vil Appeal No 41334 134 of 1984
From the Judgment and Order dated 531982 of the Delhi High Court in LPA No 125 and 115 of 1981
Ashok Mahajan GD Gupta and R Venkataramani for the Appellants
Anil Dev Singh Mrs Indra Sawhney Mrs Sushma Suri and CVS Rao for the Respondents
793 The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
These two appeals by special leave raise the question of determination of seniority of the appellants in the cadre of Lower Division Clerks
The appeals are preferred against the judgment of the High Court of Delhi dated March 5 1982 in LPA No 125 of 1981
The appellants were originally recruited as Civilian School Masters or LDCs Leading Hand Technical etc
either in the Lower Defence Installations comprising Ordnance Factories Ordnance Depots Workshops Regimental Centres Units Command Headquarters etc
under the control of Army Headquarters New Delhi
Some of the appellants were declared as surplus in those establishments and they came to be postedtransferred to the Armed Forces Headquarters and inter service organisations as LDCs
Their postingtransfer was done in the public interest
They joined the service in the Armed Force Headquarters on various dates between 1960 to 1964
Some of them were later promoted as Upper Division Clerks
While they were thus continuing in service rules flamed under proviso to Article 309 of the Constitution known as The Armed Forces Headquarters Clerical Service Rules 1968 The Rules were brought into force with effect from March 1 1968
The Rules inter alia provide that the seniority in the service shall be determined on the basis of date of confirmation
Prior to the coming into force of the Rules the seniority in the cadre of service was required to be determined on the basis of length of service
It was so laid down by several official memorandums of the Government or that of the Defence Ministry
After the Rules came into force the seniority of the appellants was sought to be disturbed on the basis of confirmation as prescribed under the Rules
The appellants therefore moved the High Court of Delhi under Article 226 of the Constitu tion contending inter alia that length of service should be the basis of inter se seniority
They also raised some other questions with which we are not concerned
The learned single Judge accepted the claim of the appellants and made an order dated April 8 1981
The relevant portion of the order runs as follows It is not disputed by the respond ents that the only principle of seniority laid down by various Memoranda was the principle of seniority laid down by various Memoranda was the principle of length of service
No memo randa of Administrative Instructions are brought to my notice by 794 the respondents where any other principle has been laid down
The petitioners in all the three petitioners were originally in common LDC cadre and are in the common cadre of UDC now
It cannot be said that some of them Writ Petition No 423 of 1975 will all be governed by the principles of length of service and no others because they have not expressly stated that their seniority should be fixed on the principles of length of serv ice
It may be noted that in 1959 the Home Ministry issued general principles of seniori ty to be followed in all Government services except where a service follows a different set of principles
The said Memorandum lays down that seniority of all Government employees employed subsequent to the issuance of the said Memoranda will be decided on the basis of the date of confirmation
It further lays down that all confirmed employees would be treated senior to the non confirmed employees
The petitioners would have been ordinarily governed by these principles since they joined the Armed Forces on transfer after 1959
But the Ministry of Defence preferred to continue the principles of length of service which they had been following prior to 1959 even after the 1959 Memorandum came into operation
The 1963 Memorandum of the Defence Ministry incorporated the said principles and all Memoranda issued thereafter reiterated the principles of length of service
In these circumstances the contention of respondents cannot be accepted
The seniority of the peti tioners shall be decided by the principle of length of service that is their date of joining the Army Headquarters as LDCs
Of course some of them entitled to additional benefit of past service under the said Memo randum were given that benefit
Since this is the question raised in Civil Writ Petition No 4231975 it must succeed Being aggrieved by the above decision the Union of India preferred an Appeal before the Division Bench of the High Court
The Division Bench reversed the above view holding that the seniority of the appellants must fall to be determined on the basis of confirmation as prescribed by the Rules and not on the length of service
The view taken by the Division Bench has been challenged in these appeals
We have perused the judgment of the Division Bench and also considered the submissions of the parties
The view taken by the Divi 795 sion Bench appears to be erroneous
