Research › Search › Judgment

Jharkhand High Court · body

2024 DIGILAW 134 (JHR)

Binod Kumar Mahto v. State of Jharkhand

2024-02-09

S.N.PATHAK

body2024
JUDGMENT : S.N. PATHAK, J. Heard Mr. Manoj Tandon, learned counsel assisted by Ms. Neha Bhardwaj, appearing on behalf of the petitioners and Mr Manish Kumar, learned Sr. SC-III assisted by Mr. Rajesh Kumar Jha appearing on behalf of the State. PRAYER 2. The writ petitioners, who are posted as Deputy Superintendent of Police, State of Jharkhand have thrown challenge to the decision as contained in Memo No. 3283, Dated 24.06.2019 [Annexure-20] whereby their prayer for placing them at appropriate places in seniority list, has been declined. Petitioners have further prayed that their initial date of appointment be treated as 12.08.2010 instead of 01.07.2012 and further place them in appropriate place of seniority list prepared by the Department. Such prayer has been made only on the ground that initially they were appointed as Deputy Collectors on 12.08.2010 but later on, they were shifted to the post of Deputy Superintendent of Police on 01.07.2012. FACTS OF THE CASE 3. According to petitioners, the Jharkhand Public Service Commission published Advertisement No. 11/2007 for Preliminary Examination to be held on 11.01.2008 for different posts of Jharkhand Administrative Service, Jharkhand Police Service and other allied services in the State of Jharkhand. The total posts advertised for Jharkhand Administrative Service was 173. Similarly, the total posts earmarked for Jharkhand Police Service was 45 only. The petitioners, being eligible for such appointment, applied and participated in the selection process. The Preliminary Test was held on 11.10.2008. The petitioners became successful in the written test, interview and hence according to their merit position obtained by them, they were appointed on the post of Deputy Collector (Jharkhand Administrative Service) on 12.08.2010. It is case of the petitioners that their first choice/ preference was for Jharkhand Police Service but still they were appointed as Deputy Collector. Later, it was found that six posts of Deputy Superintendent of Police remained vacant for the reason that the selected candidates were not found fit for appointment on the post of Deputy Superintendent of Police/ Jharkhand Police Service, either medically or otherwise and as such a policy decision was taken by the Government to call for the candidates who were above in the merit list and had opted for the Jharkhand Police Service as their first choice. In view of the fact that these petitioners had opted for the post of Deputy Superintendent of Police as first choice, option was given to altogether twenty candidates for shifting themselves from Jharkhand Administrative Service to the Jharkhand Police Service. These petitioners were amongst those twenty two candidates. 4. After the policy decision of the Government and option given to the petitioners, they accepted such offer and shifted from Jharkhand Administrative Service to the Jharkhand Police Service. Such shifting took place with effect from 01.07.2012. Petitioners have further pleaded that they ought to have been treated in service from 12.08.2010 and their seniority be counted according to the merit list of the Jharkhand Public Service Commission and the same should have been treated for all purposes from 12.08.2010 i.e. their initial date of appointment. It is case of the petitioners that their position would have been above Manish Toppo, whose name appears at Serial No. 71 in the seniority list dated 01.01.2016, duly notified on 29.05.2020. The other seniority list which was notified on 04.01.2023, there also petitioners have been shown below Manish Toppo. The position of petitioners in this seniority list dated 29.05.2020 appears at Serial Nos. 87, 88 and 89 respectively. 5. Being aggrieved, petitioner filed their representation for placing them at appropriate place treating their initial date of appointment on 12.08.2010 but such requests of the petitioners were not acceded to and the same was rejected on 24.06.2019. Accordingly, claim of the petitioners to place their position in the seniority list at appropriate places taking into consideration their initial date of joining along with the members of the Jharkhand Police Service appointed through the 3rd JPSC Examination in terms of Para 3(Ga)(iii) of the Departmental Circular No. 15784, dated 26.08.1972, has been rejected. Petitioners, therefore, have challenged such decision with other ancillary prayers and have knocked door of this Court. ARGUMENTS ADVANCED ON BEHALF OF THE PETITIONERS 6. Mr. Manoj Tandon, learned counsel appearing on behalf of the petitioners assisted by Ms. Petitioners, therefore, have challenged such decision with other ancillary prayers and have knocked door of this Court. ARGUMENTS ADVANCED ON BEHALF OF THE PETITIONERS 6. Mr. Manoj Tandon, learned counsel appearing on behalf of the petitioners assisted by Ms. Neha Bhardwaj strongly urges that the impugned order as contained in Memo No. 3283, Dated 24.06.2019 [Annexure-20] whereby and