Supreme Court of India
V.Vincent Velankanni vs Union Of India on 30 September, 2024
Author: Pamidighantam Sri Narasimha
Bench: Pamidighantam Sri Narasimha
2024 INSC 748 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). 8617 OF 2013 V. VINCENT VELANKANNI .…APPELLANT(S) VERSUS THE UNION OF INDIA AND OTHERS ..RESPONDENT(S) WITH CIVIL APPEAL NO(S). 010944-010946 OF 2024 (Arising out of SLP(Civil) No(s). 023121-023123 of 2024) CC No. 3704-3706/2012 JUDGMENT
Mehta, J.
Civil Appeal No(s). 8617 of 2013
1. The instant appeal by special leave takes exception to the
judgment dated 10th October, 2011 passed by the High Court of
Judicature at Madras in Writ Petition1, whereby the Division
Signature Not Verified
Digitally signed by
Indu Marwah
Date: 2024.09.30
17:23:23 IST
Reason:
1 Writ Petition No. 583 of 2011
1
Bench of the High Court accepted the writ petition2 preferred by
the private respondents herein3 and reversed the judgment dated
24th December, 2010 passed by the Central Administrative
Tribunal, Madras Bench4 in Original Application5 preferred by the
private respondents herein. The CAT had rejected the Original
Application6, challenging the proposed action of revision and
fixation of their seniority in the Engine Factory, Avadi, Chennai7.
2. The brief facts in a nutshell, relevant and essential for the
disposal of the instant appeal are noted hereinbelow.
3. The appellant and the private respondents were engaged on
semi-skilled posts such as Fitters and Machinists in respondent
No.2-Factory. A common select list of candidates based on merit
was issued by the General Manager of respondent No.2-Factory in
the year 1995 wherein the appellant herein was placed at a higher
position than the private respondents. An appointment order
dated 17th January, 1996 was issued in the favour of the appellant
for the post of ‘Fitter General(semi-skilled)’ in respondent No.2-
Factory. He was initially placed on probation for a period of two
2 Ibid
3 Respondent Nos. 3, 4 and 5
4 ‘CAT’, hereafter
5 Original Application No. 318 of 2009
6 Ibid
7 ‘respondent No. 2-Factory’, hereafter
2
years which was further extended for a period of six months w.e.f.
17th January, 1998. The appellant satisfactorily completed the
probation period on 16th July, 1998. Thereafter, he was promoted
to the ‘Skilled’ grade on 6th January, 1999.
4. A draft seniority list dated 28th July, 2006 was issued by
respondent No.2-Factory, whereby the seniority of ‘Fitters’ was
fixed as per their respective dates of promotion to the skilled grade
and the appellant was placed at a lower position than the private
respondents.
5. Aggrieved of the draft seniority list8, the appellant submitted
a representation dated 13th November, 2006 to the General
Manager of respondent No.2-Factory seeking necessary
amendments in the draft seniority list and to fix his position
appropriately and thereafter, to publish a final seniority list. The
General Manager rejected the aforesaid representation submitted
by the appellant vide communication dated 9th July, 2007,
observing that his seniority had been fixed from the date of holding
the skilled grade, and thus the position of the appellant in the
seniority list was not liable to be altered.
8 Dated 28th July, 2006
3
6. Being aggrieved, the appellant preferred Original Application
No. 821 of 2007 before the CAT challenging the draft seniority list
dated 28th July, 2006.
7. Another employee, namely, Mr. P. Kumaresan who was
appointed as a Mechanist in respondent No.2-Factory in January
1996, also filed Original Application No. 831 of 2007, before the
CAT, wherein Mr. P. Kumaresan also claimed that he had to be
placed at the 6th position instead of the 27th position as set out in
the draft seniority list. Original Application9 preferred by Mr. P.
Kumaresan came to be allowed by the CAT holding that the
seniority fixed in the draft list was incorrect. The CAT noted that
respondent No.2-Factory had allowed the promotion to the juniors
of Mr. P. Kumaresan on the ground that he was still undergoing
the extended period of probation. The CAT held that it is settled
law that once the extended period of probation is completed, the
employee should be confirmed in service from the date of initial
selection and should be assigned the original rank in the seniority
list. Thus, once the extended period of probation came to an end
and the employee was found suitable, he had to be confirmed in
9 Original Application No. 831 of 2007
4
service, promoted with seniority and all consequential benefits to
the next grade with reference to the date of initial appointment.
