s.c. on seniority
TRANSCRIPT
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INTER CADRE vs. INTRA CADREDISPARITY IN PROMOTIONS
Posted b y R.Prabhakar, Vizag
The regional disparity in promotions is existed in our Department since its creation. This
regional disparity in promotion is also existed in other departments like Railways, AG, CBDT,
Postal etc.The promotions to the post of Supdt are being allowed zone basis on the basis of
Supdt. CE RR of 1986. This RR was challenged in high Court of Hyderabad to convert the
seniority list from zonal to all India but high court rejected the appeal and accepted the RR as
valid one. The decision of high court was challenged in Apex Court but Apex Court accepted the
decision of High Court and again directed to determine the seniority as per decision of
W.P.CIVILNO 306/88.
The Apex Court's decision in case ofAll India Federation of Central Excise v. U.O.I
(W.P.Civil No 306/88) vide para-7 of the said decision it is inter-alia held that Superintendent of
Central Excise are to be placed in their respective seniority( consideration) list on the basis of
their continuous length of service in the cadre of Supdt. . In view of the directions of Apex Court
in Radhey Shyam v.U.O.I, DOPT has directed that a requisition in the prescribed form is to be
placed on the SSC by the appointing authority for selection of candidates on direct recruitment
basis. The selected candidates will be appointed by the appointing authority under his
jurisdiction only. For all service matters including vigilance and seniority etc. the appointing
authority is the deciding authority as per different guidelines. The name of the selected
candidates will be taken place as per merit in the seniority list maintained by such appointing
authority. Therefore on inter Commissionerate transfer one is losing his seniority as he is being
transferred to the jurisdiction of another appointing authority.
The Full Bench of Supreme Court in R.D.Gupta v. U.O.I- 19909(1) ATJ 212 had
clarified that if an employee is promoted after DPC has found him fit for promotions that period
should be count for seniority. The clarification given by Gupta case is clearly consistent with law
laid down by the Apex Court in 1990(2) ATJ35-JT(2) SC 264 between Direct recruit vs. State
of Maharashtra. It has been laid down that where an incumbent is appointed to a post according
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to the Recruitment Rules his seniority has to be counted from the date of his appointment. Very
interestingly para-5 of the sad decision provides that 'if the initial appointment is not made by
rules but the appointee continues in the post uninterruptedly, the period of officiating service will
be counted for his seniority.
The Apex Court in the Judgement ofRadheshyam Singh (which is not related to
Recruitment Rules or seniority but related to selection by Examination) has clearly
stated for prospective amendment of examination provision on or after 01.01.1997. After
pronouncement of judgement by Apex Court in Radheshyam case the Board has
decided for merger of all three base cadres such as Inspector/PO/Examiner in to one
cadre and accordingly one minutes was recorded but very unfortunately none of our
Associations pursued for such implementation. The Inspectors Federation raised suchissue before CAT, Mumbaiin OA 451/2002, the CBEC in counter to said OA stated
that the matter is under active consideration and would be dealt separately. Board
accordingly constituted Bharadwaj committee popularly known as merger
committee. But Bharadwaj Committee recommended for merger of all three base
cadres prospectively w.e.f. 01.01.2006. But at that time our Association did not
raise any objection to such recommendation and accepted the same.
After a long time one of our office bearers of Mumbai has raised such issue
for merger of all three base cadres in AC meeting of our Association during
2011. After such meeting he has sent a mail stating that I say parity not with x y
or z, I say we are Group 'B' officers, recruited by passing same exam, we perform
all the duties including as C. Ex. Officers, possess the same qualification, Where
as our counterpart does not perform the duties as C.E. or Service Tax officers so
we are above then them then we should be placed at same place at least if not
above where our counter part of same recruitment year reached as of now.
That parity can be achieved with this order as it says just and fair
representation and in past also ratio was fixed on same lines. So this will serve the
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purpose. And all cadres can join with same demand in agitation as it will help all
of us. If by any imagination CBEC says not possible then separate us
immediately should be our counter before restructuring with only rider DR IRS
only 50% with Central Excise and those who have more background of excise.
