rule fixing the ratio
between the two sources at 50:50. Right from Jaisinghani, the Supreme Court
has consistently taken the view that the authority cannot at its sweet will
disregard the quota rule. Therefore, the question of carry forward of vacancies
which is a familiar rule in respect of reservation of posts in favour of backward
classes is not at all relevant in the context of the requirement of strict obedience
to the quota rules. The sentence in Iyer invoked by the division bench cannot
be regarded as laying down any law of general application which comes into
conflict with the statutory rules. In particular, it should be pointed out that as
far as the Karnataka rules with which the Division Bench was concerned,
there is a specific rule 17(c)in the General Recruitment Rules, which permits
the filling up of direct recruitment vacancies by promotion for a period not
beyond one year. The purport of the rule is to prohibit the filling up of direct
recruitment vacancy by promotion, for a period beyond one year. The effect
of the ruling in Kadli is that if certain number of direct recruitment vacancies
are not filled up for three years, 50 per cent of them can befilledup permanently
by promotion, a result not intended by and in fact violative of the rules. Certainly.
the fact that direct recruitment vacancies have not been filled up for more than
two years is no ground to violate the quota rule.
The question of seniority, however, is entirely a different matter. The
seniority will count from the date on which a direct recruit or promotee is
appointed against a clear vacancy earmarked for that particular source.
Therefore, if direct recruitment vacancies arising in a given year are not filled
up for a period of three years and are filled up thereafter, the direct recruits
will get seniority from the date of their appointment and not from the date on
which the vacancy arose. Giving of seniority from such date, as pointed out in
a number of judgments of the Supreme Court, would be discriminatory. The
promotees recruited within their quota all these years would certainly be entitled
to seniority from the date of their appointment and cannot be made juniors to
the direct recruits recruited long subsequently on the ground that direct
requirement vacancies were available in the previous years. However, the quota
rule cannot be defeated by following the period of three years. The observation
made in Iyer is at the best an obiter and as it is contrary to the ratio in a number
of earlier as well as later decisions of the Supreme Court (referred to earlier) it

cannot prevail.
It must also be noted that the carry forward rule has arisen in the context
of reservation of posts in favour of the backward classes. The principle is that
if the candidates belonging to the reserved category are not available in a give
year, the posts could be filled up by open competition candidates, and equal
number of posts in the reserved category should be increased in favour of the
reserved category during next year and so on. The quota rule does not, in
contrast operate so as to fill up posts earmarked for one source from other
source during the year. Indeed, it is clearly prohibited. The carry forward rule
has an application to a situation where the whole cadre of a particular service
is divided into two parts and two sources of recruitment as specified by the
rules. In such a situation, the authority must conform to the prescription of
the proportion and no question of carrying anything forward arises. 92
Whether the quota rule operates both at the stage of initial recruitment
and at the stage of confirmation: The Supreme Court in Subraman, has laid
down in clear terms that the quota rule should operate only at the stage of
initial recruitment from different sources in respect of which quota is fixed in
the rules. The decision was rendered by a three judge bench. However, a two
judge bench of the court held in Paramjit Singh91 that as the quota rule is
linked up with seniority rule and the seniority of confirmed civil servants is
required to be fixed according to date of confirmation, the quota rule should
be operated at the time of confirmation also. This view is in clear conflict with
the ratio in Subraman. In Paramjit Singh the holding in Subraman is sought to
be limited to the rules concerned in that case, and so the reiteration of Subraman
in Patawardhan. 94 In all the three cases the crucial question was the same;
namely, at what stage the quota rule should operate? Both Subraman and
Patawardhan were decisions of three judge benches. Both held that the quota
rule operates only at one stage namely the initial recruitment. Paramjit Singh
could not overrule these holdings; nor did the bench felt bound by it! Its
different view only led to conflict. A two judge bench of the Supreme Court
has reiterated the ratio in Subraman in a subsequent decision in Mahal95 It
should be emphasised that it is impracticable to apply quota rule at the stage of
confirmation. For example, take a case in which the seniority of officials by
complying with the quota rule is fixed in the following order.
92 Manjappa Rai v. Union of India, SLR 1977( 1) A P 721; Association ofScientific Workers
v. Union of India, SLR 1980(2) M P 339.
93 Supra note 87.
94 S. B. Patawardhan v. Union of India, AIR 1977 SC 2051.
95 Mahal RS. v. Union of India, MR 1984 SC 1291.
Seniority 553
Officer Source of Appointment

