Supreme Court of India
D.P. SHARMA & ORS.versusUNION OF INDIA & ANR.
- Citation
- 1989 INSC 67
- Decided
- 21 February 1989
- Disposal
- Appeal(s) allowed
- Bench
- K JAGANNATHA SHETTY
Holding
The seniority of the appellants must be determined on the basis of length of service, as the 1968 Rules are not retrospective and cannot impair pre‑existing rights.
Summary
The appellants, recruited as Lower Division Clerks between 1960 and 1964 and later transferred to the Armed Forces Headquarters, claimed that their inter‑se seniority should be based on length of service as prescribed by earlier Government memoranda. The Armed Forces Headquarters Clerical Service Rules, 1968, which came into force in March 1968, stipulated seniority on the basis of date of confirmation. A single High Court judge upheld the appellants' claim, but the Division Bench reversed, applying the 1968 Rules. The Supreme Court held that the Rules have no retrospective effect and cannot impair the existing rights of officials appointed before their commencement; consequently, seniority must be determined by length of service. The Court allowed the appeals, reversed the Division Bench’s order, and restored the single judge’s decision.
Issues considered
- Whether the Armed Forces Headquarters Clerical Service Rules, 1968 have retrospective effect on seniority of officials appointed before their commencement.
- Whether seniority of such officials should be determined by length of service as per earlier memoranda or by date of confirmation under the 1968 Rules.
- Whether the Division Bench erred in applying the 1968 Rules to disturb the appellants' existing seniority rights.
Legislation cited
- Armed Forces Headquarters Clerical Service Rules, 1968
- Constitution of Indias. Article 226, s. Article 309
Subjects
seniorityretrospective effectlength of servicedate of confirmationArmed Forces Headquarters Clerical Service Rulesadministrative lawgovernment memoranda
Judgment
D.P .. SHARMA & ORS. A
v.
UNION OF INDIA & ANR.
FEBRUARY 21, 1989
IK. JAGANNATHA SHETIY & KULDIP SINGH, JJ.) B
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 confirmation-Whether 1968 Service Rules have retrospective C
effect.
The Arined Forces Headquarters Clerical Service Rules, 1968
were brought into force with effect from March, 1968. The rules pro-
vided 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 D
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 E
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 disturbed, on the basi~ of confirmation as prescribed under
the rules. The appellants, therefore, moved the High Court contending
that the length of service !ibould be the basis of inter se seniority.
F
A Single Judge of the High Court held that ordinarily the appel-
lants would h9ve been governed by the general principle of seniority
based on the date of confirmation as laid down in the 1959 Memo-
randum 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 G
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 Head-
quarters as L.D.Cs.
On appeal by Union of India, the Division Bench held that the H
791
792 SUPREME COURT REPORTS (1989) 1 S.C.R.
seniority of the appellants must fall to be determined on the basis of -;- >
A confirmation as prescribed by the rules, and not on the length of
service. Aggrieved by this, the appellants filed appeals before this
court.
Allowing the appeals,
B ·-t
HELD: 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. [79SF-G)
The Armed Forces Headquarters Clerical Service Rules, 1968 no
doubt provide that all persons substantially appointed to a grade shall
c rank senior to those holding officiating appointments in the grade. But
the rules have no retrospective effect. It could not impair the existing )o'.
rights of officials who were appointed long prior to the Rules came into
force. [79SA-BI
D The various office memoranda clearly laid down that length of
service should be the guiding principle of arranging inter se seniority of
officials. [79SB)
The appellants being governed by those memoranda had the right )\
to have their seniority determined accordingly before the Rules came
E 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 confirma-
tions. [795B-CJ
Union of India v. M. Ravi Varma & Anr., [19721 2 SCR 992 at '"i_ -
F 1002,relied on. -7
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4133-
4134 of 1984.
From the Judgment and Order dated 5.3.1982 of the Delhi High
G Court in LP.A. No. 125 and 115 of 1981.
Ashok Mahajan, G.D. Gupta and R. Venkataramani for the t
Appellants.
Anil Dev Singh. Mrs. Indra Sawhney, Mrs. Sushma Suri and
H C. V .S. Rao for the Respondents.
-:-
•
D.P. SHARMA v.U.0.1. [SHETIY, J.] :793
The Judgment of the Court was delivered by
A
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. 125of1981. B
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
c
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 D
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 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 E
I
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 F
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 con-
cerned. 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: G
"It is not disputed by the respondents 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 memoranda of
Administrative Instructions are brought to my notice by .. H
•
794 SUPREME COURT REPORTS· [1989] 1 S.C.R.
the respondents, -where any other principle has been laid
A
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
B have not expressly slakd 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 Govern-
ment employees, employed subsequent to the issuance of
c 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 or-
dinarily governed by these principles since they joined the
D 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
E 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
F the said Memorandum 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 pre-
ferred an Appeal before the Division Bench of the High Court. The
G 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
H considered the submissions of the parties. The view taken by the Divi-
D.P. SHARMA v.U.0.1. !SHETfY, J.l 795
sion Bench appears to be erroneous. The Rules, no doubt provide that A
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 teamed single Judge has referred in detail and
which we have extracted above clearly laid down that length of service B
should be the guiding principle of arranging the inter-se seniority of
officials. The appellants being governed by those memorandums 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 c
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:
D
"As the said Office Memorandum has, except in cer-
tain 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 E
appointed prior to December 22. 1959. would have to be
determined on the basis of their length of service in accor·
•• dance with Office Memorandum dated Jime 22, 1949 and
not on the basis of the date of their confirmation."
These considerations apply equally to the present case as well. F
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.
G
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.
H
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