K. Jagannatha Shetty, J. - (1.) 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.
(2.) The appellants were originally recruited as Civilian School Masters or L.D.Cs., 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 posted/transferred to the Armed Forces Headquarters and inter-service organisations as LDCs. Their posting/ transfer was done in the public interest. They joined the service in the Armed Force Headquarters on various dates between 1960 and 1964. Some of them were later promoted as Upper Division Clerks. While they were thus continuing in service, rules framed 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 memoranda 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 Constitution 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 respondents 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 memoranda of Administrative Instructions are brought to my notice by the respondents, where any other principle has been laid down. The petitioners, in all the three petitions were originally in common IDC cadre and are in the common cadre of U.D.C. now. It cannot be said that some of them (Writ Petition 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 service. It may be noted that in 1959 the Home Ministry issued general principles of seniority 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 petitioners 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 Memorandum were given that benefit. Since this is the question raised in Civil Writ Petition No. 423/1975, it must succeed."
(3.) 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.;