P MOHAN REDDY Vs. E A A CHARLES

JUDGEMENT

(1.) Inter se seniority in the cadre of Deputy Tehsildars between direct recruits and promotees is the subject-matter of dispute in these appeals. When the matter had been listed before a two Judge Bench, it was felt that there is some conflict between the two decisions of the Court, one in the case of Wing Commander J. Kumar vs. Union of India, (1982) 2 SCC 116, and the decision in K. V. Subbarao vs. Government of Andhra Pradesh, (1988) 2 SCC 201, for which the cases were referred to a three Judge Bench. The appellants are directly recruited Deputy Tehsildars and their service conditions are governed by Andhra Pradesh Revenue Subordinate Service Rules, 1961 (hereinafter referred to as 'The Special Rules'). Under the Special Rules appointment to the cadre of Deputy Teshildars could be made either by direct recruitment or by transfer from members of Andhra Pradesh Ministerial Service employed in the Revenue Department including the office of the Commissioner of Land Revenue, Revenue Settlement and office of the Director of Settlements, Survey and Land Records. It also further provides that substantive vacancies in the cadre would be filled up by direct recruitment and recruitment by transfer in the proportion of 1:1. The aforesaid Special Rule was amended on 9-10-1980 inserting Rule 4(e) and giving it retrospective effect with effect from the promulgation of Rules on 12-10-1961. The amended Rule 4(e) provided that the inter se seniority between the direct recruits to the category of Deputy Tehsildars and the promotees to the category of Deputy Tehsildars shall be determined from the date of their confirmation in the substantive vacancy in that category in the proportion of 1:1, as provided in sub-rule (b) of Rule 3. The validity of the aforesaid amended Rule was the subject-matter of challenge in this Court in the case of K. V. Subba Rao vs. Government of Andhra Pradesh (supra). This Court came to hold that the amended Rules can operate only prospectively from 9th October, 1980 and shall not have any retrospective effect. A further direction was given that the State shall within 4 months from the date of the judgment would compute the substantive vacancies in the cadre and determine the quota of direct recruits to the rank of Deputy Tehsildars and after working out of the vacancies available to be filled up by direct recruits on the basis of 50% of the total number, fill up the same by making direct recruitment within a period of 4 months thereafter. The State Government was further directed to draw up a seniority list on the basis of Rule 4(e) on or before 31st December, 1988. Pursuant to the aforesaid direction seniority list were prepared but alleging that lists have not been prepared strictly in accordance with the judgment of this Court, Original Applications were filed before the Andhra Pradesh Administrative Tribunal. On 24-9-1992 Special Rules of 1961 were further amended by limiting the direct recruits to 30% of approved substantive vacancies and further providing that notwithstanding Rule 4(e), the seniority of a person appointed as Deputy Tehsildar shall be governed by General Rule 33 in Part II of Andhra Pradesh State and Subordinate Service Rules, according to which continuous service and not confirmation by following the ratio of vacancies 1:1 between the direct recruits and promotees would be the criteria. The Commissioner of Land Revenue issued instructions that the aforesaid amendment to the Rules being effective from 24-9-1992, persons whose services are to be regularised prior to the same date, their services would be governed by the pre-amended position and confirmation has to be made with effect from the date of available vacancy of approved probationers in the order of seniority. The State Government also issued a Clarificatory Order on 14-8-1995 stating therein that direct recruited Deputy Tehsildars appointed prior to 24-9-1992 are entitled to have their seniority fixed in accordance with Rule 4(e), as it stood then. The promotee Tehsildars, however, approached the Tribunal and prayed for a direction that the seniority list be re-drawn up as per the criteria under the amended Rules dated 24-9-1992, of all those who continue in the cadre and who have not been promoted to any higher post and necessarily therefore, persons appointed as Deputy Tehsildars between the period 9-10-1980 and 23-9-1992, their seniority has to be determined on the basis of amended Rules. A reference has been made to the Secretary, Law Department for his opinion who also had opined that all those appointed between 9-10-1980 and 23-9-1992 their seniority will be governed by Rule 4(e), as it stood prior to its amendment and not by the new Rule which came into force on 24-9-1992. The Tribunal dismissed the applications filed by the promotees with the direction that the seniority of the persons directly appointed as Deputy Tehsildars between 9-10-1980 and 23-9-1992 be drawn up in accordance with Rule 4(e) since the amendment brought about in September, 1992 has not been given any retrospective effect, and on the other hand is prospective in nature. Against the order of dismissal by the Administrative Tribunal the promotees approached the High Court and the High Court having set aside the judgment of the Tribunal and having held that the seniority has to be re-drawn up in accordance with the amended Rules on the basis of total length of service without reference to the date of confirmation and without reference to Rule 4(e), which had been inserted by the amendment of 9th October, 1980, the present Appeals by grant of Special Leave have been filed by the direct recruits.

