Deepak Sahu Vs State of Chhattisgarh

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(WPS No.1827/2020)

2026:CGHC:17588 AFR

Digitally signed by SISTA SISTA SOMAYAJULU SOMAYAJULU Date: 2026.04.17 16:44:16 HIGH COURT OF CHHATTISGARH AT BILASPUR +0530

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WPS No. 1827 of 2020

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Order reserved on: 06/04/2026 Order delivered on: 17/04/2026

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Order (Full) uploaded on: 17/04/2026

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Deepak Sahu, S/o Kedarnath Sahu, aged about 34 years, Assistant Engineer (AE), Chhattisgarh State Renewable Energy Development Agency (CREDA), District Office Janjgir-Champa, R/o House No.A35, Dream City, Near Rama Green City, Bilaspur, Chhattisgarh.

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Savita Kashyap, W/o Gopi Kashyap, Aged about 35 years, Assistant Engineer (AE), Chhattisgarh State Renewable Energy Development Agency (CREDA), Regional Office Jagdalpur, District Bastar, R/o Lal Bagh Aamaguda, Behind Durga Mandir, Jagdalpur, District Bastar, Chhattisgarh – 494001.

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Sana Parveen, D/o Ekhlaque Ahmed, aged about 29 years, Assistant Engineer (AE), Chhattisgarh State Renewable Energy Development Agency (CREDA), Regional Office Bilaspur, District Bilaspur, R/o Barkat, Ward No.25, Sharda Nagar, Near Sai Mandir & Magneto Mall, Bilaspur, Chhattisgarh.

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Gopi Kashyap, S/o Balram Kashyap, Aged about 35 years, Assistant Engineer, Chhattisgarh State Renewable Energy Development Agency (CREDA), District Office Bastar, Chhattisgarh, R/o Lal Bagh Aamaguda, Behind Durga Mandir, Jagdalpur, District Bastar, Chhattisgarh – 494001.

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Akash Sharma, S/o Ashok Sharma, aged about 30 years, Assistant Engineer (AE), Chhattisgarh State Renewable Energy Development Agency (CREDA), Head Office Raipur, District Raipur, R/o House No.10, Phase-1, Mahadev Vatika Colony, Amleshwar, Post Amleshwar, District Durg, Chhattisgarh.

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Ravikant Bharadwaj, S/o Late S.S. Bharadwaj, Aged about 37 years, Assistant Engineer (AE), Chhattisgarh State Renewable Energy Development Agency (CREDA), District Office Narayanpur, R/o

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... Petitioners

(WPS No.1827/2020)

Smriti Kunj, Jawahar Nagar Ward Metaguda, Jagdalpur, District Bastar, Chhattisgarh.

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versus

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State of Chhattisgarh, Through the Secretary, Department of Energy, Mantralaya, Mahanadi Bhawan, Atal Nagar, New Raipur, District Raipur, Chhattisgarh.

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Chhattisgarh State Renewable Energy Development Agency (CREDA), through the Chief Executive Officer, Near Energy Education Part, VIP Road, Raipur, District Raipur, Chhattisgarh.

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Chief Engineer (Administration), Chhattisgarh State Renewable Energy Development Agency (CREDA), through the Chief Executive Officer, Near Energy Education Part, VIP Road, Raipur, District Raipur, Chhattisgarh.

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Nandkishore Rai, S/o Shri B.N. Rai, aged about 41 years, posted as Assistant Engineer at CREDA, District Office Korba, R/o Flat No.159, Koshabadi, Korba, Police Station Rampur, District Korba, Chhattisgarh

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Abhishek Kumar Shukla, S/o Shri Ramprasad Shukla, aged about 39 years, posted as Assistant Engineer at CREDA, Head Office Raipur, R/o Flat No.505, Shrizee Kalpataru Heights, Amlidih, Raipur, District Raipur, Chhattisgarh

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Rahul Gupta, S/o Shri Ramanand Gupta, aged about 47 years, posted as Assistant Engineer at CREDA, Head Office Raipur, R/o Mogra 78, Block-B, Talpuri International Colony, Bhilai, District Durg, Chhattisgarh

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... Respondents

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For Petitioners : Mr. Manoj Paranjpe, Senior Advocate with Mr. Sharad Mishra, Advocate. For Respondent No.1/State : Mr. Pranjal Shukla, Panel Lawyer. For Respondents No.2 & 3 : Mr. Harshwardhan Parganiha, Advocate. For Respondents No.4 to 6 : Mr. Ashok Kumar Shukla and Mr. Ravi Singh, Advocates.