8. The CAT allowed Original Application No. 821 of 2007
preferred by the appellant herein vide order dated 23rd January,
2009, basing its decision on the order passed in Original
Application No. 831 of 2007 considering the fact that both the
workers were identically employed in respondent No.2-Factory and
directed that the appellant was entitled to be considered for his
claim of seniority and directed the respondents10 to revise the
seniority list accordingly.
9. The private respondents herein filed Original Application No.
318 of 2009 before CAT against the proposed action of revision of
seniority list and promotions in accordance with the order dated
23rd January, 2009 passed in the Original Application No. 821 of
2007 filed by the appellant. The said Original Application11 was
dismissed by CAT vide order dated 24th December, 2010 while
granting the liberty to the applicants therein(private respondents
herein) to file a review application for assailing the orders passed
in Original Application No. 831 of 2007 and Original Application
No. 821 of 2007.
10 Respondent Nos. 1 and 2
11 Original Application No.318 of 2009
5
10. However, private respondents herein rather than filing a
review application, chose to assail the orders passed by the CAT
by preferring a Writ Petition12 before the Madras High Court which
came to be allowed vide order dated 10th October, 2011. The Union
of India13 and respondent No. 2-Factory were directed by the High
Court to restore the seniority of the writ petitioners(private
respondents herein), holding that the writ petitioners are senior to
the appellant herein, both as per the date of initial appointment
and also in the promotional post of skilled grade. The High Court
held that an employee selected in the semi-skilled grade is required
to complete the probation period satisfactorily and has to pass the
requisite trade test prescribed for the post before he can be
confirmed and promoted to the skilled grade. Due to the extension
of the probation period of the respondents in the Writ Petition
No.583 of 2011(including the appellant herein), they were required
to be placed below the persons who were promoted to the skilled
grade earlier to them. The High Court held that in the skilled grade,
the writ petitioners(private respondents herein) were senior to the
third respondent(appellant herein). It was also held that the
promotions to the skilled grade and the highly skilled grade were
12 Writ Petition No. 583 of 2011
13 Respondent No. 1
6
carried out in the years 1998 and 2003, respectively but the third
respondent (appellant herein) chose to file the Original
Application14 in the year 2007 and no reason was forthcoming for
the gross delay. The relevant extract from the High Court’s
judgment dated 10th October, 2011 is reproduced hereinbelow: –
“7. A mere reading of the counter affidavit would show that the
probation of the third respondent in W.P. No. 583 of 2011 was
extended by six months and for the third respondent in W.P.
No. 584 of 2011, it was extended by three months by virtue of
their failure to complete probation of two years and to pass the
required trade test prescribed for the posts. Accordingly, the
third respondent in W.P. No. 583 of 2011 was placed in the
skilled grade only with effect from 6.1.1999 and third
respondent in W.P. No. 584 of 2011 was promoted only with
effect from 5.10.1998 whereas the petitioners in both the
petitions were promoted to the skilled grade on 3.7.1998.
8. It is not in dispute that the Semi-Skilled grade is only has to
complete the probation period satisfactorily and pass the
requisite trade tests prescribed for the posts. In the present
case, it is clear that due to extension of the probation period,
the respondents were placed below the persons who were
promoted to Skilled grade earlier than them. Even if the date of
appointment is taken into consideration, the petitioners are
seniors to the third respondent in these petitions.
9. That apart, the petitioners were promoted to the skilled grade
in the year 1998 and to the highly skilled grade in the year
2003. But the third respondent in these petitions have chosen
to file the original applications only in the year 2007 and no
reason is forthcoming for the delay.
10. In view of the counter affidavit filed by the Department
which is in favour of the petitioners and the fact that the
petitioners are seniors to the third respondent in these petitions
both as per the date of initial appointment and also the date of
promotion to the skilled grade, we are of the view that revising
the seniority list at the instance of the third respondent in the
Writ Petitions in the guise of implementing the order of the
Tribunal, is illegal. Therefore, in our considered opinion, the
order of the Tribunal is to be interfered with.14 Original Application No. 821 of 2007
7
11. For the aforesaid reasons, the writ petitions are allowed and
the order of the Tribunal is set aside. The respondents 1 and 2
are directed to restore the seniority of the petitioners confirming
their original date of promotion to the Highly Skilled Grade.
After revising the seniority, the respondents are further directed
to consider the case of the petitioners for subsequent promotion
on par with their juniors.”
(quoted verbatim from the paper book)
The judgment dated 10th October, 2011 passed by the
Division Bench of the High Court is the subject matter of challenge
in the instant appeal.
Submissions on behalf of the appellant:
11. Learned counsel appearing for the appellant urged that the
High Court premised its findings on a totally erroneous reasoning
that the challenge laid by the appellant to the draft seniority list
was delayed and that the private respondents herein(writ
petitioners) were senior to the appellant as on the date of initial
appointment.