Recruitment
A Direct recruit - appointed against a clear vacancy in a
permanent post.
B Direct recruit - appointed against a clear vacancy in a
permanent post.
C Promotee - appointed against a clear vacancy in a
temporary post.
D Promotee - appointed against a clear vacancy in a
temporary post.
Let us assume that if both A and B fail the prescribed examination or fail to
secure eligibility for confirmation and their period of probation is either extended
or they are discharged from service. Even though C and D have acquired
eligibility for confirmation, if the quota were to be applied at the time of
confirmation also, since confirmation could be against permanent posts, only
C could be confirmed and not D though he is eligible for confirmation and one
more vacancy in a permanent post is available, because it has to be classified
as a direct recruitment vacancy.
Subraman requires the quota rule to operate only at the state of initial
recuirtment. Thereafter the confirmations must follow strictly according to
the seniority subject to the fulfilment of conditions of eligibility for confirmation
and availability of clear vacancies in permanent posts. Among the confirmed
persons, the date of confirmation constitutes the basis for seniority. In other
words, the seniority fixed with reference to the date of initial appointment gets
altered on confirmation only in cases where confirmation of persons placed
below, for valid reasons, taken place earlier. Therefore, the rule providing for
the fixation of seniority according to date of confirmation has the earlier
confirmation as the basis and is not connected with the quota rule.
It is useful in this context to look at the pertinent facts in Paranjit Singh.
The recruitment rules there provided that 80% of the posts in the cadre of
police inspectors should befilledby promotion and 20% by direct recruitment.
The writ petitioners before the Punjab High Court, Gurudip Singh, Dalip Singh
and Ram Rakha were earlier promotees having been appointed in January
1961 and February 1961 within the quota. Paramjit Singh and others, who
were respondents in the writ petitions (appellants before the Supreme Court)
were direct recruits appointed in May 1961 and May 1965. As admittedly, the
initial appointment of promotees were within the quota, they were seniors. But
the later direct recruits were confirmed and not the earlier promotees. By
virtue of their seniority as officiating inspectors, they were entitled to be
confirmed earlier to the direct recruits. Even if a limited number of permanent
vacancies were available, the equal number of promotees were entitled to be

confirmed earlier against those vacancies. Therefore, their writ petitions were
allowed by the Punjab High Court and directions were issued to confirm them
from an earlier date. The appeals of direct recruits against the judgment were
dismissed. Even according to Subraman, the confirmation and further promotion
had to be accorded on the basis of seniority fixed with reference to the date of
appointment. And the promotees involved in Paramjit Singh had been promoted
within the quota, the plea of promotees had to succeed in the light oí Subraman.
There was no necessity to distinguish Subraman, as it fully supported the
cases of promotees who were respondents before the Supreme Court. %
The Supreme Court once again in GoeP1 followed Patawardhan and held
that an earlier promotee within the quota is entitled to be confirmed at the
earliest vacancy, provided he is eligible for confirmation. The court held that
in the case of promotee officers the main criteria to be considered for
confirmation are: (i) availability of substantive vacancy/post, and (ii) suitability
for the post.
If a vacancy earmarked for a promotee is available and a promotee is
eligible for confirmation, he becomes entitled to be confirmed from the said
date and consequently to secure seniority also on the same basis. This principle
was sufficient to decide the question which aorse in Paramjit Singh. 98
The controversy is completely set at rest by the Constitution Bench of the
Supreme Court in Yadav," in which the Supreme Court observed as follows:
In Paramjit Singh Sandhu v. Ram Rakha, AIR 1979 SC 1073 it was
held by this court on a harmonious reading of Rules 3,4,6,8 and 10 of
the Punjab Police Rules, 1959 that the quota rule was operative both
at the time of initial recruitment and at the time of confirmation. We
would like to clarify that this case is not an authority for the proposition
that whenever Service Rules provide for quota, the rule of rota must
be read into the rule of quota. We are not laying down that the rules of
quota and rota cannot co-exist. Service Rules may so provide or they
may yield to such an interpretation. In that event, their validity may
have to be tested in the total setting of facts. Therefore, whether the
96 As the vacancies in temporary posts are also to be taken into account for operating
quota rule and as confirmation could only be against a clear vacancy in permanent
posts, when the civil servants complete the period of probation or officiation, the
authority concerned should grant the declaration that the period of probation or officiation
"has been completed satisfactorily, if it is so, and to proceed to confirm according to
seniority and when clear vacancies in permanent post arise.
97 Goelv. State ofU.P.,MR 1979 SC 228.
98 Since in that case earlier confirmation had to be given to earlier promotees within the
quota the claim of promotees had been rightly upheld by the Punjab High Court.
99 B.S. Yadav v. State ofHaryana. AIR 1981 SC 561.
Seniority 555
quota system has to be observed not only at the stage of initial

