Supreme Court of India

P. MOHAN REDDY ETC.versusE.A.A. CHARLES AND ORS.

Citation: 2001 INSC 92
Decided: 16 February 2001
Disposal: Appeal(s) allowed
Bench: G B PATTANAIK

Holding

Seniority of Deputy Tehsildars appointed between 10 April 1980 and September 1992 must be fixed according to the pre‑amended Rule 4(e) and cannot be altered by the 1992 amendment unless that amendment is given retrospective effect.

Summary

The case concerned the inter‑se seniority of Deputy Tehsildars in Andhra Pradesh appointed between 10 April 1980 and September 1992. The direct‑recruit appointees argued that their seniority must be fixed according to Rule 4(e) of the 1961 Revenue Subordinate Service Rules, as it stood before the 1992 amendment, whereas the promotee appointees sought a re‑drawn seniority list based on the 1992 amendment that limited direct recruits to 30% and used continuous service as the criterion. The Supreme Court held that the 1992 amendment was prospective and could not be applied retrospectively; therefore seniority for the period in question must be determined by the pre‑amended rule. Consequently the High Court’s order directing a re‑drawn list was set aside, the Tribunal’s dismissal of the promotees’ applications upheld, and the appeals of the direct recruits allowed. The Court reiterated that an employee’s seniority is governed by the rules in force at the time of appointment unless a rule is expressly given retrospective effect.

Issues considered

The seniority of Deputy Tehsildars appointed between 10 April 1980 and September 1992 should be determined by the pre‑amended Rule 4(e) or by the 1992 amendment.
Whether the 1992 amendment, being prospective, can be applied retrospectively to alter seniority.
Whether the High Court erred in directing a re‑drawn seniority list based on the 1992 criteria.
Whether the retrospective effect of a service rule can be challenged and, if struck down, affect seniority determination.

Subjects

seniorityinter se seniorityservice rulesretrospective effectprospective amendmentrule amendmentpromotiondirect recruitmentpromoteeadministrative lawAndhra Pradesh revenue service

Judgment

A P. MOHAN REDDY ETC.
v.
E.A.A. CHARLES AND ORS.

FEBRUARY, 16, 2001

B (G.B. PATTANAIK, K.G. BALAKRISHNAN
AND B.N. AGRAWAL, JJ.]

Service law :

C Andhra Pradesh Revenue Subordinate Service Rules. 1961-Rule ./(e)
inter-se seniorit;~Belween direct recruits and promolees-Posl of Deputy
Tehsildar-Rule amended on 9.10.1980 given prospective pffect-Rule
amended on 23.9.1992-Applicabili(l' of-Held, seniority of the appointees,
appointed between 9.10.1980 till September 1992 is required lo be determined
D in accordance with pre-amended Rules which came into existence in September
1992-Andhra Pradesh Stale and Subordinate Service Rules-Rule 33.

Under Andhra Pradesh Revenue Subordinate Service Rules, 1961,
appointments to the cadre of Deputy Tehsildar was required to be made by .A.
direct recruitment and by transfer from Andhra Pradesh Ministerial Services
E and the substantive vacancies in the cadre were to be filled by direct
recruitment and recruitment by transfer in the proportion of I : I.

The Rule was amended on 09.10.1980 inserting Rule 4(e) giving it
retrospective effect, which provided that the inter-se seniority between the
direct recruit and promotees shall be determined from the date of their t
F confirmation in the substantive vacancy in that category in the proportion of
I: I.

The validity of the amended rule was challenged in the case of K. V
Subbarao and Ors. v. Govt. of Andhra Pradesh & Ors., 119881 2 SCC 201,
G wherein the court held that the amended rules could operate only prospectively
and upholding the rule directed the State to compute the substantive vacancies
in the cadre and to determine the quota of direct recruits and after working
out the vacancies available to be filled up by direct recruits on the J::.asis of50
per cent, fill up the same by making direct recruitment; and to draw up
H seniority list on the basis of amended rule. Seniority lists were prepared.
1068
P MOHAN REDDY v. E.A.A. CHARLES AND ORS 1069
Applications were filed before central Administrative Tribunal, alleging A
that the lists were not prepared in accordance with the judgement of the
court. On 24.09.1992 the Rules were further amended by limiting the direct
recruits to 30 per cent of approved substantive vacancies and further providing
that notwithstanding Rule 4(e), the criteria for seniority of a person appointed
as Deputy Tehsildar shall be continuous service and not confirmation by B
following the ratio of vacancies I: I. The amendment to the rules was effective
prospectively and those whose services were to be regularised prior to the
date of amendment, their services would be governed by pre-amended position
and conformations had to be made w.e.f. the date of available vacancy of approved
probationers in the order of seniority. The direct recruit Deputy Tehsildars
appointed prior to the amendment were entitled to have their seniority fixed C
in accordance with rule 4 (e) as it stood then.