I am sure that if we toe this line of action vigorously there is no answer with
CBEC how to deny and why they discriminate us all these years. By this we can
even achieve unity in all cadres also.However in our AC meeting the issue was
discussed and it was resolved that we should raise before Board to allow parity in
promotions along with Examiners. Accordingly several representations were
submitted by our Association to Board for consideration of the same, since Board
did not move one inch on the basis of our representations, an OA bearing no 2323
was filed as per resolution before CAT(PB) with the following prayers:
(a) Pass Order or Direction commanding the Respondents to produce the record of the
promotion policy and produce the records in respect of the action taken against Para 3.1 at S. No.
3 (BMB No. 06/2011) of the minutes of the meeting of CBEC held on 12-1-11 as well as
presentation DT 18-1-11.
(b) Direct the Respondents to Amend/revise the Recruitment Rules to bring all the Inspectors (i.e.,
Inspectors of Central Excise, Preventive Officers and Examiners of Customs) recruitedin a
particular year through All India Combined Examination in parity as per their seniority position
in respect of their service conditions and promotions to maintain the principal of equal
opportunity & equality before law.
(c) Direct the Respondents to dispose of all the Representations of the Applicants with speaking
order and to save the senior Central Excise officers from humiliation of working under their
juniors recruited much after in Customs belonging to the same cadre of Inspector in CBEC.
(d) Pass any such other order or orders, as maybe deemed fit and proper.
The case was heard on 19.07.12 and notice was issued to the CBEC to file the Counter.
In the Counter Board pleaded about existence of regional disparity in promotion as existed on
our cadre. In Rejoinder we pleaded for removal of the same duly merging all base cadres
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retrospectively. The matter is pending for decision. While the matter is sub-judice, in our last
AEC meeting held at Patna , one unit for the first time has raised a point for removal of regional
disparity retrospectively and preparation of all India seniority list of Inspectors and the Gr-A RR
should be relaxed to allow promotion to the post of AC on the basis of one all India seniority list
of Inspector to be prepared by Board duly scrapping all promotions made to the post of
Superintendents on the basis of Superintendent of Central Excise Recruitment Rules. A
resolution committee was constituted in AEC meeting to adopt resolution on the same, but as
majority units wanted time for discussion on such issue, the resolution committee in a note
suggested to discuss such issue in our next AEC meeting.
As regards relaxation of Gr-A Recruitment Rules to allow promotions to the posts
of Asst. Commissioner on the basis of one imaginary all India seniority list of Inspector; we
have made a discussion with DOPT officials recently. The DOPT officials opined
that DOPT vide OM No. AB.14017/48/2010- Estt (RR) dated 31.12.2010 prescribes the
guidelines on framing /amendment/relaxation of RR. Part-IV of such OM provides for
amendments and Relaxation. In case ofOrganised Cadre only, a proposal for relaxation
can be made out as a result of review of such service if Cabinet has approved to fill up
certain posts by promotion from feeder categories. The proposals for relaxation should be
made in the formant prescribed under Annexure-IV. The formant duly filled in should be
forwarded to DOPT /UPSC along the approved seniority lists prepared on the basis of
DOPT guidelines of feeder categories who are to be considered for such relaxation.
