The Evolving Paradigm of Seniority Determination in Indian Service Jurisprudence: The Diminishing Role of Confirmation

Introduction

Seniority, a cornerstone of public service in India, profoundly influences an employee's career trajectory, including promotions, pay, and other perquisites. The determination of seniority has been a fertile ground for litigation, with one of the most contentious issues being whether it should be reckoned from the date of an employee's initial appointment or from the date of their confirmation in service. Historically, confirmation was often considered a significant marker, but Indian jurisprudence has witnessed a decisive shift towards de-linking seniority from the vagaries of confirmation, favoring the date of regular appointment as the primary determinant, unless statutory rules explicitly dictate otherwise. This article analyzes this jurisprudential evolution, drawing upon landmark pronouncements of the Supreme Court of India and various High Courts.

The Ascendancy of Appointment Date: The General Rule

The Supreme Court, in a catena of judgments, has firmly established the principle that seniority is to be counted from the date of regular appointment to a post in accordance with the rules, and not from the date of confirmation. A pivotal authority in this regard is the Constitution Bench decision in Direct Recruit Class II Engineering Officers' Association v. State Of Maharashtra And Others (1990 SCC 2 715). In Para 47(A) of this judgment, the Court unequivocally held: "once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not-according to the date of his confirmation."

This principle has been consistently reiterated. For instance, in V.VINCENT VELANKANNI v. UNION OF INDIA (Supreme Court Of India, 2024), the Supreme Court reaffirmed this stance, referencing the 1990 Direct Recruit Class II judgment and noting the government's decision to delink seniority from confirmation based on this directive. The Court in V.VINCENT VELANKANNI also cited L. Chandrakishore Singh v. State of Manipur and Others and Ajit Kumar Rath v. State of Orissa and Others, which held that unless a contrary rule is shown, services rendered on an officiating or probationary basis, followed by confirmation, cannot be ignored for seniority. Similarly, the High Courts have followed this precedent. The Delhi High Court in Roshan Lal v. Commissioner Of Police, Delhi And Ors. (2002) and the Punjab & Haryana High Court in Dr. Prem Swarup Gaur, Joint Director, Animal Husbandry… v. State Of Haryana And Others… (1991) both relied on Direct Recruit Class II to hold that seniority should be counted from the date of appointment, not confirmation, especially where rules do not specify otherwise.

De-linking Seniority from Confirmation: Rationale and Judicial Scrutiny

The judicial inclination to de-link seniority from confirmation stems from the recognition that confirmation processes can be fraught with delays and uncertainties, often unrelated to the employee's merit or the availability of a substantive post. The Supreme Court in S.B Patwardhan And Another v. State Of Maharashtra And Others (1977 SCC 3 399) critically observed the arbitrary nature of linking seniority to confirmation, famously describing confirmation as one of the "inglorious uncertainties of the Government service depending neither on efficiency of the incumbent nor availability of substantive vacancies." This perspective was echoed in Paramjit Singh And Others v. Ram Rakha And Others (1979 SCC 3 478), where the Court noted that if seniority depends on confirmation and quota rules are not related to confirmation, it would impinge upon the seniority of service members. The Gauhati High Court in Shri Durgadas Purkayastha… v. Hon'Ble Gauhati High Court And Others… (1987) also quoted Patwardhan on this point.

The Rajasthan High Court in Rajnish Pareek v. Bhilwara - Ajmer Kshetriya Gramin Bank And Others (1997), relying on Patwardhan and Direct Recruit Class II, struck down a rule proviso that reckoned seniority from the date of confirmation, deeming it arbitrary and violative of Article 16 of the Constitution.

The "Unless Rules Provide Otherwise" Proviso

While the general rule favors the date of appointment, the Supreme Court has consistently acknowledged an exception: where the statutory rules governing the service explicitly stipulate that seniority shall be determined from the date of confirmation. In such cases, the specific rule prevails. For instance, in STATE OF RAJASTHAN AND ANR. ETC. ETC. v. RAJENDRA KUMAR GODIKA AND ORS. ETC. ETC. (Supreme Court Of India, 1993), the relevant service rules explicitly provided that seniority for certain posts "shall be determined from the date of confirmation of such persons to the said post." Similarly, in B.S Yadav And Others v. State Of Haryana And Others (1981 SCC L&S 343, 1980), the Governor's rules, which linked seniority to confirmation dates for judicial officers, were upheld, emphasizing the primacy of rules framed under Article 309 of the Constitution.

The case of G.C. Gupta and Ors. v. N.K. Pandey and Ors. (Supreme Court Of India, 1987) also noted, citing Ashok Gulati's case, that one of the yardsticks for reckoning seniority could be "on the basis of confirmation," implying that rules could indeed provide for this. However, in the specific context of G.C. Gupta, it was held that confirmation had nothing to do with a government servant becoming a member of the service for seniority purposes under the applicable rules.