whereunder, the seniority claimed by the petitioners to be given according to the officers of the Jharkhand Police Service, 3rd Jharkhand Public Service Commission Batch has been rejected in terms of the Departmental Letter No. 15784, dated 26.08.1972, is not sustainable in the eyes of law and as such the same is fit to be quashed. Learned counsel further argues that the petitioners cannot be denied their seniority when they have changed their cadre in view of the policy decision of the Government. It is well settled that the seniority has to be counted from the date of initial appointment of an employee strictly in accordance with the merit position published by the Jharkhand Public Service Commission. Learned counsel further submits that it is not in dispute that these petitioners joined initially on 12.08.2010. The shifting of petitioners from Jharkhand Administrative Service to the Jharkhand Police Service is not on the volition of the petitioners. On the contrary, the government invited options which the petitioners accepted and, therefore, petitioners were shifted from Jharkhand Administrative Service to Jharkhand Police Service with effect from 01.07.2012. In this way, learned counsel submits that the date of initial appointment of the petitioners cannot be changed from 12.08.2010 to 01.07.2012 as is being sought to be considered by the respondent authorities. 7. Referring to Para 2(Ga)(iii) of the Circular No. 15784, dated 26.08.1972, issued by the Department of Personnel, Administrative Reforms and Rajbhasha, Govt. of Bihar, learned counsel emphatically submits that if an officer is shifted from one service to another on his own request then his services rendered in the previous service shall not be counted for the purposes of seniority but at the same time, if such shifting is done in view of policy decision of the Government and the decision taken by the Government, then the services rendered in the previous service shall be counted for the purposes of seniority. Relying upon this Circular, learned counsel submits that since there was a policy decision of the Government and the petitioners accepted such offer of the Government to shift themselves from Jharkhand Administrative Service to the Jharkhand Police Service, the provision of this Circular would be equally applicable in the case of petitioners and their previous service has to be counted for the purpose of seniority. Learned counsel further argues that it was the policy decision of the Government itself which laid to such shifting of cadre and as such petitioners cannot be subjected to loss in their future promotion. Learned counsel further submits that had this been a case that petitioners past service would not be counted or his merit position published by the Jharkhand Public Service Commission shall not be considered for considering their seniority, the petitioners would not have accepted such offer to shift their cadre from Jharkhand Administrative Service to the Jharkhand Police Service. Learned counsel further argues that there was no stipulation that the past service of the petitioners would not be counted for the purpose of seniority otherwise they would not have changed their cadre. Merit is always considered from the merit list published by the Commission and not from the respective joining dates. Learned counsel refers the case of Ms. Nisha Murmu, who was actually appointed on 10.10.2011 as a Deputy Superintendent of Police. There were several persons including Manish Toppo, who were appointed as back as on 25.08.2010 itself. Even Rahul Deo Baraik and several others were appointed on 25.08.2010. Though Nisha Murmu was appointed on 10.10.2011, but she was placed above these persons on the ground that there was no fault on her part. It was the decision of the government that the appointment was delayed and hence in view of policy decision of the government, though she was appointed on subsequent date but was placed above those persons who were initially above in rank due to early joining the posts. Learned counsel further submits that in the instant case also, similar benefits may be extended to the petitioners herein also as it was because of decision of the government that their cadre was shifted. Had there been no policy decision of the Government, they would not have joined the post. Learned counsel further submits that in the instant case also, similar benefits may be extended to the petitioners herein also as it was because of decision of the government that their cadre was shifted. Had there been no policy decision of the Government, they would not have joined the post. To buttress his arguments, learned counsel submits that this is the only example where the persons have been given option to join because of policy decision of the government but if now any other person wish to shift their cadre, they cannot do. Meaning thereby, it is only because of policy decision of the Government that they have shifted their cadre. 