D.P.
Sharma & Ors Vs. Union of India & Anr [1989] INSC 68 (21 February 1989)
Shetty,
K.J. (J) Shetty, K.J. (J) Kuldip Singh (J)
CITATION:
1989 AIR 1071 1989 SCR (1) 791 1989 SCC Supl. (1) 244 JT 1989 (1) 359 1989
SCALE (1)459
ACT:
Armed
Forces Headquarters Clerical Services Rules, 1968: Seniority of officials
appointed in the common cadre of LDC prior to coming into force of
Rules--Fixation of--Whether to be determined on basis of length of service as
prescribed in various memoranda or on basis of confirma- tion--Whether 1968
Service Rules have retrospective effect.
HEAD NOTE:
The
Armed Forces Headquarters Clerical Service Rules, 1968 were brought into force
with effect from March, 1968.
The
rules provided that seniority in the service shall be determined on the basis
of date of confirmation. Prior to this, the seniority in the cadre of service
was required to be determined on the basis of length of service, as laid down
by several official memoranda of the Government or that of the Defence
Ministry.
After
the rules came into force, the seniority of the appellants who joined the Armed
Forces Headquarters as L.D.Cs. between 1960 and 1964, on transfer/posting from
the lower defence installations, in public interest, and some of whom were
later promoted as U.D.Cs., was sought to be dis- turbed, on the basis of
confirmation as prescribed under the rules. The appellants, therefore, moved
the High Court contending that the length of service should be the basis of
inter se seniority.
A
Single Judge of the High Court held that ordinarily the appellants would have
been governed by the general principle of seniority based on the date of
confirmation as laid down in the 1959 Memorandum of the Home Ministry, but
since the Ministry of Defence had preferred to continue the principle of length
of service which it had been following prior to 1959, even after the 1959
Memorandum, and which had been incorporated in 1963 Memorandum and reiterated
in all memoranda issued thereafter, the seniority of the appellants should be
decided by length of service. i.e., their date of joining the Army Headquarters
as L.D.Cs.
On
appeal by Union of India, the Division Bench held that the 792 seniority of the
appellants must fail to be determined on the basis of confirmation as
prescribed by the rules, and not on the length of service. Aggrieved by this,
the appel- lants filed appeals before this court.
Allowing
the appeals,
HELD:
The general rule is if seniority is to be regulat- ed in a particular manner in
a given period, it shall be given effect to and shall not be varied to
disadvantage retrospectively. [795F-G] The Armed Forces Headquarters Clerical
Service Rules, 1968 no doubt provide that all persons substantially ap- pointed
to a grade shall rank senior to those holding offi- ciating appointments in the
grade. But the rules have no retrospective effect. It could not impair the
existing rights of officials who were appointed long prior to the Rules came
into force. [795A-B] The various office memoranda clearly laid down that length
of service should be the guiding principle of arrang- ing inter se seniority of
officials. [795B] The appellants being governed by those memoranda had the
right to have their seniority determined accordingly before the Rules came into
force. That being their right, the rules cannot take it away to their
prejudice. The Division Bench, was, therefore, clearly in error in directing
that the seniority shall follow their respective confirmations.
[795B-C]
Union of India v. M. Ravi Varma & Anr., [1972] 2 SCR 992 at 1002. relied
on.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 41334 134 of 1984.
From
the Judgment and Order dated 5.3.1982 of the Delhi High Court in L.P.A. No. 125
and 115 of 1981.
Ashok Mahajan,
G.D. Gupta and R. Venkataramani for the Appellants.
Anil
Dev Singh, Mrs. Indra Sawhney, Mrs. Sushma Suri and C.V.S. Rao for the
Respondents.
793
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. These two
appeals by special leave raise the question of determination of seniority of the
appellants in the cadre of Lower Division Clerks. The appeals are preferred
against the judgment of the High Court of Delhi dated March 5, 1982 in LPA No. 125 of 1981.
The
appellants were originally recruited as Civilian School Masters or L.D.Cs.,
Leading Hand (Technical), etc.
