Radha Krishna Gaur And Ors. vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 552 Del

JUDGMENT

S.B. Sinha, C.J.

1. The petitioner have filed this writ petition being aggrieved by and dissatisfied wit the judgment and order dated 12th January 1999 passed by Central Administrative Tribunal, New Delhi in OA No. 928/95 whereby and whereunder Original Applications filed by them questioning their placement in the seniority list were dismissed.

FACTS:

2. The petitioners were appointed as Lower Division Clerks in Armed Forces Headquarters (AFHQ) prior to 1968. They were later inducted in the AFHQ (Clerical Service) on 1st March 1968 upon coming into force of AFHQ (Clerical Service) Rules 1968. Seniority of LDCs in term of the said Rules were to be arranged in order of their respective dates of confirmation and not on the basis of their continuous officiation. AFHQ Stenographers Service, as per AFHQ Scenographer Rules came into being w.e.f. 22nd December 1970 in terms whereof a separate cadre for stenographers was created and those LDCs with special pay of Rs. 20/- on their willingness to joint the new cadre were to be curved out from the LDCs whereof they were to be designated as Scenographer Grade D. The AfHQ Scenographer Service came into vogue on or about 1st August 1972. The petitioners joined the same. Rule 9A(1)(a) and Rule 18(4)(2), interpretations whereof fall for consideration in this writ petition, read thus:

"9A: Initial constitution of Grade-D

(1) Appointment against all permanent and temporary duty posts at the initial constitution of Grade D of the Services shall be made from amongst departmental candidates. The following shall be considered a departmental candidates for this purpose, namely-

(a) persons who, immediately before the 1st August 1972, have been regularly appointed to the Lower Division Grade of the Armed Forces Headquarters (AFHQ) Clerical Service and who are holding posts of steno-typists and drawing a special pay for the same in any of the offices of the Armed Fores Headquarters and Inter Service Organisations specified in the First Schedule;

18(4)(2) The seniority of the Stenographers Grade D appointed at the initial constitution shall be regulated in the following manner:-

(a) In the case of Lower Division Clerk Steno-typists, referred to in Clauses (a) and

(b) of Sub-rule (1) of Rule 9A, their inter-se seniority shall be fixed with reference to their seniority in Lower Division Grade of the Armed Forces Headquarters Clerical Service."

3. A seniority list was published on 22nd October 1973 wherein seniority was shown in the order of the dates of joining the post of LDCs purported to be on the basis of the executive instructions which had been issued at the time of entry into service prior to framing of the Rules. On or about 27th February 1979, the respondents rescheduled the seniority list of the LDCs including that of the petitioners where at the relevant point of time they were working as Steno Typists, in the order of date of confirmation purported to be in terms of AFHQ Clerical Service.

4. D.P. Sharma and others questioned the said revision in the seniority before this court by filing a writ petition which was allowed. An appeal taken there against before the Division Bench, however, succeeded. The matter was taken to Supreme Court by the writ petitioners and Special Leave having been granted, the Appeal was marked as CA 4133-4143/84). By a judgment and order dated 21st February 1989, the said appeal was allowed restoring the judgment of the learned single Judge.

5. It was held [ D.P. Sharma v. Union of India, (1989) 1 SCR 792]:

"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 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 confirmations."

6. The benefit of the said judgment, however, was not extended to the other similarly situated employees resulting in filing of another writ petition by one R.K. Khosla wherein it was held that the benefit of the Supreme Court judgment would be extended to persons similarly situated. In the year 1992, thereafter, the seniority list was revised. The names of the petitioners also find place therein.

7. The seniority list of the Stenographers Grade D was also amended as a result whereof the original seniority as was existing in the year 1973 was restored. However, according to the petitioners, the consequential benefits had not been granted. On or about 18th August 1993 the said seniority list dated 18th January 1993 was cancelled whereupon the petitioners filed the Original Application.

8. The Central Administrative Tribunal dismissed the same holding that the petitioners having given up their own cadre, were not entitled to the benefit of the said rules.

9. Shri KBS Rajan, the learned counsel appearing on behalf of the petitioners would, inter alia, contend that as there had been no separate seniority list for the Stenographers at the relevant point of time, the same principles which were applicable in the case of clerks shall apply.

10. Mr. Maninder Singh, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that the decision of the apex court in the case of D.P. Sharma v. Union of India, (1989) 1 SCR 792 would not apply in the instant case. The learned counsel would contend that as specific rule exists governing the case of the petitioners, the decision of the apex court had wrongly been applied. In support of the said contention, reliance has been placed on Director of School Education and Anr. v. A.N. Kandaswamy and Anr., .

11. It is not in dispute that a large number of Lower Division Clerks joined the AFHQ. They could be confined in their services upon fulfillling the condition therefore namely, they will have to pass the departmental test conducted by the Union Public Service Commission at the prescribed speed. As some of them did not pass the prescribed test, they were relegated at the bottom in the seniority list in the LDC grade having regard to the general situation prevailing at the relevant time that seniority would follow the order of confirmation. the same, as noticed hereinbefore, was subject matter of the decision in D.P. Sharma case (supra).