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Single Bench: - Hon'ble Shri Justice Sanjay K. Agrawal

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C.A.V. Order

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For sake of exposition, this Order is divided in following parts:-

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(WPS No.1827/2020)

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S.No.	Particulars	Page Nos.
1.	Writ Petition	3
2.	Factual Backdrops	3
3.	Return by Respondents No.2 & 3 CREDA	6
4.	Return by Private Respondents No.4 to 6	7
5.	Submissions on behalf of the Petitioners	7
6.	Submissions on behalf of Respondents No.2 & 3 CREDA	8
7.	Submissions on behalf of Private Respondents No.4 to 6	9
8.	Seniority	10
9.	The object of assigning seniority	11
10.	Service Rules Applicable	11
11.	Discussion and Analysis	19
12.	Relief and Cost	20

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1. Writ Petition

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Challenge in the writ petition is to the order dated 26-10-2019 (Annexure P-1) passed by respondent No.2 by which respondents No. 4 to 6 have been given notional seniority with effect from 1-1-2013 on the post of Assistant Engineer and also the petitioners eventually seek to quash the seniority list dated 13-2-2020 (Annexure P-2) in which the private respondents No.4 to 6 have been shown senior to the petitioners herein.

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Factual Backdrops

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Respondents No.4 to 6 were appointed on contract basis on the post of Junior Engineer/Sub-Engineer on 1-4-2008, thereafter, on 26-5-2010, respondent No.2 published final gradation list of Junior Engineers

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(WPS No.1827/2020)

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(Sub-Engineers) showing position as on 1-4-2010 wherein the names of private respondents No.4 to 6 were shown at Serial Nos.3, 5 and 6, respectively, and thereafter, on 14-6-2010, the services of private respondents No.4 to 6 were regularized on the post of Junior Engineer/ Sub-Engineer with effect from 1-4-2010 after completion of two years of probation period. Again respondent No.2 published a final gradation list of Junior Engineers (Sub-Engineers) showing position as on 1-4-2011 in which respondents No.4 to 6 were shown at Serial Nos.3, 5 and 6, respectively. In the year 2012, respondent No.2 amended the Service Rules and new Service Rules were enacted. As per the said amended rules, the qualifying service for promotion to the post of Assistant Engineer is 5 years of continuous service on the post of Junior Engineer (Sub-Engineer).

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Pursuant to the advertisement issued by respondent No.2 for the post of Assistant Engineer, the present six petitioners were appointed on the vacant and sanctioned posts of Assistant Engineer and order of appointment dated 25-4-2013 was issued in their favour by respondent No.2 CREDA whereby all the 10 vacant posts of Assistant Engineer were filled. Thereafter, on 9-5-2013, respondent No.2 published final gradation list of Junior Engineers showing the position as on 1-4-2013 in which the names of respondents No.4 to 6 were shown at Serial Nos.3, 5 and 6, respectively. However, on 6-6-2013, respondent No.2 published final gradation list of Assistant Engineers showing the

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position as on 1-4-2013 wherein the names of the private respondents were not there in the said list, as they were working on the post of Junior Engineer/Sub-Engineer. Similarly, on 23-5-2014, respondent No.2 published final gradation list of Junior Engineers showing the position as on 1-4-2014 wherein the names of the private respondents were found at serial Nos.3, 5 and 6, respectively.

