Pay Protection Granted To Govt Employee In One Cadre Can't Be Used To Justify Claim For Seniority In Another Cadre: Jharkhand High Court
The Jharkhand High Court has ruled that pay protection or the counting of past service for pensionary benefits does not entitle a government employee to claim seniority in a different service/cadre to which they shift to voluntarily.
A Division Bench of Justice Sujit Narayan Prasad and Justice Rajesh Kumar referred to Supreme Court's decision in Director of School Education v. A.N. Kandaswamy, wherein it was held that merely because the past services were counted for the purpose of protecting the “pay” and awarding selection or special grade, it cannot be said that employee concerned continued to belong to the same old cadre.
“Thus it is considered view of this Court that giving pay protection or counting the said period for pensionary benefit cannot have any concern with the issue of seniority due to the reason that if there will be any disturbance in the seniority then it will have impact upon the other employees in the service or the cadre while giving pay protection or counting the period for pensionary benefit will have no impact upon the other public servant rather it was for the benefit of individual having no concern with the other members of the service or cadre.”
The observation was made in response to the contention that if the appellants are given "pay protection" with respect to their past services in the Jharkhand Administrative Service (which they left to join Police Service), then the same length of service should be counted for deciding their seniority by considering their services from the initial date of appointment.
It further observed that 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. Further, 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, it said.
The ruling was delivered in an appeal filed by three persons–Binod Kumar Mahto, Shashi Prakash, and Ajay Kumar, challenging the dismissal of a writ petition by a Single Judge bench which held that the three individuals voluntarily chose to join the police service when given the option to do so. Therefore, the single judge said, that they cannot claim that joining the service was a policy decision binding them to it due to which they cannot demand seniority from the date of their initial appointment.
The appellants had originally been appointed to the Jharkhand Administrative Service in 2010 following a 2007 advertisement issued by the Jharkhand Public Service Commission.
Although they had opted for the police service as their first preference, they were selected for the administrative posts based on merit. They subsequently joined as Circle Officer and Block Development Officer in different districts. In 2011, when six vacancies for the post of Deputy Superintendent of Police remained unfilled due to medical disqualifications or other reasons, the State Government issued a press note calling for options from eligible candidates who had listed police service as their first choice.
The appellants applied and were formally appointed to the police service in July, 2012. However, in the seniority list of the Jharkhand Police Service dated 29 May 2020 and revised again on 4 January 2023, they were placed below other officers, including Manish Toppo, whom they claimed to have outperformed in the recruitment process.
They claimed that their seniority in the police service be counted from 12 August 2010, the date they joined the administrative service. They also cited Clause 2(Kh)(iii) of a 1972 Departmental Circular, arguing that their transfer was based on a government policy decision and thus their earlier service should be counted. Additionally, they contended that since they had been granted pay protection, the same period ought to be considered for determining seniority.
The High Court, however, rejected all these contentions and noticed that the petitioners had not been transferred between posts or cadres within the same service, but had voluntarily changed from one service to another.
Stressing the legal distinction, the Court observed, “The Jharkhand Administrative Service and Jharkhand Police Service in the capacity of Dy.S.P. are two different services under the State of Jharkhand… Therefore, it is evident from the case of the appellants/writ petitioners itself that they are seeking to count the seniority from the date when they were in different service construing themselves to be in the same cadre even though they have come in the different service of Jharkhand Police Service holding the post of Dy.S.P.”
The Court further stated that the officers were not compelled by any policy to shift to the police service but had exercised that option of their own volition when vacancies arose. The Court made it clear that this voluntary choice removed the matter from the scope of the 1972 Circular.
It held, “It cannot be said that it was a policy decision by which appellants were bound to join police service therefore claim of the appellants does not come within the horizon of the Circular of 1972 since they picked willingly to shift their service because vacancies existed but right does not accrue in their favour for claiming their seniority from the date of initial appointment.”
The Court reiterated in its judgment that seniority must flow from the date of entry into the service and not be altered based on relative merit once appointments are made. It held, “The seniority of the appellants is to be considered from the date of inducting in the service, i.e., w.e.f. the year 2012 while the candidates who are under the reserved category had joined prior to the joining of the appellants and as per the basic principle to determine the seniority which is to be counted from the date of entry in the service, thus, the said claim of the appellants/writ petitioners cannot be sustainable, accordingly, rejected.”
On the question of parity with another officer, who was allegedly placed higher despite having similar or lower marks, the Court refused to entertain the comparison, pointing out that this issue was not raised before the Single Judge and that the officer had joined the police service directly, unlike the appellants.
The Court affirmed the Single Judge's reasoning and observed that the officers had entered the police service in 2012, and thus their seniority would be counted from that year, not earlier.
It held, “Learned Single Judge has meticulously examined the aforesaid issue by taking into consideration the settled position of law that regular service cannot be reckoned from a date when the employee was not even borne in the service and seniority amongst members has to be counted from the date of initial entry into the said service, requires no interference by this Court.”
The appeal was thus dismissed.
Case Title: Binod Kumar Mahto & Ors. v. The State of Jharkhand & Ors.
Case Number: L.P.A. No. 204 of 2024