Central Administrative Tribunal - Lucknow
Arvind Kumar Singh Aged About 40 Years ... vs Union Of India on 13 October, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL,
LUCKNOW BENCH LUCKNOW
Original Application No. 332/00414/2015
Order Reserved on 7.10.2015
Pronounced on 13.10.2015
HONBLE MR. NAVNEET KUMAR, MEMBER(J)
HONBLE MS. JAYATI CHANDRA, MEMBER (A)
1. Arvind Kumar Singh aged about 40 years son of Sri Kalika Singh, resident of Type III/23, GSI Colony,Sector 8, Aliganj, Lucknow.
2. Himanshu Bisht aged about 34 years son of Sri G.S.Bisht, resident of IC-326, Sector 3, Salt Lake, Kolkatta-700106.
3. Manoj Chaurasia, aged about 39 years son of Sri Shiv Kumar Chourasia, resident of Quarter No. 419, IC Block, GSI Colony, Sector 3 , Salt Lake , Kolkatta-700106.
4. Balmiki Pandit, aged about 44 years son of Sri Bhaso Pandit, resident of Mahadev Colony, Bhagwat Nagar Road, P.O. Bahadurpur Housing Colony, Patna-8000020.
5. N.M. Dhanya, aged about 37 years son of Sri M.T. Mahanan, resident of Quarter No. 7-II, GVR Colony, Thatti Annaram, Bandalaguda Post Hyderabad-500068.
6. P. Subrahmanyam, aged about 38 years son of Sri P. Somanadha Sarma, resident of D-51, Type III, CPWD Quarters, Banglow No. 17,Civil Lines, Nagpur-440001.
7. Matvar Singh Tomar, aged about 36 years son of Sri Jagat Singh resident of 20/N, PCR Police Colony, Model Town-II, Delhi-110009.
Applicants
By Advocate: Sri Praveen Kumar
Versus
1. Union of India, through Secretary, Ministry of Mines, New Delhi.
2. The Director General, Geological Survey of India, Calcutta.
3. The Deputy Director General (P), Geological Survey of India, Calcutta.
4. The Director (P&A), Geological Survey of India, Calcutta.
5. The Deputy Director (P&C) Geological Survey of India, Calcutta.
6. The Deputy Director General &HOD, Geological Survey of India, Northern Region, Aliganj, Lucknow.
Respondents
By Advocate: Sri Rajesh Katiyar
ORDER
HONBLE MR. NAVNEET KUMAR, MEMBER(J) The present O.A. is filed by the applicant under section 19 of the AT Act with the following reliefs:-
i) to quash the impugned order dated 8.5.2015 contained as Annexure No. A-1 to this O.A.
ii) to declare the seniority list dated14.2.2014 illegal to the extent it runs contrary to the judgment passed in N.R. Parmars case.
iii) to complete the process of assignment of seniority to the applicants on the post Store Officer from 2005 when vacancies occurred , in terms of judgment rendered by the Honble Supreme Court in the matter of N.R. Parmar and place the applicants at the appropriate place considering the date of vacancy with all consequential benefits.
iv) Any other relief, which this Honble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
v) cost of the present case.
2. The brief facts of the case are that the applicants are presently working on the post of Store officers at different places. The respondents proposed to fill-up some posts under direct recruitment quota, therefore, an indent was prepared and it was approved by the authorities and after completion of certain formalities/ proceedings, notification was issued by the UPSC in which , as many as 15 vacancies were notified under direct recruitment quota and in pursuance thereof, the applicants submitted their applications and they were declared successful and in pursuance thereof, they were allowed to join on different dates in the year 2010 on the said post of Store Officers. Learned counsel for the applicants also argued and pointed out that provisional seniority list was prepared by the respondents for the post of Store officer in which, the applicants assigned seniority from the date of joining on the post of Store Officer. Since there was some discrepancy in the said seniority list, as such applicants submitted representation /objection against the provisional seniority list and when nothing was heard, the applicant again submitted the reminders which was forwarded vide letter dated 23.1.2014. It is also indicated that in the said representation, the applicants requested to place them in the seniority list notionally after the last promotes of 2004-2005 batch, as the vacancies against which, the applicants have been allowed to join. Subsequently, the respondents again issued a provisional seniority list by which the applicants were not assigned seniority properly and they were not placed below to the promotes of2004-05 batch for which the applicants again submitted representations/ objections and again when nothing was heard, they again submitted reminders which was forwarded to the higher authorities for taking a decision in the matter.