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On 5-2-2015, respondent No.2 conducted a meeting of the Departmental Promotion Committee (DPC) wherein recommendation was made for promotion of the private respondents on the post of Assistant Engineer and pursuant to the said recommendation of the DPC, on 11-2-2015, respondents No.4 to 6 herein were promoted to - the post of Assistant Engineer with effect from 11-2-2015. On 27-52015, respondent No.2 published the gradation list of Assistant Engineers showing position as on 1-4-2015, wherein the names of the petitioners were kept above the private respondents showing the names of the petitioners at Serial Nos.26, 31, 30, 29, 25 and 27, respectively, whereas the names of the private respondents were shown at serial Nos.33, 34 and 35, respectively. The private respondents challenged the aforesaid position in the seniority list by filing representations which respondent No.2 rejected by order dated 18-3-2016. The private respondents were still aggrieved and not satisfied with the order passed on their representations and thus, they again made representation which respondent No.2 considered by forming a committee for

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(WPS No.1827/2020)

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redressing the grievance raised by them, however, the said committee found the seniority position to be just and proper leading to filing of WPS No.6272/2019 in which this Court by order dated 20-8-2019 directed respondent No.2 to consider the case of the petitioners therein i.e. the private respondents herein on its own merit in respect of their entitlement for promotion/seniority on the post of Assistant Engineer with effect from 1-1-2013. Thereafter, the impugned order was passed on 26-10-2019 granting the representation of the private respondents giving notional seniority to them with effect from 1-1-2013 on the post of Assistant Engineer and gradation list was issued on 13-2-2020 showing them seniors to the present petitioners.

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Return by Respondents No.2 & 3 CREDA

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Return has been filed by respondent No.2 stating inter alia that the present petition is not maintainable in view of the existence of an effective alternative remedy available to the petitioners, as appeal was preferred but that has been withdrawn and respondents No.4 to 6 were appointed on the post of Junior Engineer/Sub-Engineer and they were regularised with effect from 1-4-2008, and the applicable promotion regime is governed by the amended CREDA Service Rules of 2004 (clauses 12.3 and 12.4). It has been further stated that respondents No.4 to 6 had completed 5 years of service on 1-1-2013 and were eligible for promotion in accordance with the amended mandatory

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Rules and it has never been the petitioners’ case that they were not eligible and as such, the writ petition deserves to be dismissed.

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Return by Private Respondents No.4 to 6

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Respondents No.4 to 6 have filed their separate returns stating inter alia that a duly constituted committee has recommended the grant of notional seniority to respondents No.4 to 6, the petitioners have not approached the Court with clean hands and moreover, the examination/enquiry committee report dated 15-2-2016 has not been subjected to challenge. It has further been stated that the writ petition suffers from delay and laches and grant of notional seniority is a corrective measure, not a favour to the private respondents. It has also been stated that the delay in convening DPC was caused by CREDA which is a purely administrative lapse, hence respondents No.4 to 6 cannot be penalised for the inaction on the part of CREDA and as such, the writ petition deserves to be dismissed.

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Submissions on behalf of the Petitioners

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Mr. Manoj Paranjpe, learned Senior Counsel appearing on behalf of the petitioners, would submit that respondents No.4 to 6 were promoted on the post of Assistant Engineer only on 11-2-2015, as such, they have to be treated to be born in the cadre of Assistant Engineer with effect from 11-2-2015, whereas the petitioners were appointed on the post of Assistant Engineer with effect from 25-4-

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(WPS No.1827/2020)

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2013, as such, they are admittedly and undisputedly seniors to respondents No.4 to 6 on the post of Assistant Engineer, therefore, merely on the ground that the alleged vacancy was there since the year 2008, respondents No.4 to 6 cannot claim seniority with effect from 11-1-2013. He would rely upon the decision of the Supreme Court in the matter of Bihar State Electricity Board and others v. Dharamdeo Das 1 to contend that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post or when the post itself is created.