Promotee Tehsildars approached the Tribunal praying for re-drawing
their seniority as per the criteria given under the amended rules dated
24.09.1992. The Tribunal dismissed the application holding that the seniority
shall be decided in accordance with Rule 4(e), since the amendment brought D
about on 24.09.1992 had not been given retrospective effect and was
prospectiv:! in nature. Promotees filed appeal in High Court, which set aside
the judgement of the Tribunal holding that the seniority had to be drawn up
in accordance with the amended rules on tile basis of total length of service
without reference to the date of confirmation and without reference to Rule E 1

4(e).

In appeal to this court appellants/ direct recruits contended that the
seniority of Deputy Tehsildars appointed between 09.10.1980 and 23.09.1992
had to be determined in accordance with Rule 4(e), as it stood then and the
same could not be altered by applying the principles evolved in the amended F
rules of September 1992; and that an employee, though may not have a vested
right to a specific position in the gradation list of a cadre, yet he had the
right to get his seniority determined in accordance with the rules in force on
the date of his appointment and unsetling that right by subsequent amendment
of rules would be a great dis-service to the entire cadre, and therefore cannot G
be sustained. The respondents contended that the rules brought about in
September 1992, even if they were not retrospective in operation but they
were retrospective in nature, therefore the seniority of the existing Deputy
Tehsildars in the cadre had to be determined in accordance with the amended
criteria; and that in view of positive direction given in Subbarao 's case it is
not permissible for the High Court to side track the direction given by H
1070 SUPREME COURT REPORTS [200 I) I S.C.R.

A adopting a principle that the seniority has to be redrawn· up in accordance
with the amended criteria.

Allowing the appeal, the Court

HELD: 1. Seniority of Deputy Tehsildars appointed between the dates
B 10.04.1980 till September 1992 is required to be determined in accordance
with pre-amended Rules which came into existence in September 1992, and
even if, factually such seniority has not been drawn up then the same has to
be drawn up in accordance with the criteria indicated in the pre-amended
Rule and not according to the amended Rules, which came into existence in
C September 1992. jl083-H; 1084-AJ

2. Even though an employee cannot claim to have a vested right to have
a particular position in any grade, but all the same he has the right of his
seniority being determined in accordance with the Rules which remained in
force at the time when he was borne in the Cadre. The question of re-
D determination of the seniority in the cadre on the basis of any amended
criteria or Rules would arise only when the amendment in question is given
a retrospeetive effect. If the retrospectivity of Rule is assailed by any person
then the Court would be entitled to examine the same and decide the matter
in accordance with law. If the retrospectivity of the Rule is ultimately struck
down, necessarily the question of re-drawing of the seniority list under the
E amended provisions would not arise; however ifthe retrospective is upheld by
a Court then the seniority could be re-drawn up in accordance with the amended
provisions of the employees who are still in the cadre and not those who have
already got promotion to some other cadre by that date. Further a particular
Rule of seniority having been considered by Court and some directions in
F relation thereto having been given, that direction has to be followed in the
matter of drawing up of the seniority list until and unless a valid Rule by the
Rule Making Authority comes into existence and requires otherwise. If any
Rule or Administrative Instruction mandate drawing up of seniority list or
determination of inter-se seniority within any specified period then the same
must be adhered to unless any valid reason is indicated for non-compliance of
G the same. jl083-C-GJ

K. V. Subbarao and Ors. v. Government of Andhra Pradesh and Ors.,
1198812 sec 201, explained.

Wing CommanderJ. Kumar v. Union of India, 11982) 2 SCC 116; Union
H of India & Ors. v. Dhanvanti Devi & Ors., 119961 6 SCC 44; Union of India
I'. MOHAN REDDYv. EAA. CHARLES AND ORS. [PATTANAIK, J] 1071

_ & Ors v. M. Ravi Verma and Ors. Etc .. (197212 SCR 992; Mervyn Coutindo A
& Ors. v. Collector of Customs & Ors., 11966) 3 SCR 600; D.P. Sharma &
Ors. v. Union of India & Anr., 119891 Suppl. 1 SCC 244; B.S Yadav & Ors,
Etc. v. State of Haryana & Ors. Etc., (198111SCR1024; P.D. Aggarwal &
Ors. v. State of UP. & Ors., (1987) 3 SCC 622; Gaya Baksh Yadav Etc. v.
Union of India & Ors.,(1996] 4 SCC 23; Indian Administrative Service B
Association v. Union of India, [19931Suppl.1SCC730; Prem Kumar Verma
& Anr. v. Union of India & Ors., [19981 5 SCC 457; State of Jammu &
Kashmir v. Shri Triloknath Khosa and Ors., [19741 1 SCC 19; P.S Mahal
I
and Ors. Union of India and Ors., (1984) 4 SCC 545 and A.K Subraman v.
Union of India, !197511 SCC 319, referred to.

