Judgment:
1. This application is filed for a direction to the respondents to give the applicant the benefit of the judgment of C. A.T., Principal Bench, New Delhi, passed in O.A. No. 115/90. There is a further prayer for refixing the seniority of the applicant from 10.12.1951, with all consequential benefits.
2. The case of the applicant is that he joined as L.D.C. on 10.12.51 in the department of Custodian, where he was promoted as U.D.C. with effect from 17.02.58 and worked in that department till 12.05.60.
Thereafter, from 15.04.64, the applicant was duly selected by UPSC and appointed as LDC in the present department, i.e., Armed Forces Headquarters (AFHQ, for short). He has filled a copy of the appointment letter as Annexure 'B'. The further case of the applicant is that with effect from 4.9.82, the applicant was promoted as Assistant in AFHQ and he retired from service with effect from 30th September, 1987. In substance, the case of the applicant is that while fixing his seniority as L.D.C. in the department of AFHQ, the past service rendered by him right from the year 1951 should be counted and on the basis of such length of service, if his seniority is fixed, he would be senior to so many other persons in the department. In support of his contention, he relied upon the judgment of Hon'ble the Supreme Court, reported in 1989 SCC (L&S) 353= 1989(2) SLJ 56 (SC), (D.P. Sharma & Ors. v. Union of India & Anr.) and also the judgment/order dated 8.11.91 of the C.A.T., Principal Bench, New Delhi, passed in O.A. No. 115/90 (Shri Hans Raj Gaba & Ors. v. Union of India & Ors.). The learned Counsel for the applicant reiterating the stand taken in the application, submitted that the applicant is entitled to the relief as prayed for in view of Office Memorandums dated 12.08.59 and 21.12.63, filed in this case by the respondents vide Annexure R/1 and R/2 and also the judgment of Hon'ble the Supreme Court (supra) interpreting these Memorandums.
3. On the other hand, the respondents by filing reply statement, have denied the case of the applicant. They have stated that on the basis of Annexure R/l and R/2, the applicant is not entitled to any relief as prayed for. The learned Counsel appearing for the respondents, reiterating what has been stated in the reply statement, further contended that for the purpose of seniority of Lower Division Clerk, applicant's service would be counted from the date of his joining in the present department, i.e., AFHQ, and his past services rendered in other departments could not be counted. Therefore, there are no merits in this application. They have also submitted that the judgment relied upon by the applicant do not apply to the facts of the present case in as much as they are the cases in which the persons belong to inter-services organisations, which is a part AFHQ, whereas the applicant was a civil employee working in some other civil departments, which were not the part of Defence Departments. Therefore, that service could not be counted for the purpose of fixing his seniority as L.D.C.in this department and accordingly, he prays that the application is liable to be dismissed.
4. From the pleadings of both the parties and the contentions raised by the applicant, we find that it is an admitted fact that the applicant had served as L.D.C. in some other department before he joined AFHQ in the year 1964. However, the contention of the respondents is that the applicant is not entitled for counting of his past services, whereas the contention of the applicant is that he is entitled to the same for fixing his seniority in the AFHQ department. Thus, the dispute is narrowed down to only the question whether the past service rendered in other departments was required to be considered for the purpose of seniority in AFHQ department. Both the learned Counsel relied upon Annexures R/1 and R/2 to support their respective stand. Therefore, we have to consider Annexures R/1 and R/2 with reference to the law down by Hon'ble the Supreme Court and also the judgment/order rendered by the C.A.T., Principal Bench, New Delhi (supra).
5. Annexures R/1 and R/2 are instructions of the department, which were holding the field prior to framing of the rules in the year 1968. In fact, the applicant joined the department in the year 1964 and the rules come into force in the year 1968, cannot be disputed. If that is so, we will have to consider the effect of the instructions issued on 12.08.59 filed at Annexure R/l. We think it appropriate to extract para 2 of the said memorandum as under:- "(a) The inter-se seniority of persons who have been in continuous service in the Lower Division or any higher grade in Armed Forces Headquarters (including Inter-Services Organisations) from a date prior to 1.8.1951 will be fixed after taking into consideration all continuous service rendered : (i) In the Lower Division of higher grade in Armed Forces Headquarters.