recruitment but also at the stage of confirmation is not a matter of
abstract law but will depend on the" wording of the rules and the
scheme of the rules under consideration. Any dogmatic assertion,
one way or the other, is wrong to make. On a review of these
authorities, all that we would like to say is that on a proper interpretation
of the rules governing the Punjab and Haryana Judicial Service, the
rule of rota cannot be read into the rule of quota. In other words, the
ratio of 2:1 shall have to be applied at the stage of recruitment but
cannot on the language of the relevant rules be applied at the stage of
confirmation.100
Therefore, in the absence of any indication in the rules, that quota rule
should be applied at the time of confirmation also; the quota rule has to be
applied only at the time of initial recruitment.
In this context, another important question that arises is, if there are direct
recruits and promotees appointed to posts exceeding the number of permanent
vacancies available, even after they complete the period of probation or
officiation, as the case may be, what would be their postion till confirmation?
The well accepted procedure in service parlance is that declaration of
satisfactory completion of probation or officiation cannot be delayed just
because there are no clear vacancies in permanent posts. The satisfactory
completion of probation or officiation is separate and distinct from confirmation.
The latter must follow the former. Therefore, the moment probationary or
officiating period of a direct recruit or promotee, as the case may be, comes
to an end, unless it is extended for good reasons, the authority concerned
must grant the declaration of satisfactory completion of probation or officiation.
Once such declaration is given, his status is that of a quasi-permanent employee
as defined in the relevant temporary service rules. He will have all the benefits
of a permanent employee and shall be entitled to the same protection which a
permanent employee enjoys.
Rotational system cannot be read into quota rule: The quota fixed for
different sources of recruitment is relevant for making recruitment only. No
seniority principle can be read into such a rule. If the seniority rule provides
for fixation of seniority according to the date of appointment, the seniority of
all those recruited within the quota has to befixedaccordingly. A rule requiring
the fixation of seniority according to rotation of vacancies is entirely different.
In the absence of such a rule it cannot be read into the quota rule.'01
100 Id. at 584.

101 Bikha Ram v. State of Haryana, SLR 1985(1) HP 306: Surinder Kumar v. State of
Haryana. SLR 1979(2) P&H 1011(FB); Narendra Singh v. State of Hryana. SLR
1978(1)P&H284(FB).
Seniority when recruitment is by rotation of the vacancies: When the

recruitment rules fix the vacancies reserved for direct recruitment and
promotion in a particular order and the general seniority rules provide that
between direct recruits and promotees, appointed on the same day all the
direct recruits would be senior to all the promotees, the recruitment rules
should be held to lay down a special rule of seniority and the seniority has to
be fixed in the following manner:
(i) The seniority should be fixed in the order the vacancies are reserved
for the promotees and direct recruits even if appointed on the said
date.
(ii) If the promotions are made against vacancies reserved for promotion
in the first instance and direct recruitment is made to the direct
recruitment vacancies on a later date, the promotees promoted earlier
to the promotion vacancies are to be treated as seniors.
Therefore, in a case where the vacancies are earmarked for direct
recruitment and promotion, and promotions were made only as against the
vacancies reserved for promotion earlier and direct recruitment is made later,
giving seniority to the latter above the earlier promotees is illegal.,02
Seniority between direct recruits on probation and candidates absorbed in
the meanwhile: After the appointment of direct recruits on probation and before
their confirmation, if the temporary employees in service are absorbed in the
same cadre, they become senior to direct recruits who on the date of such
absorption are only on probation.I03
Rule providing for the fixation of seniority according to rotation: The
seniority rules in some cases provide that the seniority between direct recruits
and promotees should be fixed in accordance with the rotation of vacancies
irrespective of the date of appointment of direct recruits and promotees. Such
a seniority rule is directly linked with the quota rule contained in the recruitment
rules. Where the recruitment rules clearly provide that direct recruitment and
promotion should be made in a particular ratio, the vacancies arising after the
coming into force of such rules should be arranged in a roster in accordance
with such ratio and the appointments have to be made in that ratio. Even if it
so happens that appointments by way of promotion and direct recruitment
have not been actually made on such rotation, still where the rules provide that
seniority has to be fixed on the basis of rotation of vacancies, it is mandatory
for the appointing authority to arrange the seniority according to the rotation
of the vacancies. 104
102 Shankarappa v. State ofKamataka, 1977 (1) K.ar. LJ 148.