SS Bola & Ors. v. B.D. Sardana & Ors.,[1997) 8 SCC 522 and R.S
c
Makashi and Ors .. v. f.M. Menon and Ors., [198211SCC379, distinguished.

,. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3056 of
1998.
D
From the Judgment and Order dated 31. I 2.97 of the Andhra Pradesh
High Court in W.P. No. 20294of1997.

WITH

Civil Appeal Nos. 3055 and 3054 of 1998. E
P.P. Rao, L. Nageshwar Rao, H.S. Gururaja Rao, D.A. Dave, P.N. Mishra,
J.R. Manohar Rao. Jayanth Muthraj, D. Mahesh Babu, T.V. Ratnam, M. Surendar
Rao, R. Santhana Krishnan, Dr. Sunil Kumar, K. Ram Kumar, Y.S. Rao, B.
Sridhar and K. Krishna Reddy-in-person for Respondent No. 27 in C.A. No.
3054198. F
T. Anil Kumar, P. Venkata Reddy and Ms. Madhurima Tatia for the
appearing parties.

The Judgment of the Court was delivered by
G
PATTANAIK, J. 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 v l)nion of India, [I 982] 2 Supreme
Court Cases I I 6, and the decision in KV Subbarao and others v. Government H
1072 SUPREME COURT REPORTS (200 I] I S.C.R.

A of A ndhra Pradesh and others, [ 1988] 2 Supreme Court Cases 20 I, 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 Ru !es, 1961 (hereinafter referred
to as 'The Special Rules'). Under the Special Rules appointment to the cadre
B of Deputy Tehsildars could be made either by direct recruitment or by transfer
from member 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 I: I.
C 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 confimiation in the substantive vacancy in that category in the proportion
D 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 and others v. Government of Andhra Pradesh and others,
(supra). This Co~rt came to hold that the amended Rules can operate only
prospectively from 9th October 1980 and shall not have any retrospective
E effect. A further direction was g,iven that the State shall within 4 months from
the date of the judgement 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 per cent of the total number, fill up the same
by making direct recruitment within a period of 4 months thereafter. The State
F Government was further directed to draw up a seniority list on the basis of
Rule 4(e) on or before 3 lst December, 1988. Pursuant to the aforesaid direction
seniority list were prepared but alleging that list have not been prepared
strictly in accordance with the judgement of this Court, Original Applications
were filed before the Andhra Pradesh Administrative Tribunal. On 24.9.1992
G Special Rules of 1961 were further amended by limiting the direct recruits to
30 per cent of approved substantive vacancies and further providing that
notwiths:anding 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 I: I between the
H direct recruits and promotees would be the criteria. The Commissioner of Land
P. MOHAN REDDY 1• E.A.A. CHARLES AND ORS. [PATTANAIK, J] 1073
Revenue issued instructions that the aforesaid amendment to the Rules being A
effective from 24.9.1992, persons whose services are to be regularised prior
to the same date, their services would be governed by the preamended
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 B
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, C
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 remanded 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 D
dismissed the applications filed by the promotees with the direction that
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 E
the order of dismissal by the Administrative Tribunal the promotees approached
the High Court and the High Court having set aside the judgement 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 F
by grant of Special Leave have been filed by the direct recruits.

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 exits on the date G
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 involved in the amendment 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 bemg H
1074 SUPREME COURT REPORTS. [200 I] I S.C.R.

A amended from tiine 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
B appointment and unsetting 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
C 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 judgement committed serious error ·~
in following the ratio in the decision of this Court in Haryana case in SS Bola
& Ors. v. B.D. Sardana & Ors., (1997] 8 Supreme Court Cases 522, without
noticing the fact that in the State of Haryana the legislature had intervened
D 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
re-determining the seniority in the cadre in accordance with the new set of
Rules does not arise.