(ii) as Clerk in a Government office on whatever pay provided the minimum qualification for recruitment to the post is matriculation, or (b) Persons other than those mentioned as (a) above will reckon their seniority in the Lower Division grade from the date on which they joined Armed Forces Headquarters (including Inter-services Organisations), as Lower Division Clerks and have been rendering continuous service thereafter in the Lower Division or and higher grade.
(c) Persons belonging to category (a) will rank senior enblock to persons belonging to category (b).
6. From the reading of instruction (a) extracted above, it is clear that as per guidelines issued in terms of Annexure R/1, the inter-se seniority of the persons who have been in continuous service in the Lower Division or any higher grade in Armed Forces Headquarters (including Inter-Service Organisations) from a date prior to 1.8.1951 will be fixed after taking into consideration all continuous service rendered in the Lower Division or higher grade in Armed Forces Headquarters. In para 2 (a)(ii), it is further made clear that the persons who have served as Clerk in the Government office, on whatever pay might have been provided to him, if he was an L.D.C. with Matriculation, that services could be considered. In Clause (b) regarding the persons who have joined AFHQ, their services could be counted from the date they joined the service. It is also further made clear in Clause (c) that persons belonging to category (a) will rank senior to the persons appointed under Clause (b). On an analysis of entire paragraph 2 of Annexure R/1, we find that applicant was a person belonging to Clause (a) (ii), therefore, he should necessarily rank senior against those persons appointed under Clause (b). Annexure R/l circular would apply to those persons who were appointed in AFHQ prior to 31.12.58.
7. By subsequent Memorandum dated 21.12.1963 (Annexure R/2), there had been a further modification to the earlier instructions. We notice the necessary modification, by extracting para 2 of Annexure R/2, as under:- "2. Seniority in the grade of Lower Division Clerk in respect of persons who joined AFHQ (including Inter-Service Organisations) upto and including 21st December, 1959, will be determined as follows:- (a) The seniority of temporary/quasi-permanent Lower Division Clerks will be fixed after taking into consideration all continuous Government service rendered - (i) in the Lower Division of higher grade in the Armed Forces Headquarters (including Inter Service Organisation); (iii) on pay exceeding Rs. 65/- p.m. in any other post in the pre-revised scale of pay, the minimum of which was not less than Rs. 65/- (or on pay exceeding Rs. 60/- p.m. in case of those who joined continuous service on or after 1.8.66, or on pay exceeding Rs. 110/- p.m. in the case of those who joined continuous service on or after 1.7.1959)." 8. From para 2 of the aforesaid memorandum, we find that the seniority in the grade of L.D.C. in respect of persons who joined AFHQ upto and including 21.12.59 was required to be determined on the basis of their continuous service as L.D.C. in Government service. Para 2 (ii) of the said memorandum further made it clear that such persons who have been in continuous service as a Clerk in any clerical post in a Government office, that service was required to be counted. In Clause (c) of Para 2 of the said memorandum, it is further provided as under:- "(c) Persons who joined Armed Forces Headquarters (including Inter Service Organisations), as Lower Division Clerk on 22nd December, 1959, or thereafter will reckon their seniority in that grade from the date on which they joined Armed Forces Headquarters (including Inter Service Organisations)." 9. From Clause (c), if is made clear that all those persons who joined Armed Forces Headquarters subsequent to 22.12.1959, their seniority shall be determined on the basis of their date of joining in AFHQ, From this, it follows that even those persons who joined after 22.12.59, their service could be counted from the date they joined Armed Forces.
