Pay Protection Granted To Govt Employee In One Cadre | Can’t Justify Seniority Claim In Another Cadre | Birth In Cadre Essential Rules Jharkhand HC
Isabella Mariam
The High Court of Jharkhand Division Bench of Justice Sujit Narayan Prasad and Justice Rajesh Kumar dismissed an appeal challenging the denial of retrospective seniority for three officers who transitioned from the Jharkhand Administrative Service to the Jharkhand Police Service. The Court held that "regular service cannot be reckoned from a date when the employee was not even borne in the service" and declined to interfere with the single judge’s finding. The Court concluded that the appellants, having joined the police cadre on their own volition in response to a policy option and not under a binding policy mandate, could not claim seniority from their earlier appointment date in a different service.
The matter stemmed from Advertisement No. 11 of 2007 issued by the Jharkhand Public Service Commission (JPSC) for various posts under the Jharkhand Administrative Service and Jharkhand Police Service. Out of the total vacancies, 173 were allocated to the Administrative Service and 45 to the Police Service. The appellants—Binod Kumar Mahto, Shashi Prakash, and Ajay Kumar—applied for both services, listing Police Service as their first preference.
Despite their stated preference, the appellants were allocated to the Jharkhand Administrative Service based on merit. They accepted their appointments and joined the posts in August 2010 as Circle Officer or Block Development Officer in various districts. Subsequently, six vacancies remained unfilled in the Police Service cadre because selected candidates were found unfit. To address this, the Government of Jharkhand issued a press release on 08.10.2011 inviting 22 candidates who had earlier expressed preference for Police Service to opt for these vacancies.
The appellants submitted their willingness and were appointed to the post of Deputy Superintendent of Police (Dy.S.P.) by letter dated 25.05.2012. They joined their new posts effective from 01.07.2012. Their grievance arose when their service in the Jharkhand Administrative Service was not counted for the purpose of seniority in the Police Service. Although the Government provided pay protection and considered their past service for pensionary benefits, it denied the request for retrospective seniority.
The appellants contended that their initial appointment date of 12.08.2010 should be considered for seniority in the Police Service. They filed a writ petition seeking quashing of Memo No. 3283 dated 24.06.2019, which rejected their claim. The learned Single Judge dismissed the petition, leading to the filing of the present appeal.
The appellants argued that the shift in cadre was a result of a policy decision and thus their previous service should be counted toward seniority. They cited Clause 2(Kh)(iii) of the Departmental Circular No. 15784 dated 26.08.1972, which permits counting past service for seniority when a change in service results from a government policy.
The respondents, led by the Advocate General, opposed this claim, arguing that the change was voluntary and did not stem from a binding policy. They stated that the appellants had taken birth in the Jharkhand Police Service only in 2012 and thus could not claim seniority from 2010.
The case also involved seniority comparisons with other officers such as Manish Toppo, who appeared in the seniority list above the appellants. The appellants asserted that they should have been placed higher based on merit and date of original appointment. Additionally, they contested their placement below certain reserved category officers in the seniority list.
The Government countered that all officers placed above the appellants had joined the Police Service before them and thus deserved higher seniority regardless of category. It was further argued that the situation of officer Nisha Murmu, who had been placed higher based on merit, was not comparable as she had been directly appointed in the Police Service, not shifted from another cadre.
The Division Bench examined the issue comprehensively, taking into account statutory provisions, factual background, and judicial precedents.
The Court recorded: "It is evident from the aforesaid circular that, if an officer is transferred from one service to another on his own request, the service passed by him on previous post will not be reckoned for the purpose of seniority. However, if such transfer is in accordance with the policy decision taken by the Government, then the services rendered by him on the previous post will be counted for seniority."
It further clarified that "the case of the appellants/writ petitioners is neither of transfer nor of change in the cadre rather the case is of change in the service on their own option." The Court explained the distinction: "The Jharkhand Administrative Service and Jharkhand Police Service in the capacity of Dy.S.P. are two different services under the State of Jharkhand."
The Court rejected the applicability of the 1972 Circular, noting: "The appellants/writ petitioners have chosen to come to different service and thereafter, raised the grievance for counting the period of service in the capacity of Dy.S.P. from the date when they assumed their charge in the Jharkhand Administrative Service."
On the issue of seniority, the Court observed: "Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous." It cited the Supreme Court’s decision in State of Bihar and Ors. vs. Arbind Jee stating: "The birth in the cadre or the service is the paramount consideration for counting the seniority."
The Bench stated settled law, quoting from P. Sudhakar Rao v. U. Govinda Rao: "Regular service cannot be reckoned from a date when the employee was not even borne in the cadre and seniority amongst members of the same Grade has to be counted from the date of initial entry into the Grade."
Addressing pay protection, the Court stated: "Giving pay protection or counting the said period for pensionary benefit cannot have any concern with the issue of seniority." The judgment clarified: "If there will be any disturbance in the seniority then it will have impact upon the other employees in the service or the cadre."
On the reserved category grievance, the Court held: "The appellants are claiming seniority over the reserved category candidates...but the said principle...cannot be said to be proper...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."
On Nisha Murmu, the Court stated: "The ground with respect to the issue of Nisha Murmu admittedly has not been agitated in the writ petition." It concluded that her case could not be a basis for comparison: "She had never shifted her service...rather her initial appointment was in the cadre of Dy.S.P."
The Court held: "This Court is of the view that the instant appeal lacks merit and as such, stands dismissed." It confirmed that the learned Single Judge had "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."
Accordingly, the Division Bench dismissed the appeal in its entirety and disposed of all pending interlocutory applications. The order of the Single Judge, dated 09.02.2024, was upheld.
Advocates Representing the Parties:
For the Petitioners: Mr. Ajit Kumar, Sr. Advocate; Ms. Aprajita Bhardwaj, Advocate
For the Respondents: Mr. Rajiv Ranjan, Advocate General; Mr. Mohan Kr. Dubey, AC to AG; Mr. Shray Mishra, AC to AG, Mr. Rahul Kumar, Advocate; Mr. Kumar Vaibhav, Advocate; Mr. Durgesh Agarwal, Advocate; Ms. Richa Lal, Advocate, Mr. Saurav Arun, Advocate; Ms. Ayushi, Advocate, Mr. Shailesh Kr. Singh, Advocate; Mr. Abhijeet Kumar Singh, Advocate
Case Title: Binod Kumar Mahto & Ors. vs. The State of Jharkhand & Ors.
Neutral Citation: 2025: JHHC:14955-DB
Case Number: L.P.A. No. 204 of 2024
Bench: Justice Sujit Narayan Prasad, Justice Rajesh Kumar
