Bach Raj Soni Vs. State of Rajasthan & Anr.
EmailAppeal: Civil Appeal No. 5698 of 2000
With
(C.A. No. 7068 of 2000)
With
(C.A. No. 7068 of 2000)
Petitioner: Bach Raj Soni
Respondent: State of Rajasthan & Anr.
Apeal: Civil Appeal No. 5698 of 2000
With
(C.A. No. 7068 of 2000)
With
(C.A. No. 7068 of 2000)
Judges: G.B. PATTANAIK & RUMA PAL, JJ.
Date of Judgment: Jul 26, 2001
Head Note:
SERVICE LAWS
Rajasthan Subordinate Offices Ministerial Staff Service Rules, 1957
Rule 27, proviso (as added in 1982) – Seniority – Determination of – Method – LDC appointed in 1964 in collectorate – Confirmed in 1972 – On his own request, brought to transport department – On the question of considering past service, High Court ordering to count his service from date of confirmation – Justification. Held that when an employee comes to another department of his own, he is to be placed at the lowest. This is clear from circulars Dt. 31.7.72 and 2.8.72. Hence, tribunal was right in holding that seniority will be counted from 1978.
Held:
In the case in hand, the relevant rules dealing with the seniority stipulates that the seniority in the transferred cadre would be the date of the order of substantive appointment to the cadre concerned. The expression “class of post” in rule 27 would obviously mean the posts borne in a cadre and all the posts of LDCs in the state cannot be taken to be constituting a cadre. It is true that the proviso to rule 27 was brought into existence in 1982 which amply clarifies the entire position. But even without that proviso, on an interpretation of rule 27, as it stood in the year 1978, the date on which the respondent came to the transport department at his own request and the two circulars referred to above, we have no manner of doubt that the seniority of the respondent in the transport department in the cadre of LDC can be counted only taking his services from 1978 and not any prior point of time. (Para 10)
JUDGEMENT:
ORDER
1. These two appeals – one by the State of Rajasthan and the other by the concerned employee are directed against one and the same judgment of the Rajasthan High Court. The respondent admittedly was appointed as a lower division clerk (LDC) in the collectorate in 1964 and was confirmed in the said post in the year 1972. On his own request, he was brought to the transport department as a clerk in 1978. The question for our consideration is as to whether his seniority in the cadre of LDC in the transport department can be determined by taking his service from 1978 onwards or his past services rendered in the collectorate can also be taken into consideration.
2. The employer determined his seniority taking into account his services rendered in the transport department from 1978 onwards. The respondent, therefore, assailed the said determination by filing an application in the state administrative tribunal. The tribunal having rejected his prayer and dismissing the O.A., he approached the High Court. The High Court, however, having granted that relief, these two appeals, are before this Court. The learned single judge held that the services rendered by the employee from 1964 onward have to be counted for determining seniority in the transport department. The division bench, however, modified the order and held the services rendered after the confirmation i.e. 1972, would be counted for seniority in the transport department.
3. The conditions of service of the LDCs is governed by a set of rules framed under proviso to Article 309 of the Constitution of India called “the Rajasthan Subordinate Offices Ministerial Staff Service Rules, 1957” (hereinafter referred to as “Rules”). Rule 27 thereof is the provision for the seniority. The said rule reads thus:
“Seniority – Seniority in each class of posts shall be determined by the date of the order of substantive appointment to the class of post concerned.”
4. This rule was amended in the year 1982 and a proviso was inserted therein. The said proviso is to the following effect:
“(xi-a) that notwithstanding anything contained in the contrary in substantive part of rule 27 in case of a person holding a post mentioned in sub-rule (2) or rule 6 of these rules in a department and has been transferred from one department to another on the corresponding post in the cadre concerned at his own request in accordance with proviso (1) to sub-rule (1) of rule 7, the inter-se seniority of such person has been taken on transfer at his own request shall be determined from the date he joins the new department on the post concerned.”