In the year 1968, "the Armed Forces Clerical Rules" were promulgated and they were brought into effect with effect from 1.3.1968. These rules provide that prior to coming into force the said rules, the seniority of the persons was required to be determined on the basis of the length of service. Thus, the rules intend to place all the persons who joined the department of AFHQ prior to commencement of the Rules, 1968, in one category as equals notwithstanding the earlier cut off date provided in Annexures R/1 and R/2. The rules implidely extend the cut off date to 1.3.1968, i.e., the date on which the Armed Forces Clerical Rules were brought into effect, stating that all persons who joined in AFHQ prior to 1.3.68, their length of service on the post of L.D.C. should be counted. Thus, their length of services rendered in other departments as L.D.C. should be counted for fixation of their seniority in AFHQ. Hon'ble Supreme Court in 1989 SCC (L&S) 353 also further made it clear that the rules cannot impair the existing rights of the persons who were appointed prior to the commencement of the rules and all such persons were entitled to the benefit of the memorandum issued from time to time by AFHQ department. We think it appropriate to extract the relevant paras 4 & 5 of the judgment, as under:- "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 erroenous. 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 the officials who were appointed long prior to the Rules came into force. The office memorandums to which learned Single Judge 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 Varma (1972) 1 SCC 379, 386 para 14). 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 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." 10. From the facts of the above judgment, it is clear that Hon'ble Single Judge of the Delhi High Court had allowed counting of the past service of L.D.C. prior to joining the department, but Division Bench did not agree with the views expressed by the learned Single Judge, and ultimately, Hon'ble the Supreme Court held that the Rules cannot have any retrospective effect and they cannot impair the existing rights of the applicants, the length of service was treated as guiding principle for arranging inter se seniority of the officials, and hence, their past services rendered in different departments as L.D.C. would be counted for seniority. Hon'ble Supreme Court further observed that according to Memorandum, all the persons joined prior to the persons, who were recruited to the department shall rank senior and the same benefits should be accorded to the similarly situated person, and accordingly allowed the petition. In our considered view, this judgment of Hon'ble the Supreme Court would be equally applicable to the facts of the present case. In fact, the C.A.T, Principal Bench, New Delhi, followed the said judgment of Hon'ble the Supreme Court in O.A. No.115/90 (Shri Hans Raj Gaba & Ors.) and batches, vide order dated 08.11.1991. We think it appropriate to extract the relevant portions of paragraph 9 and 10, as under:- "9. In view of the above, the Supreme Court has authoritatively held that its decision in D.P. Sharma's case would apply to all persons who are similarly situated. It is therefore, become inescapable that the seniority of the applicants and those similarly situated has to be determined on the basis of the length of service.
10. The respondents have admitted that the applicants before us joined the Armed Forces Headquarters during the period from 1951 to 1966, which was before the Rules were find to regulate their seniority. They have further stated that some of them have already retired from service. The question of considering all similarly placed individuals was examined by them at the time of implementing the judgment of the Supreme Court in D.P. Sharma's case. It transpired that approximately 4,400 persons had joined AFHQ as LDCs between 1951 and 29.2.1968, i.e., prior to the introduction of the Rules...." 11. From the judgment/order of the C.A.T., Principal Bench, New Delhi, it is further clear that keeping in view the difficulties pleaded by the department that there were about 4400 persons, for which the seniority was required to be redetermined, it observed that the department was bound to undertake the exercise in the right earnest and implement the law laid down by Hon'ble the Supreme Court. It accordingly allowed the applications directing the respondents to redetermine the seniority of the applicants therein and other similarly situated persons, including those who may have retired from service, and review their cases for promotion in the light of the revised seniority list. In this case also, the department cannot have any excuse and the applicant is entitled to all the benefits flowing from the judgment of Hon'ble the Supreme Court in D.P. Sharma's case and the judgment/order of the C.A.T., principal Bench, New Delhi, in O.A. No.115/90 referred to above. Accordingly, we pass the order as under:- 'The application is allowed. The respondents are directed to redetermine the seniority of the applicant on the basis of the principles laid down by Hon'ble the Supreme Court and also the judgment/order of the C.A.T., Principal Bench, New Delhi, passed in O.A. No. 115/90, decided on 8.11.91, and count his past service for determining his seniority as L.D.C., with all consequential benefits, including notional promotion, arrears of pay and allowances etc., due to the applicant. Six months time is granted for complying with the above directions. No costs."