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Submissions on behalf of respondents No.2 & 3 CREDA

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Mr. Harshwardhan Parganiha, learned counsel appearing on behalf of respondents No.2 & 3/Chhattisgarh State Renewable Energy Development Agency (CREDA), would submit that the CREDA Service Rules of 2004 were amended with effect from 9-7-2012 and the qualifying service for promotion was reduced from 8 years to 5 years, therefore, respondents No.4 to 6, whose services were reckonable from 1-4-2008, completed 5 years by 1-1-2013 and became eligible for promotion to the post of Assistant Engineer. As such, it is absolutely clear that the date from which the seniority of respondents No.4 to 6 was to be considered for promotion to the post of Assistant Engineer was 1-4-2008, as they had completed 5 years of service on 1-1-2013 and were eligible for promotion in accordance with the amended Rules and it has never been the petitioners’ case

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1 2024 SCC OnLine SC 1768

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that they were not eligible. Therefore, notional seniority has rightly been granted to respondents No.4 to 6 with effect from 1-1-2013.

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Submissions on behalf of Private Respondents No.4 to 6

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Mr. Ashok Kumar Shukla, learned counsel appearing on behalf of respondents No.4 to 6, would vehemently submit that the enquiry report dated 15-2-2016 of the committee has not been subjected to challenge by the petitioners and the writ petition suffers from delay and laches. He would further submit that the private respondents No.4 to 6 were entitled for promotion with effect from 1-1-2013 prior to the petitioners’ appointment dated 25-4-2013 and the Department’s failure to convene the DPC cannot be held against respondents No.4 to 6. He would also submit that respondent No.2/employer has the power to rectify such administrative failure and lapses and since respondents No.4 to 6 were eligible for promotion with effect from 1-1-2013, but they were wrongly denied promotion due to administrative lapses, notional seniority can be granted from the date of eligibility. He would rely upon the decisions of the Supreme Court in the matters of Haryana Staff Selection Commission v. Priyanka and others etc. etc. 2, C. Jayachandran v. State of Kerala and others 3, Union of India and others v. N.R. Parmar and others 4, Union of India and another v. Hemraj Singh Chauhan and others 5 and S.D.

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2 (2021) 7 SCR 667

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3 (2020) 5 SCC 230

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4 (2012) 13 SCC 340

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5 2010 AIR SCW 2103

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Raghunandan Singh v. State of Karnataka 6 to buttress his submissions. As such, the writ petition deserves to be dismissed.

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I have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record with utmost circumspection.

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Seniority

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Seniority, in service law, connotes the precedence or preference in position of an employee over other employees similarly situated. According to Black’s Law Dictionary “seniority” means:

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“Precedence or preference in position over others similarly situated. As used, for example, with reference to job seniority, worker with most years of service is first promoted within range of jobs subject to seniority, and is the last laid off, proceeding so on down the line to the youngest in point of service.”⁷

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Again Collins Cobuild English Language Dictionary 8 says:

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“A person’s seniority in an organisation is their degree of importance and power as compared to other people who work there.”

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The Supreme Court has recognized that seniority confers a valuable right on the employee and his entire future career at times is dependent upon such seniority (see Andhra Pradesh Cooperative Oil Seeds Growers Federation Ltd v. D Achyuta

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Rao 9). As seniority or inter se seniority is not a fundamental right but a civil right and the persons whose seniority might be affected are

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6 1994 Supp (2) SCC 526

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7 6^th Edn, p 1362.

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8 Indian Reprint 1991, p 1315.

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9 (2007) 13 SCC 320.

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necessary parties and such rights are to be determined in their presence (see State of Uttaranchal v. Madan Mohan Joshi 10). Since seniority can be a determinative factor in consideration for promotion, it also becomes a facet of Article 16(1) of the Constitution of India (see Ajit Singh v. State of Punjab 11).

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The object of assigning seniority

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The object of assigning seniority is to facilitate the filling of promotional posts. The question of assigning of seniority arises only in relation to employees who are similarly circumstanced i.e. where they are functioning in the same rank, grade or cadre.