5. The High Court, by the impugned judgment, came to the conclusion that the proviso having come into existence only in the year 1982 and the respondent having been brought on transfer in 1978 before the proviso being there in existence, the seniority of the respondent cannot be determined looking to the proviso in question. The High Court was also persuaded to come to the conclusion that since the respondent was a permanent LDC in the collectorate and was confirmed way-back in the year 1972, that right cannot be taken away even if he has been transferred to the transport department and, therefore, the determination of his seniority made by the department is erroneous and the services rendered in the collectorate from 1972 onwards have to be counted.
6. Mr. Ashwani Kumar, learned senior counsel appearing for the state of Rajasthan, contended that even apart from rule 27 of the rules, which on its own interpretation would mean that the seniority of the respondent could be determined in the transport department taking his service only from 1978, inasmuch as his substantive appointment to the post of LDC in the transport department cannot be held to be earlier in point of time, two administrative circulars, one dated 31.07.1972 and the other dated 2nd of August 1978, also indicate as to what would be the basis for determination of seniority of an employee when he comes on transfer from one department to the other at his own request. The aforesaid two circulars are extracted herein below in extenso:
– : ANNEXURE P-2
Government of Rajasthan
Department of Personnel (Gr. 5)
No. F. 4 (44) AA/1/71 Jaipur
dated 31 July, 1972.
From:
Dy. Secretary to Government cum
State Welfare Officer,
Government of Rajasthan
Jaipur.
To:
The Registrar.
Board of Revenue,
Rajasthan, Ajmer.
Subject: Determination of seniority of upper division and lower division clerks transferred from one collectorate to another collectorate.
Sir,
I am directed to say that in view of rule 4 (c) and (e) of the Rajasthan Subordinate Offices Ministerial Staff Service Rules, 1957 and under rule 12 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, the collectors by virtue of being heads of departments have been exercising the powers of appointing authority for ministerial services. The ministerial cadre of each collector is separate. Instances have, however, came to the notice where in some exceptional cases even L.D.C./U.D.Cs. have been ordered to be transferred by the board of revenue from one district to another district due to administrative reasons. Some collectors have raised a point for proper determination of seniority of such transferred L.D.C./U.D.C. in another district in view of the anomalies which arise under the rules.
2. The position under the aforesaid rules is that under rule 27 of the Rajasthan Subordinate Office Ministerial Staff Service Rules, 1957, seniority in each class of posts is determined by the date of the order of substantive appointment to the class of posts concerned and confirmation of LDC recruited before 1.9.68 was to be made from the date of passing departmental examination. But the departmental examinations were held by various collectors on different dates, and confirmation could be made on the availability of substantive vacancy. In some collectorates, temporary posts were converted earlier than others. Thus, incumbents were also confirmed earlier than their counterparts in other departments.
Consequently, an LDC/UDC who had put in comparatively lesser service than LDC/UDC of another collectorate was confirmed earlier in view of the circumstances of a particular district. It creates an anomalous position if such LDC/UDCs, is transferred to other collectorate where officials with comparatively longer service own. But under the provisions of rules as explained above on transfer, such official with less service by dint of his earlier confirmation creates heart burning and gives rise to a legitimate grievance.
3. The matter has been considered by the government and it has been decided that for determination of seniority of such transferred LDC/UDC the following procedure, akin to employees deputed from one collectorate to another may be adopted:-
(i) A permanent/temporary LDC/UDC may in exigencies of public service or in special circumstances, be transferred from one collectorate to another, but he will retain his lien/claim in the parent department. At the time of such transfer, it should be clearly stated whether such transfer has been at the request of the employee himself;
(ii) Such transfers will be for a specific period not exceeding three years, he will remain posted in the new cadre as a deputationist and his name will not be shown in the seniority list of new cadre;
(iii). Names of such employees will be shown in seniority list published by the parent department.
(iv). He will be considered for confirmation and promotion or retrenchment etc. according to his turn in his parent department and they shall have to go back to his parent cadre in the above mentioned eventualities. In the case of an employee who is posted as such on his own request he will have to avail of the benefit of confirmation or promotion in parent cadre or finally forego such promotion where he will have no claim for it. In the case of others also, it will not be proper to hold them back and they should be reverted to their parent cadre;
(v). In case he does not wish to go back to his parent department, his service in the previous cadre will not be counted for seniority in the new department and he will be confirmed or promoted accordingly. He should declare this option either when he joins the new collectorate or as soon as any question of his promotion or confirmation in either of the two cadres arises.