103 Rama Murthy v. Karnataka Electricity Board, 1976(2) Kar.LJ 230.
104 S.G. Jaisinghani v. Union of India, AIR 1976 SC 1427; Mervyn Coutinho v. Collector
of Customs, AIR 1976 SC 52: (1966) 3 SCR 600; Annigeri v. Union of India, 1974( 1)
Kar LJ SN 45.
Seniority 557
Similarly, where the recruitment rules specify the vacancies arising in a

particular cadre which should be filled up by way of direct recruitment and
promotion such rules should also be considered as prescribing a special rule
of seniority. In such a case, the general rule that seniority between direct
recruitment and promotion should be according to date of appointment can
have no application and seniority must be fixed in the order of the vacancies
reserved for direct recruitment and promotion.103
Special rule of seniority prevails against general rule: If the rules of
recruitment provide that a particular class of posts should be filled up by
selection from among persons holding the specified posts on the basis of
length of continuous service in such posts, the seniority for the purposes of
selection has to be fixed taking into consideration the entire length of service
irrespective of the fact that the service so rendered is in a temporary or officiating
capacity or on permanent basis. The general rules of seniority cannot prevail
over such special rules of seniority provided for purposes of selection in the
rule of recruitment.106
Difference between rotational and proportional recruitment: Where the
recruitment rules do not specifically provide that appointments by way of
direct recruitment and promotion should be made in a particular ratio but only
direct that a certain percentage of vacancies should be filled up by direct
recruitment and the rest by promotion, the appointing authority may make
promotion in the first instance in respect of the vacancies reserved for
promotion and thereafter, fill up the vacancies reserved for direct recruitment
by way of direct recruitment or vice-versa.107 In such a case in the absence
of any particular seniority rule providing that seniority should be fixed by
rotation of vacancies, the seniority can be fixed only according to date of
appointment of direct recruitment and promotion, as the case may be, taking
into account only such promotions and direct recruitment made within the
quota.108 If promotions have been made in excess of the quota prescribed in
the rules for recruitment from that source, persons who are occupying the
posts in excess of the quota should give place to direct recruits and direct
recruits should be assigned seniority below the last persons promoted within
the quota.109
105 DP. Hire math v. State of Mysore, 1971.(1) My s L J 216.

106 K. V. Ghapade v. State of Mysore, 1973(2) Mys LJ SN 26.
107 M. Devarakondappa v. Commissioner of Commercial Taxes, W.P.No.227/1963 D 9-
4-65 (mys).
108 V.B. Badami v. State ofMysore,W.P.No.\93/\972O\5-\2-\972;Shanthayya\. State
of Mysore, W.P.No. 1979/66 D 24-1-1967. (Mys.); Gurubasappa v. Deputy
Commissioner, Gulburga. W.P.No.5130 of 1969 D 28-9-1972 (Mys).
109 Ibid
Seniority on transfer to a separate unit
Transfer in the public interest: Where persons already in government

service are transferred in the public interest from one department to another to
an equivalent post, they are entitled to count the entire service rendered in the
department from which they are transferred in the department to which they
are transferred. " ° A rule providing for fixation of the seniority taking into
account the services rendered in the department from which an official is
transferred gives a just and fair treatment to the transferred officials and the
fixation of such seniority in the manner cannot be challenged by the officials
in the department to which an official is so transferred."'
Where a person is absorbed in another department in the public interest, a
condition imposed by the appointing authority that the service rendered by
such officials in the parent department before absorption shall not count for
seniority would be illegal. In such a case, the portion of the order which
directs non-counting of the earlier service for seniority has to be treated as
illegal.112
When a parent cadre is merged with another cadre, the relative seniority
of direct recruits vis-á-vis the mergerists has been a matter of dispute. Where
the State through law grants relative seniority to direct recruits for a given
year, compared to those whose cadres were merged in the same year, such
legislation cannot be held to be discriminatory.113 The case of seniority of
surplus or retrenched staff who are re-deployed in another post has also been
considered by the courts. In such cases where the deployment of such
retrenched staff is with the clear stipulation that they would be fresh entrants
in the new department, the past experience in the earlier department or authority
cannot be considered and the seniority of others already in service in that
department cannot be disturbed." 4
Where a person joins another service and loses his lien on his post in the
university, upon rejoining the university it would be treated as a case of break
in service, and his seniority would be reckoned from the date of rejoining the
university for the purpose of calculating his eligibility for promotion as reader.'' 5
110 I'areschandra v. Controller of Stores, SLR 1971 SC 68: D.V.Kulkarni v. State of

