Inter Se Seniority Of Employees Can't Be Decided By Overlooking Merit & Giving Preference To Age When 'Merit' Criteria Already Adopted: MP High Court

In a case pertaining to inter se seniority among sub-engineers of Industrial Development Corporation, Madhya Pradesh High Court has held that the merit list can't be overlooked by giving preference to age in matters of promotion.

The single judge bench of Justice Vivek Agarwal observed that when the daily wagers have been placed in a particular order in reference to their merit, then that list cannot be subverted later by giving the age of the respective candidates preference over their merit.

“….when tested from this aspect also then the decision of the authorities to give preference to age over merit without discounting for the merit cannot be given a seal of approval….Petitioner's interse seniority over private respondent Suresh Kumar Soni is restored…”, the bench sitting at Jabalpur noted in the order.

It is only in situations where two persons have the same merit that the factor of age is taken into consideration for recruitment, the court made the settled proposition clearer. It is pertinent to note here that both the petitioner and the private respondent were appointed on the same date.

“…the petitioner being found to be more efficient, thus, more meritorious was placed above the private respondent and once that criteria was adopted then without setting aside that criteria or upsetting it by saying that the petitioner is less efficient than the private respondent…, the interse seniority could not have been tampered on the basis of a G.A.D. Circular, which has no application to the facts of the present case…”, the court underscored in the order.

In Vinod Gupta v. Madhya Pradesh Audyogik Kendra Vikas Nigam Limited & Others relied upon by the respondents, the court had held that age can be a basis for determination of seniority only when the length of service prior to regularisation is same as mentioned in the aforesaid special G.A.D. circular.

“…the first thing, which is apparent is, that the Circular dated 9.1.1990 is applicable only to those employees, who were appointed upto 31.12.1988. It is not the case of the petitioner or the private respondent or the M.P. TRIFAC Limited that their appointment was upto 31.12.1988, therefore, prima facie, the aforesaid Circular has no application to the facts of the present case”, the court underscored that the circular made applicable in Vinod Gupta has no relevance here.

Stating the above, court asked the respondent authorities to restore the seniority of the petitioner employee and extend all notional benefits of promotion as it were extended to the private respondent within 45 days. Justice Agarwal also added that the petitioner will be entitled to proforma promotion on the basis of Next below Rule.

Court's Observations

The court noted that the circular relied upon by the respondent authorities were only applicable to regularisation of those daily wage workers appointed on Class III/Class IV posts upto 31.12.1988 in specific establishments. The court pointed out that the petitioner and the private respondent were appointed thereafter. Moreover, the said circular does not apply to Diploma/ Degree Holder engineers and teachers, which was not given due consideration by the court in Vinod Gupta, the court added.

The court concluded that the above special circular should not have been relied upon for fixing the seniority of private respondent over the petitioner's merely based on their age and by completely overlooking the factor of merit. The petitioner's name used to appear before that of private respondent's since 1990 up until 2012 on the basis of performance. Afterwards, the position was altered all of a sudden and the private respondent was given promotion as Assistant Engineer in place of the petitioner based on the age difference.

Though the respondent authorities and private respondent referred to decisions where inter se seniority was fixed on the basis of age, the single judge bench refused to routinely follow the reasoning in those cases.

With reference to Union of India v. H.R.Patankar & Others (1984), the court opined that it was an instance where there were no rules to determine the inter se seniority of the direct recruits or the promotees of the same cadre. To resolve such a dilemma, it was held that the direct recruits through competitive examination will be senior to the promotees from the State Civil Services, the court further emphasised.

Similarly, in Ashok Gulati & Others v. B.S.Jain & Ors., it's nowhere said that inter se seniority among daily wagers must be fixed on the basis of age by overlooking merit list, the court laid down in clear terms. It also involved determination of inter se seniority between the direct recruits vis a vis promotes, the court reminded the respondents.

The petitioner and private respondent were regularised on 08.01.1992 with effect from the date of order of their appointments, i.e., 22.12.1990.

“The aforesaid order categorically takes into consideration the working efficiency and merit of the persons and they have been placed in the order of determination of their working efficiency and merit, which should be the criteria for determining interse seniority…”, the court inferred from the orders of regularization.

For Petitioner: Smt. Shobha Menon - Senior Advocate Assisted By Ms. Pritisha Chakraborty – Advocate

For Respondents 1-3: Advocate Sahil Sharma

For Private Respondent: Advocate V.P. Singh

Case Title: Rajesh Vijayvargiya v. Chairman Cum Managing Director M.P. Trafac And Investment Felicitation Corporation Limited & ORS.

Case No: Writ Petition No. 6342 of 2015

Citation: 2024 LiveLaw (MP) 49

Click Here To Read/ Download Order