3. Learned counsel for applicants has also indicated that the said issue was taken up before the Honble Gujarat High Court but the respondents being not satisfied, taken the matter to the Honble Apex Court. However, the Honble Apex Court observed that O.M. dated 3.3.2008 clearly breached the parameters and ingredients of clarifications. It is further observed by the Honble Apex Court that the O.M. dated 3.3.2008 is in derogation of O.M. dated 7.2.1986 and 3.7.1986. The said decision of the Honble Apex Corut was in the case of Union of India and others Vs. N.R. Parmar and others reported in 2013(2) SCT 287. After the said decision of the Honble Apex Court In the case of Union of India Vs. N.R. Parmar (supra), the respondents constituted a committee consisting of four members for review of the inter-se-seniority of Store Officer in view of the dictate of Honble Apex Court. Finally, the respondents rejected the claim/representations of the applicants and upheld the seniority position assigned on 14.2.2014 without following the observation of N.R. Parmars case . Hence the present O.A. is preferred by the applicants.
4. On behalf of the respondents, counter reply is filed and through reply, it is indicated that some direct recruitment vacancies of Store Officer relating to the year 2004-05 and 2005-06 were informed by GSI and after taking necessary action , the UPSC has advertised to fill-up the said vacancies. The interview was held and list of selected candidates was received by the GSI and ultimately, the direct recruitment candidates for the post of Store Officers jointed in GSI in the year 2010. It is also indicated by the respondents that seniority of direct recruited candidates joined in the year 2010 were fixed in terms of DOP&T O.M. dated 7.2.1986/3.7.1986. Through their counter reply, it is also indicated by the respondents that representations of the applicants were considered by the competent authority after due application of mind as well as law laid down by the Honble Apex Court and also rules and regulations on the subject, the representation is decided as such the impugned order does not suffer from any illegality or infirmity. Therefore, no interference is called for.
5. Not only this, it is also vehemently argued and submitted by the respondents counsel that seniority of the aforesaid Store Officers were fixed in the year 2010 based on O.M. dated 7.2.1986 and 3.7.1986 and as per guidelines of para 5(i) of DOP&T O.M. 4.3.2014, no promotes were given seniority over the D.R. candidates in the year 2010.
6. On behalf of the applicants, Rejoinder Reply is filed and through Rejoinder Reply, mostly the averments made in the O.A. are reiterated and contents of the counter reply are denied.
7. Heard the learned counsel for parties and perused the records.
8. The applicants are presently working on the post of Store Officers. In terms of the notification issued by the UPSC to fill up 15 post of Store Officers in GSI and in pursuance thereof, the applicants applied and they joined on the said post of Store Officers. After joining, the respondents have issued a provisional seniority list against which the representation/objections were filed by the applicants and finally the similar issue was taken up before the Honble Gujarat High Court as well as before the Honble Apex Court and Honble Apex Court finally in the case of Union of India and others Vs. N.R. Parmar (supra) issued certain directions. While deciding the aforesaid case, the Honble Apex Court has been pleased to observe as under:-
20. Since it is the case of the rival parties before us, that the OM dated 7.2.1986 is the principal instruction, on the basis whereof the present controversy is to be settled, the same is being extracted hereunder in its entirety.
The 7 February, 1986.
Office Memorandum Subject: General Principles for determining the seniority of various categories of persons employed in Central Services.