4. This issues with the concurrence of the appointment (A-II) department vide their no. ID/453/AA/II/72 dated 27.5.72.
Yours faithfully.
Sd/-
Deputy secretary to government.
Copy forwarded to the:-
1. All secretariats to government.
2. All sections of the secretariat.
3. All heads of the departments
4. All collectors.
Copy also to the:
1. Secretary, Rajasthan Legislative Assembly, Jaipur.
2. Secretary, Rajasthan Public Service Commission, Ajmer.
3. Registrar, High Court, Jodhpur.
Sd/-
Deputy secretary to government.
GOVERNMENT OF RAJASTHAN
HOME (GROUP – 12) DEPARTMENT
From :-
Sudhindra Gemawat,
Deputy secretary to government.
Home, (Transport) Department,
Rajasthan, Jaipur.
To :-
Shri K.V. Shankaran.
Transport commissioner,
Rajasthan, Jaipur.
No. F. 20 (Kha) (27) Pari/77 Dated Jaipur, the 2.8.78
Subject : Determination of seniority of upper division and lower division clerks transferred from one collectorate to another collectorate.
Sir,
I am directed to refer to your letter no. 44728 dated ….addressed to the deputy secretary department of personnel subsequent letters dated 27/4/78 and 5/7/78 addressed to department on the subject. The matter has been examined and I clarified that in accordance with general principles, seniority determined on the basis of date of substantive appointment. How this principle would not be applicable in a case where officials working in different departments are transferred in the public interest or where different cadres are amalgamated as a result of integration. In such cases, seniority is determined on the basis of continuous length of service in the same or equivalent grade.
In cases where transfers are made from one department to the other on the basis of the request of the individuals concerned, should be placed junior to those already working in the department concerned. This principle has been made amply clear in circular no. F. 4(44) AA-V/71 dated 31/7/72 which though issued in connection with the LDCs. transferred from different collectorates, are appropriately applicable to all such cases of inter-departmental transfers where permissible and made on the requests of the individuals concerned.
Yours faithfully
(S. Gemawat)
Deputy secretary to govt.”
7. According to the learned counsel, the aforesaid two circulars even apart from rule 27 would unequivocally indicate that when a person comes on transfer at his own request from one cadre to the other, then in the transferred cadre, his seniority will be at the lowest on the date he is transferred in the cadre and necessarily, therefore, the past services rendered in his parent cadre cannot be taken into account.
8. Mr. Mehta, however, contended that the aforesaid circular of the year 1972 was, in fact, in relation to transfer from one collectorate to the other. The other circular of 1978 also, according to Mr. Mehta, came into existence subsequent to the respondent having come on transfer to the transport department, though on his own request. He further contends that, had the 1978 circular been there earlier in existence, the respondent might not have chosen to come to the transport department. At any rate, according to Mr. Mehta, he being a confirmed employee of the collectorate in the year 1972, the rules governing seniority cannot be interpreted in a manner so as to take away his rights against a confirmed post in the collectorate.
9. Having considered the rival submissions, the only question that arises for our consideration is, what would be the correct principle for determination of the seniority of an employee who, on his own initiative, seeks a transfer from one cadre to the other and is brought accordingly?
