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2026 Supreme(Bom) 486
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S.KARNIK, S.M.MODAK, JJ.
Javed Khan Salim Khan – Appellant
Versus
The State of Maharashtra (Through Education Department) – Respondent
Writ Petition No.948 of 2017
Decided On : 03-02-2026
For the Appellant :Mr.A.A.Maniyar, Advocate
For the Respondent:Smt.M.S.Bane, AGP, Mr.Narayan Bubna, Advocate
Employee cannot claim retrospective seniority from pre-appointment date due to departmental evaluation error, as not borne in cadre or rendering service then; seniority starts from actual appointment date.
Headnote:(A) Constitution of India - Article 226 - Service law - Recruitment to post of Shikshan Sevak through Common Entrance Test - Initial result below cut-off marks due to improper checking of answer-sheet - Revised result after grievance committee exceeded cut-off - Appointment delayed - Seniority cannot be counted from date of initial CET result declaration - No vested right to retrospective seniority absent rule or being borne in cadre - Seniority reckoned from date of actual initial appointment as Shikshan Sevak which relates back only after 3 years satisfactory service for Assistant Teacher position. (Paras 1, 9, 13)
(B) Service jurisprudence - Mistake by department in answer-sheet evaluation does not confer right to ante-date seniority - Employee not discharging duties or borne in cadre during delay period cannot claim benefit - Distinguishable where court order directs appointment within reasonable time without stay. (Paras 12, 14)
Facts of the case:
Petitioner appeared for CET for Shikshan Sevak post, scored below cut-off initially due to evaluation error. After grievance committee formed pursuant to others' writ petition, revised score exceeded cut-off leading to interview and appointment years later. Sought seniority from CET result date claiming prejudice from departmental mistake.
Findings of Court:
Petition lacks merit as no provision allows retrospective seniority; right accrues from actual appointment date despite evaluation error.
Issues: Whether petitioner entitled to seniority from CET result date due to departmental mistake in checking; applicability of precedents on relating back appointment.
Ratio Decidendi: Settled principle that seniority cannot be granted retrospectively to date when employee not borne in cadre or discharging duties; mere qualification upon re-evaluation post-delayed grievance does not create vested right for ante-dated seniority; precedents distinguished on facts involving court-directed timely appointments. Result : Petition dismissed.
| Table of Content |
|---|
| 1. cet conducted; results revised after grievance, delaying petitioner's appointment. (Para 1 , 2 , 3 , 4 , 5) |
| 2. petitioner claims seniority from cet due to checking error; respondents deny vested right. (Para 6 , 7) |
| 3. shikshan sevak temporary; seniority accrues from actual appointment date. (Para 8 , 9 , 10 , 11 , 12) |
| 4. no retrospective seniority if not borne on cadre, absent specific rule. (Para 13) |
| 5. cited supreme court cases distinguishable; petition lacks merit, dismissed. (Para 14 , 15) |
JUDGMENT :
M.S.KARNIK, J.
1. By this Petition, under Article 226 of the Constitution of India, the Petitioner seeks direction to the Respondent No.5 – Municipal Commissioner, Bhiwandi Nizampur City Municipal Corporation (“Corporation” for short) to count the seniority of the Petitioner from the date of the declaration of the result of “Common Entrance Test” (“CET”) dated 1st June 2010 and pay the salary as per the scale applicable to the Petitioner after taking into consideration the seniority of the Petitioner.
2. The facts of the case in brief are that on 16th December 2009, the State of Maharashtra issued a Government Resolution (“GR”) whereby the CET was prescribed for selection and appointment of “Shikshan Sevak” in Primary Schools in Maharashtra. The Petitioner applied and appeared for CET on 2nd May 2010. The results of CET were declared on 1st June 2010. The Petitioner scored 102 marks which were less than cut off marks i.e. a score of 110.
3. Writ Petition No.1829 of 2011 was filed by another candidate raising grievance about the conduct of examination. This Court by the order dated 5th May 2011 directed the State to constitute an Authority for deciding the grievances of the candidates. The Government of Maharashtra passed two Resolutions dated 4th July 2011 and 22nd July 2011 and formed “Takrar Nivaran Samiti” (“Grievance Committee”, hereinafter).
4. The Petitioner also filed his grievance about improper checking of the answer-sheet. The Grievance Committee published the revised results on 25th September 2012. The Petitioner was awarded 112 marks which were more than cut off marks of 110. The Petitioner was interviewed on 11th June 2014 and thereafter, appointment order was issued. The Petitioner was issued joining letter whereupon he joined the services.
5. It is the grievance of learned counsel for the Petitioner that he lost a total period of 4 years on account of mistake made in checking his answer-sheet by the Education Department. The Petitioner sent a letter dated 7th October 2015 to Respondent Nos.1 to 4 regarding the loss of 4 years and requesting the rectification of the mistake in calculating his seniority. The Petitioner filed comprehensive representation on 20th June 2016 through his Advocate to all the Respondents calling upon them to calculate his seniority from the year 2010.
6. Learned counsel for the Petitioner submitted that it is because of the mistake of the Respondents that the Petitioner’s appointment was delayed. The Petitioner should not be made to suffer for the mistake committed by the Respondents. In support of his submissions, learned counsel for the Petitioner relied upon the decision of the Hon’ble Supreme Court in Rajesh Kumar and Others V/s. State of Bihar and Others , (2013) 4 Supreme Court Cases 690 and in Pawan Kumar Agrawal & Anr. V/s. State of Chhattisgarh & Ors. [Civil Appeal No.____ of 2025 (Arising out of Special Leave Petition (Civil) No.____ of 2025) (D.No.23536 of 2020) decided on 23rd April 2025.] Relying on the aforesaid decisions, it is submitted that the unjustified action of the Respondents should not cause prejudice to the Petitioner.
7. Learned AGP and learned counsel for the Corporation submitted that the Petition be dismissed as the Petitioner has no vested right to be appointed from the date claimed by him. It is further submitted that the right in favour of the Petitioner would accrue only from the date of his appointment. It is the contention that there is delay on t