12. So far as the petitioners are concerned, they, as noticed hereinbefore, opted for a different cadre namely the cadre of Stenographers Grade D. The conditions of service of the petitioners were governed by the 1970 Rules. Rule 9A of the said Rules governed initial constitution of Grade D whereas Rule 18 provides for the manner in which the seniority list would be prepared.

13. It may be true that petitioners joined a new cadre but so far as their inter-se seniority is concerned, the same in terms of Rule 18(4)(2) was to be the same as had been fixed when they were serving in the Lower Division Grade of the AHFQ Clerical Service. The mode and manner in which the seniority list is to be prepared and maintained, thus being governed by the aforesaid Rule 18(4)(2) of the rules, the doctrine of incorporation by reference will squarely apply in the instant case. In State of Madhya Pradesh v. M.V. Narasimhan, , it was held:

"15. On consideration of these authorities, therefore, it seems that the following proposition emerges:

Where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases:

(a) where the subsequent Act and the previous Act are supplemental to each other;

(b) where the two Acts are in pari materia;

(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and

(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act."

14. The learned Tribunal, therefore, in our opinion, was not correct in holding that since the petitioners had served their connections with their previous service, the same could not have been reopened.

15. It is not the question as to whether the seniority list could have been reopened or not was required to be passed but the question which should have been posed and answered was as to whether having regard tot he decision of the apex court, the petitioners herein were entitled to the same benefit of seniority keeping in view that fact that their inter-se seniority was still governed by the old rules and by reason thereof, the rule as regard seniority in order of confirmation was not required to be followed once the seniority list int he clerical grade had been re-fixed. Furthermore, the apex court having held in the case of R.K. Khosla (supra) that it is the earlier decision in D.P. Sharma (supra) will apply to all persons similarly situated, in our opinion, doctrine of incorporation by reference should have been given its full effect.

16. In that view of the matter, despite the fact that the petitioners were borne in the cadre of Scenographer Grade D w.e.f. 1970, as the said cadre was carved out of the clerical grade cadre, their inter-se seniority would remain the same.

17. The submission of Mr. Singh to the effect that the seniority of the petitioners having been determined on 1st November 1982, the Central Administrative Tribunal had no jurisdiction, cannot be accepted. The petitioners herein did not question any order of 1982 but they had questioned an order dated 18th August 1993 whereby and whereunder the respondents had unilaterally cancelled their own order dated 18th January 1993.

18. Reliance placed on the decision of the apex court in Director of School Education (supra) is misplaced. There does not exist any specific rule in relation to a separate cadre to which the petitioners therein were borne as it will bear repetition to state that their inter-se seniority in terms of Rule 18(4)(2) must be governed by the Rules as interpreted by the apex court.

19. In Suraj Parkash Gupta v. State of J&K, , the apex court has stated the law thus:

"67. Apart from the cases arising from Andhra Pradesh the position appears to be the same as per the cases arising from other States, so far as the promotees' ad hoc service is concerned. In Baleshwar Dass v. State of U.P. it was observed (at p. 464) that officiating promotees are to be given dates by the Service Commission for counting seniority. In B.S. Yadav v. State of Haryana it was said that the promotees have to be confined in their quota if found fit and qualified and when vacancies arose in their quotas. In A. Janardhana v. Union of India (at p. 961) it was observed that the seniority of the promotees was to count from the date of occurrence of vacancy in their quota. In G.P. Doval v. Chief Secy., Govt. of U.P. it was held that subsequent approval by the Public Service Commission to the temporary appointments will relate back to the initial dates of appointment for the purpose of seniority on the basis of the rule of continuous officiation and the seniority could not be reckoned only from the date of approval or selection by the Commission. In Narender Chadha v. Union of India it was held that the promotees were first to be regularized from the dates of occurrence of vacancies/eligibility. The initial appointment though not according to rules, the said service could not be ignored. In A.N. Pathak v. Secy. of the Govt. 1987 Supp SCC 763 : 1988 SCC (L&S) 370 : (1988) 6 ATC 626 it was held that the promotees had to be inserted at places reserved for them as per quota. In Delhi Water Supply & Sewage Disposal Committee v. R.K. Kashyap 1989 Supp (1) SCC 194 : 1989 SCC (L&S) 253: (19889) 9 ATC 784 it was held that once regularisation was made by PSC/DPC, the said service could not be ignored."

20. In any event, the respondents having granted a benefit in favor of the petitioners in terms of its order dated 18th January 1993, the same could not have been unilaterally cancelled without assigning any reason whatsoever and/or without complying with the principles of natural justice.

21. For the foregoing reasons, the impugned judgment cannot be sustained. It is set aside accordingly. The writ petition is allowed and the order dated 18th August 1993 is set aside. In the facts and circumstances of the case, there shall be no order as to costs.