Union Of India @APPELLANT@Hash Suresh Kumar

In both petitions common questions of law and facts are involved hence, they are decided by the common order for convenience, writ petition no.

3118/2010 is taken as a leading case.

By way of the petition the Central Government as affected party has challenged the judgment and order of the Tribunal whereby the Tribunal has

partly allowed the appeal filed by the applicant-respondent no. 1 herein vide judgment and order dated 25th November, 2009.

The facts of the case are that the original applicant being aggrieved by the order dated 6th May, 2005 (Ann.A/1) and order dated 27th May, 2005

(Ann.A/2) whereby persons with less merit have been assigned higher seniority and consequential benefits which was produced before the Tribunal

and has prayed for following relief(s):-

(i) by an appropriate order or direction the Hon’bleTribunal may direct the respondents to maintain seniority position so prepared by the Service

Selection Commission and the appointments issued accordingly; and

(ii) by an appropriate order or direction therespondents be further directed to maintain inter se merit position of the candidates for the purpose of

seniority and promotion i.e., candidates who stood higher in merit in the Service Selection Commission be given higher seniority position and

accordingly the seniority be determined. In that regard if any candidate appointed subsequent selection or promotion, he be ranked junior to the earlier

selected candidates.

In view of the above prayer, all orders passed contrary to the prayer made above be quashed and set aside and thereby after preparation of correct

seniority position, the applicant be given promotion with all consequential benefits on higher post and in that respondent the impugned orders dated

06.06.2005 and 27.05.2005 be quashed and set aside.â€​

The original applicant has stated before the Tribunal that the applicant was appointed on the post of Divisional Accountant pursuant to the selection

conducted by the Staff Selection Commission (SSC) as per the advertisement issued in the year 1993 for the various posts including the post of

Divisional Accountant. After selection of the applicants appointment order was issued. The applicants being higher in merit as per merit list prepared

by the SSC, their names were also shown at higher place. However, the case of applicants is that they were thereafter, even promotion to the post of

Divisional Accounts Officer Grade-II. Their grievance is that persons who are to be reckoned as juniors have been given promotion in Grade-II and

Grade-I and Senior Divisional Accounts Officer ignoring seniority of the applicants. According to the applicants this fact of ignoring seniority position

based on merit of the selection conducted by the SSC came to their knowledge when order dated 6th May, 2005 and 27th May, 2005 were issued

inasmuch as prior to issuance of these two orders, the respondents never issued any seniority list notifying the same for all concerned so as to be

determined seniority position of the initial grade coupled with the seniority of the higher grades like Grade-II and Grade-I and even when the orders of

the promotion were issued in regard to certain persons junior to the applicants the same were not also circulated. Thus, according to the petitioners the

promotion to the post Divisional Accounts Officer Grade-II, Divisional Accounts Officer Grade-I and to the post of Senior Divisional Accounts

Officer ignoring seniority list which should be based on merit order as determined by the SSC, is illegal. The further case of the petitioners is that as

per information given by the respondents, the change in the order of seniority is for the reasons that the petitioners could not qualify the training

examination at immediate stage or earlier then the persons lower in merit to them in the SSC and seniority has to be determined on the basis of passing

of examination of training.

Counsel for the petitioners in writ petition no. 3118/2010, the Central Government as well as affected party has merely contended that the Tribunal

has seriously committed an error in taking a contrary view which has been taken in original application no. 382/2009 dated 29th November, 2011

wherein OA was rejected interpreting the same provisions.

Counsel for the petitioners has also taken us to Rule 7.6 & 7.7 of the standing orders of the Comptroller and Auditor General’s Manuals which

reads as under:-

“7.6. Candidates recruited from sources (1) and (2) who pass the Divisional Accountants Grade examination (paragraph 7.8) are placed on a

waiting list but allowed to retain their liens on their substantive appointments till they are confirmed in the Divisional Accountant’s Cadre. Their

relative seniority wil be determined wsith reference to the date of their passing the Divisional Accountants Grade examination. The Divisional

Accountants who pass the same Divisional Accountants Grade Examination will be senior to all the Divisional Accountants who pass in subsequent

examinations. The inter-se seniority of Divisional Accountants who pass the same examination will be decided on the basis of the marks obtained by

them in the aggregate in the Divisional Accountants Grade examination. Among those obtaining identical marks in aggregate, those obtaining higher

marks in the paper ‘Public Works Accounts’ will rank senior. In the case of the latter paper the seniority will be determined with reference to

age. The marks obtained in the ‘Public Works Accounts’ paper will include the two papers on the subject [vide para 1 of Annexure II).â€​

7.7. (i) Every Divisional Accountant on probation should irrespective of this prior experience. If any, undergo a course of practical training in the A &

E office/Divisional and sub-divisional offices of both as indicated below.