12. Learned counsel contended that the draft seniority list in the
appellant’s cadre was published in the year 2006 for the first time
after the appointment of the appellant as well as the private
respondents. Immediately on receiving the draft seniority list, the
appellant herein made a representation against the same and
when a favourable decision was not forthcoming, he approached
8
the CAT for challenging the validity thereof. He submitted that thefinding of the High Court that the private respondents herein(writ
petitioners) were senior to the appellant as on the date of initial
appointment is totally against the record.
13. He further urged that the extant rules do not provide that the
promotion from Fitter(semi-skilled) to Fitter(skilled) would be
dependent on passing the trade test. Thus, as soon as the
appellant completed the probation period, his services would have
to be confirmed and reckoned from the date of initial appointment,
and by virtue thereof, the appellant would be entitled to be placed
above the private respondents in the order of seniority.
14. Learned counsel submitted that the period spent during
training/probation has to be reckoned for computation of length
of service and the same cannot be excluded while assigning
seniority to an employee. In support of his arguments, learned
counsel placed reliance on the judgment of this Court in the case
of L. Chandrakishore Singh v. State of Haryana15.
15. He further submitted that the movement of the employee
from semi-skilled to skilled grade tantamounts to confirmation/
upgradation and not a promotion. In support of this contention,
15 AIR 1975 SC 613
9
reliance was placed on the judgment of this Court in the case ofBSNL v. R. Santhakumari Velusamy16.
16. Learned counsel also placed reliance on the Office
Memorandum17 dated 4th November,1992, issued by the
Government of India, Department of Personnel and Training,
which was in force at the time when the appellant and the private
respondents were appointed, wherein, it is provided: –
“Seniority for Promotion
Order effective from 4th November, 1992
[Government of India, Department of Personnel and Training,
Office Memorandum No. 20011/5/90-Estt. (D), dated the 4th
November, 1992]Seniority to be determined by the order of merit indicated at the
time of initial appointment.- The seniority of Government
servants is determined in accordance with the general
principles of seniority contained in M.Η.Α., Ο.Μ. No. 9/11155-
RPS, dated the 22nd December, 1959 (See Section II). One of
the basic principles enunciated in the said OM is that, seniority
follows confirmation and consequently permanent officers in
each grade shall rank senior to those who are officiating in that
grade.
2. This principle has been coming under judicial scrutiny in a
number of cases in the past; the last important judgment being
the one delivered by the Supreme Court on 2-5-1990, in the
case of Class II Direct Recruits Engineering Officers’
Association v. State of Maharashtra. In Para. 47 (A) of the said
judgment, the Supreme Court has held that once an incumbent
is appointed to a post according to rule, his seniority has to be
counted from the date of his appointment and not-according to
the date of his confirmation.
3. The general principle of seniority mentioned above has been
examined in the light of the judicial pronouncement referred to16 (2011) 9 SCC 510
17 ‘OM’, hereafter10
above and it has been decided that seniority may be delinked
from confirmation as per the directive of the Supreme Court in
Para, 47 (A) of its judgment, dated 2-5- 1990. Accordingly, in
modification of the General Principle 3, proviso to General
Principle 4 and proviso to General Principle 5 (i) contained
in O.M. No. 9/11155-RPS, dated the 22nd December, 1959
and Para. 2.3 of O.M., dated the 3rd July, 1986, it has been
decided that the seniority of a person regularly appointed
to a post according to rule would be determined by the
order of merit indicated at the time of initial appointment
and not according to the date of confirmation.
4. These orders shall take effect from the date of issue of this
Office Memorandum. Seniority already determined according to
the existing principles on the date of issue of these orders will
not be reopened even if in some cases seniority has already
been challenged or is in dispute and it will continue to be
determined on the basis of the principles already existing prior
to the date of issue of these orders.”
(emphasis supplied)He thus urged that the seniority of a person regularly
appointed would have to be reckoned based on the merit indicated
at the time of the initial appointment and not as per the date of
confirmation. To support this submission, he also placed reliance
on the Constitution Bench decision of this Court in Direct Recruit
Class II Engg. Officers’ Assn. v. State of Maharashtra18.
He thus implored the Court to accept the appeal, set aside
the impugned judgment rendered by the High Court, and restore
the judgment of the CAT.
