Seniority Considered From Date Of Absorption If Temporary Employee Absorbed Under Policy Containing Cutoff Date: Patna High Court

Background Facts

Kuraisa Begum (Petitioner) is the wife of Late M. N. A. Anjum (Original Petitioner). The Original Petitioner was appointed as a Lecturer in Sakra College on 25.08.1976. The Original Petitioner retired on 30.06.2005 and started getting pensionary benefits but the date of his appointment was fixed to be 01.01.1981. In 2010, the Original Petitioner received a communication from the Respondent that his date of absorption has been rectified to 28.02.1982. The Original Petitioner challenged the order of rectifying the date of absorption by a writ petition. The writ petition was referred to the S. N. Jha Committee for University Teachers (Committee).

The Original Petitioner claimed seniority from his date of appointment i.e. 26.08.1976 but the Committee rejected the claim of the Original Petitioner and considered the seniority of the Original Petitioner from the date of absorption. However, the committee rectified the date of absorption to be 01.01.1981 instead of 28.02.1982. Thus, the Original Petitioner filed a writ petition against the decision of the Committee.

It was contended by the Original Petitioner that the Committee failed to consider the fact that he was appointed to the post of Lecturer from 26.08.1976, so his service should be considered with effect from 26.08.1976.

On the other hand, it was contended by the Respondent that the appointment of the Original Petitioner was not held to be valid by the Committee, thus he cannot claim retrospective seniority on the post with effect from the date of his initial appointment, i.e. 26.08.1976

Findings of the Court

The court observed that the Original Petitioner was appointed by the Principal of the Sakra College and no material has been produced to show that the post was duly advertised in any newspaper or that a Selection Committee was constituted for appointment of the Original Petitioner to the post of Lecturer. As per the norms of appointment laid down in the Second Absorption Statute, appointment could be made only after an advertisement and on the basis of an interview. Further, the appointment needs to be from a panel prepared by the Selection Committee. The court thus observed that the appointment of the Original Petitioner was not valid.

The court further observed that although the initial appointment was not valid, the Original Petitioner became eligible for absorption under the Second Absorption Statute when he completed 24 months of service i.e. on 31.12.1980 and thus his seniority is to be considered from 01.01.1981.

The court thus observed that:

Where a temporary employee is absorbed under some policy etc. containing the cut-off date clause, ordinarily his appointment/seniority is counted from that date.

The court however held that while considering cases of university teachers, it has been previously held by the Patna High Court that if the initial appointment of the teacher is valid, he/she would be entitled to seniority from the date of initial appointment notwithstanding the cut off date fixed in the Absorption Statute. Nevertheless, since the Original Petitioner failed to show that his initial appointment was valid, seniority could not be considered from the date of initial appointment

With the aforesaid observations, the Writ Petition was dismissed.

Case No.- Civil Writ Jurisdiction Case No.17450 of 2015

Case Name- Kuraisa Begum Vs. B. R. A. Bihar University & Ors

Citation: 2024 LiveLaw (Pat) 37

Counsel for the Petitioner/Original Petitioner- Mr. Manoj Kumar Yadav

Counsel for Respondents- Mr. M. N. H. Khan, Ms. Babita Kumari, Mr. Bindhyachal Rai, Ms. Anuradha Singh, Ms. Nutan Kumari Sharma, Mr. Anil Singh

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