Relaxations as a result of cadre review can be considered in case of feeder
categories only but this facility cannot be extended to sub feeder categories. No relaxation
can be provided with reference to fixation of seniority in feeder categories. Relaxation of RR
does not mean relaxation of seniority.It is very unfortunate to state that many ofour
friends are having an opinion that AIACEGEO is not interested for removal of
regional disparity. We want to make it clear that parity is the basic concept of our
Constitution, hence AIACEGEO wants parity in promotion. At the cost of repetition we want
to clarify that first, all our friends raised in the meeting for one issue that no senior should
work under junior and wanted parity with Examiners. Accordingly on the basis of the
resolution representations were submitted to Board by AIACEGEO for consideration and
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thereafter an OA was filed in CAT as per resolution , which is at present pending for
decision. If parity with examiner will be settled, automatically the issue of regional disparity
will be solved. The regional disparity as existed in the cadre of Superintendent can be
settled if the Superintends of Central Excise Recruitment Rules is amended retrospectively
with a retrospective provision of preparation of all India seniority list in the cadre of
Inspector and with due declaration that all the promotions made to the post of
Superintendents till date are illegal and fresh promotions to the cadre of Superintendent on
the basis of so called proposed amended RR are to be granted. However the removal of
regional disparity or preparation of seniority list in the cadre of Inspector is no way related to
CR. For removal of regional disparity or preparation of seniority list as per merit list, a case
is required to be filed challenging the Supdt. RR. But some friends have recently advocated
that the regional disparity can be removed if the Gr-A RR is being relaxed to allow
promotions to the post of AC on the basis of all India seniority list of Inspector duly ignoring
the promotions granted to the post of Superintendent. Recently the Solicitor General has
given an opinion that Gr-A RR can not be relaxed violating the article 14 of constitution of
India. DOPT has clarified that the RR can be relaxed considering the following four issues:
(1) The relaxation shall not violate the provisions of Recruitment Rules of feeder
categories.
(2) The relaxation shall not violate the Guidelines of general principles of fixation of seniority
as issued by DOPT from time to time.
(3 ) The relaxation shall not violate any decisions of any Court.
(4) The relaxation shall not violate the provisions of article 14 & 16 of Constitution of India.
As regards point nos.(1) &(2) above- Since promotions to the post of Superintendent are
being allowed on the basis of Superintendent of Central Excise Recruitment Rules, the
promotions to higher posts must be granted on the basis of seniority list or gradation list
prepared as per DOPT guidelines in the cadre of Superintendent only.
As regards point (3) The Apex Court has decided to prepare the seniority list in the cadre
of Superintendent only to allow promotion to the the post of AC on prescribed ratio.
As regards point (4) above- Inspector is one class and Superintendent is another class.
Comparison for the purpose of article 14 is required to be made in same class, otherwise
the same will be considered treating equal with un equal and that will violate the basic
principles of Constitution of India.
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Therefore in the present circumstance RR may not be relaxed. Unless the provisions of
Supdt RR is set aside by a court of laws with retrospective effect, the regional disparity can
not be solved retrospectively. Since AIACEGEO has already filed a case and took a stand
as per resolution, it is not possible to withdraw the case and file another petition with a
different footings., In the case in the counter, Board has also raised about disparity as
existed in Zonal basis, but in rejoinder AIACFEGEO appealed for removal of the same.
AIACEGEO is working for the benefits of all including stagnated zone. AIACEGEO is
also interested for removal of intra cadre as well as inter cadre disparities. In the case of
T.R. Kapur & Ors vs State Of Haryana & Ors on 17 December, 1986 Supl. 584 JT 1986
1092 1986 SCALE (2)1051 CITATOR INFO : F 1987 SC 424 (11) RF 1987 SC1676 (17) R
1988 SC1645 (6) RF 1989 SC 307 (5) D 1990 SC1072 (5) , the Apex court has decided that
benefits acquired under existingservicerules cannot be taken away by amendment
ofruleswith retrospective effect. Persons appointed or promoted under a valid Recruitment Rules
are seniors to officers of feeder categories. Recruitment Rules can not be amended retrospectively to
make such officers juniors to officers who promoted or appointed later on. Service laws can not be
amended retrospectively. In Sabarwal, Ajit Singh-I, Ajit Sing-II, Virpal Singh Chauhan cases it was
decided to amend service laws prospectively only.The Apex Court in the Judgement
ofRadheshyam Singh (which is not related to Recruitment Rules or
seniority but related to selection by Examination ) has clearly stated
for prospective amendment of examination provision. Para 10
reproduced.
10. The argument advanced by the learned counsel for the respondents that this process
of zone-wise selection is in vogue since 1975 and has stood the test of time cannot be
accepted for the simple reason that it was never challenged by anybody and was not
subjected to judicial scrutiny at all. If on judicial scrutiny it cannot stand the test of
reasonableness and constitutionality it cannot be allowed to continue and has to be struck
down. But we make it clear that this judgment will have prospective application and
whatever selections and appointments have so far been made in accordance with the
impugned process of selection shall not be disturbed on the basis of this judgment. But in
future no such selection shall be made on the zonal basis. If the Government is keen to
make zone-wise selection after allocating some posts for each zone it may make such
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scheme or rules or adopt such process of selection which may not clash with the provisions
contained in Article 14 and 16 of the Constitution of India having regard to the guidelines
laid down by this Court from time to time in various pronouncements.