18 (1990) 2 SCC 715
11
Submissions on behalf of the respondents:
17. Per contra, learned counsel appearing for respondent Nos. 1
and 2 submitted that the appellant was appointed as Fitter
General(semi-skilled) on 17th January, 1996. The semi-skilled
grade is only a trainee grade and in order to be confirmed in service
and for being promoted to the skilled grade, the employee would
have to complete the probation period satisfactorily and pass the
requisite trade test prescribed for promotion to the skilled grade.
Only on passing the trade test, the employee would qualify for a
permanent status and promotion to the skilled grade.
18. He further submitted that it is a settled law that in cases
where there are no rules governing the field, it is the placement in
the initial merit list that will decide the seniority, however, if the
rules are in vogue, then the same will prevail. In this regard, he
placed reliance on Suresh Chandra Jha v. State of Bihar and
Others19.
19. Learned counsel for the respondents placed reliance on
Statutory Regulatory Order20 No. 185 of 1994 dated 1st November,
1994 to urge that any appointment in the industrial establishment
19 (2007) 1 SCC 405
20 ‘SRO’, hereafter
12
is done against the skilled grade and hence, the period spent in
the semi-skilled grade till completion of probation period and
qualifying the prescribed trade test for promotion to the skilled
grade is considered only as a trainee grade. Resultantly, the
seniority/merit position at the time of induction in the trainee
grade would have no bearing on the inter se seniority of the
employees which would have to be reckoned from the date the
employee is confirmed and promoted to the skilled grade upon
completing the probation period and clearing the trade test.
20. He further placed reliance upon the Government Order21
dated 24th December, 2002 issued by the Ordinance Factory
Board, Ministry of Defence, Government of India, which was issued
to clarify the counting of seniority in trades mentioned in SRO No.
185 of 1994 applicable to the Industrial Establishments and urged
that the said GO clarifies beyond the pale of doubt that the semi-
skilled grade is a trainee grade and the seniority will be counted
from the date of promotion to the skilled grade and not from the
date of induction/entry in the semi-skilled grade.
21 ‘GO’, hereafter
13
21. Learned counsel pointed out that the two years’ probation
period of the appellant was extended by six months w.e.f. 17th
January, 1998, and the appellant could complete the probation
period only on 16th July, 1998. Subsequently, upon passing the
trade test, he was promoted to the skilled grade w.e.f. 6th January,
1999. The appellant lost the seniority on account of his failure to
complete probation in the period of two years and clearing the
trade test whereas, the private respondents herein had completed
probation in time and were found to be fit in the trade test and
therefore, they were promoted to the skilled grade much before the
appellant. Consequently, these employees i.e. private respondents
herein were placed higher in seniority, as per clarification issued
by Ordinance Factory Board vide GO dated 24th December, 2002.
On these grounds, learned counsel for the respondents
implored the Court to dismiss the appeal and affirm the order
passed by the High Court.
22. Learned counsel for the private respondents herein22 adopted
the submissions advanced by learned counsel for respondent Nos.
1 and 2.
22 Respondent Nos. 3, 4, and 5
14
23. We have given our thoughtful consideration to the
submissions advanced at the bar by learned counsel for the parties
and have gone through the impugned judgment and the material
placed on record.
Discussion and Conclusion:
24. The fact that the appellant and private respondents were
inducted as semi-skilled grade employees in respondent No. 2-
Factory in the year 1996 is not in dispute. The common select list
dated 22nd November, 1995 is not placed on record by the parties.
However, appellant filed an RTI23, and the reply thereto dated 29th
December, 2011 clearly shows that at the time of initial induction,
appellant was placed at the 7th position, whereas the private
respondents24 were placed at the 30th, 31st and 32nd positions,
respectively in the select list based on merit.
25. The Division Bench of the High Court in the impugned
judgment dated 10th October, 2011 has recorded a categoric
finding that even if the date of appointment is taken into
consideration, the writ petitioners(private respondents herein) are
senior to respondent No.3(appellant herein). This finding seems to
23 Right to Information
24 Respondent Nos. 3, 4 and 5
15
be prima facie erroneous because admittedly, the appellant herein
was placed at 7th position and the private respondents were placed
at the 30th, 31st and 32nd positions in the order of merit, as borne
out from the record. Further, in writ petition25 filed by the private
respondents before the High Court and the counter affidavit filed
by the respondents herein before this Court, there is no averment
that these respondents were placed above to the appellant at the
time of initial appointment. Rather the sole ground taken by the
writ petitioners(private respondents herein) to oppose the prayer of
the appellant was that the appellant was not able to complete his
probation period and pass the trade test on time and thus, he was
placed below the private respondents in the draft seniority list.
26. Before we adjudicate upon the issue of inter se seniority
amongst the litigating parties, we find it necessary to comment on
the appellant’s approach towards filing his claim concerning his
promotion in the highly skilled grade.