8. Learned counsel further argues that petitioners have a good case and in view of impugned order and non-consideration of case of the petitioners, they are being debarred from considering their cases for IPS Cadre. It is due to exigency occurred in the Department, the State has taken a policy decision to fill up the vacant seats and petitioners were asked to join Jharkhand Police Service and as such, even if Clause 3(Ga)(iii) of the Circular dated 26.08.1972 is being taken into consideration, the service of the petitioners rendered under the Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand are to be taken into consideration for the purpose of calculation of seniority. 9. Learned counsel further argues that petitioners claim for their appropriate place in the seniority list as per the seniority list prepared by the Jharkhand Public Service Commission. Learned counsel further submits that the principle of seniority stipulates that seniority of an employee has to be counted from the date of their initial appointment as per the merit list published by the Commission or Board who conducts the examination. Petitioners are simply claiming their seniority according to the merit list prepared by the Jharkhand Public Service Commission and nothing else. No prejudice would be cause to any of the persons as seniority has to be maintained as per the merit list of the individual published by the Commission. Because of wrong interpretation, petitioners have already suffered a lot and juniors have already been promoted to IPS Cadre. 10. No prejudice would be cause to any of the persons as seniority has to be maintained as per the merit list of the individual published by the Commission. Because of wrong interpretation, petitioners have already suffered a lot and juniors have already been promoted to IPS Cadre. 10. Learned counsel further submits that if services of the petitioners are being taken into consideration with 3rd Batch of JPSC, then they would be much senior to the several other persons and definitely they would become entitled for further promotional avenues. Learned counsel further submits that from the same set of examination petitioners were appointed in Administrative Service and thereafter, due to policy decision of the State they shifted their cadre and as such, they should not be made to suffer and they cannot be compelled to remain below their juniors in the seniority list. Concluding his arguments, learned counsel submits that the impugned order is fit to be quashed and a direction may be issued to consider case of the petitioners for counting their seniority accordingly. 11. Learned counsel places heavy reliance upon the Judgment rendered in the case of Prem Kumar Verma v. Union of India, reported in (1998) 5 SCC 457 and further submits that the seniority has to be determined on the basis of their respective merit obtained in the examination. Learned counsel submits that the Court has clearly held that the seniority is determined on the basis of their respective merit in the examination held at the end of the training period and where candidates do not have to undergo any training, the seniority is determined on the basis of the merit assigned by the Service Commission or other recruiting authority. The respondents have committed error by altering the said seniority prepared by the Commission. 12. Learned counsel further places heavy reliance upon the Judgment rendered in Civil Appeal SLP (Civil) No. 13473 of 2020, wherein it has been held that the appellant Pankaj therein shall be appointed pursuant to his selection in reference to advertisement no. 11 of 2007 and was held to be entitled for his seniority as per his placement in the order of merit with notional fixation of pay and allowances. 13. 11 of 2007 and was held to be entitled for his seniority as per his placement in the order of merit with notional fixation of pay and allowances. 13. Learned counsel further argues that this is not a case where the principle of disentitling a person to claim seniority from the date he was not borne in the service, shall be applicable. In the case of C. Jayachandran v. State of Kerala, (2020) 5 SCC 230 wherein a person is disentitled to claim seniority from the date he was not borne in the service, the said finding is in the context of the claim of the appellant to claim seniority from the date of availability of the vacancies; whereas in the present case, the appellant is claiming seniority from the date the other candidates in the same selection process were appointed but the appellant is excluded. This Hon’ble Court, while dealing with case of Kislaya Hembrom in W.P.(S) No. 206 of 2022 has considered the abovementioned aspects of the matter. 14. To buttress his arguments, learned counsel places heavy reliance upon the following Judgments: (i) Prem Kumar Verma v. Union of India, reported in (1998) 5 SCC 457 (para-5) (ii) Civil Appeal SLP (Civil) No. 13473 of 2020, (iii) Kislaya Hembrom in W.P.(S) No. 206 of 2022 (iv) Ganga Vishan Gujrati v. State of Rajasthan, (2019) 16 SCC 28 : 2019 SCC OnLine SC 1072 at page 52; (v) State of Bihar v. Arbind Jee, (2021) 14 SCC 38 ; (vi) D.P. Das v. Union of India, (2011) 8 SCC 115 . 