(ii) The period of training of selected persons will not be lessthan six months and not more than twenty four months during which they wil have at least

two opportunities of passing the Divisional Accountants Grade examination. The actual period will depend on the progress made by them and will be

decided by the Accountant General in each case.

During the period training in the A & E office, the Divisional Office clerks should have opportunities not only for training in the Works Accounts wing

of the A & E Office but also in such other sections of the A & E Office as will help them in preparing for the Section Officers Grade examination if

they should desire to appear in it after they have passed the Divisional Accountants Grade examination and they have passed the Divisional

Accountants Grade examination and become eligible to appear under the rule. The Audit & Accounts Office candidates should be given training in the

Public Work Divisional and sub-divisional offices. Recruites from either of the above mentioned categhories will be eligible to appear in the Divisional

Accountants Grade examination only after a training of atleast 6 months. However, if the progress of a recruit from either source as disclosed by his

work during the first 6 months of his training is not satisfactory, he will be reverred to his original office.

(iii) The direct recruits will undergo a course of trainingboth in the Divisional and sub-divisional Offices and in the Works wing and other sections of

the A & E Office. In their case the period of training will be two years. They will be allowed to appear in the Divisional Accountants Grade

Examination only after a training of atleast one year.

(iv) The senior Deputy Accountant General/DeputyAccountant General (Works) should be sntrusted with the task of regulating and supervising this

course of practical training, and subject to the instructions laid down in clauses (ii) and (iii) above and subject to such details and variations as the

Accountant General may order, the training should consist of actual experience of Divisional Offices and the Works Accounting of the A & E Office

and of a thorough practical knowledge of the processes of compilation of divisional and sub-divisional accounts. The Senior Deputy Accountant

General/Deputy Accountant General (Works) should require to be submitted to him monthly, a diary of the work done and of the progress made by

the probationer in the several practical aspects of his training.â€​

He contended that in view of the Chapter controlling the Divisional Accountant, the same will also apply in toto to the respondents. Counsel for the

affected party in writ petition 4004/2010 has sought to rely upon Rule 10.2 which relates to seniority and in Rule 10.2.1 it has been provided as under:-

“10.2. Seniority

10.2.1. Unless otherwise provided in the relevant recruitment rules or elsewhere in this compilation the seniority in a cadre will be determined on the

following general principles:

(i) The relative seniority of all direct recruits isdetermined by order in which they are selected for such appointment on the recommendation of SSC or

other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of subsequent selection.

(ii) If any direct recruit does not join duty within theprescribed time limit and is granted extension of time by the competent authority for joining duty

due to reasons other than non completion of medical formalities in respect of the candidate himself, his seniority will be determined with reference to

the date of his appointment. If however, extension of time for joining duty is granted due to non completion of medical formalities panel seniority will

remain intact.

(iii) If however persons recruited initially on a temporarybasis are confirmed subsequently in an order different from the order of merit indicated at the

time of their appointment, their seniority shall follow the order of confirmation and not the original order of merit.

(iv) Where promotions are made on the basis ofselection e.g. Supervisor, Audit officer/accounts officer by a DPC the seniority of such promotees

shall be in the order in which they are recommended for such promotion by the Committee. Where promotions are made on the basis of seniority

subject to rejection of unfit, the seniority of persons considered fit for promotion at the same time shall be same as the relative seniority in the lower

grade from which they are promoted. Where, however a person is considered unfit for promotion and is superseded by a junior such person shall not,

if he is subsequently found suitable and promoted, take seniority in the higher grade over the junior persons who had superseded him.

(v) Where there is direct recruitment and alsopromotion, the relative seniority of direct recruits and of promotees hall be determined according to the

rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitment and

promotion respectively in the Recruitment Rules. For this purpose, a 20 point promotion roster is maintained and closed every year on 31st December.