27. The appellant and the private respondents faced a common
selection process and were appointed in the semi-skilled grade in
the year 1996. The private respondents herein were promoted to
25 Writ Petition No. 583 of 2011
16
the skilled grade on 11th January, 1998 and further promoted to
the highly skilled grade on 20th May, 2003. On the other hand, the
appellant was promoted to the skilled grade on 17th July,
1998(after completing his extended probation period of 6 months
and clearing the mandatory trade test). Considering that the
private respondents were promoted to highly skilled grade in May,
2003, the appellant in the normal course should also have been
promoted to highly skilled grade by the end of the year 2003.
However, as per the factual matrix, he was promoted to the highly
skilled grade after around 5 years i.e. on 26th March, 2008. A
tabular chart depicting the date of appointment and the date of
promotion to skilled and highly skilled grade is placed below: –
Name Date of Extension of Effective Date of Date of
appointment probation date of promotion promotion
in the Semi satisfactory to Skilled to the
Skilled grade completion grade Highly
of skilled
probation grade
V. Sivaraman 11.01.1996 NA 11.01.1998 03.07.1998 20.05.2003
(Respondent
No. 3)
G. Sudhakar 11.01.1996 NA 11.01.1998 03.07.1998 20.05.2003
(Respondent
No. 4)
P. Ramesh 11.01.1996 NA 11.01.1998 03.07.1998 20.05.2003
(Respondent
No. 5)
V. Vincent 17.01.1996 By 6 months 17.07.1988 06.01.1999 26.03.2008
Velankanni w.e.f.
(Appellant) 17.1.1998 by
order dated
5.2.1998
17
28. The draft seniority list was published on 28th July, 2006. The
appellant never questioned the denial of promotion to the highly
skilled grade, till much after the publication of the draft seniority
list. Admittedly, co-employees who were below the appellant in the
select list of the year 1996 were promoted in the intervening period
without any objection being raised by the appellant. After the
publication of the draft seniority list in the year 2006, he chose to
challenge the same and to consider his promotion to highly skilled
grade with effect from 20th May, 2003 by filing an Original
Application26 before CAT only in the year 2007. Thus, it was the
first time in 2007 that the appellant claimed his promotion with
retrospective effect. However, this benefit of retrospective
promotion was neither granted by the CAT nor by the High Court
and thus, there is no need to delve into this aspect further.
29. The primary issue which requires adjudication is as to
whether the seniority of the appellant is to be reckoned from the
date of induction/initial appointment or as per the date of
promotion/confirmation in the skilled grade.
26 Original Application No. 821 of 2007
18
30. It is a well-settled proposition that once an incumbent is
appointed to a post according to the rules, his seniority has to be
reckoned from the date of the initial appointment and not
according to the date of confirmation, unless the rules provide
otherwise.
31. In the case of L. Chandrakishore Singh v. State of
Manipur and Others27, this Court held that in cases of
probationary or officiating appointments which are followed by a
confirmation, unless a contrary rule is shown, the services
rendered as the officiating appointment or on probation cannot be
ignored while reckoning the length of service for determining the
position in the seniority list. This view has been reiterated in the
case of Ajit Kumar Rath v. State of Orissa and Others28.
32. The Constitution Bench of this Court in Direct Recruit Class
II Engg Officers’ Assn.(supra) stated the legal position with regard
to inter se seniority of direct recruits and promotees and while
doing so, inter alia, it was held that once an incumbent is
appointed to a post according to rules, his seniority has to be
27 (1999) 8 SCC 287
28 (1999) 9 SCC 59619
counted from the date of his appointment and not according to thedate of his confirmation.
33. This Court summarised the legal principles with regard to the
determination of seniority in Pawan Pratap Singh and Others v.
Reevan Singh and Others29 in the following terms:
45. From the above, the legal position with regard to
determination of seniority in service can be summarised as
follows:
(i) The effective date of selection has to be understood in the
context of the service rules under which the appointment is
made. It may mean the date on which the process of selection
starts with the issuance of advertisement or the factum of
preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be
determined as per the service rules. The date of entry in a
particular service or the date of substantive appointment is
the safest criterion for fixing seniority inter se between one
officer or the other or between one group of officers and the
other recruited from different sources. Any departure
therefrom in the statutory rules, executive instructions or
otherwise must be consistent with the requirements of
Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the
backdate and if it is done, it must be based on objective
considerations and on a valid classification and must be
traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of
occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by the
relevant service rules. It is so because seniority cannot be
given on retrospective basis when an employee has not even
been borne in the cadre and by doing so it may adversely
affect the employees who have been appointed validly in the
meantime.