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Service Rules Applicable

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Rule 26 of the CREDA Service Rules of 2004 (amended) speaks about Seniority. It states as under: -

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26- ofj”Brk %&

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26-1 ØsMk ds v/khu fdlh in ij dk;Zjr fdlh deZpkjh dh ofj”Brk dh x.kuk mlds }kjk ml in ij dh xbZ fujarj lsok dh frfFk ls dh tk,xhA fdarq ;fn ml in ij nks ;k vf/kd deZpkfj;ksa us ,d gh frfFk dks dk;ZHkkj xzg.k fd;k gks rks mudh ikjLifjd foj”Brk p;u lwph ds xq.kkuØe ds vk/kkj ij fu/kkZfjr dh tk,xhA ,sls ifjoh{kk/khu deZpkjh tks fdlh dkj.k ls ifjoh{kk vof/k dh lekfIr ij fu;fer u fd;s x;s gks] ofj”Brk dze esa mu ifjoh{kk/khu deZpkfj;ksa ls uhps j[ks tk;saxs ftUgsa muls igys fu;fer fd;k tk pqdk gksA

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26-2 ;fn fdlh deZpkjh dk fuEu in ij izR;kofrZr fd;k x;k gks rks mls] tc td l{ke vf/kdkjh }kjk vU;Fkk vknsf’kr u fd;k tk,] mls fuEu in dh ofj”Brk lwph esa lcls mij j[kk tk;sxkA

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26-3 ,sls izfrfu;qfDr ij dk;Zjr deZpkjh dh ofj”Brk ftldh lsokvksa dk ØsMk es a lafofy;u dj fy;k x;k gks] ØsMk ds v/khu mldh lsokvksa ds lafofy;u ds fnukad ls fu/kkZfjr dh tk,xhA ,sls deZpkjh dks] lafofy;u dh frfFk dks lacaf/kr laoxZ ds dfu”Bre deZpkjh ds Bhd ckn ds LFkku ij ofj”Brk nh tk,xhA

10 (2008) 6 SCC 797.

11 (1999) 7 SCC 209.

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The true english translated version of Rule 26 of the CREDA Service

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Rules of 2004 states as under: -

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“ 26. Seniority: -

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26.1 The seniority of an employee working on any post under the cadre shall be determined from the date of continuous service rendered by him on that post. However, where two or more employees assume charge of the same post on the same date, their inter se seniority shall be determined on the basis of their order of merit in the selection list. A probationer who, for any reason, is not confirmed upon completion of the probation period shall be placed below those probationers in the seniority list who have already been confirmed earlier.

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26.2 If an employee is reverted to a lower post, he shall, unless otherwise directed by the competent authority, be placed at the top of the seniority list of that lower post.

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26.3 The seniority of an employee working on deputation, whose services have been absorbed in the cadre, shall be determined from the date of such absorption under the cadre. Such an employee shall be placed in seniority immediately below the last (junior-most) employee of the concerned cadre as on the date of absorption.”

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A careful perusal of Rule 26.1 of the CREDA Service Rules of 2004 would show that the seniority of an employee working on any post under the cadre shall be determined from the date of continuous service rendered by him on that post.

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The Supreme Court in the matter of Sunaina Sharma and others v. State of Jammu and Kashmir and others 12 has held that a person is entitled to seniority only from the date when he actually joins the post and retrospective seniority can be granted only if the rules enable retrospective appointment/promotion in terms of the applicable service rules. Further, their Lordships of the Supreme

12 (2018) 11 SCC 413

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Court relied upon the earlier decisions in the matters of State of Bihar v. Akhouri Sachindra Nath 13, Kaushal Kishore Singh v. Director of Education 14 and State of Uttaranchal v. Dinesh Kumar Sharma 15 to conclude that seniority has to be reckoned only from the date the person entered into that service and retrospective promotion/seniority can be granted in terms of the applicable service rules, and observed as under: -

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“15. From the judgments referred to hereinabove it is apparent that the normal rule is that a person is entitled to seniority only from the date when the said person actually joins the post. True it is, that there are exceptions and sometimes “in service” candidates can be granted promotion from a date anterior to their being regularly promoted/appointed. However, this can be done only if the rules enable retrospective appointment and on fulfilling the other requirement of the Rules.”