No vacant slot meant for direct recruits should be carried forward for being filed in later years. If adequate number of direct recruits do not become

available in any particular year, rotation of quotas for the purpose of determining the seniority would take place only to the extent of available direct

recruits and the promotees. Thus, to the extent direct recruits are not available, the promotees will be bunched together at the bottom of seniority list

below the last position upto which it is possible to determine seniority by rotation. The unfilled vacancies including those vacancies intended for direct

recruitment for which selection could not be made due to non availability of candidates should be pooled with the new vacancies in the next year and

the total vacancies so arrived at should be apportioned between direct recruits and promotees in accordance with the recruitment rules in the roster

commencing on 1st January.

(vi) In the case of unilateral transfers, the persontransferred is assigned the lowest position in the seniority list of the relevant cadre. In the case of

transfer on mutual basis, seniority for the lower of the two lengths of service in the relevant cadre should be given to both the men in the new office of

which they are transferred.

(vii) The seniority of the officers found fit forpromotion but promoted after the period of penalty imposed on them would be as per their position in the

panel recommended by the DPC from which they are promoted irrespective of their date of promotion.

However the monetary benefit in the higher post will be admissible only from the date of actual promotion.†8. Counsel for the petitioners Mr.

Gaurav Jain in writ petition no. 3118/2010 has also taken us to the office order dated 4th August, 1995 wherein it has been provided as under:-

“The appointment is purely temporary and will be governed by CCS/TS Rules, 1965 and is liable to termination without assigning any reasons under

Rule 5.

He will be liable for service anywhere within the jurisdiction of the Accountant General (A&E), Rajasthan, Jaipur including the main office. He may

also be sent on deputation to Public Sector undertakings and the State Govt./Govt. Of India on such terms and conditions prescribed by the

department. He will be transferred to State Govt. in case of Cadre of Divisional Accountant is transferred to State Govt. as per terms and conditions

prescribed by the department.

He will be required on the satisfactory completion of training to appear into departmental examination called. The Divisional Accountant Grade

Examination. The Divisional Accountant Grade Examination is generally held twice a year. If he is unsuccessful in passing the examination within the

number of chances allowed or if he exhausts the prescribed chances by omission, to avail, himself of any of the available chances, he will entail his

discharge from service as per rules.â€​

He has also taken us through the reply filed by them before the Tribunal wherein it has been averred as under:-

“Moreover note (iii) below 10.2 (seniority) of Ms (Admn.) Vol III interalia stipulates that persons recruited initially on a temporary basis are

confirmed subsequently in an order different from the order of merit indicated at the time of their appointment, their seniority shall follow the order of

confirmation and not the original of merit. Thus actions taken by the respondents are just and fair.†10. He also relied on the earlier instructions

which came into effect from 4th November, 1992 and the same has been sought to be relied upon by the Tribunal and the same reads as under:-

“Seniority to be dertermined by the order of merit indicated at the time of initial appointmentâ€"The seniority of Government servants is determined

in accordance with the general principles of seniority contained in M.H.A., O.M. No. 9/11/55-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.

This principle has been coming under judicial scrutinyin 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.

The general principle of seniority mentioned abovehas been examined in the light of the judicial pronouncement referred to 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.

9/11/55-RPS, dated the 22nd December, 1959 and Para. 2.3 of O.M., dated the 3rd July, 1986, it has been decided that 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.â€​

Both the counsel therefore, contended that in view of the decision of the Supreme Court in case of M. Srinivasa Prasad And Others vs.

Comptroller & Auditor General of India and Others reported in (2007) 10 SCC 246, wherein it has been held as under:-

“14. We have already noticed that the Rules are silent insofar as with regard to the determination of seniority. In order to supplement the Rules, the

Standing Orders by executive instructions, as noticed above, have been brought out to fill the gap unfilled by the statutory rules.

In Union of India v. H.R. Patankar a similar view was taken by this Court. It was held that even if there are no statutory rules in force for

determining seniority in a service or even if there are statutory rules but they are silent on any particular subject, it is competent for the Government by

an executive order to make appropriate seniority rules or to fil in the lacuna in the statutory rules by making an appropriate seniority rule in regard to

the subject on which the statutory rules are silent.â€​

The view taken by the Tribunal is required to be reversed.

In the present case, it is not amendment but it was only clarification therefore, the judgment which sought to be relied upon will not apply today in

the facts of the case and the seniority fixed by the department is just and proper.

Counsel for the respondents has taken us to the para 7.6 as reproduced above and contended that there are three sources of recruitment which

reads as under:-

“(i) Public Works Department Accounts Clerks. (ii) Accountants and clerks of A&E Office and Auditors of the Audit Office.