As the Ministry of Finance etc. are aware, the General Principles for determination of seniority in the Central Services are contained in the Annexure to Ministry of Home Affairs O.M. No. 9/11/55-RPS dated 22nd December 1959. According to Paragraph-6 of the said Annexure, the relative seniority of direct recruits and promotees shall be determined according to rotation of vacancies between the direct recruits and the promotees, which will be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules. In the Explanatory Memorandum to these Principles, it has been stated that a roster is required to be maintained based on the reservation of vacancies for direct recruitment and promotion in the Recruitment Rules. Thus where appointment to a grade is to be made 50% by direct recruitment and 50% by promotion from a lower grade, the inter-se seniority of direct recruits and promotees is determined on 1:1 basis.
2. While the above mentioned principle was working satisfactorily in cases where direct recruitment and promotion kept pace with each other and recruitment could also be made to the full extent of the quotas as prescribed, in cases where there was delay in direct recruitment or promotion, or where enough number of direct recruits or promotees did not become available, there was difficulty in determining seniority. In such cases, the practice followed at present is that the slots meant for direct recruits or promotees, which could not be filled up, were left vacant, and when direct recruits or promotees became available through later examinations or selections, such persons occupied the vacant slots, thereby became senior to persons who were already working in the grade on regular basis. In some cases, where there was short-fall in direct recruitment in two or more consecutive years, this resulted in direct recruits of later years taking seniority over some of the promotees with fairly long years of regular service already to their credit. This matter had also come up for consideration in various Court Cases both before the High Courts and the Supreme Court and in several cases the relevant judgement had brought out the inappropriateness of direct recruits of later years becoming senior to promotees with long years of service.
3. This matter, which was also discussed in the National Council has been engaging the attention of the Government for quite some time and it has been decided that in future, while the principle of rotation of quotas will still be followed for determining the inter-se seniority of direct recruits and promotees, the present practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unitended seniority over promotees who are already in position, would be dispensed with. Thus, if adequate number of direct recruits do not become available in any particular year, rotation of quotas for purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees. In other words, to the extent direct recruits are not available, the promotees will be bunched together at the bottom of the seniority list, below the last position upto which it is possible to determine seniority on the basis of rotation of quotas with reference to the actual number of direct recruits who become available. The unfilled direct recruitment quota vacancies would, however, be carried forward and added to the corresponding direct recruitment vacancies of the next year (and to subsequent years where necessary) for taking action for direct recruitment for the total number according to the usual practice. Thereafter, in that year while seniority will be determined between direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for that year, the additional direct recruits selected against the carried forward vacancies of the previous year would be placed en-bloc below the last promotee (or direct recruit as the case may be) in the seniority list based on the rotation of vacancies for that year. The same principle holds good in determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies (as the case may be) in the subsequent years.
Illustration:
Where the Recruitment Rules provide 50% of the vacancies in a grade to be filled by promotion and the remaining 50% by direct recruitment, and assuming there are 10 vacancies in the grade arising in each of the years 1986 and 1987 and that 2 vacancies intended for direct recruitment remained unfilled during 1986 and they could be filled during 1987, the seniority position of the promotees and direct recruits of these two years will be as under:
1986 1987
1. P1 9. P1
2. D1 10. D1
3. P2 11. P2
4. D2 12. D2
5. P3 13. P3
6. D3 14. D3
7. P4 15. P4
8. P5 16. D4
17. P5
18. D5
19. D6
20. D7
4. In order to help the appointing authorities in determining the number of vacancies to be filled during a year under each of the methods of recruitment prescribed, a Vacancy Register giving a running account of the vacancies arising and being filled from year to year may be maintained in the proforma enclosed.
5. With a view to curbing any tendency of under-reporting/suppressing the vacancies to be notified to the concerned authorities for direct recruitment, it is clarified that promotees will be treated as regular only to the extent to which direct recruitment vacancies are reported to the recruiting authorities on the basis of the quotas prescribed in the relevant recruitment rules. Excess promotees, if any, exceeding the share falling to the promotion quota based on the corresponding figure, notified for direct recruitment would be treated only as ad- hoc promotees.
6. The General Principles of seniority issued on 22nd December, 1959 referred to above, may be deemed to have been modified to that extent.