It has already been stated that in the above case, it was decided for the manner to conduct
examination for selection on all India basis . This judgement is effective only from the date
of pronouncement, it is no way related to Inspectors who joined on or before 31.12. 1996.
0 Comment
DETERMINATION OF SENIORITY IN SERVICE AS PER THE RECENT SURPREME
COURT JUDGEMENT
As per the recent decision of Apex Court, the legal position with regard to determination of
seniority in service can be summarized as follows :(i )The effective date of selection has to be understood in the context of the service rules under
whi ch the appointment is made. I t may mean the date on which the process of selection star ts
with the issuance of adverti sement or the factum of preparati on of the select li st, as the case
may be.
(i i ) I nter se seni ori ty in a parti cular service has to be determined as per the service rul es. The
date of entry in a particular service or the date of substantive appointment is the safest
cri teri on for f ix ing seniori ty inter se between one off icer or the other or between one group of
off icers and the other recrui ted fr om the dif ferent sources. Any departure therefrom in the
statutory rules, executive instructi ons or otherwise must be consistent with the requi rements of
Ar ticles 14 and 16 of the Consti tuti on.
(ii i) Ordinari ly, notional seniori ty may not be granted from the back date and if it i s done, it
must be based on objective considerati ons and on a vali d classif ication and must be traceable
to the statutory ru les.
(iv) The seniori ty cannot be reckoned fr om the date of occur rence of the vacancy and cannot
be given retrospectively unl ess it i s so expressly provided by the relevant service ru les. I t i s so
because seni ori ty cannot be given on retrospective basis when an employee has not even born
in the cadre and by doing so it may adversely aff ect the employees who have been appointed
validl y in the mean time.
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(iv) The Recruitment Rules
A HISTORICAL JUDGEMENT OF HONBLE SUPREME COURTT.R. Kapur & Ors vs State Of Haryana & Ors on 17 December, 1986
Supl. 584 JT 1986 1092 1986 SCALE (2)1051 CITATOR INFO : F 1987 SC 424 (11) RF 1987
SC1676 (17) R 1988 SC1645 (6) RF 1989 SC 307 (5) D 1990 SC1072 (5) ACT:
Benefits acquired under existing service rules cannot be taken away by amendment
of rules with retrospective effect. Constitution of India, Article 309, proviso-Service Rules-
Amendment of with retrospective effectMust satisfy tests of Articles 14 and 16(1).
Persons appointed or promoted under a valid Recruitment Rules are seniors to officers of
feeder categories. Recruitment Rules can not be amended retrospectively to make such
officers juniors to officers who promoted or appointed later on. Service laws can not be
amended retrospectively. In Sabarwal, Ajit Singh-I, Ajit Sing-II, Virpal Singh Chauhan cases
it was decided to amend service laws prospectively
0 Comment
PRINCIPLES FOR DETERMINING SENIORITY: SUPREME COURT
Revisiting its earlier decisions, the Supreme Court in a recent decision [Pawan Pratap Singh & Ors . v.
Reevan Singh & Ors.] has formulated the legal principles for determining seniority of Government
servants. The Court was dealing with the question relating "to determination of seniority between two
groups of direct recruits to the posts of Deputy Jailor (Group C post), one appointed in 1991 through the
selection made by Uttar Pradesh Subordinate Services Selection Commission and the other in 1994 by
Uttar Pradesh Public Service Commission".
The Court revisited the law to cull out the principles in the following terms;20. It is now appropriate to consider the authorities cited at the Bar and a couple of other decisions. InRafiquddin, this Court in the context of U.P. Civil Service (Judicial Branch) Rules, 1951 made general
observations that seniority in the service is determined on the basis of the year of the competitive
examination irrespective of the date of appointment and inter se seniority of candidates recruited to the
service is determined on the basis of their ranking in the merit list.