Mysore, 1967 Mys LJ SN 92; Lakshman Rao v. State of Mysore, W.P.No.6162/1969
D 30-11-72 (Mys); Narayana Seshayya Naik v. State of Mysore, 1968(2) Mys LJ
299; P. K.Menonv. State ofMysore, 1974(l)KarLJ 15.
111 K Shivappa v. State of Mysore, 1970(1) Mys LJ 235; Murthy V.S. v. Deputy Chief
Accounts Officer, AIR 1983 SC 403.
112 R.N. Sastry v. State of Mysore. W.P.No.2254/1965 D 31-3-1967(Mys).
113 Prafulla Kumar Das v. State ofOrissa, (2003) 11 SCC 614.
114 Superentending Engineer v. .4. Sankariah, (2003), 11 SCC 641.
115 D.P. Gupta v. Parsuram Tiwari, (2004) 13 SCC 746.
Seniority 559
Transfer on request: The case of persons who gets transferred to another

department or to another post on his request stands on a different footing. In
such a case, he has to take seniority from the date on which he enters the new
post. An official who agrees to such a condition and gets himself transferred
to another department cannot subsequently claim that his previous service
should be counted for purposes of seniority in the department to which he is
transferred at his own request.116 His seniority would count from the date of
joining duty upon transfer.117 Even so, a permanent civil servant transferred
at his own request has to be placed only next below the last permanent civil
servant in the unit to which he is transferred and not below the temporary civil
servants.118 Where an employee has been transferred to another department
on his own request, while he may lose seniority, he does not lose other benefits
such as experience and eligibility for promotion in time bound promotion
119
cases."
Service rendered in another government prior to recruitment does not count
for seniority: The seniority rules which provide that a person already in the
service of the state or the central government is transferred to another post in
the public interest would be entitled to count his previous service for seniority,
has no application to the case of a civil servant who is recruited through direct
recruitment. The seniority has to be fixed, in the case of direct recruitment,
according to the ranking assigned by the selecting authority. 120
Transfer on request and option- difference: Where on account of re
organisation of departments, the state government offers an option to the
officials either to join the one or the other department, an option by an official
to join any particular department does not amount to a transfer on his own
request. Such a transfer has to be treated in the same manner as transfer in the
pubic interest. Hence the official is entitled to count the past service in the
parent department for purpose of seniority. 121
Fixation of seniority - procedure
Before fixing the seniority of civil servants finally, the principles of natural
justice require that opportunity should be given to the civil servants concerned
to make representations.122 However, where the authority concerned issued
116 VS. Parameshwaran v. State of Mysore, 1971 (1) Mys LJ 378; Shivasharanappa v.
State of Mysore, 1961 Mys LJ SN 52.
117 K.P. Sudhakaran v. State of Kerala, (2006) 5 SCC 386.
118 Arun Kumar Chaterjee v. S.E.Rly, AIR 1985 SC 482.
119 Union of india v. V.N. Bhat, (2003) 8 SCC 714, Union of India v. M. Mathivanan
(2006) 6 SCC 57.
120 Ravinnathan v. State ofKarnataka, 1981 (1) Kar LJ 414.
121 S.V. Revankar v. State of Mysore, 1970 Mys LJ SN 89.
122 Shivasharanppav. State of Mysore, 1973(2) Mys LJ SN 81. (AIR 1968 SC 850 relied
on).
an order changing the inter se seniority between two lecturers, a third lecturer
cannot claim that notice needs to be issued to her and she cannot claim violation
of the principles of natural justice. 123 Where a writ petition is filed challenging
seniority, it is necessary to implead the affected parties in order for the decision
to be binding upon them. 124
When a person crosses the efficiency bar and subsequently adverse remarks
made against him are deleted, and he asks for reconsideration of his case for
promotion, without seeking any direction regarding his seniority, it has been
held that it was not necessary to hear other parties who might be affected
while reconsidering his case for promotion.125
Seniority cannot be altered without giving opportunity: Seniority once
fixed, creates a right in favour of a civil servant. Any alteration of the seniority
would adversely affect the right of a civil servant. An alteration of the seniority
without notice to the person so affected would be opposed to the principles of
natural justice. 126
The right cannot be taken away with retrospective effect by an executive
order: Once a seniority of an official is fixed on principles evolved in an executive
order in the absence of statutory rules, the seniority so fixed confers a right
which cannot be taken away retrospectively by an executive order.127
The seniority principle cannot be given retrospective effect unless provided
for: When new principles of seniority are evolved and promulgated with specific
provision that the new principles apply with prospective effect, the seniority
of officers already fixed in accordance with the pre-existing rules cannot be
altered by applying the new principles. When according to old rules principle
for the fixation of seniority was continuous officiation and under the new
principles, the principle is the date of confirmation, the seniority of officials
fixed earlier on the basis of continuous officiation cannot be altered according
to dates of confirmation by applying the new rules. I28 However the state may
vary the seniority, even with retrospective effect if found necessary in the
public interest.129
12311 Sulochana Devi v. D.M Sujatha, (2005) 9 SCC 335.