E 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
detennination 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
F 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
G 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 re-draw al of seniority Iist of Deputy Tehsi ldars 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
H seniority list and Rule making Authority having the power to regulate the
P. MOHAN REDDY v. EAA. CHARLES AND ORS. [PATTANAIK, J.] ] 075

service conditions of the employee alters the criteria for determining the A
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 B
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 should be found with the impugned
judgment of the High Court.

Mr. Gururaja Rao, learned senoir counsel appearing for respondent nos. C
28 to 33 in Civil Appeal No. 3054 of 1998, submitted that though these
respondents were in fact came to be appointed subsequent to the amended
Rules but in fact they had been appointed pursuant to the earlier judgment
and, as such, .they must be deemed to have been appointed earlier then the
amended Rules came into force and consequently their seniority also is
required to be drawn up in accordance with the pre-amended provisions of D
law.

Mr. Ram Kumar, learned counsel appearing for some of the respondents
in Civil Appeal No. 3054 of 1998 supported the contention of Mr. Rao and
urged that the amendment to the Rules which has been made prospectively E
cannot be given any retrospective effect indirectly, as has been done by the
High Court in the case in handi and as such the impugned judgment is
vitiated. He further contended that in view of positive direction given by this
Court in Subba Rao 's case (supra) it would not be permissible for the High
Court to side track the direction given by adopting a principle that the
seniority has to be re-drawn up in accordance with the amended criteria. F
According to Mr. Ram Kumar the ratio of Wing Commander J. Kumar's case
is only to the effect that statutory Rule would prevail over the Administrative
Order and any other observation made therein cannot have the effect of the
binding precedent which cannot be held to be a decision of a Court. In
support of his contention he places reliance on the decision of this Court in
Union of India & ors. v. Dhanwanti Devi & ors., [ 1996] 6 Supreme Court
Cases 44. Mr. Ram Kumar also further contended that principle for
determination of inter seniority between the direct recruits Deputy Tehsildars
- and promotee Deputy Tehsildars between the period 1980 to 1992 having
been decided by this Court in Subba Rao 's case (supra) rights flowing from
that judgment cannot be taken away when the Rule making Authority H
1076 SUPREME COURT REPORTS (200 I] I S.C.R.

A themselves have not made the amendment retrospective· in nature. Mr.
Nageshwar Rao, learned counsel appearing for the direct recruits also
contended that it was never the intention of the Law making Authority to
govern the seniority of earlier appointees by the new Rules. He also urged
that Rule 4 of the subordinates Services Rules having enjoined an obligation
B for being complied with every year, simply because that has not been done,
the seniority is not required to be re-determined in accordance with new
Rules.

In view of the rival submissions the first question that arises for
consideration is that what was the nature of dispute and the relief that was
C granted by this Court in Subba Rao 's case (supra)? In the aforesaid case the
relevant Rule for determination of inter seniority between direct recruits and
the promotees under the very Rule, namely, Andhra Pradesh Revenue
Subordinate Services Rules, 1961, was under consideration. Rule 4(e) thereof
had been amended on 9th October, 1980 stipulating that the seniority shall be
determined from the date of their confirmation in the substantive vacancy in
D that category in the proportion of I: I, as provided in sub rule (b) of Rule 3.
The Rule making Authority also made the aforesaid amendment retrospective
with effect from 12th October, 1961. This Court ultimately upheld the validity
of the Rule but struck down only the retrospectivity part. The Court further
directed the State Government to draw up seniority list on the basis of Rule
· E 4(e), namely, on the basis of the date of confirmation in the proportion of 1:1.
The effect of the aforesaid decision is that the State was called upon to
compute the substantive vacancies in the cadre and determine the quota for
direct recruits in the rank of Deputy Tehsildars and after working out the
vacancies available, to be filled up by direct recruitment on the basis of 50 per
cent of total number, fill up the same and then draw up the seniority list on the
F basis of Rule 4(e). Normally, therefore, but for the amendment brought about
to the Rule in the year 1992, the seniority in the cadre of Deputy Tehsildars
between the direct recruits and promotees between the period 9th October
1980 and 24th September, 1992 is required to be drawn up in accordance with
the aforesaid judgment of this Court. In fact the Commissioner of Land Revenue
G had issued such instructions and the Administrative Tribunal also dismissed
the application filed by the promotees. In the aforesaid case the effect of the
direction of this Court further was, so far as the Deputy Tehsildars recruited
prior to 9.10.1990, their seniority was not required to be re-determined under
the amended Rules of 1980. In other words the same was to be determined
by virtue of the Qeneral Rules. It is interesting to notice that notwithstanding
H the positive direction of this Court in Subba Rao 's case (supra), in fact no
P MOHAN REDDY r EAA. CHARLES AND ORS IPATTANAIK, J.] 1077
seniority list had been prepared between the period 1980 till 1992. Thus there A
~ has been a gross dereliction on the part of the authorities who were required
to draw a seniority list in the light of the directions given by this Court in
Subba Rao 's case (supra).