10. Even without any rules governing such conditions, it is absolutely clear that when an employee comes on his own request on transfer from one cadre to the other, he should normally be borne at the lowest in the transferred cadre on that date unless there exists any rules which confer the benefit that his past services also could be taken into account. But in the case in hand, the relevant rules dealing with the seniority also stipulates that the seniority in the transferred cadre would be the date of the order of substantive appointment to the cadre concerned. The expression “class of post” in rule 27 would obviously mean the posts borne in a cadre and all the posts of LDCs in the state cannot be taken to be constituting a cadre. Mr. Mehta also does not dispute that proposition. That apart, as contended by Mr. Ashwani Kumar, the two administrative instructions referred to earlier unequivocally indicate that the concerned employee who, on the basis of his own request, is brought on an inter-departmental transfer, then he would be at the lowest of the transferred cadre to which he is brought. It is true that the proviso to rule 27 was brought into existence in 1982 which amply clarifies the entire position. But even without that proviso, on an interpretation of rule 27, as it stood in the year 1978, the date on which the respondent came to the transport department at his own request and the two circulars referred to above, we have no manner of doubt that the seniority of the respondent in the transport department in the cadre of LDC can be counted only taking his services from 1978 and not any prior point of time. That being the position, the High Court was in error in interpreting the relevant provisions of service rules governing the seniority of the respondent. Therefore, we allow the appeal preferred by the State of Rajasthan and dismiss the appeal preferred by the concerned respondent employee. The judgments of the High Court, both division bench and single judge are set aside and that of the tribunal is affirmed.
1. These two appeals – one by the State of Rajasthan and the other by the concerned employee are directed against one and the same judgment of the Rajasthan High Court. The respondent admittedly was appointed as a lower division clerk (LDC) in the collectorate in 1964 and was confirmed in the said post in the year 1972. On his own request, he was brought to the transport department as a clerk in 1978. The question for our consideration is as to whether his seniority in the cadre of LDC in the transport department can be determined by taking his service from 1978 onwards or his past services rendered in the collectorate can also be taken into consideration.
2. The employer determined his seniority taking into account his services rendered in the transport department from 1978 onwards. The respondent, therefore, assailed the said determination by filing an application in the state administrative tribunal. The tribunal having rejected his prayer and dismissing the O.A., he approached the High Court. The High Court, however, having granted that relief, these two appeals, are before this Court. The learned single judge held that the services rendered by the employee from 1964 onward have to be counted for determining seniority in the transport department. The division bench, however, modified the order and held the services rendered after the confirmation i.e. 1972, would be counted for seniority in the transport department.
3. The conditions of service of the LDCs is governed by a set of rules framed under proviso to Article 309 of the Constitution of India called “the Rajasthan Subordinate Offices Ministerial Staff Service Rules, 1957” (hereinafter referred to as “Rules”). Rule 27 thereof is the provision for the seniority. The said rule reads thus:
“Seniority – Seniority in each class of posts shall be determined by the date of the order of substantive appointment to the class of post concerned.”
4. This rule was amended in the year 1982 and a proviso was inserted therein. The said proviso is to the following effect:
“(xi-a) that notwithstanding anything contained in the contrary in substantive part of rule 27 in case of a person holding a post mentioned in sub-rule (2) or rule 6 of these rules in a department and has been transferred from one department to another on the corresponding post in the cadre concerned at his own request in accordance with proviso (1) to sub-rule (1) of rule 7, the inter-se seniority of such person has been taken on transfer at his own request shall be determined from the date he joins the new department on the post concerned.”
5. The High Court, by the impugned judgment, came to the conclusion that the proviso having come into existence only in the year 1982 and the respondent having been brought on transfer in 1978 before the proviso being there in existence, the seniority of the respondent cannot be determined looking to the proviso in question. The High Court was also persuaded to come to the conclusion that since the respondent was a permanent LDC in the collectorate and was confirmed way-back in the year 1972, that right cannot be taken away even if he has been transferred to the transport department and, therefore, the determination of his seniority made by the department is erroneous and the services rendered in the collectorate from 1972 onwards have to be counted.
6. Mr. Ashwani Kumar, learned senior counsel appearing for the state of Rajasthan, contended that even apart from rule 27 of the rules, which on its own interpretation would mean that the seniority of the respondent could be determined in the transport department taking his service only from 1978, inasmuch as his substantive appointment to the post of LDC in the transport department cannot be held to be earlier in point of time, two administrative circulars, one dated 31.07.1972 and the other dated 2nd of August 1978, also indicate as to what would be the basis for determination of seniority of an employee when he comes on transfer from one department to the other at his own request. The aforesaid two circulars are extracted herein below in extenso:
– : ANNEXURE P-2
Government of Rajasthan
Department of Personnel (Gr. 5)
No. F. 4 (44) AA/1/71 Jaipur
dated 31 July, 1972.
