In Direct Recruitment Through Exam, Seniority Must Be Based On Marks & Not Past Service : Supreme Court

The Supreme Court recently invalidated a Tamil Nadu government order that gave in-service candidates seniority over open market recruits, despite the latter scoring higher marks in the selection exams. The Court emphasized that seniority should be based on performance in the exams rather than unrelated factors such as prior in-service experience. The Court reiterated that once an appointment to service is made based upon a competitive examination, the seniority has to be maintained on the basis of performance in the examination and not by taking into account the past service alone. The bench comprising Justices BV Nagarathna and SC Sharma heard the case where the Tamil Nadu Police Subordinate Service Rules, 1955 (1955 Rules). Originally, no promotion quota was fixed for Head Constables for direct recruitment process for Sub Inspectors. Later on, a government order was passed in 1995 reserving 20% of direct recruitment vacancies for in-service Head Constables and granting them seniority. These were not initially incorporated into statutory rules. The aforesaid G.O. further provided that inter-se seniority of the candidates selected under the 20% in-service candidates would be placed above those selected in open competition in that year by way of direct recruitment.The dispute centered on the retrospective effect given to the government order via an amendment to the 1955 Rules in 2017, which sought to formalize the seniority policy from 1995 onwards. The Appellants, direct recruits from the open market, challenged the amendment stating that granting seniority to in-service candidates with lower marks violated the principle of equality (Article 14) and merit-based appointments (Article 16).The key issue was whether the 2017 amendment to Rule 25(a), granting seniority to in-service candidates over direct recruits, violated Articles 14 (equality), 16 (non-discrimination in public employment), and 21 (due process) of the Constitution. Disagreeing with the High Court's ruling which preferred in-service experience over direct recruits while granting seniority, the judgment authored by Justice Sharma observed that statutory rules cannot be whittled down by the executive/government order.The Court also held that in a direct recruitment, seniority cannot be given to in-service candidates who secured low marks."the amendment brought vide G.O. dated 21.11.2017 amending Rule 25(a) of the 1955 Rules, which provides for grant of seniority to all in-service candidates over and above candidates recruited from the open market is certainly violative of Articles 14, 16 and 21 of the Constitution of India and deserves to be struck down by this Court."Further, the Court noted the State erred in giving retrospective effect in the matter of seniority, meaning thereby giving a preferential treatment to the in-service candidates who are less meritorious and who have already been granted a concession by permitting them to appear under the 20% quota earmarked for them. “the action of the State Government in amending the recruitment rules with retrospective effect is certainly violative of Articles 14, 16 and 21 of the Constitution of India. A statute which takes away the right of an individual with retrospective effect deserves to be set aside by this Court.”, the court said. In this regard, reference was drawn to the case of Dinesh Kumar Gupta and Others Vs. High Court of Judicature of Rajasthan and Others, (2020) 19 SCC 604 where also the High Court granted seniority based upon candidate's past services; however, the Supreme Court in the aforesaid case also held that "once an appointment to service is made based upon a competitive examination, the seniority has to be maintained on the basis of performance in the examination and not by taking into account the past service alone."Also, the Court referred to the case of Prem Narayan Singh and Others Vs. High Court of Madhya Pradesh (2021) 7 SCC 649, where while dealing with promotions based upon Limited Competitive Examination, it was held that the seniority has to be based upon merit and not on the basis of seniority in the feeder cadre. “In the present case, the direct recruitment has been done to 80% of the vacancies through candidates from open market and 20% of the vacancies under the direct requirement quota from inservice candidates and pre-amended Rule 25 provides for fixation of seniority with reference to the rank assigned by the appointing authority in the select list meaning thereby only on the basis of marks obtained by each and every individual candidate. Therefore, this Court is of the considered opinion that all seniority list(s) right from 1995 deserve to be re-casted by assigning proper seniority to the candidates who have been appointed from the open market as well as from in-service candidates solely on the basis of ranks assigned to the selected candidates by the appointing authority on the basis of marks obtained by them in the examination on the basis of...

In Direct Recruitment Through Exam, Seniority Must Be Based On Marks & Not Past Service : Supreme Court

Yash Mittal

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