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21. In A.P. Public Service Commission, this Court was concerned with the Andhra Pradesh Police Service
Rules, 1966. While dealing with the word selection in rule 5(A)(i) of the said Rules, this Court observed
as follows :If the word selection is understood in a sense meaning thereby only the final act of selecting candidates
with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But
round phrases cannot give square answers. Before accepting that meaning, we must see the
consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that
the process of selection begins with the issuance of advertisement and ends with the preparation of
select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of
applications, rejection of defective applications or elimination of ineligible candidates, conducting
examinations, calling for interview or viva voce and preparation of list of successful candidates for
appointment. Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all
these steps. When such are the different steps in the process of selection, the minimum or maximum age
for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating oruncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the
candidates who are eligible on the date of application may find themselves eliminated at the final stage
for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific, and
determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise
applications. It would be, therefore, unreasonable to construe the word selection only as the factum of
preparation of the select list. Nothing so bad would have been intended by the rule making authority.Pertinently, the aforesaid observations of this Court with regard to the word selection are in the context
of the age eligibility as the provision under consideration read, has completed the age of 21 years and
had not completed the age of 26 years on the first day of July of the year in which the selection is made.
The aforesaid observations, therefore, have to be read in the context of the provision under consideration
before this Court.22. In Ram Janam Singh v. State of U.P. and Anr. , this Court reiterated that the date of entry into a
service is the safest rule to follow while determining the inter se seniority between one officer or the other
or between one group of officers and the other recruited from the different sources. It was observed that
this is consistent with the requirement of Articles 14 and 16 of the Constitution. It was, however, observed
that if the circumstances so require, a group of persons can be treated a class separate from the rest for
any preferential or beneficial treatment while fixing their seniority, but, normally such classification should
be by statutory rule or rules framed under Article 309.23. A two-Judge Bench of this Court in Jagdish Ch. Patnaik, while construing the word recruited
occurring in Orissa Service of Engineers Rules, 1941, held that a direct recruit is recruited when formal
appointment order is issued and not when recruitment process is initiated. This is what this Court said :
34. The only other contention which requires consideration is the one raised by Mr Raju Ramachandran,
learned Senior Counsel appearing for the intervenors, to the effect that the expressions recruitment and
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appointment have two different concepts in the service jurisprudence and, therefore, when Rule 26 uses
the expression recruited it must be a stage earlier to the issuance of appointment letter and logically
should mean when the selection process started and that appears to be the intendment of the rule-
makers in Rule 26. We are, however, not persuaded to accept this contention since under the scheme of
Rules a person can be said to be recruited into service only on being appointed to the rank of Assistant
Engineer, as would appear from Rule 5 and Rule 6. Then again in case of direct recruits though the
process of recruitment starts when the Public Service Commission invites applications under Rule 10 but
until and unless the Government makes the final selection under Rule 15 and issues appropriate orders
after the selected candidates are examined by the Medical Board, it cannot be said that a person has
been recruited to the service. That being the position it is difficult for us to hold that in the seniority rule
the expression recruited should be interpreted to mean when the selection process really started. That
apart the said expression recruited applies not only to the direct recruits but also to the promotees. In
case of direct recruits the process of recruitment starts with the invitation of application by the
Commission and in case of promotees it starts with the nomination made by the Chief Engineer underRule 16. But both in the case of direct recruits as well as in the case of promotees the final selection vests
with the State Government under Rules 15 and 18 respectively and until such final selection is made and
appropriate orders passed thereon no person can be said to have been recruited to the service. In this
view of the matter the only appropriate and logical construction that can be made of Rule 26 is the date of
the order under which the persons are appointed to the post of Assistant Engineer, is the crucial date for
determination of seniority under the said Rule24. While dealing with the dispute relating to inter se seniority of Munsifsone set of Munsif recruited on
the basis of 15th examination held by the Public Service Commission under the Bihar Judicial Service
(Recruitment) Rules, 1955 and another set of Munsifs appointed under the Bihar Civil Service (Judicial
Branch) Ad hoc Recruitment Rules, 1974, in Surendra Narain Singh, this Court held that candidates
recruited against earlier vacancies shall rank senior to those recruited against the later vacancies.