124Government ofAndhra Pradesh v M.A. Kareem. 1991 Supp (2) SCC 183.
125Brij Nath Pandey v. State ofUttar Pradesh, (2001) 9 SCC 3 98.
126Niranjan Das v. State of Punjab, SLR 1968 P&H 183: S.K.Ghosh v. Union of India.
AIR 1969 SC 1385; K.Suryachari v. Director ofStatistics, W.P.No.5589/1969 D7-8-
72(Mys).
127 G. V.B. Naidu v. State of Mysore, 1970(2) Mys LJ 296; S.N. Karkhanis v. Union of
India, AIR 1974 SC 2302; Latham G. R v.It. Governor of Delhi, AIR 1979 SC 190.
128 Union of India v. Ravivarma, AIR 1972 SC 670.
129 Prafulla Kumar Das v. State ofOrissa, (2003) 11 SCC 614.
Seniority 561
Seniority - principles apply to all persons appointed subsequent to

promulgation: It is impossible to fix seniority in accordance with the repealed
principles for persons appointed subsequent to the promulgation of the new
principles of seniority and confirmed after the coming into force of the new
principles. The seniority of such officials has to be fixed only according to
dates of confirmation applying the new principles which have already come
into force. 130
Provisional seniority - alteration: Where a provisional seniority list is
published on the basis of principles set out in the notification and objections
were called for only from the aggrieved official, any alteration of the principles
and ranking in the final list prepared to the disadvantage of the officials who
were not aggrieved by the provisional list would be opposed to principles of
natural justice. In such a case, the principles of natural justice demand that the
concerned officers should be given another opportunity to make representations
against proposed adverse decision. A decision taken without giving such an
opportunity is opposed to principles of natural justice.131
Seniority of officers on deputation in a higher post: The seniority of an
officer on deputation outside the regular line or channel of promotion has to be
determined with reference to his substantive post. Such promotion may confer
certain advantages and privileges so long as he is continued in a higher post
outside the regular line. The seniority of such an officer has to be maintained
only in the parent department and with reference to the date of appointment to
particular class or grade concerned.132 When a person goes on deputation on
a higher pay scale, his service in the parent department could be counted
towards seniority in that deputation grade (after absorption) from the date that
his pay scale in the parent department was revised upwards to be equivalent to
the deputation pay scale. 133
Seniority of persons on deputation: Officers on deputation are entitled to
retain their seniority in the parent department and to promotion in the parent
department as if the service rendered by them in the deputed post is equal to
the service rendered in their parent department.134
Order determining seniority must be a speaking order: Since the seniority
of a civil servant is his civil right, as his very right for promotion depends
130 K. Satyanarayana v. Central Board of Direct Taxes, 1972 (2) Mys LJ 196.
131 Union of India v. P. K. Roy, AIR 1968 SC 850; 5. K. Potty v. Union of India. 1969( 1)
Mys LJ 325.
132 G.R. Baquol v. State ofJanmmu and Kashmir. AIR 1970 SC 1376; J.T.Prakash v.
BWSSB, 1970 Mys LJ SN 90.
133 Union of India v. Kuldip Singh Permer. (2003) 9 SCC 472.
134 State of Mysore v. M. H. Bellary, AIR 1965 SC 868; P. M. Nanjundaiah v. State ofMysore,
1965(2) Mys LJ 379; Chandrasekhara Patil v. Inspector General of Police.
W.P.No.2759/67 D 12-6-72.
upon the seniority, any order of the competent authority deciding the seniority
between officials has the effect of deciding the civil rights of the parties and
therefore, the order is in the nature of a quasi-judicial order. Therefore, it is
incumbent on the part of an authority to determine the question of seniority
and to pass a speaking order. 135
Other matters relating to seniority
Counting of combatant service: When according to the circulars issued

by the Union government, persons who have rendered service in a combatant
post are entitled to have their combatant service counted for seniority, the
entire service rendered in a combatant post has to be counted for seniority.136
Seniority of persons whose selection is validated: Though the recruitment
rules had been struck down, once the appointments are validated by validating
legislation, the rule regulating seniority can be given effect to even if the rule
refers to the rule which had been struck down, as that portion would be
scverable.137
Seniority lost by changing department. An official who by his own volition
joins a department upon the bifurcation of a department cannot be promoted
to a vacancy in the other department on the ground that before the bifurcation
he was senior. Where a persons seeks transfer from one department and this
is granted on humanitarian grounds, his seniority would be fixed from the date
of appointment in the new department.138 Once the department is bifurcated
and officials join the department of their choice, promotion has to be regulated
from among the officials in each department separately. I39 Similarly where
some of the functions of a government department are transferred to a statutory
corporation and an employee opts for absorption in the corporation, but
subsequently seeks absorption in the government on his own request, the
period that he served in the corporation was held not to count towards seniority
in the government service.' 40 Where employees are absorbed in another
department due to the phasing out another department (for instance, where
due to the phasing out of diesel engines such drivers were trained and absorbed
into the cadre of electric drivers in the railways), their seniority in the new
cadre must be fixed from the date of re-deployment as they would have been
otherwise retrenched.141
135 M. K. Bakshi v. State of Punjab, SLR 1971 (1) P&I-I 119.