29 (2011) 3 SCC 267
20
34. Thus, it is trite that when an employee completes the
probation period and is confirmed in service albeit with some
delay, the confirmation in service shall relate back to the date of
the initial appointment. Any departure from this principle in the
form of statutory rules, executive instructions or otherwise must
be consistent with the requirements of Articles 14 and 16 of the
Constitution of India.
35. In the backdrop of the above legal and factual background,
let us now examine if whether the extant
rules/regulations/circulars prevailing in the establishment30
contained any stipulation that the completion of the probation
period and the passing of the trade test is sin qua non for being
promoted to the skilled grade and if so, whether the seniority of
the employees selected on the same date would have to be
reckoned from the date of confirmation/passing the trade test or
from the date of initial appointment.
36. A pertinent averment is made in the counter affidavit filed by
the respondents emphasizing their stand that the semi-skilled
grade is only a trainee grade and in order to place an employee in
30 respondent No. 2-Factory
21
the skilled grade, he would have to complete the probation period
satisfactorily and also clear the trade test as laid down in the SRO
No. 185 of 1994. The relevant extract from SRO No. 185 of 1994
dated 1st November, 1994 is reproduced hereinbelow for the sake
of ready reference. Note 6 of the said SRO reads as below: –
“Note 6. Wherever “Trade Test” is laid down in Column 12 of
this Schedule such trade test shall be prescribed by the General
manager of the factory or the Ordnance Factory Board. The
term “Trade Test” will include written, oral and practical
examination and aptitude test and interview and also statutory
qualification test where applicable.”
37. The GO dated 24th December, 2002 issued by the Ordinance
Factory Board placed on record clarifies the position regarding
counting of seniority in the trades of SRO No. 185 of 1994 for the
industrial establishments. The language of this GO is considered
germane to the controversy and hence, the relevant portion thereof
is extracted hereinbelow: –
“With a view to overcome doubts in counting of seniority in
respect of industrial employees who are working in trades listed
at Annexure ‘A’ of SRO 185/1994 it has been decided to
interpret rules relating to seniority in consonance with existing
SRO provisions. Accordingly, the following rules for
determining seniority may be followed in all OFs with
immediate effect.
1) Semi-skilled posts are training post for skilled posts of
trades listed at Annexure ‘A’ of SRO 185/1994.
2) Educational Qualification/Technical Qualification will not be
deciding factor while counting seniority for trades listed at
Annexure ‘A’ of SRO 185/1994.
22
However, where passing of trade test/competency test or
any other statutory certificate is required, the same must
be adhered to and cannot be done away with.
3) Seniority will be counted from the date of promotion to
Skilled grade and not from the date of
induction/entry/promotion in semi-skilled grade.
4)……
5)……
6) The above orders are in consonance with the existing SRO
provisions and various court orders on the subject.”
(emphasis supplied)
38. The validity of this GO31 was never assailed by the appellant
at any stage either before the CAT or the High Court. A conjoint
reading of SRO No. 185 of 1994 and the GO dated 24th December,
2002, which indisputably were applicable to the cadre of semi-
skilled and skilled fitters in the respondent establishment32 at the
relevant point of time would make it clear that the seniority in the
skilled grade would have to be reckoned from the date of promotion
to the skilled grade and not from the date of induction/entry in the
semi-skilled grade and the candidate joining service in the semi-
skilled grade would be mandatorily required to complete the
probation period and also to clear the trade test for being promoted
to the skilled grade. In the event of either of the two conditions not
31 Dated 24th December, 2002
32 Engine Factory, Avadi, Chennai
23
being met, the employee concerned would not be entitled to be
promoted to the skilled grade.
39. The appellant, in support of his plea, has placed reliance on
a GO dated 4th August, 2015, whereby the GO dated 24th
December, 2002 has been superseded and it has been decided by
the Competent Authority that “henceforth”, the seniority in respect
of Industrial Establishments would be governed by the relevant
clause of OM dated 4th November, 1992(reproduced supra). The
said GO dated 4th August, 2015 is reproduced hereinbelow for the
sake of ready reference: –
“No. Per/I/Seniority/2015-16 Date: 04-08-2015
To
The Sr. General Managers/ General Managers
All Ordnance & Ordnance Equipment FactoriesSub: Determination of Seniority in connection with direct
Recruitment in the Industrial Establishment.
