U.O.I. & Ors. Vs. O.P. Gupta & Others
EmailAppeal: Civil Appeal No. 3489-3491/1996
Petitioner: U.O.I. & Ors.
Respondent: O.P. Gupta & Others
Apeal: Civil Appeal No. 3489-3491/1996
Judges: G. B. PATTANAIK & B. N. AGRAWAL, JJ.
Date of Judgment: Apr 25, 2001
Head Note:
SERVICE LAWS
Armed Force Headquarters Clerical Service Rules, 1968
Reversion – Civilian School Masters/Lower Division Clerks – Some of them brought to headquarters prior to 1968 i.e., before the Rules came into force – Under the Rules, seniority to be determined on basis of confirmation – Prior to it, seniority decided on basis of continuous length of service – Directions by Supreme Court in earlier two matters necessitating re-determination and thus resulting reversion of some of such employees – Justification. Held that since, reversion has resulted in implementing the judgment, they cannot claim to be from a different category and beyond the purview of judgment in earlier cases. Matter however remanded as Tribunal has left unanswered, a plea of reversion.
Held:
The seniority of all those employees, who had been in the Army Headquarters prior to 1968 has to be determined/re-determined on the basis of continuous length of service irrespective of their date of confirmation in accordance with Office Memorandum then in force. In that view of the matter, the reverted employees, who had joined the Army Headquarters being selected by the Union Public Service Commission cannot claim to be belonging to a different category so as to be excluded from the purview of the judgment of this Court in Sharma and Khosla. The criteria for promotion from the post of LDC to UDC and from the UDC to that of the Assistant being on the basis of seniority, once the seniority in the LDC is re-determined, it may necessitate reversion of some of those who might have got accelerated promotion on the basis of erroneous seniority. (Para 2)
Cases Reffered:
1. B. P. Sharma v. Union of India (Para1)
2. D.P. Sharma v. Union of India (Para 2)
3. R.K. Khosla v. Union of India (Para 2)
2. D.P. Sharma v. Union of India (Para 2)
3. R.K. Khosla v. Union of India (Para 2)
JUDGEMENT:
ORDER
1. These appeals by the Union of India are directed against the judgments of the Central Administrative Tribunal quashing the order of reversion of some of the employees. The contesting respondents herein had been appointed as Civilian School Master/Lower Division Clerk in the Army Headquarters on the basis of being selected through the Union Public Service Commission. Several other employees, who had been recruited as Civilian School Master or Lower Division Clerk in the Lower Defence Installation comprising Ordnance Factories/Ordnance Depots were also brought over to the Army Headquarters by way of posting/transfer as LDC prior to 1968. A set of Recruitment Rules were framed which came into force with effect from March 1, 1968 called the Armed Force Headquarters Clerical Service Rules 1968, hereinafter referred to as the “Rules”. Under the Rules, the seniority in the service was to be determined on the basis of the date of confirmation, but prior to the rules came into force, the seniority in the cadre of service was required to determine on the basis of continuous length of service. Since all those employees, who were initially recruited in the lower Defence Installations were brought over to the Army Headquarters prior to 1968, and their seniority was determined in accordance with Rules, they approached Delhi High Court by filing a writ petition way back in the year 1975 called B. P. Sharma v. Union of India, which was registered as CWP No. 23/1975. The learned Single Judge disposed of the matter by judgment dated 8.4.1981 directing that the seniority has to be determined on the basis of the continuous length of service and not from the date of their confirmation. On an appeal being carried, the Division Bench set aside the judgment of the learned Single Judge. The judgment of the Division Bench was carried to this Court in C.A. Nos. 4133-34/1984. This court disposed of the matter by judgment dated 21.2.1989. This court came to the conclusion that the seniority of all these employees prior to 1968 Rules coming into force will have to be regulated/determined under the relevant Office Memorandum, and necessarily therefore the continuous length of service would be the criteria. The administration implemented the aforesaid judgment in respect of only 133 persons, who were the petitioners in the original writ petition. Thereafter, another writ petition was filed by one R. K. Khosla directly in this Court under Article 32 of the Constitution, which was registered as Writ Petition No. 493/1999. The said writ petition was disposed of by judgement dated 9.1.1999 indicating therein that the principle of seniority enunciated in Sharma’s case would apply to all the persons who are similarly placed. Implementation of the aforesaid direction of this Court in Sharma read with Khosla, required re-determination of seniority of all these employees, who had joined the Army Headquarters prior to 1968, and on such re-determination and in further implementation it necessitated reversion of some of these, who had gone higher up in the cadre on the basis of their seniority determined earlier according to the earlier principle. Those reverted persons approached the Tribunal, and the Tribunal by the impugned judgment being of the opinion that they do not belong to the same category nor can they be said similarly placed as Sharma, and therefore they could not have been reverted on the basis or re-determination of seniority. The Tribunal also further held that while reverting they were entitled to a notice to be heard and such notice not being given, the principle of natural justice has been violated. Be it as stated, before the Tribunal these reverted employee had also taken a stand that they had been promoted to the higher cadre in the service on the basis of reservation and roaster point and such promotion should remain unaltered, notwithstanding any re-determination of seniority in the rank of Lower Division Clerk, even in implementation of the judgment of this Court in Sharma as clarified in Khosla and Gabba. This question appears to have not been answered by the Tribunal, as the Tribunal on the two earlier reasonings have quashed the order of reversion.