(iii) Direct Recruitment

He contended that the Tribunal has rightly interpreted the same and as para 7.6 will come into play only in case of appointment made under case

(i) and (ii).

The original applicant respondent herein are the direct recruit and therefore, clarification of 1992 has been sought to be relied upon and 1998

clarification has been made prospectively and the judgment sought to be relied upon by the Tribunal is in 2011 subsequent to delivery in 2009 therefore,

the contention of the petitioners that the Tribunal has committed an error cannot be sustained. On the contrary subsequent judgment delivered by the

Tribunal is contrary to judicial discipline and they have to follow the judgment passed in 2009. In view of the above, he contended that the petition

deserves to be dismissed.

We have heard counsel for both the sides.

Before proceedings with the matter, it will not be out of place to mention that the original applicant respondent herein who are direct recruit and

the Tribunal while considering the case held as under:-

As can be seen from para 7.6 as reproduced above,this para has been made applicable to a candidate recruited from source 1 and 2 i.e. for in

service candidates and their relative seniority has to be determined with reference to the date of passing of Divisional Accountant Grade examination.

Admittedly, this para does not speak about seniority in respect of third source i.e. direct recruitment. The case of the respondents is that provisions of

this para have been made applicable in the case of direct recruitment as per the clarification sought from the C&AG of India vide letter of September,

1998. On the contrary, the stand taken by the applicant is that the seniority has nothing to do with confirmation and as per DOPT OM dated 4th

November, 1992(Ann.A/6) the seniority of a persons regularly appointed to a past according to rule would be determined by the order of merit

indicated at the time of initial appointment land not according to the date of confirmation. Thus, according to the learned counsel for the applicant, in

the absence of any specific provision regarding determination of seniority, the instructions issued by the Department of Personnel and Training vide

OM dated 4th November, 1992 will hold the field and seniority at the time of initial appointment has to be determined by the order of merit indicated at

the time of initial appointment and not on the basis of provisions contained in para 7.6, as reproduced above which has been made applicable in the

case of persons recruited from source 1 and 2 i.e. in service candidates.

We see considerable force in the submissions made by the learned counsel for the applicant. As already stated above, recruitment to the posts of

Divisional Accountant has to be made by way of selection from three sourcjes. Out of these three sources, source No.1 and 2 relate to in service

candidates whereas source No.3 relates to direct recruitment;. As can be seen form para 7.6 this, para has been made applicable to candidates

recruited source 1 and 2 i.e. in service candidates. It has been stipulated in this para that relative seniority will be determined with reference to the

date of their passing the Divisional Accountant Grade examination. Thus, there being a specific provision regarding in service candidates, the seniority

has to be determined in the manner prescribed in para 7.6. However, according to us, this para cannot be made applicable to the direct recruits. In

case, it was the intention of the rule making authority/respondents that the relative seniority has to be determined with reference to the date of passing

of the Divisional Accountant Grade Examination, such para should not have been restricted to source 1 and2. Thus, according to us, the case of the

applicant is not covered by para 7.6.

The next question which requires our consideration is what is the effect of the clarification issued by respondent No2. In September, 1998 whereby

para 7.6 has also been made applicable for the Divisional Accountants selected through direct recruitment. Without going into question whether such

clarification could have been issued by respondent No.2 by passing administrative order. We are of the view that such clarification will not have

retrospective effect in the absence of any express intention to that effect, even if for argument sake it is presumed that such clarification has statutory

force of it was permissible for respondent No.2 to make amendment to para 7.6 by way of issuing instructions. Even then such a clarification has to

be given prospective effect and not retrospective effect, as already noticed above. According to us, such a clarification whereby the provisions of para

7.6 has been made applicable to a candidate selected by way of direct recruitment sat the most can be treated as amendment to para 7.6 and thus will

be prospective in nature.

The matter on this point is no longer res-integra and the effect of issuing clarification which was in the nature of amendment was considered by

the Hon’ble Apex Court in the case of Regional Manger, Bank of Baroda Vs. Anita Nandrajog, JT 2009 (11) SC 363 that was a case where

under Clause17(b) of the by partite settlement if an employee is absent without leave for more than 150 days and has not leave to this or her credit

then the Bank can order for voluntary cessation of employment. However, this clause of voluntary cessation of employment. However, this clause of

voluntary cessation of service was further clarified in the year 1990 and it was stated that this clause of settlement will apply only in case of desertion

i.e. where there is absence from duty without any intimation and not in the cases where the employee has given intimation but remained absent

uhauthorisely and in such cases action under disciplinary procedure laid down in previous settlements should be taken and not in terms of clause 17.