(2.) Mr. P. P. Rao, learned senior counsel appearing for the appellants contended, that an employee on being appointed to the service is entitled to get his seniority determined on the basis of the Rules that exist on the date of his appointment. And that being the position, in respect of Deputy Tehsildars appointed between 9-10-1980 and 23-9-1992 the seniority has to be determined in accordance with Rule 4(e), as it stood then and the same cannot be altered by applying the principles evolved in the amended Rules of September, 1992. Mr. Rao further contended that the seniority determined in a cadre need not be altered over and over again on the basis of Rules being amended from time to time unless and until the amended Rules are given retrospective effect by the Rule making Authority. The learned counsel also urged that an employee, though may not have a vested right to a specific position in the gradation list of a cadre, yet he has the right to get his seniority determined in accordance with the Rules in force on the date of his appointment and unsettling that right by subsequent amendment of Rules would be a great disservice to the entire cadre, and therefore cannot be sustained. Mr. Rao further submitted that since Rule 4 of Andhra Pradesh Subordinate Service Rules contemplates and provides preparation of approved lists every year, by mere inaction on the part of those who were employed to prepare the list and then by virtue of amendment to the Rules later the rights of appellants to get their seniority determined in accordance with Rule 4(e), as it existed prior to amendment of 1992, cannot be taken away. According to Mr. Rao the High Court in the impugned judgment committed serious error in following the ratio in the decision of this Court in Haryana case in S. S. Bola vs. B. D. Sardana, (1997) 8 SCC 522, without noticing the fact that in the State of Haryana the legislature had intervened in framing the law and giving it retrospective effect, but in the case in hand, the amended Rules of 1992 not being retrospective in nature the question of redetermining the seniority in the cadre in accordance with the new set of Rules does not arise.

(3.) Mr. Dushyant Dave, learned senior counsel appearing for the promotee-respondents on the other hand contended, that the seniority of a Government servant being conditions of service and the power to frame Rule for determination of seniority in such service, being vested with the Government, there is no bar for the State Government to amend the Rules as and when required, even by changing the criteria for determination of the seniority in question. The learned counsel urged that the Rules brought about in September, 1992, even if is not retrospective in operation but it is undoubtedly retroactive in nature, it necessarily follows therefore that the seniority of the existing Deputy Tehsildars in the cadre will have to be determined in accordance with the amended criteria and the only prohibition is that those who were already promoted to a higher cadre, question of re-determining their seniority would not arise. This being the position, the High Court was fully justified in directing a redrawal of seniority list of Deputy Tehsildars in the cadre irrespective of the fact whether they are appointed between 1980 to 23-9-1992 or appointed subsequent to the Rule came into force. Mr. Dave also further urged that if an employee has no right to claim a particular position in the seniority list and the Rule making Authority having the power to regulate the service conditions of the employee alters the criteria for determining the seniority, on drawing up of the seniority list in accordance with the amended provision may entail a change of position in the gradation list, and such change of position not having taken away any vested right of the employee no grievance can be made on that score. Mr. Dave contends that the principle that seniority could be re-determined in accordance with the Rules, as and when Rules get amended has been upheld by this Court in the case of Wing Commander J. Kumar (supra) and re-affirmed by this Court in Bola's case (supra) and, therefore, no infirmity could be found with the impugned judgment of the High Court.