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In the matter of Pawan Pratap Singh v. Reevan Singh 16, the Supreme Court has clearly held that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre and seniority amongst members of the same grade has to be counted from the date of initial entry into the grade and relying upon the Constitution Bench decision of the Supreme Court in the matter of Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra 17, it has been observed as under: -

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“(i) to (iii) xxx xxx xxx

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(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively

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13 1991 Supp (1) SCC 334

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14 (2002) 9 SCC 634

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15 (2007) 1 SCC 683

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16 (2011) 3 SCC 267

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17 (1990) 2 SCC 715

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unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.”

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Similarly, in the matter of Union of India and another v. Manpreet Singh Poonam and others 18, the Supreme Court relying upon its earlier decision in the matter of Ganga Vishan Gujrati v. State of Rajasthan 19 held that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre, and observed as under: -

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“21. Similarly, this Court in Ganga Vishan Gujrati v. State of Rajasthan , (2019) 16 SCC 28 has held that: (SCC pp. 52-53, para 45)

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A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra , (1990) 2 SCC 715. The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath , 1991 Supp (1) SCC 334 and State of Uttaranchal v. Dinesh Kumar Sharma , (2007) 1 SCC 683. In Pawan Pratap Singh v. Reevan Singh , (2011) 3 SCC 267, this Court revisited the precedents on the subject and observed: (Pawan Pratap Singh case, SCC pp. 281-82, para 45)

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‘45. … (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.

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18 (2022) 6 SCC 105 19 (2019) 16 SCC 28

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(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.

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(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.

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(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.’

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This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao , (2013) 8 SCC 693.”

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20.Similarly, in Bihar State Electricity Board (supra), the Supreme

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Court has clearly held that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post, and observed as under: -

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“18. It is no longer res integra that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post or when the post itself is created. No doubt, a right to be considered for promotion has been treated by courts not just as a statutory right but as a fundamental right, at the same time, there is no fundamental right to promotion itself. In this context, we may profitably cite a recent decision in Ajay Kumar Shukla v. Arvind Rai²⁰ where,

20 (2022) 12 SCC 579

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citing earlier precedents in Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty²¹ and Ajit Singh v. State of Punjab²² , a three Judge Bench observed thus:

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This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in Director, Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty in para 4 of the report which is reproduced below:

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“4………..There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondentwrit petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent-writ petitioner was unjustly denied of the same is obviously unjustified.”

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A Constitution Bench in Ajit Singh v. State of Punjab , laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her's fundamental right. Jagannadha Rao, J. speaking for himself and Anand, C.J., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paras 22 and 27:

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“Articles 14 and 16(1) : is right to be considered for promotion a fundamental right

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Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the ‘State shall not deny to any person equality before the law or the equal protection of the laws’. Article 16(1) issues a positive command that:

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‘there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State’.

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21 (1991) 2 SCC 295 22 (1999) 7 SCC 209

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It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense “equality of opportunity” in matters of employment and appointment to any office under the State. The word “employment” being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion, which is his personal right.

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“Promotion” based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1)

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In our opinion, the above view expressed in Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P.²³ , and followed in Jagdish Lal [Jagdish Lal v. State of Haryana²⁴ , and other cases, if it is intended to lay down that the right guaranteed to employees for being “considered” for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be “considered” for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta [ Ashok Kumar Gupta v. State of U.P. ], right from 1950.”