15. Learned counsel further argues that three persons, who were actually junior to petitioners have already been promoted to the post of IPS but petitioners shall not claim seniority over them or they will not pray to disturb them in any way even if the writ petition is allowed in favour of the petitioners. ARGUMENTS ADVANCED ON BEHALF OF THE RESPONDENTS 16. Per contra counter affidavit has been filed. 17. Mr. Manish Kumar, learned Sr. SC-III assisted by Mr. Rajesh Kumar Jha appearing on behalf of the State submits that certain posts of Jharkhand Police Service remained vacant and as such applications were invited from those whose names appeared in the merit list and were serving in other services. Per contra counter affidavit has been filed. 17. Mr. Manish Kumar, learned Sr. SC-III assisted by Mr. Rajesh Kumar Jha appearing on behalf of the State submits that certain posts of Jharkhand Police Service remained vacant and as such applications were invited from those whose names appeared in the merit list and were serving in other services. Pursuant thereto, petitioners made their application for change of their cadre which does not entitles them for seniority over the persons who had been serving in the cadre from before. Petitioners have already been allowed the benefits of pay protection and for the purpose of pensionary benefits. Their seniority has rightly been counted from the actual date of joining in the cadre. There is no policy which speaks of counting service from the initial date of joining. When a person is transferred on his own request, he loses the original seniority that he had before the transfer but when he is transferred without any request and in the interest of the administration, then the original seniority must be retained. In the instant case, petitioners themselves had opted to shift the cadre and as such he cannot claim seniority. Writ petition being devoid of merits, is fit to be dismissed. FINDINGS OF THE COURT 18. After hearing the parties and considering facts and circumstances of the case, I find the important issues to be decided in the instant writ petition are: (I) Whether petitioners are entitled for the seniority as per the seniority list of the Jharkhand Public Service Commission prepared earlier? (II) Whether petitioners are entitled for consideration of their cases for counting their seniority from the initial date of their joining in Administrative Service Cadre? (III) Whether case of the petitioners is covered by specific provisions as contained in Para 2(Ga)(iii) of the Circular No. 15784, dated 26.08.1972 dealing with inter-se seniority of service cadre? (IV) Whether the respondents ought to have considered claim of the petitioners for counting their seniority from the date of initial appointment i.e. 12.08.2010 and place them in appropriate place of seniority? 19. Before delving deep into the matter, it would be appropriate to consider factual aspects of the instant case. 20. The undisputed facts of the present case are that these petitioners appeared pursuant to the Advertisement no. 19. Before delving deep into the matter, it would be appropriate to consider factual aspects of the instant case. 20. The undisputed facts of the present case are that these petitioners appeared pursuant to the Advertisement no. 11/2007, after completion of selection process, since petitioners did well, they were appointed on the post of Deputy Collectors/ Jharkhand Administrative Service on 12.08.2010. It is also not in dispute that the first choice of the petitioner’s was for Jharkhand Police Service i.e. Deputy Superintendent of Police. However, the Government decided to fill-up the six vacant posts which were lying vacant as the candidates selected were not given joining on the said posts on medical or other grounds and seats were lying vacant from the very inception. The State took a policy decision on 08.10.2011 for filling-up of the vacant posts. There were altogether twenty two candidates who had opted for Jharkhand Police Service as their first preference but had been appointed in Jharkhand Administrative Cadre. These persons were given option by the Government to shift themselves in the left over six vacant posts and in view of such policy decision of the Government, the Controller of Examination, Jharkhand Public Service Commission sought for option on 24.10.2011 which was succeeded by seeking another option by the State of Jharkhand on 18.11.2011. These documents are at Pages-46 and 47 of the writ petition. In view of such policy decision and option sought for by the Government and the JPSC, petitioners gave their option to shift their cadre. The Special Secretary, Department of Home, Government of Jharkhand, thereafter, issued appointment letter to the petitioners. Thereafter, the Department of Home, Government of Jharkhand, issued formal letter of appointment, petitioners were relieved from the Jharkhand Administrative Service and then they joined on 01.07.2012 on the post of Deputy Superintendent of Police. 