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(WPS No.1827/2020)

2026:CGHC:17588

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

WPS No. 1827 of 2020

Order reserved on: 06/04/2026

Order delivered on: 17/04/2026

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

1.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.A-

35, Dream City, Near Rama Green City, Bilaspur, Chhattisgarh.

2.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.

3.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.

4.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.

5.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.

6.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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Smriti Kunj, Jawahar Nagar Ward Metaguda, Jagdalpur, District

Bastar, Chhattisgarh.

... Petitioners

versus

1.State of Chhattisgarh, Through the Secretary, Department of Energy,

Mantralaya, Mahanadi Bhawan, Atal Nagar, New Raipur, District

Raipur, Chhattisgarh.

2.Chhattisgarh State Renewable Energy Development Agency

(CREDA), through the Chief Executive Officer, Near Energy

Education Part, VIP Road, Raipur, District Raipur, Chhattisgarh.

3.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.

4.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

5.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

6.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

... Respondents

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.

Single Bench: -

Hon'ble Shri Justice Sanjay K. Agrawal

C.A.V. Order

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

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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 69

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

1.Writ Petition

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.

Factual Backdrops

2.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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(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).

3.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.

4.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 27-5-

2015, 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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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.

Return by Respondents No.2 & 3 CREDA

5.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.

Return by Private Respondents No.4 to 6

6.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.

Submissions on behalf of the Petitioners

7.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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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.

Submissions on behalf of respondents No.2 & 3 CREDA

8.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

12024 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.

Submissions on behalf of Private Respondents No.4 to 6

9.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.

2(2021) 7 SCR 667

3(2020) 5 SCC 230

4(2012) 13 SCC 340

52010 AIR SCW 2103

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(WPS No.1827/2020)

Raghunandan Singh v. State of Karnataka

6

to buttress his

submissions. As such, the writ petition deserves to be dismissed.

10.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.

Seniority

11.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:

“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

Again Collins Cobuild English Language Dictionary

8

says:

“A person’s seniority in an organisation is their degree of

importance and power as compared to other people who work

there.”

12.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

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

61994 Supp (2) SCC 526

76

th

Edn, p 1362.

8Indian Reprint 1991, p 1315.

9(2007) 13 SCC 320.

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(WPS No.1827/2020)

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

).

The object of assigning seniority

13.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.

Service Rules Applicable

14.Rule 26 of the CREDA Service Rules of 2004 (amended) speaks

about Seniority. It states as under: -

26-ofj”Brk %&

26-1ØsMk 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

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

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

Rules of 2004 states as under: -

“26. Seniority: -

26.1The 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.

26.2If 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.

26.3The 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.”

16.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.

17.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: -

“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.”

18.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. O fficers' Assn. v.

State of Maharashtra

17

, it has been observed as under: -

“(i) to (iii) xxxxxxxxx

(iv) The seniority cannot be reckoned from the date of

occurrence of the vacancy and cannot be given retrospectively

131991 Supp (1) SCC 334

14(2002) 9 SCC 634

15(2007) 1 SCC 683

16(2011) 3 SCC 267

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.”

19.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: -

“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)

45. 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)

‘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.

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.

(iii) Ordinarily, notional seniority may not be

granted from the backdate and if it is done, it must be

based on objective considerations and on a valid

classification and must be traceable to the statutory

rules.

(iv) The seniority cannot be reckoned from the

date of occurrence of the vacancy and cannot be given

retrospectively unless it is so expressly provided by the

relevant service rules. It is so because seniority cannot

be given on retrospective basis when an employee has

not even been borne in the cadre and by doing so it may

adversely affect the employees who have been

appointed validly in the meantime.’

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.”

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

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: -

“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 Rai

20

where,

20(2022) 12 SCC 579

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citing earlier precedents in Director, Lift Irrigation

Corporation Ltd. v. Pravat Kiran Mohanty

21

and Ajit Singh v.

State of Punjab

22

, a three Judge Bench observed thus:

41. 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:

“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 respondent-

writ 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.”

42. 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:

“Articles 14 and 16(1) : is right to be considered

for promotion a fundamental right

22. 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:

‘there shall be equality of opportunity for all citizens

in matters relating to employment or appointment

to any office under the State’.

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.

“Promotion” based on equal opportunity and

seniority attached to such promotion are facets of

fundamental right under Article 16(1)

* * *

27. 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 Haryana

24

, 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.”

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

23(1997) 5 SCC 201

24(1997) 6 SCC 538

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(WPS No.1827/2020)

seniority be given with retrospective effect as that might

adversely affect others. The same view was reiterated in

Keshav Chandra Joshi v. Union of India

25

, 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:

“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….…

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.”

21.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’

Assn. (Direct Recruit) v. State of U.P.

27

, which states as under: -

251992 Supp (1) SCC 272

262024 SCC OnLine SC 3512

27(2006) 10 SCC 346

Page 19 of 21

(WPS No.1827/2020)

“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.”

Discussion and Analysis

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.

23.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 Sub-

Engineer 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

Page 20 of 21

(WPS No.1827/2020)

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.

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 1-1-

2023, 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.

Relief and Cost

25.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)

to issue fresh seniority list giving the petitioners their due seniority

over and above respondents No.4 to 6.

26.The writ petition is allowed to the extent indicated herein-above

leaving the parties to bear their own cost(s).

Sd/-

(Sanjay K. Agrawal)

Judge

Soma