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2026 Supreme(Online)(Bom) 373
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 AND ORS. – Respondent
WRIT PETITION NO.948 OF 2017
For the Appellants/Petitioners: A.A. Maniyar
For the Respondents: M.S. Bane, Narayan Bubna
An employee cannot be granted retrospective seniority from a date prior to their actual appointment if they were not 'borne in the cadre' during that period, even if the delay in appointment was caused by an administrative error in evaluating examination results.
Headnote:Under Article 226 of the Constitution of India, the petitioner sought a direction to count his seniority from the date of the Common Entrance Test (CET) results (1st June 2010) and receive corresponding salary scales. The petitioner had initially failed to meet the cut-off marks due to an error in the checking of his answer-sheet, but was later awarded marks above the cut-off by a Grievance Committee, leading to his appointment as a 'Shikshan Sevak' in 2014. The court found that the petitioner was not borne in the cadre during the intervening period between the exam result and the actual appointment. The primary issue was whether a candidate can be granted retrospective seniority from the date of an examination result when the appointment occurred later due to a correction in marking. The court reasoned that in the absence of any specific rule, an employee cannot generally be given seniority from a retrospective date when he is not yet 'borne in the cadre'. The court distinguished precedents where candidates were already in the merit list or where there was a delay in implementing a court order. The Petition is dismissed.
| Table of Content |
|---|
| 1. background of appointment and marking dispute. (Para 1 , 2 , 3 , 4) |
| 2. arguments regarding retrospective seniority. (Para 5 , 6 , 7) |
| 3. analysis of appointment timeline and cadre entry. (Para 8 , 9 , 10 , 11 , 12) |
| 4. principle of seniority and cadre entry. (Para 13) |
| 5. application of precedents and final dismissal. (Para 14 , 15) |
Digitally signed by Urdu Shikshan Sevak Kruti Samiti, SATISH RAMCHANDRA SANGAR 1365, 4th Floor, Amir Khan Building, Date: 2026.02.05 20:07:38 +0530 Gaibi Nagar, Bhiwandi, District : Thane, 421 302.
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ORAL JUDGMENT : (PER : 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.2Civil 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 Petiti