136 IP. Thomas v. Union of India. ILR 1977 (2) Kar 810.
137 Chandramohan v. State ofU.P., SLR(2) 1976 SC 26.
138 VS. Murthy v. Deputy Chief Accounts Officer, AIR 1983 SC 403.
139 Ramachandra Rao v. Commisioner of Labour, 1974(2) Kar LJ SN 184 at 51.
140 SK Saha v. Prem Prakash Agarwal, AIR 1994 SC 475.
141 {/. K. Dubey v. Union of India, (1997) 5 SCC 81.
Seniority 563
Seniority lost by giving up promotion: If an official refuses to accept

promotion given to him in his turn and allows his junior to be promoted, he
cannot claim seniority over the junior so promoted upon his subsequent
promotion. 142
Delay in joining duty cannot defeat seniority: When a person is prevented
from joining duty immediately for reasons beyond his control, seniority will
not get altered. In the case of promotion the seniority will count from the date
of appointment.143 Similarly in the case of promotion by selection, the seniority
has to be fixed according to the merit list and not on the basis of date of joining
duty. 144
Seniority of person holding higher post: Seniority always means length of
service in an equivalent post or grade. A person appointed to a higher grade
has to be treated as senior to another, who is appointed later to that grade.145
Ad-hoc promotion does not confer seniority: For a promotee to claim
seniority from the date of appointment, his promotion must be a regular
promotion in accordance with the rules and procedure. Therefore, when regular
promotion is required to be made on the recommendation of the departmental
promotion committee and promotion is made without following the procedure,
the promotion is only ad hoc and a persons so promoted cannot claim to count
such a service for seniority.146
Seniority cannot be affected by the reorganisation of departments:
Amalgamation of different units of department and subsequent reorganization
and repatriation of civil servants to the respective units should not result in the
alteration of the seniority of employees in their original unit.147
Counting of military service on second appointment: The benefit of a rule
countingthe period rendered by a person in military service forthe determination
of seniority, cannot be denied on the ground that he had been appointed earlier
to another post in which he was given the benefit of military service for
seniority. Such a benefit must be made available to an ex-serviceman for his
second or subsequent appointment in altogether different service.148
Seniority on regularisation: In the absence of any rule to the contrary, the
regularisation of services of persons irregularly recruited would relate back to
the date of first appointment and the entire service should be counted for
142 Doddagomda v. Kochagl, 1974 (2) Kar LJ SN 219.

143 Dr. Amarjit v. State of Punjab. AIR 1975 SC 984.
144 Kumari Gurbir v. Delhi Administration, SLR 1975(1) Del 179.
145 Jagadish Singh v. Union of India, SLR 1975(2) Raj 469.
146 Kumari Gurbir v. Delhi Administration, SLR 1975(1) Del 179.
147 Om Prakash Sharma v. Union of India, AIR 1985 SC 1276.
148 Rajkumar v. State ofllaryana. SLR 1979(3) P&H 719.
seniority. Therefore, the fixation of seniority on the basis of length of continuous

officiation is valid.149
If, however, there are persons who have been regularly recruited in the
meanwhile any direction to count the service prior to the actual order of
regularisation which adversely affects the seniority of those regularly recruited
would be bad as offending Articles 14 and 16 of the Constitution.150
Service rendered in another government: The rule which provides that a
person already in the service of the central or any state government appointed
to the service of the State by transfer would be entitled to count his past
service in the Central government or any other state, as the case may be, for
the purpose of seniority, entitles a person transferred to get the benefit of past
service for seniority. But a person in the service of the Central government or
any state government getting himself directly recruited to a post cannot claim
the benefit of service rendered in the Central government for the purpose of
seniority in the state. 15'
Effect of declining promotion in the parent unit: A civil servant gets
transferred on deputation to another department at his own request and declines
promotion in the parent unit and consequently a junior is promoted, the
promotion and seniority of the latter cannot be effected on repatriation of the
former.152
Temporary and irregular service—difference: Persons, who have served
for several years on temporary capacity and have also been promoted from
time to time, cannot be treated as irregular. Temporary regular service is distinct
from irregular service which does not count for seniority. The seniority of
such persons in temporary service has to be fixed on the basis that their
service is regular.153
A provision for fixing seniority after converting the posts, if they are
temporary, into permanent on the basis of date of continuous officiation is
valid.154
Since service jurisprudence is based on the principle that persons similarly
placed should be treated alike, merely because one person approached the
court for relief would not mean that other persons situated similarly would be
treated differently. 155
149 Doval GRx. Chief Secretary, SLR 1984(2)SC 555.