Ref: (i) OFB Circular No. 590/OFBOL/A/I dated 24.12.2002
(ii) OFB Circular No. 590/OFBOL/A/I dated 13.01.2003
In connection with counting of Seniority in Annexure-A
trades of SRO 185/1994 in the Industrial Establishment, above
referred OFB Circulars clarified and directed that seniority in
respect of Industrial Employees will be counted from the date
of up-gradation to Skilled Grade and not from the date of
induction/entry/promotion in the Semi-skilled grade.24
Several references in this regard have been received at
OFB and after due examination, it has been observed that the
OFB Circulars under reference are not in line with the
principles of seniority as laid down by DOPT from time to time.
Therefore, the Competent Authority has decided that in
supersession of the above referred OFB Circulars dated
24.12.2002 and 13.01.2003, henceforth, seniority in respect
of IEs will be governed by the relevant clause of DOPT OM
No.20011/5/90-Estt(D) dated 4th November, 1992 and OM
No.22011/7/86-Estt(D) dated 3rd July, 1986. Accordingly,
promotion from Skilled to Highly Skilled Grade-II will be made
as per the seniority fixed for Semi-skilled grade (entry grade)
which will be arrived at as per merit of the select panel, without
making any linkage to the date of up-gradation to the Skilled
Grade.
It may so happen that a person lower in the merit list of
recruitment (in Semi-skilled grade) joins earlier due to early
clearance of PVR. In such case, the person lower in the merit
list will complete his/her qualifying service and be up-graded
to Skilled Grade on earlier date as compared to a person higher
in the merit list. However, person higher in the merit list will
not lose his seniority and will be placed above the person lower
in the merit list after getting up-gradation to Skilled Grade.
(S. K. Singh)
Director/IR
For Director General, Ordnance Factories”
(emphasis supplied)
40. By virtue of the above GO33, the rule position qua the fixation
of seniority has been restored to be governed by OM dated 4th
November, 1992(reproduced supra), according to which the
relevant date for fixation of seniority would be the date of initial
appointment and not the date of upgradation/promotion to the
skilled grade. The OM dated 4th August, 2015 further clarifies that
33 Dated 4th August, 2015
25
the person higher in the merit list will not lose his seniority and
will be placed above the person lower in the merit list after getting
upgradation to the skilled grade.
41. However, the clarification issued vide GO dated 4th August,
2015 does not operate retrospectively as it is specifically provided
in the said GO that “henceforth”, the seniority in respect of
Industrial Establishments will be governed by the relevant clause
of OM dated 4th November, 1992.
42. It is trite law that an Office Memorandum/Government Order
cannot have a retrospective effect unless and until there is an
express provision to make its effect retrospective or that the
operation thereof is retrospective by necessary implication. In this
regard, we are benefitted by the observations of this Court in Sonia
v. Oriental Insurance Co. Ltd. and Others34, wherein it was held
that:
“11. ….In any view of the matter, law is well settled that
an Office Memorandum cannot have a retrospective effect
unless and until intention of the authorities to make it as
such is revealed expressly or by necessary implication in
the Office Memorandum.”34 (2007) 10 SCC 627
26
43. If a Government Order is treated to be in the nature of a
clarification of an earlier Government Order, it may be made
applicable retrospectively. Conversely, if a subsequent
Government Order is held to be a modification/amendment of the
earlier Government Order, its application would be prospective as
retrospective application thereof would result in withdrawal of
vested rights which is impermissible in law and the same may also
entail recoveries to be made. The principles in this regard were
culled out by this Court in a recent judgment of Sree
Sankaracharya University of Sanskrit and Others v. Dr.
Manu and Another35, in the following terms: –
“52. From the aforesaid authorities, the following
principles could be culled out:
i) If a statute is curative or merely clarificatory of the
previous law, retrospective operation thereof may be
permitted.
ii) In order for a subsequent order/provision/amendment
to be considered as clarificatory of the previous law, the
pre-amended law ought to have been vague or ambiguous.
It is only when it would be impossible to reasonably
interpret a provision unless an amendment is read into it,
that the amendment is considered to be a clarification or
a declaration of the previous law and therefore applied
retrospectively.
iii) An explanation/clarification may not expand or alter
the scope of the original provision.
iv) Merely because a provision is described as a
clarification/explanation, the Court is not bound by the
said statement in the statute itself, but must proceed to
analyse the nature of the amendment and then conclude
35 2023 SCC OnLine SC 640
27
whether it is in reality a clarificatory or declaratory
provision or whether it is a substantive amendment which
is intended to change the law and which would apply
prospectively.”
