1 2 D.B. CIVIL WRIT PETITION NO. 1688/2001 (Union of India Vs. Megh Singh) Date:- 06.08.2007 HON'BLE MR. RAJESH BALIA,J. HON'BLE MR. MAHESH CHANDRA SHARMA,J. Mr.Kuldeep Mathur,for the petitioner. Mr. R.S.Saluja, for the respondent. Heard learned counsel for the parties. The only contesting respondent No.1 had died during the pendency of the writ petition and application has been moved to bring on record the legal representatives of the deceased respondent No.1 who was the originally applicant before the Central Administrative Tribunal. The application has not been opposed by counsel. The same is allowed. The legal representatives of respondent No.1 are impleaded as party in place of respondent No.1 Megh Singh Sisodia, whose name may be deleted from array of the parties. The petition has arisen in the following circumstances. The respondent No.1 had been appointed as L.D.C in the Custodian Department on 10.12.1951 while 2 serving in Custodian Department, he had also earned promotion to the post of U.D.C. However, the petitioner was later on absorbed as L.D.C, in the Ministry of Information & Broadcasting Department w.e.f. 13.5.1960 while serving in the Broadcasting Department, he cleared the UPSC examination required for being the regular appointment on the post of L.D.C in 1962. On 15.4.1964 he was appointed as L.D.C in Armed Force Headquarters, where from he retired on 30.9.1987. There is no dispute before us that so far as the computation of retrial benefits on superannuation from the post are concerned the entire period of past service from 10.12.1951 until the date of appointment in Army Headquarter were considered as qualifying service for the purpose of determining retiral benefits. However, the respondent No.1 since deceased, had laid claim to seniority by computing the service rendered by him in other departments until 14.4.63 and consequential consideration for promotion to higher post with effect from the date any person junior to him on aforesaid basis had been promoted to the next higher rank and consequential benefit of recomputation of retrial benefits from higher post. The reliance has been placed by the respondents for the purpose of computing the past services for 3 determining the seniority by the office memorandum dated 12.8.1959 and 21.12.1963. These two circulars respectively govern the determination of seniority for those persons who had been appointed to Armed Force up to 01.08.1951 and those who have been appointed up to 21.12.1959 respectively. In the first instance when the matters arose before the concerned authorities about determination of seniority, vide office memorandum dated 12.8.1959, it was decided that inter-se seniority in the grade of Lower Division Clerk will be determined, amongst others by taking into consideration all continuous service rendered as a clerk in a Govt. Office on whatever pay provided the minimum qualification for recruitment to that post is matriculation. This was to govern the inter-se seniority of all Lower Division Clerk in AFHQ and inter-se services organisation in respect of permanent vacancies occurring after 1.8.51 but before 31.12.58. Thus such past services were to be counted and the case of person appointed as L.D.C or higher grade in Armed Force Headquarters after 01.08.1951 and up to 31.12.58 against permanent vacancies occurring during that period. In other cases, their service was to reckon prospectively from the date of appointment in the Armed 4 Force. However, this circular has not included within its scope those persons who had been so appointed until the year of issue of circular in 1959. Keeping in view the matter was reconsidered. Thereafter, the second circular was issued on 21.12.1963. The circular specifically restricted the inclusion of past service for the purpose of the seniority in grade of LDC to the persons who joined Armed Force Headquarters up to 21.12.59 . It said “Permanent vacancies in the grade of Lower Division Clerk, which became available in the Armed Forces Headquarters including Inter Service Organisations after 1.8.1951 and up to 31.12.1958, have been filled in accordance with the provisions of the Ministry of Defence Office Memorandum No. 58491/CAO(DPC)/516-Sec/D (Est.I) dated 12th August 1959. It has been decided in consultation with the Ministry of Home Affairs and the Union Public Service Commission, that confirmations against permanent vacancies in the grade of Lower Division Clerk that become available on or after 1st January, 1959, shall, until further orders, be made in the manner indicated in the following paragraphs. 2. Seniority in the grade of Lower Division Clerks in respect of persons who joined AFHQ (including Inter Service Organisations) upto and including 21st December, 1959, will be determined as follows:- (a) The seniority of temporary/quasi- permanent Lower Division Clerks will be fixed 5 after taking into consideration all continuous Government Service rendered- It clearly envisaged that past services rendered in other government departments prior to the date of joining their service in terms of para 2 (c) of the order is not to be considered for determining seniority in case of those LDCs who had joined AFHQ or other inter-se service organisation on or after 22.12.59. As the respondent did not fall amongst the category of LDC appointed in AFHQ prior to 22.12.1959 in his case services rendered by him in other Govt. department could not be considered for determining his inter-se seniority with the LDC appointed in AFHQ or other inter-se service organization prior to 22.12.59. Apparently, in view of this clear provision respondent No.1 since deceased was not entitled to count his past service for the purpose of seniority when he joined Armed Force on 15.04.1964 as LDC. After the circular dated 21.12.1963 no such order was issued by the Government for inclusion of past services rendered prior to the date of their appointment in other department for the purpose of counting the seniority. 6 Thereafter, the Armed Force Headquarters service was constituted under the Armed Force Headquarters Clerical Service Rules 1968 framed by the President under Proviso to Article 309 of Constitution of India. The Rules 15 of the rule for determining Seniority envisages that the seniority Inter-se of permanent officers included in the initial constitution of a Grade shall be regulated in order in which they were appointed to the equivalent existing Grade provided that if the seniority of any such officers had not been specifically determined before the appointed day, it shall be determined by the Government. Apparently, under the Rules of 1968, no specific provision was made for the purpose of inclusion of past services while computing seniority in any Grade under the Rules, which as a general rule provided for determining seniority in a grade from the date of appointment in the equivalent existing Grade. However, the Inter-se seniority of the person who had been appointed prior to the rules, it shall be as determined by the Government. As we have noticed above determination of Inter-se seniority of L.D.C appointed in Armed Force Headquarters at the time when the respondent was appointed was governed by the Office Memorandum dated 21.12.1963 which specifically excluded the service rendered prior to the date of appointment to the Armed Force Headquarters except in the 7 case of those who had appointed up to 21.12.1959. In view of the aforesaid clear provisions the Tribunal in our opinion seriously was in error in giving the extended benefit of Government circular dated 21.12.63 without noticing clause (c) of para 2. Giving extended operation to circular dated 21.12.1963 in our opinion was not justified, particularly keeping in view that Rules do not consider inclusion of past service rendered in other department or has not disturbed the seniority determined prior to commencement of Rules. No question of bridging the gap as appears to have been restored to by the Tribunal arose. Accordingly, the petition succeeds and the order of Tribunal is set aside and original application filed by the respondent No.1 is allowed to the extent it seeks relief for redetermination of seniority and consideration of promotion with retrospective effect on that premise. No order as to costs. (MAHESH CHANDRA SHARMA),J. (RAJESH BALIA),J. arti