either
in the Lower Defence Installations comprising Ordnance Factories, Ordnance
Depots, Workshops, Regimental Centres, Units, Command Headquarters, etc. under
the control of Army Headquarters, New Delhi. Some of the appellants were
declared as surplus in those establishments and they came to be posted/transferred
to the Armed Forces Headquarters and inter-service organisations as LDCs. Their
posting/transfer was done in the public interest. They joined the service in
the Armed Force Headquarters on various dates between 1960 to 1964. Some of
them were later promoted as Upper Division Clerks. While they were thus
continuing in service, rules flamed under proviso to Article 309 of the
Constitution known as "The Armed Forces Headquarters Clerical Service
Rules, 1968 ("The Rules")" were brought into force with effect
from March 1, 1968. The Rules inter alia, provide that
the seniority in the service shall be determined on the basis of date of
confirmation. Prior to the coming into force of the Rules, the seniority in the
cadre of service was required to be determined on the basis of length of
service. It was so laid down by several official memorandums of the Government
or that of the Defence Ministry. After the Rules came into force, the seniority
of the appellants was sought to be disturbed on the basis of confirmation as
prescribed under the Rules. The appellants, therefore, moved the High Court of
Delhi under Article 226 of the Constitu- tion contending inter alia, that
length of service should be the basis of inter-se seniority. They also raised
some other questions with which we are not concerned. The learned single Judge
accepted the claim of the appellants and made an order dated April 8, 1981. The relevant portion of the order
runs as follows:
"It
is not disputed by the respond- ents that the only principle of seniority laid
down by various Memoranda was the principle of seniority laid down by various
Memoranda was the principle of length of service. No memo- randa of Administrative
Instructions are brought to my notice by 794 the respondents, where any other
principle has been laid down. The petitioners, in all the three petitioners
were originally in common LDC cadre and are in the common cadre of U.D.C. now.
It cannot be said that some of them (Writ Petition No. 423 of 1975) will all be
governed by the principles of length of service and no others because they have
not expressly stated that their seniority should be fixed on the principles of
length of serv- ice. It may be noted that in 1959 the Home Ministry issued
general principles of seniori- ty to be followed in all Government services
except where a service follows a different set of principles. The said
Memorandum lays down that seniority of all Government employees, employed
subsequent to the issuance of the said Memoranda, will be decided on the basis
of the date of confirmation. It further lays down that all confirmed employees
would be treated senior to the non-confirmed employees.
The
petitioners would have been ordinarily governed by these principles since they
joined the Armed Forces on transfer after 1959. But the Ministry of Defence
preferred to continue the principles of length of service (which they had been
following prior to 1959), even after the 1959 Memorandum came into operation.
The
1963 Memorandum of the Defence Ministry incorporated the said principles and
all Memoranda issued thereafter reiterated the principles of length of service.
In these circumstances, the contention of respondents cannot be accepted. The
seniority of the peti- tioners shall be decided by the principle of length of
service, that is, their date of joining the Army Headquarters as LDCs. Of
course, some of them entitled to additional benefit of past service under the
said Memo- randum were given that benefit. Since this is the question raised in
Civil Writ Petition No.423/1975, it must succeed." Being aggrieved by the
above decision, the Union of India preferred an Appeal before the Division
Bench of the High Court. The Division Bench reversed the above view holding
that the seniority of the appellants must fall to be determined on the basis of
confirmation as prescribed by the Rules and not on the length of service. The
view taken by the Division Bench has been challenged in these appeals.
We
have perused the judgment of the Division Bench and also considered the
submissions of the parties. The view taken by the Divi- 795 sion Bench appears
to be erroneous. The Rules, no doubt provide that all persons substantially
appointed to a grade shall rank senior to those holding officiating
appointments in the grade. But the Rules have no retrospective effect. It could
not impair the existing rights of officials who were appointed long prior to
the Rules came into force. The office memorandums to which learned single Judge
has re- ferred in detail and which we have extracted above clearly laid down
that length of service should be the guiding principle of arranging the
inter-se seniority of officials.
The
appellants being governed by those memorandums had the fight to have their
seniority determined accordingly before the Rules came into force. That being
their right, the Rules cannot take it away to their prejudice. The Division
Bench was, therefore, clearly in error in directing that the seniority shall
follow their respective confirmations.
In
construing similar office memorandums in a different context, this is what this
Court has observed in Union of India v. M. Ravi Varma & Anr., [1972] 2 SCR
992 at 1002:
"As
the said Office Memorandum has, except in certain cases with which we are not
concerned, applied the rule of seniority contained in the Annexure thereto only
to employees appointed after the date of that Memorandum, there is no escape
from the con- clusion that the seniority of Ganapathi Kini and Ravi Varma,
respondents, who were appoint- ed prior to December 22. 1959. would have to be
determined on the basis of their length of service in accordance with Office
Memorandum dated June
22, 1949 and not on
the basis of the date of their confirmation." These considerations apply
equally to the present case as well. The general rule is if seniority is to be
regulated in a particular manner in a given period, it shall be given effect
to, and shall not be varied to disadvantage retro- spectively. The view taken
by the Division Bench, which is in substance contrary to this principle is not
sound and cannot be supported.
In the
result, these appeals are allowed with costs. In reversal of the judgment of
the Division Bench, we restore that of the learned single Judge.
N.P.V.
Appeals allowed.
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