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PETITIONER: D.P. SHARMA & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT21/02/1989

BENCH: SHETTY, K.J. (J) BENCH: 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.

HEADNOTE:     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

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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.

JUDGMENT:     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

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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

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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. 796