21. It is an admitted fact that only because the Government decided to fill-up the six vacant posts which were lying vacant as the candidates selected were not given joining on the posts on medical or other grounds, the seats were lying vacant, a policy decision was taken to fill up the vacant posts. It is not open for the petitioners to take benefits of the policy decision of the State Government. It is not open for the petitioners to take benefits of the policy decision of the State Government. Petitioners themselves chose to embrace the cadre of the Deputy Collectors as they were not considered for the post of Deputy Superintendent of Police i.e. the Police Cadre, at the time when selection were made in the Police Cadre, the petitioners chose to join the post of Deputy Collectors, which was altogether a different cadre. The seniority list of the Police Cadre was prepared as per the merit list. The candidates who joined the Police service as per the merit, cannot be faulted with and cannot be deprived of their merits only because the petitioners have been inducted later on i.e. after two years. The seniority of the persons cannot be changed or reshuffled as per the sweet will of the petitioner which is impermissible in the eyes of law. The law is well settled that a person who is not born in the cadre, cannot be considered for seniority only for the reason that he had joined the cadre later on and he was earlier senior to the persons who joined in police service. 22. Petitioners are claiming seniority on the ground that when joint merit list was prepared, they were senior to the persons who were in the police service. Petitioners have taken the plea that when a person is transferred from one cadre to another equivalent cadre not in compliance with his wishes, but in order to secure greater efficiency, he cannot be made to forfeit the benefits of the period of service rendered by him in the erstwhile cadre. It has been argued that the benefits of past services cannot be denied even if there has been a transfer to a new department, particularly when official letters transferring them to the new department provided for the reckoning of such past services. Further plea of the petitioners that when inter-se-seniority as determined by the authority is challenged in judicial proceedings, the weight of authorities is in favour of the proposition that the individual employees who might be affected are not necessary parties if the authority has been made a party. This plea of the petitioners is not sustainable and hereby turned down. Further plea of the petitioners that when inter-se-seniority as determined by the authority is challenged in judicial proceedings, the weight of authorities is in favour of the proposition that the individual employees who might be affected are not necessary parties if the authority has been made a party. This plea of the petitioners is not sustainable and hereby turned down. The rule of 'fair hearing', which embraces almost every facet of fair procedure cannot be given go-bye and no orders can be passed in complete violation of cardinal principles of natural justice. 23. The law is well settled that any order visiting with civil and evil consequences, the cardinal principles of natural justice has to be adhered to. The petitioners have been considered for pay protection and also for counting the services for pensionary benefits. Their further grievances for counting their seniority in police service from the date of initial appointment, cannot be considered and hence rightly the same has been denied. The Issue Nos. (I), (II) and (IV) are accordingly answered. 24. So far issue no (III) is considered, the same is not applicable in case of the petitioners as the policy decision of the State Government was not for the purposes of consideration of seniority rather an opportunity was given to the persons who opted for the police service only because the seats were vacant and they were also considered for pay protection and pensionary benefits and as such the decision of the State is not in violation of the Circular dated 26.08.1972 and the same is not applicable in the instant case. The impugned memo no. 3283, dated 24.06.2019 is fully justified. The reliance of the petitioners on the aforesaid Judgments also does not come to their rescue. 25. The Hon’ble Apex Court in the case of Prem Kumar Verma v. Union of India, reported in (1998) 5 SCC 457 has held in para-5 as under: “5. In view of our conclusion that the posts fell vacant prior to July 1989 and the process of selection was completed and the Recruitment Board selected the candidates on 11-7-1989 the amendment that was introduced on 5-5-1990 and the further amendment of 1993 will have no application and it is the unamended Rule 303(a), as it stood on 11-7-1989, that would govern the case of inter se seniority. The analysis of the provisions of para 303 indicates that where candidates are required to undergo some training after being selected through Railway Service Commission or any other recruiting authority, their seniority is determined on the basis of their respective merit in the examination held at the end of the training period and where candidates do not have to undergo any training, the seniority is determined on the