7. These orders shall take effect from 1st March 1986. Seniority already determined in accordance with the existing principles on the date of issue of these orders will not be reopened. In respect of vacancies for which recruitment action has already been taken, on the date of issue of these orders either by way of direct recruitment or promotion, seniority will continue to be determined in accordance with the principle in force prior to the issue of this O.M.
8. Ministry of Finance etc. are requested to bring these instructions to the notice of all the Attached/Subordinate Offices under them to whom the General Principles of Seniority contained in O.M. dated 22.12.1959 are applicable within 2 week as these orders will be effective from the next month.
Sd/- Joint Secretary to the Govt. of India (emphasis is ours) Since the OM dated 7.2.1986 would primarily constitute the determination of the present controversy, it is considered just and appropriate to render an analysis thereof. The following conclusions are apparent to us, from a close examination of the OM dated 7.2.1986:
(a) Paragraph 2 of the OM dated 7.2.1986 first records the existing manner of determining inter se seniority between direct recruits and promotees (i.e., as contemplated by the OM dated 22.11.1959), namely, the slots meant for direct recruits or promotees, which could not be filled up, were left vacant, and when direct recruits or promotees become available through later examinations or selections, such persons occupied the vacant slots, (and) thereby became senior to persons who were already working in the grade on regular basis. In some cases, where there was shortfall in direct recruitment in two or more consecutive years, this resulted in direct recruits of later years taking seniority over some of the promotees with fairly long years of regular service to their credit.. The words, when direct recruits or promotees become available through later examination or selections, clearly connotes, that the situation contemplated is one where, there has been an earlier examination or selection, and is then followed by a later examination or selection. It is implicit, that in the earlier examination or selection there was a shortfall, in as much as, the available vacancies for the concerned recruitment year could not all be filled up, whereupon, further examination(s) or selection(s) had to be conducted to make up for the shortfall. In the instant situation, the earlier OM dated 22.11.1959 contemplated/provided, that slots allotted to a prescribed source of recruitment which remained vacant, would be filled up only from the source for which the vacancy was reserved, irrespective of the fact that a candidate from the source in question became available in the next process of examination or selection, or even thereafter. In other words the rotation of quotas principle was given effect to in letter and spirit under the OM dated 22.11.1959, without any scope of relaxation.
(b) The position expressed in the sub-paragraph (a) above, was sought to be modified by the OM dated 7.2.1986, by providing in paragraph 3 thereof, that the earlier principle of rotation of quotas would still be followed for determining the inter se seniority of direct recruits and promotees except when the direct recruit vacancies were being filled up by direct recruits of later years. Read in conjunction with paragraph 2 of the OM dated 7.2.1986, the words direct recruits of later years must be understood to mean, direct recruits who became available through later examination(s) or selection(s). Essentially the later examination(s) or selection(s) should be perceived as those conducted to fill up the carried forward vacancies, i.e., vacancies which could not be filled up, when the examination or selection for the concerned recruitment year was originally/ first conducted. This change it was clarified, was made to stop direct recruits of later years, from gaining unintended seniority over promotees who are already in position, as High Courts and the Supreme Court had brought out the inappropriateness thereof. It is therefore apparent, that the OM dated 7.2.1986 partially modified the rotation of quotas principle in the determination of inter se seniority originally expressed in the OM dated 22.11.1959. The OM dated 7.2.1986, provided that the rota (rotation of quotas) would be adhered to only to the extent of available direct recruits and promotees, i.e., for promotee and direct recruit vacancies which could be filled up through the original/first process of examination or selection conducted for the recruitment year in which the vacancies had arisen.
(c) For the vacancies remaining unfilled when the same were originally/first sought to be filled up, the slots available under the rota principle under the OM dated 22.11.1959, would be lost to the extent of the shortfall. In other words, the rotation of quotas principle would stop operating after, the last position upto which it is (was) possible to determine seniority on the basis of rotation of quotas, for the concerned recruitment year.