Let us now examine different authorities cited at the Bar in respect of
their respective contentions. In the case of Union of India & Ors. v. M. Ravi B
Varma and Ors. Etc., [1972] 2 Supreme Court Reports 992, on which Mr. Rao
relied upon, the question for consideration was as to how the seniority
appointed prior to December 22, 1959 will have to be determined. Referring
to Office Memorandum dated 22nd June, 1949 under which the seniority was
required to be determined on the basis of length of service the Court held that C
the appointees prior to the Office Memorandum dated 22nd Oecember, 1959
would get their seniority determined according to the earlier Office
)' Memorandum of 22nd June, 1949 i.e., in accordance with the Rules in force
when the appointment had been made. In this case the Court relied upon the
earlier decision in Mervyn Coutindo & Ors. v. Collector of Customs & Ors.,
[ 1966] 3 Supreme Court Rules 600, and this decision, to a great extent supports D
Mr. Rao 's contention. In D.P. Sharma & Others v. Union of India and another,
[1989] Supp. 1 Supreme Court Cases 224, it has been held by this Court that
it is the General Rule that if seniority is to be regulated in a particular manner
in a given period, then the same shall be given effect to and not be varied
to disadvantage retrospectively. In this case also the earlier criteria for E
determination of seniority was length of continuous service whereas the
subsequent Rules provided for determining the seniority on the basis of the
date of confirmation. This Court held that the subsequent Rules cannot impair
the existing rights of officiaJs who were appointed long prior to coming into
force of the Rules. Those officials had right of determination of their seniority
in accordance with the pre-existing memoranda which provided for reckoning F
length of continuous service. This decision also undoubtedly, supports Mr.
Rao's contention and further holds that an employee has an existing right of
getting his seniority determined in the cadre according to the Rules in force
on the date of his appointment.

G
In the Constitution Bench decision of this Court in B.S. Yadav & Ors.
_,,.- etc. v. State of Haryana & Ors. etc.,· [ 1981] 1 Supreme Court Reports I 024,
the Court was considering a case of drawing up of seniority list of judicial
officers and then finally directed the High Court to re-draw inter se seniority
list of those direct recruits and promotees who were appointed to the Superior
Judicial Service prior to 31st December 1976 on the basis of the respective H
1078 SUPREME COURT REPORTS [2001] I S.C.R.

A dates of their confinnation allotted to them and of all those who were appointed
to the post in service after 31st December, 1976 in accordance with the
amended Rule 12. It may be stated that amended Rule 12 was notified on 31st
December, 1976 which lays down the length of continuous service in a cadre
post as a guiding criteria for fixing seniority, whereas under the Ru !es prior
B to that date the guiding factor for determination of seniority in the cadre was
on the basis of the date of confinnation allotted to the employees. The
aforesaid Constitution Bench decision, therefore indirectly supports the
contention of Mr. Rao that the seniority of an employee in a cadre is required
to be determined in accordance with the Rules in force on the date of
appointment and not under any amended Rules unless the amended Rules
C itself are retrospective in nature.

In P.D. Aggarwal & Ors. v. State of UP. & Ors., [1987] 3 Supreme Court
Cases 622, certain temporary Assistant Engineers had been appointed in
consultation with the Union Public Service Commission and had been rendering
service since 1956. The Rules for seniority was Rule 23 of the U. P. Service
D of Engineers (Building and Roads Branch) Class II Rules. That Rule stood
amended in the year 1971. This Court held that on the basis of the provision
of Rule 23 it was before the amendment made in 1971, the temporary Assistant
Engineers are legally entitled to have their seniority reckoned from the date
of their being members of the service, no matter whether they are holding
E posts which remained as temporary for years together. The Court repelled the
contention of the direct recruits Assistant Engineers that they being recruits
under amended Rule 23 of 1971 Rules, they cannot be deprived of their right
to be promoted on the basis of fixation of their seniority in the cadre, as
provided in the amended Rules. The Court further observed that substituted
Rule 23 introduced in 1971 is on the face of it unreasonable and arbitrary
F inasmuch as it purports to deprive a member of service from having his
seniority reckoned on ipse dixit Rules that he had not been appointed in the
substantive vacancy.