25. In Ajit Kumar Rath, this Court followed Jagdish Ch. Patnaik and did not accept the contention that
those who were appointed against the vacancies of the earlier years although, appointed later in point of
time, must rank senior to the appointees of the vacancies of the subsequent years though appointed in
prior point of time.26. This Court emphasized in the case of Uttaranchal Forest Rangers Association that no retrospective
promotion can be granted nor any seniority can be given on retrospective basis from a date when an
employee has not even born in the cadre. In this regard, the Court relied upon earlier decisions of this
Court in State of Bihar & Ors. v. Akhouri Sachindra Nath & Ors. and Jagdish Ch. Patnaik.27. In the case of Dinesh Kumar Sharma, this Court was concerned with U.P. Agriculture Group B
Service Rules, 1995 and the 1991 Rules. With reference to rule 8 of the 1991 Rules, this Court held that
seniority cannot be reckoned from the date of occurrence of the vacancy and should be reckoned only
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from the date of substantive appointment to the vacant post under the Rules and not retrospectively from
the date of occurrence of vacancy.28. The dispute in Balwant Singh Narwal related to seniority of the Principals, some of whom were
appointed between 1995 and 2000 and others on May 26, 2000. The Principals who were appointed on
May 26, 2000 were given seniority with retrospective effect from June 2, 1994. This Court while relying
upon a decision in Surendra Narain Singh8 held as under : 9. There is no dispute about these general principles. But the question here is in regard to seniority of
Respondents 4 to 16 selected on 1-10-1993 against certain vacancies of 1992-1993 who were not
appointed due to litigation, and those who were selected against subsequent vacancies. All others from
the same merit list declared on 1-10-1993 were appointed on 2-6-1994. Considering a similar situation,
this Court, in Surendra Narain Singh v. State of Bihar held that candidates who were selected against
earlier vacancies but who could not be appointed along with others of the same batch due to certain
technical difficulties, when appointed subsequently, will have to be placed above those who were
appointed against subsequent vacancies.
29. The Constitution Bench of this Court in Direct Recruit Class II Engineering Officers Association v.
State of Maharashtra & Ors. stated the legal position with regard to inter se seniority of direct recruits and
promotees and while doing so, inter alia, it was stated that once an incumbent is appointed to a post
according to rules, his seniority has to be counted from the date of his appointment and not according to
the date of his confirmation.30. From the above, the legal position with regard to determination of seniority in service can be
summarized as follows :
( i ) The effective date of selection has to be und erstood in the context o f the service rules under
which th e appointm ent is made. It may m ean the date on which the process of select ion star ts
wi th the issuance of advert isement or the factum o f preparat ion of the select l is t , as the case may
be.
( i i ) Inter se seniori ty in a particu lar service has to be determined as p er the service rules. The date
of entry in a part icu lar serv ice or the d ate of substant ive appointment is the safest c r i ter ion for
f ix ing senior i ty in ter se between one o ff icer or the other or between one gro up of of f icers and the
other recru i ted from the di f ferent s ources. Any departure therefrom in the statu tory ru les,
execut ive instruct ions or otherwise mu st be con sis tent wi th the requi rements of A rt ic les 14 and
16 of the Const i tu t ion.( i i i ) Ordinari ly, notion al seniori ty may no t be granted from th e back date and if i t is done, i t mus t
be based on object ive considerat ions and on a v al id class i f icat ion and mus t be traceable to the
statu tory ru les.( iv) The senior i ty cannot be reckoned from the date of occurrence of the vacancy and cannot be
given retrospect ively unless i t is s o expressly p rovided by the re levant serv ice ru les. It is so
because senior i ty cannot b e given on retrospect ive basis when an employee has not even bo rn in
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the cadre and by do ing s o i t m ay adversely af fect the employees who have been appointed val id ly
in the mean t ime.
SOURCE: HYDEXCUST.ORG