The Rules no doubt provide that all persons substantially appointed to a grade shall rank senior to those holding officiating appointments in the grade
But the Rules have no retrospective effect
It could not impair the existing rights of officials who were appointed long prior to the Rules came into force
The office memorandums to which learned single Judge has re ferred in detail and which we have extracted above clearly laid down that length of service should be the guiding principle of arranging the inter se seniority of officials
The appellants being governed by those memorandums had the fight to have their seniority determined accordingly before the Rules came into force
That being their right the Rules cannot take it away to their prejudice
The Division Bench was therefore clearly in error in directing that the seniority shall follow their respective confirmations
In construing similar office memorandums in a different context this is what this Court has observed in Union of India vs M Ravi Varma  Anr  at 1002 As the said Office Memorandum has except in certain cases with which we are not concerned applied the rule of seniority contained in the Annexure thereto only to employees appointed after the date of that Memorandum there is no escape from the con clusion that the seniority of Ganapathi Kini and Ravi Varma respondents who were appoint ed prior to December 22
would have to be determined on the basis of their length of service in accordance with Office Memorandum dated June 22 1949 and not on the basis of the date of their confirmation
 These considerations apply equally to the present case as well
The general rule is if seniority is to be regulated in a particular manner in a given period it shall be given effect to and shall not be varied to disadvantage retro spectively
The view taken by the Division Bench which is in substance contrary to this principle is not sound and cannot be supported
In the result these appeals are allowed with costs
In reversal of the judgment of the Division Bench we restore that of the learned single Judge
NPV Appeals allowed


Summary:
The respondent landlord filed a suit for eviction of the appellantstenant from the house in question on the ground of failure to pay rent and for realisation of arrears of rent
While the respondent pleaded that the rate of rent was Rs70 per month the appellant contended that it was only Rs40 and not Rs70 and that he was paying Rs30 per month for the furniture provided by the landlord which he returned sometime after the tenancy commenced
The trial court dismissed the suit holding that the rate of rent was Rs40 per month and as such the appellant was not defaulter
In the revision filed by the respondent the Revisional Court held that the rent was Rs70 per month
The appellant filed a writ petition before the High Court which quashed the revisional order and remanded the case for deciding the revision petition afresh
Thereafter the revisional court again allowed the revision
The appellant challenged the revisional order before the High Court which dismissed the same
In the appeal by special leave it was contended on behalf of the appellant tenant that in the face of clear admission of the respondent in the receipt the rent of the house was Rs40 per month and that the amount of Rs70 per month mentioned in the rent note had been explained in the receipts to be Rs40 as house rent and Rs30 for furniture
On behalf of the respondent it was contended that the tenancy 757 was for a furnished building and failure to pay a part of the rent in respect of furniture would attract the provi sions of section 202a of the UP Urban Building Regulation of Letting Rent and Eviction Act 1972 and the appellant was liable to be ejected
It was also contended that the tenancy being of a furnished house the tenant could not under law unilaterally surrender part of tenancy
Allowing the appeal HELD It was never the case of the respondent at any stage that furnished house was given on rent to the appel lant
In the notice before filing the suit and in the plaint it was specifically pleaded that rent of the house was Rs70 per month and the tenant was in arrears
In the written statement appellant took a clear stand that the rent of the house was only Rs40 and Rs30 was for the furniture which according to him was returned after the commencement of the tenancy
760C D In the face of clear pleadings on the record it is impermissible to raise the plea that the landlord rented a furnished house to the tenant
It would be contrary to the pleadings
That apart neither before the trial court nor before the Revisional Court and not even before the High Court this plea was raised
760F The trial court relied upon the rent receipts 39C and 40C produced by the appellant
It was clearly mentioned in the receipt 39C that Rs40 were towards house rent and Rs30 towards furniture charges and Rs3 towards water and electricity charges
The respondent admitted the contents of the receipt but explained that Rs30 towards furniture charges was mentioned at the request of the tenant
758G H In the face of the clear admission by the respondent in the two receipts the finding of the Revisional Court that the monthly rent was Rs70 is erroneous
759D