In Gaya Baksh Yadav etc. v. Union of India & Ors., [1996] 4 Supreme
G Court Cases 23, the question of inter se seniority between direct recruits and
promotees Customs Appraisers during the period preceding and succeeding
the Rules of 1961 was under consideration. In that also the Statutory Rules ..,_.
governing the subject of seniority came into force in the year 1961 called the
Customs Appraisers Service Class II Recruitment Rules 1961, and prior to
coming into force of the aforesaid Recruitment Rules the seniority of such
H customs appraisers in the cadre was being detennined in accordance with
P MOHAN REDDY 1·. E.A.A. CHARLES AND ORS. [PA TT ANAIK, J ] J079

Administrative Instructions from time to time and in Mervyn Coutindo (sup'ra) A
this Court discarded the quota system for promotion. This Court ultimately
held that appraisers appointed prior to the decision of this Court in Mervyn
Coutindo (supra) would get their seniority on the basis of quota rota formula,
Whereas appraisers appointed on and from the Recruitment Rules came into
force, would get their seniority determined on the basis of continuous B
officiation as indicated in the Recruitment Rules.

In Indian Administrative Service Association v. Union of India, [1993]
Suppl. 1 Supreme Court Cases 73'0, the question of determination of seniority
in the All India Service was under consideration. In that case this Court had
observed while interest to seniority can be acquired under relevant rules, C
there is no vested right to seniority or promotion. The real question for
consideration in that case was whether a particular statute can be said to have
retrospective effect when the language plainly does not indicate the same.
This decision is really not directly on the point in the present case, particularly
when it is conceded that the Rules of 1992 is prospective in nature.
D
In Prem Kumar Verma and another v. Union of India and others, [1998]
5 Supreme Court Cases 457, to which one of us (Pattanaik, J.) was the party,
on considering paragraph 303 of the Railway Establishment Manual, which
was the provision for determining the seniority of candidates recruited
through Railways Service Commission, the Court held that the post which fell
vacant prior to July 1989 and the persons were selected prior to the amendment E
made on 5.5.1990 the seniority of those recruits will have to be determined
on the basis of pre-amended paragraph 303, whereas those who were recruited
subsequent to 5th May, I 990, their seniority would be determined according
to the amended criteria. A conspectus of the aforesaid decision, therefore,
unequivocally indicate that the seniority of an employee in the cadre is F
required to be determined in accordance with the Rules in force unless the
subsequent amendment is expressly given the retrospective effect, and even
though an employee does not have a vested right to have any particular
position in the gradation list, but it does possess a right to get his seniority
determined in accordance with the Rules in force when he was recruited and
that right should not be interfered with unless the Rule making Authority by G
virtue of amending the Rule~ make it applicable to all the existing employees
in the cadre notwithstanding the fact that their seniority had already been
determined under the pre-existing Rule.

Mr. Dave, learned senior counsel appearing for the contesting
respondents strongly relied upon the Constitution Bench decision of the H
1080 SUPREME COURT REPORTS [2001] I S.C.R.

A Court in State of Jammu & Kashmir v. Shri Triloki Nath Khosa and Others,
[1974] I Supreme Court Cases 19. In this case the power of the employer to
change the conditions of service retrospectively was under consideration and
th is Court in that context had observed that the Government can alter the
terms and conditions of its employees unilaterally and though in modern
B times consensus in matters relating to public services are often attempted to
be achieved, consent is not a pre-condition of the validity of Rules of service,
the contractual origin of the services notwithstanding. Though the question
of seniority was not a matter for consideration but Mr. Dave, appearing for
the respondents relied upon the observations of the Court in paragraph 16,
wherein this Court had observed:
c
"It is wrong to characterise the operation of a service rule as
retrospective for the reason that it applies to existing employees. A
rule which classifies such employees for promotional purposes,
undoubtedly operate on those who entered service before the framing
of the rule but it operates in future, in the sense that it governs the
D future right of promotion of those who are already in service. The
impugned Rules do not recall a promotion already made or reduce a
pay scale already granted. They provide for a classification by
prescribing a qualitative standard, the measure of that standard being
educational attainment. Whether a classification founded on such a
E consideration suffers from a discriminatory vice is another matter
which we will presently consider but surely, the Rule cannot first be
assumed to be retrospective and then be struck down for the reason
that it violates the guarantee of equal opportunity by extending its
arms over the past. If rules governing conditions of service cannot
ever operate to the prejudice of those who are already in service, the
F age of superannuation should have remained immutable and schemes
of compulsory retirement in public interests ought to have foundered
on the rock of retroactivity. But such is not the implication of Service
Rules nor is it their true description to say that because they affect
existing employees they are retrospective."

