Summary
Ordinarily seniority runs from initial appointment rather than confirmation, unless the rules provide otherwise. Here the applicable SRO No. 185 of 1994 and the Ordnance Factory Board order of 24.12.2002 counted skilled-grade seniority from promotion to that grade. The 2015 order restoring merit-based seniority was a substantive change that operates only prospectively, so the appellant, whose probation was extended, could not claim seniority over colleagues lower in the 1995 merit list who were promoted before him. The appeal was dismissed.
Issues
- Whether the appellant's seniority in the skilled grade at the Engine Factory, Avadi, ran from his initial appointment (by merit in the select list) or from his promotion to the skilled grade after he completed extended probation and passed the trade test.
- Whether the Ordnance Factory Board order of 04.08.2015, which restored seniority by entry-grade merit under the DoPT OM of 04.11.1992, applies retrospectively.
Provisions considered
- Note 6 (trade test), Statutory Regulatory Order No. 185 of 1994 (industrial establishments, Ordnance Factories)Read together with the 2002 Board order, it made completing probation and passing the trade test mandatory for promotion from the semi-skilled (trainee) grade to the skilled grade. (¶¶ 36, 38)
- Paragraphs 1 to 3 (semi-skilled posts as training posts; seniority from promotion to skilled grade), Ordnance Factory Board Government Order dated 24.12.2002Held to govern the cadre at the relevant time. The appellant never challenged it, and under it seniority counted from the date of promotion to the skilled grade, not from entry into the semi-skilled grade. (¶¶ 37, 38, 49)
- Supersession of the 2002 and 2003 circulars ('henceforth' seniority as per DoPT OM dated 04.11.1992), Ordnance Factory Board Government Order dated 04.08.2015Treated as a substantive modification, not a clarification. Being expressly prospective, it could not benefit the appellant. (¶¶ 39, 40, 41, 44, 51)
- Seniority by order of merit at initial appointment, Department of Personnel and Training Office Memorandum No. 20011/5/90-Estt.(D) dated 04.11.1992Relied on by the appellant. The Court held it governed the industrial establishments only after the 2015 order revived it. (¶¶ 16, 40)
- Articles 14 and 16, Constitution of IndiaAny departure, by rules or executive instructions, from the principle that a confirmation relates back to initial appointment must be consistent with these Articles. (¶¶ 33, 34)
Held
- As a general rule, an employee appointed in accordance with the rules takes seniority from the date of initial appointment, not confirmation, and a delayed confirmation after probation relates back to initial appointment unless the rules provide otherwise; any departure must satisfy Articles 14 and 16. (¶¶ 30, 31, 32, 33, 34)
- The High Court's finding that the private respondents were senior to the appellant even by date of appointment was prima facie wrong, because the record showed the appellant at 7th place in the merit list and the private respondents at 30th to 32nd. (¶¶ 24, 25)
- Under SRO No. 185 of 1994 read with the 2002 Board order, which applied at the time and was never challenged, semi-skilled posts were training posts. Promotion to the skilled grade required both completed probation and a passed trade test, and skilled-grade seniority ran from the date of that promotion. (¶¶ 36, 37, 38)
- An office memorandum or government order does not operate retrospectively unless it says so expressly or by necessary implication. A merely clarificatory order may apply retrospectively, but one that modifies the earlier position applies only prospectively, since retrospective application would take away vested rights. (¶¶ 42, 43)
- The 2015 order substantively changed the seniority regime by superseding circulars that had held the field for over a decade, and it said it would apply 'henceforth'. Giving it retrospective effect would unsettle the crystallised seniority of the whole cadre, so it could not benefit the appellant. (¶¶ 41, 44, 49, 50, 51)
- A settled seniority position should not be reopened after a long lapse of time. The appellant did not challenge his juniors' promotions when they were made and first sought retrospective promotion only in 2007; disturbing seniority now would cause grave prejudice to employees whose rights had accrued in the meantime. (¶¶ 28, 45, 46, 47, 48, 49, 50)
Result
Civil Appeal No. 8617 of 2013 dismissed and the High Court judgment upheld; the connected appeals (delay condoned, leave granted) disposed of in the same terms; no order as to costs.