From:
Dy. Secretary to Government cum
State Welfare Officer,
Government of Rajasthan
Jaipur.
To:
The Registrar.
Board of Revenue,
Rajasthan, Ajmer.
Subject: Determination of seniority of upper division and lower division clerks transferred from one collectorate to another collectorate.
Sir,
I am directed to say that in view of rule 4 (c) and (e) of the Rajasthan Subordinate Offices Ministerial Staff Service Rules, 1957 and under rule 12 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, the collectors by virtue of being heads of departments have been exercising the powers of appointing authority for ministerial services. The ministerial cadre of each collector is separate. Instances have, however, came to the notice where in some exceptional cases even L.D.C./U.D.Cs. have been ordered to be transferred by the board of revenue from one district to another district due to administrative reasons. Some collectors have raised a point for proper determination of seniority of such transferred L.D.C./U.D.C. in another district in view of the anomalies which arise under the rules.
2. The position under the aforesaid rules is that under rule 27 of the Rajasthan Subordinate Office Ministerial Staff Service Rules, 1957, seniority in each class of posts is determined by the date of the order of substantive appointment to the class of posts concerned and confirmation of LDC recruited before 1.9.68 was to be made from the date of passing departmental examination. But the departmental examinations were held by various collectors on different dates, and confirmation could be made on the availability of substantive vacancy. In some collectorates, temporary posts were converted earlier than others. Thus, incumbents were also confirmed earlier than their counterparts in other departments.
Consequently, an LDC/UDC who had put in comparatively lesser service than LDC/UDC of another collectorate was confirmed earlier in view of the circumstances of a particular district. It creates an anomalous position if such LDC/UDCs, is transferred to other collectorate where officials with comparatively longer service own. But under the provisions of rules as explained above on transfer, such official with less service by dint of his earlier confirmation creates heart burning and gives rise to a legitimate grievance.
3. The matter has been considered by the government and it has been decided that for determination of seniority of such transferred LDC/UDC the following procedure, akin to employees deputed from one collectorate to another may be adopted:-
(i) A permanent/temporary LDC/UDC may in exigencies of public service or in special circumstances, be transferred from one collectorate to another, but he will retain his lien/claim in the parent department. At the time of such transfer, it should be clearly stated whether such transfer has been at the request of the employee himself;
(ii) Such transfers will be for a specific period not exceeding three years, he will remain posted in the new cadre as a deputationist and his name will not be shown in the seniority list of new cadre;
(iii). Names of such employees will be shown in seniority list published by the parent department.
(iv). He will be considered for confirmation and promotion or retrenchment etc. according to his turn in his parent department and they shall have to go back to his parent cadre in the above mentioned eventualities. In the case of an employee who is posted as such on his own request he will have to avail of the benefit of confirmation or promotion in parent cadre or finally forego such promotion where he will have no claim for it. In the case of others also, it will not be proper to hold them back and they should be reverted to their parent cadre;
(v). In case he does not wish to go back to his parent department, his service in the previous cadre will not be counted for seniority in the new department and he will be confirmed or promoted accordingly. He should declare this option either when he joins the new collectorate or as soon as any question of his promotion or confirmation in either of the two cadres arises.
4. This issues with the concurrence of the appointment (A-II) department vide their no. ID/453/AA/II/72 dated 27.5.72.
Yours faithfully.
Sd/-
Deputy secretary to government.
Copy forwarded to the:-
1. All secretariats to government.
2. All sections of the secretariat.
3. All heads of the departments
4. All collectors.
Copy also to the:
1. Secretary, Rajasthan Legislative Assembly, Jaipur.
2. Secretary, Rajasthan Public Service Commission, Ajmer.
3. Registrar, High Court, Jodhpur.
Sd/-
Deputy secretary to government.
GOVERNMENT OF RAJASTHAN
HOME (GROUP – 12) DEPARTMENT
From :-
Sudhindra Gemawat,
Deputy secretary to government.