G The aforesaid decision is obviously not a direct decision on the point
that has arisen for consideration in the present case though indirectly the
observations referred to may have some relevance. Wing Commander J.
Kumar's case (supra) is undoubtedly a direct case on the point in issue and
seniority was the subject matter for consideration. In that case also the
H seniority of the employees under the Defence Research and Development
P MOHAN REDDY 1· E.AA CHARLES AND ORS. lPATTANAIK, JJ ]Q8 J

Organisation was being determined in accordance with a set of Memorandum A
issued by the Ministry of Defence dated 18th March, 1967. In November 1979
the President of India promulgated in exercise of pow~r under proviso to
Article 309 of the Constitution a set of Rules, called 'R & D Organisation
Terms and Conditions of Service Rules. The appointees, prior to the said
Rules came into force had contended, that their seniority cannot be affected B
by the new Rules and that has to be determined in accordance with the
Memorandum of 18th March, 1967. This Court, however, did not accept the
said contention on the ground that the Statutory Rules having been
promulgated by the President of India under the proviso to Article 309 of the
Constitution an employee cannot claim to have acquire the right to have his
seniority in the Research & Development Organisation reckoned with reference C
to the date of his temporary secondment. The Court also had further observed
that it is a settled law that service conditions pertaining to seniority are liable
-r· to alteration by subsequent changes that may be introduced in the Rules and
except to the extent of protecting promotions that have already been earned
under the previous Rules, the revised rules will operate to govern the
seniority and future promotion prospects of all the persons in the concerned D
service. The aforesaid observation undoubtedly supports Mr. Dave's
contention. But it may be noticed that the Statutory Rule in Rule 16 had used
the expression "hitherto" and the Court considered the aforesaid expression
in the Statutory Rule to be the factual background leading to the enactment,
particularly when the employee did not bring to the notice any clinching E
material for justifying any departure from the accepted principles in Statutory
Rule. That apart, the principles under a set of administrative instructions was
being substituted by a set of Statutory Rule and that Statutory Rule also itself
gave certain indication as to how in the past seniority of officer was being
reckoned, namely, on the basis of attainment of substantive rank of major/
Sqdrn,. Leader/Lt Commander. The Court further observed that when a F
Statutory Rule governing seniority is issued in respect of a service the said
rule would govern the personnel in the service with effect from the date of
its promulgation and in so giving effect to the Rule in future, there is no
element of retroactivity involved. This observation supports Mr. Dave's
contention to a great extent But in the teeth of the series of authorities we G
have discussed earlier, we are not persuaded to accept the reasoning in this
~ decision for coming to the conclusion that the seniority of the employees has
to be re-determined over and over again as and when the criteria changes.

In the case of R.S. Makashi and others v. l.M. Menon and others, (1982]
I Supreme Court Cases 379 a question of determination of seniority in a cadre, H
1082 SUPREME COURT REPORTS 12001 J I S.C:.R.

A of the personnel drawn from different sources and merging into a single newly
formed organisation was under consideration. The relevant Rules protected
the pre-existing seniority and preserved maintenance of the same and this was
challenged to be arbitrary and unreasonable. The Court considered the
circumstances under which the people from different sources have been
drawn and are drafted to serve on deputation and consequently it was held
B that it is a just and wholesome principle commonly applied in such situation
that their inter se seniority in parent department should be respected and
preserved so long as continue in the department and the relevant rule in that
respect cannot be held to be violative of Articles 14 and 16. The aforesaid
decision, therefore, is in relation to the fact situation of that case and does
C not help either of the rival stand of the parties in the present case.

