M NAZIR AHMED Vs. UNION OF INDIA

JUDGEMENT

(1.) This judgment will dispose of C.W. 192. of 1972 and C.W. 941 of 1972, by two groups of Upper Division Clerks working in the Armed Forces Headquarters, which raise two common questions, viz.: (a) whether on absorption in the Armed Forces Headquarters between 1951 to 1958 as Lower Division Clerks on transfer from office and formations subordinate to the Ministry of Defence their seniority should have been determined on the basis of length of service in the grade in the AFHQ or in an equivalent grade outside the AFHQ rather than on the date of confirmation in that grade, (b) If the first question is answered in favour of the petitioners, whether there has been such delay in raising the matter which disentitles to them to relief.

(2.) Between 1951 58, the several petitioners were absorbed as Lower Division Clerks in the A.F.H.Q. on transfer from offices and formations subordinate to the Ministry of Defence. When the petitioners were transferred to the Armed Forces Headquarters, there were numerous direct recruits working in the headquarters. The inter se seniority of the petitioners and the direct recruits in the Armed Forces Headquarters was determined on the basis of the normal practice prevalent in that behalf in service under the State, i.e., the date of confirmation in the grade and, therefore, without taking into consideration the entire length of service of the petitioners before their transfer to the headquarters.

(3.) It is a common case of the parties that, with a view to safeguard, the interests of thousands of displaced Government Servants, who were appointed to Central Services after the partition of India, a departure was made from the normal rule in regard to the determination of seniority when the Ministry of Home Affairs issued certain instructions contained in their memorandum of 22nd June, 1949, hereinafter to be referred as "the 49 Memorandum", which visualised that the seniority in a grade was to be determined as a general rule on the basis of continuous length of service in a grade or in an equivalent grade, the term " service in an equivalent grade" being defined as service on a rate of pay higher than the minimum time-scale of grade concerned, irrespective of whether it was rendered in the Central or Provincial Government of India or Pakistan. It is also a common case of the parties that although the instructions contained in the 1949 Memorandum were initially intended to have limited application to the displaced Government Servants, who were absorbed in Central Services, the same were eventually made applicable to other categories of persons who were appointed to Central Services. It is also not in dispute that the instructions contained in the 1949 Memorandum continued to govern the determination of seniority of the Central Government employees until the policy was reversed and the normal rule was restored with the Ministry of Home Affairs Memorandum of December 22, 1959, hereinafter to be referred as "the 1959 Memorandum". The reversion was a sequel to the realisation by the Government that in course of time the displaced Government Servants, whose peculiar problem had led to the departure from the normal rule, had, by and large, been absorbed in the various Central Services and their seniority had been fixed with reference to the length of service rendered by them, making the continuance of the departure unnecessary. In the case of Union of India and others v. M. Ravi Varma and others, AIR 1972 Supreme Court 670, the Supreme Court was called upon to consider whether the criterion to determine the seniority of the respondents in the appeals before it should be "length of service" in accordance with "the 1949 Memorandum " or "the date of confirmation" as envisaged in the 1959 Memorandum. The Supreme Court held that except in certain cases, with which the Court was not concerned, the general principles embodied in the annexure to the 1959 Memorandum did not have retrospective effect and could not apply to persons appointed to, the I various Central Services before that date. It is again a common case of the parties that pursuant to the aforesaid decision which was rendered on January 4, 1972 Government decided to review the cases of seniority, confirmation and promotion of various categories of staff to bring it in accord with the decision and certain principles were evolved for the purpose which are set out in a Memorandum of the Department of Personnel dated July 22, 1972.