How will the inter se Seniority be determined in the absence of Rules

In almost every Governmental Department, there are set rules governing the service of the persons working in that Government Department. The Rules lay down the procedure and provisions regarding the leave, salary, timings / tenure, promotion, termination, etc. Accordingly, since it is the endeavour of every employee to rise up the ranks and get promoted, the promotion is done at timely intervals, as and when the said employee is eligible for promotion and there are the requisite vacancies for such employee to assume work at such promoted post. The Hon’ble Supreme Court in the case of D. P. Das v. Union of India, (2011) 8 SCC 115, has observed regarding seniority and promotion that,

“24. Determination of seniority is a vital aspect in the service career of an employee. His future promotion is dependent on this. Therefore, the determination of seniority must be based on some principles, which are just and fair. This is the mandate of Articles 14 and 16.”

Further, the said Departmental Rules even look into the inter se Seniority amongst the employees. Inter se Seniority is the seniority amongst the employees who are working at the same pay scale / rank. So, for example, if there are five Assistant Professors in a Department, the determination of inter se Seniority would mean determining which of the said five Assistant Professors will be the senior most. There are various methods in which the inter se Seniority amongst the employees of the same rank / pay scale are decided, the most common of which is the merit list as per which the said persons were selected to that position. The rules of each Government Department usually are the basis for the determination of the inter se Seniority. However, on what basis will the inter se Seniority be determined amongst the employees holding the same rank / post in the absence of any such merit list / Departmental Rules?

The Hon’ble Supreme Court has in a plethora of judgments held that in the absence of any Rules which determine the inter se Seniority, the order of the merit list will be seen. But what will happen in the absence of merit list? The Hon’ble Supreme Court in the case of M.B. Joshi & others. v. Satish Kumar Pandey & Ors., AIR 1993 SC 267, has observed that it is trite law and a well settled principle of service jurisprudence that in the absence of any specific rule the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of the service and not on any other fortuitous circumstances. Therefore, when there is no merit list and / or the appointments are made to different streams / departments, in that situation, the length of the service will have to be calculated to determine the inter se Seniority amongst the persons.

But, on what basis is the length of service to be calculated? Will it be calculated from the date of appointment or from the date of joining the service? The Hon’ble Supreme Court in the case of Chairman, Puri Gramya Bank v. Ananda Chandra Das, (1994) 6 SCC 301 has held that,

“By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis. The view, therefore, is wrong.” (emphasis and underline supplied)

Therefore, for the determination of inter se seniority, the length of service when being looked into is to be calculated from the date of the appointment and not from the date of the joining of the service as the Hon’ble Supreme Court has held that the fortuitous chance of reporting to duty earlier would not change the seniority as the length of service of such person who joined earlier would be greater than the others.

It is interesting to note that in the case Bimlesh Tanwar v. State of Haryana & others, (2003) 5 SCC 604, a three judge bench of the Hon’ble Supreme Court while dealing with the question of absence of a rule governing seniority held that an executive order may be issued to fill up the gap. Only in the absence of a rule or executive instructions, the court may have to evolve a fair and just principle of seniority, which could be applied in the facts and circumstances of the case.

Thus, we have now seen that in the absence of any Rules for the determination of inter se Seniority, the Executive orders can fill the vacuum and if there are no Executive orders, then the length of service will be computed for the determination of inter se Seniority and the person having longer tenure of service will be considered senior to the others holding the same post / cadre. However, how will the inter se Seniority be determined in a case when multiple number of persons were appointed on the same date to the service? In such a scenario, the length of service will also be the same as the date of appointment is the same. Therefore, as per the ratio of the Bimlesh Tanwar case (supra), the Hon’ble Courts will have to evolve a fair and just principle of seniority, which would be applicable in the facts and circumstances of the case.

Accordingly, the instant question was before the Hon’ble Supreme Court for adjudication in the case of D. P. Das (supra) wherein the persons were appointed on the same date and thus the length of service was the same, there were no clear rules regarding the seniority and also no merit list was prepared for the purposes of inter se Seniority. Therefore, in the abovementioned case, the Hon’ble Supreme Court while evolving a fair and just principle of seniority, held that

“22. The law is clear that seniority is an incidence of service and where the service rules prescribe the method of its computation, it is squarely governed by such rules. In the absence of a provision ordinarily the length of service is taken into account.

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34. For the reasons aforesaid this Court holds that for determination of seniority of the officers who were recommended on the same date, age is the only valid and fair basis as such their seniority should be decided on the basis of age of the candidates who have been recommended.” (emphasis and underline supplied)”

Thus, when the length of the service of the persons is also the same by virtue of the date of appointment being the same, the Hon’ble Supreme Court in the case of D.P. Das (supra) has held that the age of the persons will have to be considered meaning thereby the oldest person will be considered the senior-most amongst the other officers holding the same post.

The abovementioned principles are important to note for the cases wherein appointments are to be made for the senior positions like the Head of the Department, Dean, etc and also for all those cases wherein for administrative purposes the inter se Seniority amongst the officers is to be determined.

Therefore, summing up, as per the abovementioned judgments of the Hon’ble Supreme Court, the inter se Seniority amongst persons holding the same post / rank will be determined on the basis of firstly the rules governing such service. In the absence of any rules governing the service of the persons, the length of the service will be looked into. However, if the length of the service is also the same i.e. if the persons were appointed on the same date, then the age will be looked into and the officer who is the oldest will be the senior-most.