The Apex Court held that so called clarification will not relate back to the date when clause 17(b) was incorporated in the Bipartite Settlement but

such a clarification was in fact an amendment because it makes major change in clause 17(b). At this stage, it will be useful to quote para 13,14 and

15 of the judgment, which thus reads:-

“13. Learned counsel fot he appellant has relied on the subsequent clarification of the fifth Bipartite Settlement which states:-

1(1) Clause 17 of the settlement will apply only in cases of desertion i.e. where there is absence from duty without any intimation. If there is an

intimation from the employees but the absence inunauthorized otherwise, the Bank should take action in terms of disciplinary procedure laid down in

previous settlement and not in terms of clause 17 of the Fifth Bipartite Settlement.â€​

In our opinion the above clarification is in fact anamendment to the earlier clause 17(b) and hence will have no retrospective effect in the absence

of any express intention to the effect. The termination order was passed on 25.08.1989 whereas the above clarification was made in 1990 when the

service of the respondent has already come to an end.

Learned counsel for the respondent submitted that the clarification is retrospective in nature. We do not agree. In our opinion we should not go by

the nomenclature and we should see the substance of the matter. A clarification may in reality be an amendment, while an amendment may in reality

be a clarification. It is not the nomenclature which matters but the real nature of the rule. IN our opinion, then so called clarification of January, 1990

was in fact an amendment to clause17(b) because it makes a major change to clause 17(b). Hence, in our opinion it was no retrospective effect.

thus, in view of the law laid down by the ApexCourt which is squarely applicable in the facts and circumstances of this case, the clarification

issued by the respondents in September, 1998 makes a major change to para 7.6 i.e. relative seniority which was to be determined with reference to

the date of passing of the Divisional Accountant Grade examination in the case of service candidates has now been made applicable to the direct

recruitment also. Thus, such a clarification which in reality is in the nature of an amendment has to be given prospective effect, even if it is held that

respondent NO.2 was competent to incorporate such provisions in para 7.6 by issuing administrative instruction/clarification. We hasten to add that we

may not be construed to express the opinion on the point that respondent No.2 by issuing clarification as mentioned above could have been made

amendment in para 7.6 thereby making this para applicable to candidates selected by way of direct recruitment. We have given the aforesaid finding

based upon the law laid down by the Hon’ble Apex Court, as notice above, by holding that even if respondent No.2 was competent to issue such

clarification which is in the nature of amendment, such amendment has to be construed as prospective and will not govern the seniority of the

applicant who was recruited much prior to issuance of these clarifications in the year 1998. According to us, in the absence of any specific provision

regarding in accordance with the instructions issued by the DOPT (Ann.A/6) i.e. from the date of initial appointment as per order of merit indicated by

the SSC and not from passing the Divisional Accountants Grade examination.

Accordingly, the respondents are directed to give seniority to the applicant in the manner suggested above, which seniority of the Divisional

Accountants has not been determined by the respondents so far, as can be seen from the stand taken by them in the reply filed on 02.01.2007. Such

exercise shall be completed within a period of three months from the date of receipt of a copy of this order. On the basis of seniority to be fixed in the

manner stated above, name of the applicant in the promotion order dated 06.05.2005 (Ann.A/1) and order dated 27.05.2005 (Ann.A/2) may be

incorporated at the proper place by making amendment in these orders.

With these observations, the OA is allowed withno order as to costs.â€​

Taking into consideration the complete facts, Rule 10.2 cannot go contrary to instructions issued in 1992 and in our considered opinion, in view of

the observations made by the Supreme Court in case of Regional Manager, Bank of Baroda vs. Anita Nandrajog; JT 2009 (11) SC 363, more

particularly in para

15 wherein it has been held as under:-

“In our opinion, the so called clarification of January, 1990 was in fact an amendment to clause 17(b) becuae if makes a major change to clause

17(b). Hence, in our opinion it has no retrospective effect.â€​

Thus, the 1990 clarification cannot have the retrospective effect and the decision of 1992 will prevail.

We are in complete agreement with the view taken by the Tribunal.

Hence, the petitions being devoid of any merit deserve to be dismissed. The same are dismissed.

The interim relief stands vacated.

The stay applications are also dismissed.