2. Mr. Choudhary, the learned senior Counsel appearing for the Union of India contended that the Tribunal committed serious error in holding that this group of employees, who had been recruited in the Army Headquarters pursuance to a process of selection by the Union Public Service Commission would not belong to the same category as Sharma or Khosla inasmuch as in Sharma’s judgment, this Court has unequivocally indicated that prior to 1968 Rules coming into force, all the employees, who have joined the Army Headquarters as LDC, their seniority has to be determined on the basis of continuous length of service in accordance with Office Memorandum and not the provision of the Recruitment Rules, and therefore there was no rhyme or reason to exclude them from applying the principle in the judgment of this Court in Khosla. He further contended that if the reversion is the consequence of implementation of the judgment of this Court in the matter of re-determination of seniority, question of giving an opportunity of hearing at that stage does not arise. We find sufficient force in both the contentions raised. After examining the judgment of this Court in D.P. Sharma v. Union of India as well as R.K. Khosla v. Union of India, we have no manner of doubt that the seniority of all those employees, who had been in the Army Headquarters prior to 1968 has to be determined/re-determined on the basis of continuous length of service irrespective of their date of confirmation in accordance with Office Memorandum then in force. In that view of the matter, the reverted employees, who had joined the Army Headquarters being selected by the Union Public Service Commission cannot claim to be belonging to a different category so as to be excluded from the purview of the judgment of this Court in Sharma and Khosla. The criteria for promotion from the post of LDC to UDC and from the UDC to that of the Assistant being on the basis of seniority, once the seniority in the LDC is re-determined, it may necessitate reversion of some of those who might have got accelerated promotion of the basis of erroneous seniority. The reversion in question alleged to be on that score. We see no force in the reasoning of the Tribunal that the reverted employees were entitled to an opportunity of hearing at that stage. We therefore set aside the conclusion of the Tribunal on the aforesaid two grounds. We would have ordinarily disposed of the matter by allowing this appeal, but for the contentions raised and noticed in paragraph 45 of the impugned judgment of the Tribunal to the effect that the reverted employees did claim that their promotion to the post of UDC and Assistant was on the basis of reservation and against the roaster point, and that question the Tribunal has not considered or answered. In the aforesaid premises, while we set aside the impugned reasonings and judgment of the Tribunal, we remit the matter to the Tribunal for reconsideration of the question as to whether, if any one of the reverted employees were in fact promoted to the post of UDC or Assistant or got any higher promotion against any roaster point as a reserved candidate, and in such an event whether they could be directed to be reverted notwithstanding their re-determination of seniority in the cadre of LDC in implementation of the judgment of this Court in Sharma or Khosla. The Union of India as well as reverted employees may place necessary materials in this regard and the Tribunal may reconsider the same and dispose of in accordance with law. This being an old matter, the Tribunal would do well in disposing of the matter as expeditiously as possible.