44. Applying these principles to the case at hand, we are of the
view that the subsequent GO dated 4th August, 2015 cannot be
read simply as a clarification and therefore cannot be made
applicable retrospectively. The said GO has substantively modified
the position governing seniority in the Industrial Establishments
by reviving the earlier OM dated 4th November, 1992, and
supersedes the orders/circulars dated 24th December, 2002 and
13th January, 2003, which were holding the field over more than a
decade. Therefore, giving retrospective effect to the GO dated 4th
August, 2015 would have catastrophic effect on the seniority of the
entire cadre.
45. This Court has time and again dealt with the effect of altering
the seniority list at a belated stage and how it may adversely affect
the employees whose seniority and rank has been determined in
the meantime. In this connection, reference may be made to
Malcom Lawrence Cecil D’Souza v. Union of India and
Others36, wherein this Court held that: –
36 (1976) 1 SCC 599
28
“9. Although security of service cannot be used as a shield
against administrative action for lapses of a public servant, by
and large one of the essential requirements of contentment and
efficiency in public services is a feeling of security. It is difficult
no doubt to guarantee such security in all its varied aspects, it
should at least be possible to ensure that matters like one’s
position in the seniority list after having been settled for once
should not be liable to be reopened after lapse of many years…..
Raking up old matters like seniority after a long time is likely to
result in administrative complications and difficulties. It would,
therefore, appear to be in the interest of smoothness and
efficiency of service that such matters should be given a quietus
after lapse of some time.”
46. In R.S. Makashi and Others v. I.M. Menon and Others37,
this Court observed as follows: –
“33. …. We must administer justice in accordance with law and
principles of equity, justice and good conscience. It would be
unjust to deprive the respondents of the rights which have
accrued to them. Each person ought to be entitled to sit back
and consider that his appointment and promotion effected a
long time ago would not be set aside after the lapse of a number
of years. ….”
47. In K.R. Mudgal and Others v. R.P. Singh and Others38,
this Court observed in the following terms: –
“2. … A government servant who is appointed to any post
ordinarily should at least after a period of 3 or 4 years of his
appointment be allowed to attend to the duties attached to his
post peacefully and without any sense of insecurity.”
48. In B.S. Bajwa and Another v. State of Punjab and
Others39, this Court held that the seniority list should not be
37 (1982) 1 SCC 379
38 (1986) 4 SCC 531
39 (1998) 2 SCC 523
29
reopened after a lapse of reasonable period as it would disturb the
settled position which is unjustifiable. The relevant extract is as
follows: –
“7. … It is well settled that in service matters the question of
seniority should not be reopened in such situations after the
lapse of a reasonable period because that results in disturbing
the settled position which is not justifiable….”
49. It can easily be inferred that in the intervening period, before
the GO dated 4th August, 2015 came to be issued, seniority of
multitudes of employees must have been fixed according to the GO
dated 24th December, 2002, which is according to the date of
promotion to skilled grade and not from the date of
induction/entry in semi-skilled grade. As a matter of fact,
respondent Nos. 3, 4 and 5 who were below the appellant in the
order of merit at the time of induction in the semi-skilled grade,
have been promoted to the skilled grade and the highly skilled
grade much before the appellant by application of the GO dated
24th December, 2002. The appellant did not question their
promotions before any Court or Tribunal at any stage.
50. Thus, much water has flown under the bridge and
retrospective application of the GO issued in 2015 would open
floodgates of litigation and would disturb the seniority of many
30
employees causing them grave prejudice and heartburn as it woulddisturb the crystallized rights regarding seniority, rank and
promotion which would have accrued to them during the
intervening period. To alter a seniority list after such a long period
would be totally unjust to the multitudes of employees who could
get caught in the labyrinth of uncertainty for no fault of theirs and
may suffer loss of their seniority rights retrospectively.
51. Keeping in mind the afore-stated principles, we are of the view
that applicability of the Government Order dated 4th August, 2015
cannot enure to the benefit of the appellant as its operation is
clearly prospective.
52. In wake of the above discussion, we find that the impugned
judgment of the High Court does not suffer from any infirmity
warranting interference.
53. This appeal is dismissed as being devoid of merit. No order
as to costs.
54. Pending application(s), if any, shall stand disposed of.
CIVIL APPEAL @ SLP(Civil) D. No. 3704-3706 of 2012)
55. Delay condoned.
31
56. Leave granted.
57. In terms of the judgment passed in Civil Appeal No(s). 8617
of 2013, the present appeals are disposed of. No order as to costs.
58. Pending application(s), if any, shall stand disposed of.
………………….……….J.
(SANDEEP MEHTA)
………………………….J.
(R. MAHADEVAN)
New Delhi;
September 30, 2024
32