Home, (Transport) Department,
Rajasthan, Jaipur.
To :-
Shri K.V. Shankaran.
Transport commissioner,
Rajasthan, Jaipur.
No. F. 20 (Kha) (27) Pari/77 Dated Jaipur, the 2.8.78
Subject : Determination of seniority of upper division and lower division clerks transferred from one collectorate to another collectorate.
Sir,
I am directed to refer to your letter no. 44728 dated ….addressed to the deputy secretary department of personnel subsequent letters dated 27/4/78 and 5/7/78 addressed to department on the subject. The matter has been examined and I clarified that in accordance with general principles, seniority determined on the basis of date of substantive appointment. How this principle would not be applicable in a case where officials working in different departments are transferred in the public interest or where different cadres are amalgamated as a result of integration. In such cases, seniority is determined on the basis of continuous length of service in the same or equivalent grade.
In cases where transfers are made from one department to the other on the basis of the request of the individuals concerned, should be placed junior to those already working in the department concerned. This principle has been made amply clear in circular no. F. 4(44) AA-V/71 dated 31/7/72 which though issued in connection with the LDCs. transferred from different collectorates, are appropriately applicable to all such cases of inter-departmental transfers where permissible and made on the requests of the individuals concerned.
Yours faithfully
(S. Gemawat)
Deputy secretary to govt.”
7. According to the learned counsel, the aforesaid two circulars even apart from rule 27 would unequivocally indicate that when a person comes on transfer at his own request from one cadre to the other, then in the transferred cadre, his seniority will be at the lowest on the date he is transferred in the cadre and necessarily, therefore, the past services rendered in his parent cadre cannot be taken into account.
8. Mr. Mehta, however, contended that the aforesaid circular of the year 1972 was, in fact, in relation to transfer from one collectorate to the other. The other circular of 1978 also, according to Mr. Mehta, came into existence subsequent to the respondent having come on transfer to the transport department, though on his own request. He further contends that, had the 1978 circular been there earlier in existence, the respondent might not have chosen to come to the transport department. At any rate, according to Mr. Mehta, he being a confirmed employee of the collectorate in the year 1972, the rules governing seniority cannot be interpreted in a manner so as to take away his rights against a confirmed post in the collectorate.
9. Having considered the rival submissions, the only question that arises for our consideration is, what would be the correct principle for determination of the seniority of an employee who, on his own initiative, seeks a transfer from one cadre to the other and is brought accordingly?
10. Even without any rules governing such conditions, it is absolutely clear that when an employee comes on his own request on transfer from one cadre to the other, he should normally be borne at the lowest in the transferred cadre on that date unless there exists any rules which confer the benefit that his past services also could be taken into account. But in the case in hand, the relevant rules dealing with the seniority also stipulates that the seniority in the transferred cadre would be the date of the order of substantive appointment to the cadre concerned. The expression “class of post” in rule 27 would obviously mean the posts borne in a cadre and all the posts of LDCs in the state cannot be taken to be constituting a cadre. Mr. Mehta also does not dispute that proposition. That apart, as contended by Mr. Ashwani Kumar, the two administrative instructions referred to earlier unequivocally indicate that the concerned employee who, on the basis of his own request, is brought on an inter-departmental transfer, then he would be at the lowest of the transferred cadre to which he is brought. It is true that the proviso to rule 27 was brought into existence in 1982 which amply clarifies the entire position. But even without that proviso, on an interpretation of rule 27, as it stood in the year 1978, the date on which the respondent came to the transport department at his own request and the two circulars referred to above, we have no manner of doubt that the seniority of the respondent in the transport department in the cadre of LDC can be counted only taking his services from 1978 and not any prior point of time. That being the position, the High Court was in error in interpreting the relevant provisions of service rules governing the seniority of the respondent. Therefore, we allow the appeal preferred by the State of Rajasthan and dismiss the appeal preferred by the concerned respondent employee. The judgments of the High Court, both division bench and single judge are set aside and that of the tribunal is affirmed.