basis of the merit assigned by the Railway Service Commission or other recruiting authority. In the present case the candidates had to undergo training and in fact they had undergone training in batches, as already stated. In that view of the matter their seniority had rightly been determined by the Railway authority on the basis of their respective merit obtained in the examination held at the end of the training period. The Tribunal committed error by altering the said seniority on the basis of a rule which was not in existence on the date the vacancy arose and on the date when the selection was completed. The said ratio is not applicable in the instant case. The case talks of determination of seniority on the basis of respective merit list in the examination held at the end of training period and where candidates do not have to undergo any training, the seniority is determined on the basis of result published by the Service Commission or any other recruiting agency. The seniority of the petitioners have been considered in different cadres. The petitioners may have been senior and as such they were considered. The petitioners were considered for the post of Deputy Collectors and not for the police service. Those who were considered for the police service, accordingly their merit list were prepared. Petitioners were not born in the cadre at the time of preparation of merit list of the Police service and as such subsequently they cannot claim their seniority. The instant case cited by the petitioners is not at all applicable in the case of the petitioners. 26. Similarly, the case of Pankaj Kumar Vs, The State of Jharkhand and others in W.P.(S) No. 5147 of 2010, which has already been affirmed up to the Hon’ble Apex Court, is also not applicable in the case of the petitioners, which are placed on different facts. 27. 26. Similarly, the case of Pankaj Kumar Vs, The State of Jharkhand and others in W.P.(S) No. 5147 of 2010, which has already been affirmed up to the Hon’ble Apex Court, is also not applicable in the case of the petitioners, which are placed on different facts. 27. The Hon’ble Apex Court in the case of D.P. Das v. Union of India, (2011) 8 SCC 115 , has held as under: “18. The law is clear that seniority is an incidence of service and where the service rules prescribe the method of its computation, it is squarely governed by such rules. In the absence of a provision ordinarily the length of service is taken into account. The Supreme Court in M.B. Joshi v. Satish Kumar Pandey [1993 Supp (2) SCC 419 : 1993 SCC (L&S) 810 : (1993) 24 ATC 688 : AIR 1993 SC 267 ] has laid down that it is the well-settled principle of service jurisprudence that in the absence of any specific rule the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of the service and not on any other fortuitous circumstances. 19. Determination of seniority is a vital aspect in the service career of an employee. His future promotion is dependent on this. Therefore, the determination of seniority must be based on some principles, which are just and fair. This is the mandate of Articles 14 and 16. 20. In Govt. Branch Press v. D.B. Belliappa [ (1979) 1 SCC 477 : 1979 SCC (L&S) 39 : AIR 1979 SC 429 ], a three-Judge Bench of this Court construing Articles 14 and 16 interpreted the equality clause of the Constitution as follows: (SCC pp. 485-86, para 24) “24. … The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on reason is the essence of the guarantee epitomised in Articles 14 and 16(1).” (See AIR para 24 at p. 434.) 21. Another three-Judge Bench of this Court in Bimlesh Tanwar v. State of Haryana [ (2003) 5 SCC 604 : 2003 SCC (L&S) 737], while dealing with the question of absence of a rule governing seniority, held that an executive order may be issued to fill up the gap. Another three-Judge Bench of this Court in Bimlesh Tanwar v. State of Haryana [ (2003) 5 SCC 604 : 2003 SCC (L&S) 737], while dealing with the question of absence of a rule governing seniority, held that an executive order may be issued to fill up the gap. Only in the absence of a rule or executive instructions, the court may have to evolve a fair and just principle of seniority, which could be applied in the facts and circumstances of the case. (See para 47 at p. 619.) 28. In the case of State of Bihar v. Arbind Jee, (2021) 14 SCC 38 , it has been held as under: “12. The principles enunciated in Shitla Prasad Shukla [Shitla Prasad Shukla v. State of U.P., 1986 Supp SCC 185 : 1986 SCC (L&S) 584] are applicable to the case at hand. The compassionate appointment of the respondent is not being questioned here but importantly he is claiming seniority benefit for 10 years without working for a single day during that period. In other words, precedence is being claimed over other regular employees who have entered service between 1985 to 1996. In this situation, the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous. Such view was expressed in many cases and most recently in Ganga Vishan Gujrati v. State of Rajasthan, (2019) 16 SCC 28 : (2021) 1 SCC (L&S) 403. Dr D.Y. Chandrachud, J. speaking for the Court opined as under : (Ganga Vishan Gujrati case [Ganga Vishan Gujrati v. State of Rajasthan, (2019) 16 SCC 28 : (2021) 1 SCC (L&S) 403] , SCC p. 52, para 45) “45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339. The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 : 1991 SCC (L&S) 1070 and State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594 .” 