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D.P Sharma And Others v. Union Of India And Another
Factual and Procedural Background
The appellants were initially employed as civilian staff (School Masters, Lower Division Clerks (LDCs), Leading Hand (Technical), etc.) in various defence installations under the Army Headquarters. Declared surplus in their original establishments, they were transferred in the public interest to the Armed Forces Headquarters and inter-service organisations between 1960 and 1964. After joining, some were promoted to Upper Division Clerks (UDCs).
At the time of their transfer, inter se seniority was governed by a series of Government and Defence Ministry memoranda that relied on length of service. On 1 March 1968, “The Armed Forces Headquarters Clerical Service Rules, 1968” (“the Rules”) came into force, stipulating that seniority would instead be based on the date of confirmation. When the authorities attempted to reorder seniority under the new criterion, the appellants filed writ petitions in the Delhi High Court.
The learned Single Judge ruled in their favour on 8 April 1981, holding that seniority must be determined by length of service. The Union of India’s appeal succeeded before a Division Bench, which reversed the Single Judge and applied the confirmation rule. The present appeals by special leave challenge that Division Bench judgment.
Legal Issues Presented
- Whether the seniority of the appellants, who joined service before 1 March 1968, should be determined on the basis of their length of service or on the date of their confirmation as mandated by the 1968 Rules.
- Whether the 1968 Rules can retrospectively affect vested rights in seniority acquired under earlier Government memoranda.
Arguments of the Parties
Appellants’ Arguments
- The applicable Defence Ministry memoranda in force when they joined expressly provided that seniority be fixed according to length of service.
- The 1968 Rules have no retrospective effect and therefore cannot disturb seniority already crystallised before 1 March 1968.
Respondent (Union of India) Arguments
- Under the 1968 Rules, seniority is linked to the date of substantive confirmation, and this criterion should govern the appellants’ positions.
- The general Home Ministry Memorandum of 1959 also adopted confirmation as the benchmark, which should apply to the appellants transferred after 1959.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Union of India v. M. Ravi Verma (1972) 1 SCC 379; (1972) 2 SCR 992 | Seniority of employees appointed prior to the 1959 Office Memorandum must be determined by length of service, not date of confirmation. | The Court applied this reasoning by analogy, holding that employees who joined before the 1968 Rules similarly retain seniority based on length of service. |
Court's Reasoning and Analysis
The Court observed that the 1968 Rules, although prescribing confirmation-based seniority, cannot operate retrospectively to divest employees of accrued rights obtained under earlier memoranda. The memoranda consistently treated length of service as the sole criterion, thereby conferring a vested right on the appellants. Citing the Supreme Court’s ruling in M. Ravi Verma, the Court reiterated the principle that changes in seniority rules apply prospectively unless expressly stated otherwise.
Accordingly, the Division Bench erred in allowing the 1968 confirmation rule to override the appellants’ pre-existing entitlement. The proper approach is to maintain the seniority list on the basis of the date the appellants joined the Army Headquarters as LDCs, with credit for any admissible past service.
Holding and Implications
Appeals Allowed; Division Bench judgment set aside; Single Judge judgment restored.
Practical Effect: The appellants’ seniority will be re-fixed on the basis of their length of service, reinstating their positions above later-confirmed but less-experienced colleagues. The ruling safeguards vested seniority rights but does not create a new precedent beyond reaffirming the principle against retrospective alteration of service conditions.
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 5-3-1982 in LPA No. 125 of 1981.
2. The appellants were originally recruited as Civilian School Masters or LDCs, 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 and 1964. Some of them were later promoted as Upper Division Clerks. While they were thus continuing in service, rules framed 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 1-3-1968. 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 Constitution 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 8-4-1981. The relevant portion of the order runs as follows:
“It is not disputed by the respondents that the only principle of seniority laid down by various memoranda was the principle of length of service. No memoranda of Administrative Instructions are brought to my notice by the respondents, where any other principle has been laid down. The petitioners, in all the three petitions were originally in common LDC cadre and are in the common cadre of UDC 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 service. It may be noted that in 1959 the Home Ministry issued general principles of seniority 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 petitioners 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 memorandum were given that benefit. Since this is the question raised in Civil Writ Petition No. 423 of 1975, it must succeed.”
3. 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.
4. We have perused the judgment of the Division Bench and also considered the submissions of the parties. The view taken by the Division 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 referred 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 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.
5. In construing similar office memoranda in a different context, this is what this Court has observed in Union of India v. M. Ravi Verma (1972) 1 SCC 379, (1972) 2 SCR 992:
“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 conclusion that the seniority of Ganapathi Kini and Ravi Varma, respondents, who were appointed prior to 22-12-1959, would have to be determined on the basis of their length of service in accordance with Office Memorandum, dated 22-6-1949 and not on the basis of the date of their confirmation.”
6. 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 retrospectively. The view taken by the Division Bench, which is in substance contrary to this principle is not sound and cannot be supported.
7. 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.
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