It would be appropriate to notice a Three Judge Bench decision of this
Court in S.S. Bola, (supra). It is this judgment on which the High Court
heavily relied upon. In that case the question of seniority between direct
recruits and promotees had been decided by the Supreme Court adopting a
D particular principle and the seniority list had been drawn up. But the Haryana
Legislature enacted an Act governing the conditions of service of the
employees and that Act had been given retrospective effect and the legislative
intervention became necessary as the entire seniority position became topsy-
turvy to such an extent that a direct recruit Assistant Executive Engineer, who
E was not even borne on the cadre when a promotee had been appointed as
a Deputy Engineer became senior to the said promotee. It is because of the
retrospectivity of the Act the seniority was required to be re-drawn up in
accordance with the Act, the validity of the Act having been upheld. The
principles decided in SS Bola's case (supra), by this Court will have no
application to the present case since, admittedly, the amended provisions
F which came into force in September 1992, is not retrospective in nature. The
High Court, therefore, was not justified in drawing its conclusion on the basis
of the aforesaid judgment in Bola's case (supra). At this juncture, we may
notice yet another judgment of this Court in P.S. Mahal and others v. Union
of India and Others, [ 1984] 4 Supreme Court Cases 545. It is in this case the
G Supreme Court by its judgment dated 11th December, 1974 had indicated that
in the absence of any Statutory Rules governing the inter se seniority of the
Executive Engineers promoted from two sources, the seniority inter se should ~
be determined on a General Principle indicated in the Memorandum dated
22nd June, 1949 on the basis of length of continuous officiation in the grade.
The Rule making Authority then came forward with a set of Recruitment Rules
H in exercise of power under proviso to Article 309 and gave it retrospective
P MOHAN REDDY 1· E.A.A. CHARLES AND ORS. [PATTANAIK, J.] 1083
effect from a date prior to the judgment of the Supreme Court, referred· to A
earlier. When the seniority list was re-determined on the basis of the Statutory
Recruitment Rules this Court held, that since by the earlier judgment it has
been held that the inter se seniority of Executive Engineers promoted from the
grades of Assistant Engineers upto December 11, 1974 would be governed by
the Ru le of length of continuous officiation, that direction and decision B
cannot be set at not by the subsequent Recruitment Rules coming into force
and giving the same retrospective effect. The Court, therefore, directed that
in respect of the appointees prior to the promulgation of the Recruitment
Rules the seniority has to be determined on the basis of the decision in A. K
Subraman v. Union of India, [1975] 1 Supreme Court Cases 319.
c
A conspectus of the aforesaid decisions of this Court would indicate
that even though an employee cannot claim to have a vested right to have
a particular position in any grade, but all the same he has the right of his
seniority being determined in accordance with the Rules which remained in
force at the time when he was borne in the cadre. The question of re-
detennination of the seniority in the cadre on the basis of any amended D
criteria or Rules would arise only when the amendment in question is given
a retrospective effect. If the retrospectivity of the Rule is assailed by any
person then the Court would be entitled to examine the same and decide the
matter in accordance with the law. If the retrospectivity of the Rule is ultimately
struck down, necessarily the question of re-drawing of the seniority list under E
the amended provisions would not arise, but if however, the retrospectivity
is up held by a Court then the seniority could be re-drawn up in accordance
with the amended provisions of the employees who are still in the cadre and
not those who have already got promotion to some other cadre by that date.
Further a particular Rule of seniority having been considered by Court and
some directions in relation thereto having been given, that direction has to F
be followed in the matter of drawing up of the seniority list until and unless
a valid Rule by the Rule Making Authority comes into existence and requires
otherwise, as was done in Bola's case (supra). It may be further stated that
if any Rule or Administrative Instruction mandate drawing up of seniority list
or determination of inter se seniority within any specified period then the G
same must be adhered to unless any valid reason is indicated for non-
compliance of the same.

When we examine the present case from the aforesaid principles we
have no doubt in our mind, that in view of the judgment of this Court in
Subba Rao 's case (supra) seniority of Deputy Tehsildars appointed between H
1084 SUPREME COURT REPORTS [2001] I S.C.R.

A the dates 10.4.1980 till September 1992 is required to be determined in
accordance with pre-amended Rules which came into existence in September
1992, and even if, factually such seniority has not been drawn up then the
same has to be drawn up in accordance with the criteria indicated in the pre-
amended Rule and not according to the amended Rules, which came into
B existence in September 1992, as has been hdd by the High Court in the
impugned judgment. The High Court therefore, was clearly in error and the
said judgment of the High Court is thus set aside. The Tribunal was fully
justified in dismissing the 0.As. filed by the promotee Deputy Tehsildars. In
the premises, as aforesaid, the Civil Appeals by the direct recruits are allowed
and the O.As. filed by the promotees before the Administrative Tribunal
C stand dismissed.

The contention of Mr. Gururaja Rao, appearing for respondent Nos. 28
to 33 in Civil Appeal No. 3054 of 1998 that they should be treated to have
been appointed earlier than the rules came into force, cannot be taken into
consideration in these appeals since that was not the bone of contention in
D the Courts below and at any rate, it has no relevance to the lis between the
direct recruits and the promotees Deputy Tehsildars, on the question of
determination of their inter se seniority in the cadre.

K.K.T. Appeal allowed.

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