150 Chandrappa v. State of Mysore, 1964(2) Mys LJ 150; Deepak Chakravarthy v.
Union of India, SLR 1976(2) Cal 113.
151 G. Rabinathan v. State, ILR 1981 (1) Kar SNRD 24.
152 V.A. Subhada v. A Satyavan, AIR 1975 SC 1913.
153 PC. Patelv. T.H. Pathak, SLR 1971(\)SC 6.
154 Rajendra Narain v. State of Bihar, AIR 1980 SC 1246.
155 State ofKarnataka v. C Lalitha, (2006) 2 SCC 747.
Seniority 565
Where a person avails of alternative employment offered by the government

upon the abolition of posts (which is within the sovereign power of the
government to do), with the express stipulation that they would not claim
continuity of service nor seniority, they would have to give up their claim of
seniority based on their previous post.156
156 Avas Vikas Sansthan v. Engineers Association, (2006) 4 SCC 132.

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C H A P I K R IV

* Revised by Kamala Sankaran, Research Professor. ILL

it must be noted that proper determination of seniority is a service right, and

6 U.S. Bajwav State of Punjab, (1998)2SCC 523.

is appointed to a post according to rules, his seniority has to be counted from

21 State of Orissa v. Bikasendu Das, (2004) 13 SCC 783.

28 K. Madalaimuthu v. State of Tamil Nadu, (2006) 6 SCC 558.

reckoned with reference to the date of confirmation or date of substantive

Confirmation takes effectfromdate of completion ofprobation: The date

40 Malhotra v. State of Punjab, AIR 1975 SC 1598.

confers no right on the civil servant concerned. Hence, no notice to show

(3) The seniority of direct recruits is always determined on the basis of

54 B.K. Panditranga Sharma v. State of Mysore, 1963(1) Mys LJ 441; Venkataswamy v.

when his immediate junior is promoted, on account of the pendency of

58 Mahantayya Maharudraiah Hirehmath v. Inspector General/Police, 1963 Mys LJ SN

Seniority acquired by selection cannot be altered: Where a promotion is

appointing authorities. Secondly, the disputes relate to the fixation of quota

(H) If the quota rule is prescribed by an executive instruction, and is not

Elaborating, the court had held that:

73 Ajit Singh [I v. State of Punjab, AIR 1999 SC 3471 at 3483-84.

75 B.S Gupta v. Union of India, AIR 1972 SC 2627.

78 Arvinder Singh Bains v. State of Punjab (2006) 6 SCC 673.

80 (2002) 4 SCC 247 at 270.

Steps to be taken to ensure obedience to quota rule and proper fixation of

After following the aforesaid procedure in making appointments, the

86 Chikkabasavaiah v. State of Karnataka, ILR 1979( I) Kar 250 at 274.

Commissioners, only 11 would be promotees and 1836 direct recruits

of earlier as well as later decisions of the Supreme Court (referred to earlier) it

Officer Source of Appointment

vacancies were available, the equal number of promotees were entitled to be

quota system has to be observed not only at the stage of initial

100 Id. at 584.

Seniority when recruitment is by rotation of the vacancies: When the

102 Shankarappa v. State ofKamataka, 1977 (1) K.ar. LJ 148.

Similarly, where the recruitment rules specify the vacancies arising in a

105 DP. Hire math v. State of Mysore, 1971.(1) My s L J 216.

Seniority on transfer to a separate unit

Transfer in the public interest: Where persons already in government

110 I'areschandra v. Controller of Stores, SLR 1971 SC 68: D.V.Kulkarni v. State of

Transfer on request: The case of persons who gets transferred to another

12311 Sulochana Devi v. D.M Sujatha, (2005) 9 SCC 335.

Seniority - principles apply to all persons appointed subsequent to

Other matters relating to seniority

Counting of combatant service: When according to the circulars issued

135 M. K. Bakshi v. State of Punjab, SLR 1971 (1) P&I-I 119.

Seniority lost by giving up promotion: If an official refuses to accept

142 Doddagomda v. Kochagl, 1974 (2) Kar LJ SN 219.

seniority. Therefore, the fixation of seniority on the basis of length of continuous

149 Doval GRx. Chief Secretary, SLR 1984(2)SC 555.

Where a person avails of alternative employment offered by the government

156 Avas Vikas Sansthan v. Engineers Association, (2006) 4 SCC 132.

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