Seniority cannot be retrospectively claimed for a period when the employee was not borne on the cadre.

The applicant was selected for appointment as a Lower Division Clerk (LDC) in the Government of Puducherry and was placed at Rank No. 192 in the 2001 selection list.

An appointment order dated 18 February 2002 was issued, but his appointment was subsequently kept in abeyance/treated as withdrawn because of a criminal case involving offences under Sections 323, 354 and 506(ii) IPC.

Following the Madras High Court’s order dated 10 February 2004 modifying the criminal-court relief under the Probation of Offenders Act, the applicant sought permission to join service.

By Memorandum dated 9 June 2004, the Government permitted him to join against a fresh vacancy and modified his place of posting. He actually joined service on 16 June 2004.

The applicant claimed that the 2004 Memorandum merely modified his original appointment and that his seniority should therefore be reckoned from 2002, according to his position in the select list.

The Government, however, did not place him at the claimed seniority position and ultimately issued the impugned order dated 25 July 2016.

The applicant challenged that order and sought fixation of his seniority at No. 4299, along with consequential benefits.

1. Whether the applicant’s seniority as LDC could be reckoned from the date of his original appointment in 2002, despite his actual entry into service only on 16 June 2004.

2. Whether the applicant was entitled to reopen the seniority position after failing to challenge the relevant seniority list issued in 2010 within a reasonable period.

3. Whether the impugned order dated 25 July 2016 placing the applicant at the bottom of the relevant seniority list was liable to be quashed.

The Tribunal applied the settled principle that seniority ordinarily commences from the date of initial regular appointment to, or actual joining of, the post, and cannot ordinarily be claimed retrospectively for a period when the employee was not borne on the cadre, unless the applicable service rules expressly provide otherwise.

It relied on Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456, which held that seniority is reckoned from the date of appointment to the post and not from the date on which the vacancy arose, and that retrospective seniority should not be granted where the employee was not part of the cadre during the relevant period.

The Tribunal also applied the doctrine that settled seniority should not be reopened after an unreasonable delay, since such reopening may prejudice employees who have acquired corresponding rights; seniority claims must be raised with due diligence, consistent with the principle that the law aids the vigilant and not those who sleep over their rights.

The Tribunal found that the applicant’s original appointment was not operationalised because it had been kept in abeyance in view of the criminal case.

After the relevant period had elapsed and no vacancy had been reserved for him, the Government permitted him to join against a fresh vacancy by the Memorandum dated 9 June 2004.

Since he actually joined only on 16 June 2004, he was not borne on the LDC cadre from 2002 and could not claim seniority from the date of the earlier appointment order.

The Tribunal further held that, although the applicant could not have challenged the 2005 seniority list relating to the period before his entry into service, he ought to have challenged the 2010 seniority list, which directly affected his claim.

His failure to do so and his subsequent attempt to unsettle the seniority position after a substantial delay attracted the principles of delay, laches and protection of settled seniority.

Accordingly, the applicant failed both on the merits of retrospective seniority and on the ground of belated challenge.

It held that his service commenced only on 16 June 2004 and that he was not entitled to retrospective seniority from 2002 or to seniority based on his original rank in the select list.

His delayed challenge to the relevant seniority position was also held to be untenable.

The Original Application was dismissed as devoid of merit, and no order was made as to costs.