Q: I applied for the post of legal officer in a Sikkim government-owned corporation in 1997. Initially I was appointed an assistant on an honorarium for one year and this was extended from time to time. I was eventually appointed as law officer on October 1, 2001. However, instead of placing me in the pay scale of Rs 7,000-9,000, I was put in the pay scale of Rs 5,500-7,500, which applied to field officers. After repeated protests, the board of directors finally considered my representation and passed a resolution correcting my pay scale. At the same meeting, however, the field officers were promoted as assistant managers in the Rs 7,000-9,000 scale. The corporation top boss issued an order to this effect but said nothing in regard to payment of increment arrears. My file was sent to the personnel department which apparently advised the management in August 2008 to disburse the arrears but maintain status quo in regard to the seniority in consonance with the pay scale. However, I have not received any official response from my employer. What legal steps I can take in this regard?

Name withheld

A: Every employee legitimately expects opportunities for advancement and has a right to be considered for promotion at the appropriate time. Seniority is an important factor for promotion, as it indicates a precedence or preference in one’s position over his fellow employees.

Normally the applicable statutory rules or administrative instructions provide how seniority is to be determined. Such rules have primacy, unless found to be arbitrary or discriminatory or otherwise contrary to our constitutional rights enshrined in Articles 14 and 15. In the absence of particular rules, principles evolved through judicial decisions apply. The length of service in a particular grade or cadre is the generally accepted determining factor in fixing seniority. In computing the length, one must first pinpoint the date of commencement of actual service. The date of entry into a particular service has been held by the Supreme Court to be the safest criterion for determining the seniority of an employee belonging to that cadre.

The question to be first decided is what was the date you became a member of this service. If you can demonstrate that your appointment in 1997 was not merely on an ad hoc or stopgap basis but amounted to probation or training prior to your regularisation in 2001, the said intervening period can be considered in computing your length of service. It is well established that the date of regular initial appointment and not the date of confirmation of service is the key. The courts, in recognition of the administrative delays inherent in our bureaucracy, have observed that the valuable right of seniority is not dependant on the “mere accident of confirmation”.

Your present dilemma appears to be that the corporation is not giving effect to your rights. Thus, you have to file a writ petition before the appropriate high court challenging its inaction and seeking a declaration that you are entitled to seniority from the date of your initial appointment along with accrued benefits from that date. You must point out that the only reason you were deprived of arrears and increments was because of an error of the management. You have actually rendered the service and are thus entitled to proper pay / benefits in respect thereof. Since the higher management appears to have accepted this by correcting your pay scale, you are likely to get an order to this effect without much opposition. It is pertinent to remember that the court does have the power judicially to review matters regarding seniority by considering the merits of each case. Proper determination of seniority is, after all, a service right and can be challenged claiming rectification. However, the courts may be reluctant to interfere if there is a long unexplained delay since alteration of the seniority of one employee affects the rights of others. Thus it is advisable to proceed quickly.