2024 INSC 748 1

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

J U D G M E N T

Mehta, J.

Civil Appeal No(s). 8617 of 2013

1. The instant appeal by special leave takes exception to the

judgment dated 10

th October, 2011 passed by the High Court of

Judicature at Madras in Writ Petition

1, whereby the Division

1

Writ Petition No. 583 of 2011

2

Bench of the High Court accepted the writ petition

2 preferred by

the private respondents herein

3 and reversed the judgment dated

24

th December, 2010 passed by the Central Administrative

Tribunal, Madras Bench

4 in Original Application

5 preferred by the

private respondents herein. The CAT had rejected the Original

Application

6, challenging the proposed action of revision and

fixation of their seniority in the Engine Factory, Avadi, Chennai

7.

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 17

th 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

3

years which was further extended for a period of six months w.e.f.

17

th January, 1998. The appellant satisfactorily completed the

probation period on 16th July, 1998. Thereafter, he was promoted

to the ‘Skilled’ grade on 6

th January, 1999.

4. A draft seniority list dated 28

th 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 list

8, the appellant submitted

a representation dated 13

th 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 9

th 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 28

th

July, 2006

4

6. Being aggrieved, the appellant preferred Original Application

No. 821 of 2007 before the CAT challenging the draft seniority list

dated 28

th 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 6

th position instead of the 27

th position as set out in

the draft seniority list. Original Application

9 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

5

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 23

rd 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 respondents

10 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

23

rd January, 2009 passed in the Original Application No. 821 of

2007 filed by the appellant. The said Original Application

11 was

dismissed by CAT vide order dated 24

th 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

6

10. However, private respondents herein rather than filing a

review application, chose to assail the orders passed by the CAT

by preferring a Writ Petition

12 before the Madras High Court which

came to be allowed vide order dated 10

th October, 2011. The Union

of India

13 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

7

carried out in the years 1998 and 2003, respectively but the third

respondent (appellant herein) chose to file the Original

Application

14 in the year 2007 and no reason was forthcoming for

the gross delay. The relevant extract from the High Court’s

judgment dated 10

th 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

8

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 10

th 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

9

the CAT for challenging the validity thereof. He submitted that the

finding 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 Haryana

15

.

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

10

reliance was placed on the judgment of this Court in the case of

BSNL v. R. Santhakumari Velusamy

16.

16. Learned counsel also placed reliance on the O ffice

Memorandum

17 dated 4

th 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 to

16

(2011) 9 SCC 510

17

‘OM’, hereafter

11

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 Maharashtra

18.

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

12

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 17

th 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

Others

19.

19. Learned counsel for the respondents placed reliance on

Statutory Regulatory Order

20 No. 185 of 1994 dated 1

st November,

1994 to urge that any appointment in the industrial establishment

19

(2007) 1 SCC 405

20

‘SRO’, hereafter

13

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 Order

21

dated 24

th 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

14

21. Learned counsel pointed out that the two years’ probation

period of the appellant was extended by six months w.e.f. 17

th

January, 1998, and the appellant could complete the probation

period only on 16

th July, 1998. Subsequently, upon passing the

trade test, he was promoted to the skilled grade w.e.f. 6

th 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 24

th 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 herein

22 adopted

the submissions advanced by learned counsel for respondent Nos.

1 and 2.

22

Respondent Nos. 3, 4, and 5

15

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 22

nd November, 1995 is not placed on record by the parties.

However, appellant filed an RTI

23, and the reply thereto dated 29

th

December, 2011 clearly shows that at the time of initial induction,

appellant was placed at the 7

th position, whereas the private

respondents

24 were placed at the 30

th, 31

st and 32

nd positions,

respectively in the select list based on merit.

25. The Division Bench of the High Court in the impugned

judgment dated 10

th 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

16

be prima facie erroneous because admittedly, the appellant herein

was placed at 7

th position and the private respondents were placed

at the 30

th, 31

st and 32

nd positions in the order of merit, as borne

out from the record. Further, in writ petition

25 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

17

the skilled grade on 11

th January, 1998 and further promoted to

the highly skilled grade on 20

th May, 2003. On the other hand, the

appellant was promoted to the skilled grade on 17

th 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 26

th 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

appointment

in the Semi

Skilled grade

Extension of

probation

Effective

date of

satisfactory

completion

of

probation

Date of

promotion

to Skilled

grade

Date of

promotion

to the

Highly

skilled

grade

V. Sivaraman

(Respondent

No. 3)

11.01.1996 NA 11.01.1998 03.07.1998 20.05.2003

G. Sudhakar

(Respondent

No. 4)

11.01.1996 NA 11.01.1998 03.07.1998 20.05.2003

P. Ramesh

(Respondent

No. 5)

11.01.1996 NA 11.01.1998 03.07.1998 20.05.2003

V. Vincent

Velankanni

(Appellant)

17.01.1996 By 6 months

w.e.f.

17.1.1998 by

order dated

5.2.1998

17.07.1988 06.01.1999 26.03.2008

18

28. The draft seniority list was published on 28

th 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 20

th May, 2003 by filing an Original

Application

26 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

19

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 Others

27, 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 Others

28.

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 596

20

counted from the date of his appointment and not according to the

date 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 Others

29 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

21

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 establishment

30

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

22

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 1

st 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 24

th 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.

23

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 GO

31 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 24

th December,

2002, which indisputably were applicable to the cadre of semi-

skilled and skilled fitters in the respondent establishment

32 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 24

th

December, 2002

32

Engine Factory, Avadi, Chennai

24

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 4

th August, 2015, whereby the GO dated 24

th

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 4

th November, 1992(reproduced supra). The

said GO dated 4

th 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 Factories

Sub: 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.

25

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 GO

33, 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 4

th August, 2015 further clarifies that

33

Dated 4

th

August, 2015

26

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 4

th 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 4

th 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 Others

34, 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

27

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 Un iversity of Sanskrit and Others v. Dr.

Manu and Another

35, 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

28

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 4

th 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 4

th November, 1992, and

supersedes the orders/circulars dated 24

th December, 2002 and

13

th January, 2003, which were holding the field over more than a

decade. Therefore, giving retrospective effect to the GO dated 4

th

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

Others

36, wherein this Court held that: -

36

(1976) 1 SCC 599

29

“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 Others

37,

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 Others

38,

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

Others

39, 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

30

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 4

th August, 2015 came to be issued, seniority of

multitudes of employees must have been fixed according to the GO

dated 24

th 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

24

th 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

31

employees causing them grave prejudice and heartburn as it would

disturb 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 4

th 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.

32

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