Inter-se seniority between direct recruits and promotees must be determined based on timely actions and adherence to procedural rules, with promotees prioritized when appointments are made simultaneously.

JUDGMENT :

(K. Vinod Chandran, CJ.)

The appellant is aggrieved with the impugned judgment of the learned Single Judge which declined grant of inter-se seniority in accordance with the guidelines regulating such seniority between direct recruits and promotees. The claim of the appellant was declined by the learned Single Judge on the ground of delay and laches and non-impleadment of affected parties; who continued as seniors of the appellant when the issue was alive before this Court and even before.

2. On brief facts, it is to be noticed that the appellant was appointed as an Accounts Clerk on compassionate grounds, on the death of his father. Subsequently, the respondent, the Bihar State Power (Holding) Company Limited (hereinafter referred to as ‘respondent-company’) brought out two advertisement Notices bearing Nos.4 of 2007 and 5 of 2007 respectively for promotion and direct recruitment. The petitioner appeared in both the selection process, first in the internal process and then in the direct recruitment, which is termed as external. Relying on the dismal performance of the petitioner in the written test, his promotion under the internal recruitment process against the 2% quota, was declined. The petitioner challenged the same and obtained an order directing promotion to the post forthwith by a learned Single Judge of this Court. An appeal filed by the respondent-company, stood rejected after which the appellant was appointed to the post. In the meanwhile, years had passed and the appellant was assigned seniority below that of the direct recruits; when the rule provided for inter-se seniority to be determined, with the internal candidates being given seniority above the external candidates when such selection and appointment is made under the same transaction.

3. The learned Counsel appearing for the petitioner would contend that the petitioner was not at fault and has always agitated his cause diligently and there was no reason to find delay and laches on his part. The petitioner’s Counsel referred to the minutes of the respondent-company itself, as enclosed in Annexure-7 series, dated as early as on 15.12.2009, wherein the two internal candidates including the petitioner, who had applied for the post of Assistant Electrical Engineer were found to be eligible for consideration, without putting a rider of minimum qualifying marks.

4. Despite the recommendation made, the internal candidates were not promoted and this petitioner was made aware of the recommendation only later and he immediately approached this Court with a writ petition which was disposed of by Annexure-8 directing consideration. The Board, by its office order dated 16.01.2012, declared both the petitioners unfit for appointment which was challenged in another writ petition, in which Annexure-11 judgment dated 08.01.2013 was passed directing appointment to the post forthwith.

5. Despite this, there was no appointment made and only after a contempt case was filed, Annexure-14 appointment order was issued on 04.11.2015. By that time, the others were treated as seniors and hence, the appellant made a representation dated 20.06.2017, produced along with Annexure-18. It is the case of the appellant that it was not due to his fault that he was not appointed at the time when the direct recruits were appointed; despite he having applied under a selection by promotion which was in pursuance of the very same transaction in the year 2007. It is also submitted that in assigning seniority, none others would be affected; if it is done notionally.

6. We also heard the learned Counsel appearing for the respondent-company who sought to sustain the order impugned.

7. The rule regarding inter-se seniority is extracted; from clause 1 ¼dk½ as available in Annexure-25 of the writ petition, in paragraph 7 of the judgment. The rule indicates that when workers are recruited by promotion and direct recruitment, simultaneously, the promoted workers would get preference over the direct