3. The appeals are disposed of accordingly.
1. These appeals by the Union of India are directed against the judgments of the Central Administrative Tribunal quashing the order of reversion of some of the employees. The contesting respondents herein had been appointed as Civilian School Master/Lower Division Clerk in the Army Headquarters on the basis of being selected through the Union Public Service Commission. Several other employees, who had been recruited as Civilian School Master or Lower Division Clerk in the Lower Defence Installation comprising Ordnance Factories/Ordnance Depots were also brought over to the Army Headquarters by way of posting/transfer as LDC prior to 1968. A set of Recruitment Rules were framed which came into force with effect from March 1, 1968 called the Armed Force Headquarters Clerical Service Rules 1968, hereinafter referred to as the “Rules”. Under the Rules, the seniority in the service was to be determined on the basis of the date of confirmation, but prior to the rules came into force, the seniority in the cadre of service was required to determine on the basis of continuous length of service. Since all those employees, who were initially recruited in the lower Defence Installations were brought over to the Army Headquarters prior to 1968, and their seniority was determined in accordance with Rules, they approached Delhi High Court by filing a writ petition way back in the year 1975 called B. P. Sharma v. Union of India, which was registered as CWP No. 23/1975. The learned Single Judge disposed of the matter by judgment dated 8.4.1981 directing that the seniority has to be determined on the basis of the continuous length of service and not from the date of their confirmation. On an appeal being carried, the Division Bench set aside the judgment of the learned Single Judge. The judgment of the Division Bench was carried to this Court in C.A. Nos. 4133-34/1984. This court disposed of the matter by judgment dated 21.2.1989. This court came to the conclusion that the seniority of all these employees prior to 1968 Rules coming into force will have to be regulated/determined under the relevant Office Memorandum, and necessarily therefore the continuous length of service would be the criteria. The administration implemented the aforesaid judgment in respect of only 133 persons, who were the petitioners in the original writ petition. Thereafter, another writ petition was filed by one R. K. Khosla directly in this Court under Article 32 of the Constitution, which was registered as Writ Petition No. 493/1999. The said writ petition was disposed of by judgement dated 9.1.1999 indicating therein that the principle of seniority enunciated in Sharma’s case would apply to all the persons who are similarly placed. Implementation of the aforesaid direction of this Court in Sharma read with Khosla, required re-determination of seniority of all these employees, who had joined the Army Headquarters prior to 1968, and on such re-determination and in further implementation it necessitated reversion of some of these, who had gone higher up in the cadre on the basis of their seniority determined earlier according to the earlier principle. Those reverted persons approached the Tribunal, and the Tribunal by the impugned judgment being of the opinion that they do not belong to the same category nor can they be said similarly placed as Sharma, and therefore they could not have been reverted on the basis or re-determination of seniority. The Tribunal also further held that while reverting they were entitled to a notice to be heard and such notice not being given, the principle of natural justice has been violated. Be it as stated, before the Tribunal these reverted employee had also taken a stand that they had been promoted to the higher cadre in the service on the basis of reservation and roaster point and such promotion should remain unaltered, notwithstanding any re-determination of seniority in the rank of Lower Division Clerk, even in implementation of the judgment of this Court in Sharma as clarified in Khosla and Gabba. This question appears to have not been answered by the Tribunal, as the Tribunal on the two earlier reasonings have quashed the order of reversion.
2. Mr. Choudhary, the learned senior Counsel appearing for the Union of India contended that the Tribunal committed serious error in holding that this group of employees, who had been recruited in the Army Headquarters pursuance to a process of selection by the Union Public Service Commission would not belong to the same category as Sharma or Khosla inasmuch as in Sharma’s judgment, this Court has unequivocally indicated that prior to 1968 Rules coming into force, all the employees, who have joined the Army Headquarters as LDC, their seniority has to be determined on the basis of continuous length of service in accordance with Office Memorandum and not the provision of the Recruitment Rules, and therefore there was no rhyme or reason to exclude them from applying the principle in the judgment of this Court in Khosla. He further contended that if the reversion is the consequence of implementation of the judgment of this Court in the matter of re-determination of seniority, question of giving an opportunity of hearing at that stage does not arise. We find sufficient force in both the contentions raised. After examining the judgment of this Court in D.P. Sharma v. Union of India as well as R.K. Khosla v. Union of India, we have no manner of doubt that the seniority of all those employees, who had been in the Army Headquarters prior to 1968 has to be determined/re-determined on the basis of continuous length of service irrespective of their date of confirmation in accordance with Office Memorandum then in force. In that view of the matter, the reverted employees, who had joined the Army Headquarters being selected by the Union Public Service Commission cannot claim to be belonging to a different category so as to be excluded from the purview of the judgment of this Court in Sharma and Khosla. The criteria for promotion from the post of LDC to UDC and from the UDC to that of the Assistant being on the basis of seniority, once the seniority in the LDC is re-determined, it may necessitate reversion of some of those who might have got accelerated promotion of the basis of erroneous seniority. The reversion in question alleged to be on that score. We see no force in the reasoning of the Tribunal that the reverted employees were entitled to an opportunity of hearing at that stage. We therefore set aside the conclusion of the Tribunal on the aforesaid two grounds. We would have ordinarily disposed of the matter by allowing this appeal, but for the contentions raised and noticed in paragraph 45 of the impugned judgment of the Tribunal to the effect that the reverted employees did claim that their promotion to the post of UDC and Assistant was on the basis of reservation and against the roaster point, and that question the Tribunal has not considered or answered. In the aforesaid premises, while we set aside the impugned reasonings and judgment of the Tribunal, we remit the matter to the Tribunal for reconsideration of the question as to whether, if any one of the reverted employees were in fact promoted to the post of UDC or Assistant or got any higher promotion against any roaster point as a reserved candidate, and in such an event whether they could be directed to be reverted notwithstanding their re-determination of seniority in the cadre of LDC in implementation of the judgment of this Court in Sharma or Khosla. The Union of India as well as reverted employees may place necessary materials in this regard and the Tribunal may reconsider the same and dispose of in accordance with law. This being an old matter, the Tribunal would do well in disposing of the matter as expeditiously as possible.
3. The appeals are disposed of accordingly.