29. From the logical sequitur, it is crystal clear that the respective seniority cannot be granted to a person from the date when such person is not born in cadre. The seniority amongst members of the same grade has to be granted from the date of initial entry in the grade. The issue remained settled from the decision of the Constitution Bench of Judgment passed in the case of Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, reported in (1990) 2 SCC 715 : 1990 SCC (L&S) 339. The said principle was reiterated in the case of State of Bihar v. Akhouri Sachindra Nath reported in 1991 Supp (1) SCC 334 : 1991 SCC (L&S) 1070] and in the case of State of Uttaranchal v. Dinesh Kumar Sharma reported in (2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594]. 30. A Full Bench of the Hon’ble Delhi High Court in the case of Leela Chopra Vs. Surinder Pal Singh reported in 1989 (4) Serv. LR 692 has pointed out the difference in consequence of a transfer on request and a transfer without request in relation to fixation of seniority. On a consideration of rules 311 and 312 of the Railway Establishment Manual it was held that when a person is transferred on his own request he loses the original seniority that he had before the transfer but when he is transferred without any request and in the interest of the administration, then the original seniority must be retained. In the instant case, it was the option given to the person concerned and petitioners of their own opted to switch over their cadre and as such cannot claim seniority. 31. In the instant case, it was the option given to the person concerned and petitioners of their own opted to switch over their cadre and as such cannot claim seniority. 31. The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because seniority cannot be given on retrospective basis when an employee has not even borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. 32. On careful perusal of the Circular dated 26.08.1972, this Court finds that there is a clear cut provision under Clause 2(Kh)(iii). For ready reference, the same is being reproduced hereunder: ^^;fn fdlh inkf/kdkjh dks mlds gh vuqjks/k ij ,d lsok ls nwljh lsok esa varfjr fd;k tk,, rks mlds }kjk iwoZ in ij dh xbZ lsok,a ojh;rk ds fy, ugha fxuh tk;sxh fdUrq ;fn ,slk varj.k ljdkj }kjk fd;s x;s uhfr lEca/kh fofu'p; ds vuqlkj gks] rks mlds }kjk iwoZ in ij dh xbZ lsok,a ojh;rk ds fy, fxuh tk;sxh^^ Meaning thereby, if an officer is transferred from one service to another on his own request, the previous service passed by him will not be counted for the purpose of seniority. However, if such transfer is in accordance with the policy decision taken by the Government, then the services rendered by him in the previous post will be counted for seniority. In the instant case, the petitioners and others were given option to join Police service and they exercised their option to join the police service, it cannot be said that it was a policy decision by which petitioners were bound to join police service, claim of the petitioners does not come within the purview of the Circular of 1972 since they chose voluntarily to shift the cadre because vacancies existed but right does not accrue in their favour for claiming their seniority from the date of initial appointment. The claim of the petitioners that junior to him have been considered for promotion to the IPS cadre, is not tenable as seniority is considered for further promotion from the length of service as police officer. The claim of the petitioners that junior to him have been considered for promotion to the IPS cadre, is not tenable as seniority is considered for further promotion from the length of service as police officer. Since petitioners did not have the required length of service, they cannot claim seniority and as such the very purpose of joining the police service is defeated regarding counting of seniority for further promotion. Since petitioners did not have minimum length of service, rightly their case was not considered. It was not mandatory for the petitioners to join police service. It was their own choice by which they have entered into the police service because of the existing vacancies. The claim of the petitioners are not sustainable and as such the writ petition is devoid of any merits and requires no interference. It is the petitioners who on their own wish accepted the offer of the respondents and joined the police service and the petitioners cannot take benefits of their own fault. 33. As a sequitur to the aforesaid rules, guidelines and judicial pronouncements, no interference is warranted in the instant writ petition. The writ petition is accordingly dismissed. 34. Pending Interlocutory Applications, if any, stand disposed of.