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20. In State of Bihar v. Akhouri Sachindra Nath , it was held that retrospective seniority cannot be given to an employee from a date when he was not even borne in the cadre, nor can

¶157

23 (1997) 5 SCC 201 24 (1997) 6 SCC 538

¶158

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(WPS No.1827/2020)

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seniority be given with retrospective effect as that might adversely affect others. The same view was reiterated in Keshav Chandra Joshi v. Union of India²⁵ , where it was held that when a quota is provided for, then the seniority of the employee would be reckoned from the date when the vacancy arises in the quota and not from any anterior date of promotion or subsequent date of confirmation. The said view was restated in Uttaranchal Forest Rangers’ Assn. (Direct Recruit) v. State of U.P. , in the following words:

¶161

“ 37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees, it would not be proper to do injustice to the direct recruits….…

¶162

38. This Court has consistently held that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime. ”

¶163

Thereafter, the principles of law laid down in Bihar State Electricity Board (supra) were followed in the matter of Government of West Bengal and others v. Dr. Amal Satpathi and others 26 and their Lordships have noticed paragraph 38 of the decision in the matter of Uttaranchal Forest Rangers’

¶164

Assn. (Direct Recruit) v. State of U.P. 27, which states as under: -

¶165

25 1992 Supp (1) SCC 272

¶166

26 2024 SCC OnLine SC 3512

¶167

27 (2006) 10 SCC 346

¶168

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(WPS No.1827/2020)

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“38. This Court has consistently held that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime.”

¶171

Discussion and Analysis

¶172

22.Thus, from the aforesaid principles of law laid down by their Lordships of the Supreme Court in the aforementioned decisions, it is quite vivid that no seniority can be granted with retrospective effect when the employee is not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime and if applicable service rule does not provide for grant of retrospective seniority.

¶173

Coming to the facts of the present case, it is quite vivid that respondents No.4 to 6, who were appointed on the post of SubEngineer initially on contractual basis, were regularised in service on 1-4-2008 and thereafter, they had completed their probation period of two years on 14-6-2010, however, the petitioners were directly appointed on the post of Assistant Engineer on 25-4-2013 and respondents No.4 to 6 were promoted on the post of Assistant Engineer on 11-2-2015, as such, they will be treated to be borne in the cadre of Assistant Engineer on 11-2-2015 and thereafter, order has been passed by respondent No.2 granting notional seniority to respondents No.4 to 6 with effect from 1-1-2013. As such, respondents No.4 to 6 were granted retrospective seniority from the date when they have not borne on the cadre on the post of Assistant

¶174

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¶175

(WPS No.1827/2020)

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Engineer and more so applicable service rules do not provide for grant of retrospective seniority. This would adversely affect the petitioners who are direct recruits on the post of Assistant Engineer. As such, in light of the principles of law laid down in the aforesaid judgments, it is quite vivid that the order passed by respondent No.2 granting seniority to respondents No.4 to 6 over and above the petitioners is clearly impermissible in law and is in violation of the principles of natural justice, as without affording opportunity of hearing the order impugned Annexure P-1 was passed.

¶177

24.In view of the above, the submissions raised on behalf of the private respondents and the official respondents that notional seniority has rightly been granted to respondents No.4 to 6 with effect from 1-12023, the enquiry report dated 15-2-2016 of the committee has not been subjected to challenge by the petitioners and the writ petition suffers from delay and laches, deserve to be rejected, and the case laws cited on behalf of the private respondents are quite distinguishable on facts to the present case.

¶178

Relief and Cost

¶179

Since the order impugned is not only in violation of the principles of law, but also impermissible in law to grant retrospective seniority over and above the petitioners who are direct recruits on the post of Assistant Engineers, the order impugned dated 26-10-2019 (Annexure P-1) is hereby quashed and the order dated 13-2-2020 (Annexure P-2) is also hereby quashed. Respondent No.2 is directed

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(WPS No.1827/2020)

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to issue fresh seniority list giving the petitioners their due seniority over and above respondents No.4 to 6.

¶183

26.The writ petition is allowed to the extent indicated herein-above leaving the parties to bear their own cost(s).

¶184

Sd/(Sanjay K. Agrawal) Judge

¶185

Soma

Deepak Sahu v. State of Chhattisgarh

Case brief

What is this about?

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Deepak Sahu v. State of Chhattisgarh

Case brief

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