Substantive Appointment, Ad Hoc Service, and Confirmation

The concept of "substantive appointment" is often intertwined with discussions on confirmation and seniority. In Baleshwar Dass And Others v. State Of U.P And Others (1980 SCC 4 226), the Supreme Court observed that "substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post." It further noted that officiating service, even before confirmation, has relevancy to seniority if no infirmities exist. The Allahabad High Court in B.K Misra (Petitioner) v. State Of U.P And Another (S). (1984), discussing Baleshwar Dass, acknowledged that confirmation, in the sense of making an appointment substantive, is a relevant factor.

However, the judiciary has been cautious about granting seniority from the date of initial ad hoc or temporary appointment, even if such service is later regularized or confirmed. In Keshav Chandra Joshi And Others v. Union Of India And Others (1992 SCC SUPP 1 272, 1990), the Supreme Court held that seniority for promotees appointed on an ad hoc basis commences only from their substantive appointment dates, not their initial ad hoc promotion. This aligns with the principle that an appointment must be "according to rule" to count for seniority from that date.

This principle is further illustrated in M.P Palanisamy And Others v. A. Krishnan And Others (2009 SCC 6 428), where PG Assistants appointed ad hoc under Rule 10(a)(i)(1) and later regularized were held to have their seniority ranked below those selected directly by the T.N PSC, as per the conditions of their regularization. Their continuous ad hoc service did not translate into seniority from the initial appointment date over regularly selected candidates. Similarly, in State Of Haryana v. Haryana Veterinary & Ahts Association And Another (2000 SCC 8 4), the Supreme Court ruled that service rendered under an ad hoc appointment made outside the established Recruitment Rules does not qualify as regular service for benefits contingent upon such service.

The Himachal Pradesh High Court in Krishan Gopal Sharma v. State Of H.P. (2013), citing Supreme Court precedents, observed that retrospective regularization might confer other service benefits but cannot be the sole basis for reckoning seniority with retrospective effect, particularly if rules were not initially followed. This underscores that confirmation or regularization must be in line with established rules to affect seniority from an earlier date.

In State Of Bihar And Others v. Kameshwar Prasad Singh And Another (2000 SCC 9 94), the Supreme Court dealt with a situation where an officer's seniority was to be reckoned from the date of continuous officiation, and if necessary, his confirmation would be treated as made afresh from that date, implying that confirmation could be adjusted to reflect the rightful seniority based on continuous officiation as per rules.

Confirmation's Limited Role in the Broader Seniority Matrix

While the date of appointment according to rules is paramount, other factors like adherence to quota-rota principles also play a role in inter-se seniority between different sources of recruitment (P.S Mahal And Others v. Union Of India And Others, 1984 SCC 4 545; A.K Subraman And Others v. Union Of India And Others, 1975 SCC 1 319). The principle of continuous officiation is often key, as seen in A. Janardhana v. Union Of India And Others (1983 SCC 3 601). However, the core debate regarding confirmation versus appointment date remains distinct. The Andhra Pradesh High Court in V. Vijaya Kumar... v. The A.P.S.R.T.C... (1996), citing Supreme Court decisions like Masood Akter Khan and Prof. S.K. Sharma, reiterated that seniority has to be reckoned from the date of regular appointment, not officiation, unless rules specify otherwise.

It is also pertinent to note that challenges to seniority lists must be made expeditiously. The Madras High Court in N. Suresh v. The State Of Tamil Nadu (2015), citing P.S. Sadasivaswamy v. State of T.N, emphasized that stale claims unsettling established seniority should not be entertained lightly. Furthermore, issues like extension of probation due to an employee's shortcomings can lead to their seniority being pushed down (State Of Madhya Pradesh And Another v. Prakash Jangre, Madhya Pradesh High Court, 2012).

Conclusion

The jurisprudence in India has largely crystallized the position that seniority in public service is to be determined from the date of an incumbent's regular appointment in accordance with the rules. The date of confirmation, once a significant factor, has been relegated to a secondary role, relevant primarily when the specific service rules explicitly mandate it as the basis for seniority. This shift reflects a judicial endeavor to infuse greater certainty, objectivity, and fairness into seniority determination, moving away from the "inglorious uncertainties" associated with confirmation processes. By prioritizing appointment according to rules, the courts have sought to protect the legitimate expectations of employees and ensure that seniority, a vital civil right, is not arbitrarily determined. While specific rules can carve out exceptions, the overarching principle favors the date of entry into a cadre through a regular appointment process as the rightful starting point for reckoning seniority.