(d) Paragraph 3 of the OM dated 7.2.1986 provided, the manner of assigning seniority to vacancies carried forward on account of their having remained unfilled in the original/first examination or selection process. The change contemplated in the OM dated 7.2.1986, referred to hereinabove, was made absolutely unambiguous by expressing that, The unfilled direct quota vacancies would be carried forwarded and added to the corresponding direct recruitment vacancies of the next year... It is therefore apparent, that seniority of carried forward vacancies would be determined with reference to vacancies of the recruitment year wherein their selection was made, i.e., for which the later examination or selection was conducted.
(e) The OM dated 7.2.1986 formulated the stratagem to be followed, where adequate number of vacancies in a recruitment year could not be filled up, through the examination or selection conducted therefor. The OM provided, to the extent direct recruits are not available, the promotees will be bunched together at the bottom of the seniority list, below the last position upto which it is (was) possible to determine the seniority on the basis of rotation of quotas with reference to the actual number of direct recruits who become available....
(f) Paragraph 3 of the OM dated 7.2.1986 further postulated, that the modification contemplated therein would be applied prospectively, and that, the present practice of keeping vacant slots for being filled up by direct recruits of later years, over promotees who are (were) already in position, would be dispensed with. It is therefore apparent, that the slots assigned to a particular source of recruitment, would be relevant for determining inter se seniority between promotees and direct recruits, to the extent the vacancies could successfully be filled up (and the unfilled slots would be lost) only for vacancies which arose after the OM dated 7.2.1986, came to be issued.
(g) The illustration provided in paragraph 3 of the OM dated 7.2.1986 fully substantiates the analysis of the OM dated 7.2.1986 recorded in the foregoing sub-paragraphs. In fact, the conclusions drawn in the foregoing sub-paragraphs have been drawn, keeping in mind the explanatory illustration narrated in paragraph 3 of the OM dated 7.2.1986.
(h) In paragraph 6 of the OM dated 7.2.1986 it was asserted, that the general principles for determining seniority in the OM dated 22.11.1959 were being modified to the extent expressed (in the OM dated 7.2.1986). The extent of modification contemplated by the OM dated 7.2.1986 has already been delineated in the foregoing sub-paragraphs. Para 6 therefore leaves no room for any doubt, that the OM dated 22.11.1959 stood amended by the OM dated 7.2.1986 on the issue of determination of inter se seniority between direct recruits and promotees, to the extent mentioned in the preceding sub-paragraphs. The said amendment was consciously carried out by the Department of Personnel and Training, with the object of remedying the inappropriateness of direct recruits of later examination(s) or selection(s) becoming senior to promotees with long years of service, in terms of the OM dated 22.11.1959.
21. The O.M. dated 7.2.1986, was followed by another Office Memorandum issued by the Government of India, Department of Personnel and Training, dated 3.7.1986 (hereinafter referred to as, the O.M. dated 3.7.1986). The purpose of the instant O.M., as the subject thereof suggests, was to consolidate existing governmental orders on the subject of seniority. Paragraphs 2.4.1 to 2.4.4 of the O.M. dated 3.7.1986 dealt with the issue of inter se seniority between the direct recruits and promotees. The same are accordingly being reproduced hereunder:-
2.4.1 The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.
2.4.2 If adequate number of direct recruits do not become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees.
In other words, to the extent direct recruits are not available the promotees will be bunched together at the bottom of the seniority list below the last position upto which it is possible to determine seniority, on the basis of rotation of quotas with reference to the actual number of direct recruits who become available. The unfilled direct recruitment quota vacancies would, however, be carried forward and added to the corresponding direct recruitment vacancies of the next year (and to subsequent years where necessary) for taking action for direct recruitment for the total number according to the usual practice. Thereafter in that year while seniority will be determined between direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for that year, the additional, direct recruits selected against the carried forward vacancies of the previous year would be placed en-bloc below the last promotee (or direct recruit as the case may be), in the seniority list based on the rotation of vacancies for that year. The same principle holds good for determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies (as the case may be) in the subsequent year.
ILLUSTRATION: Where the Recruitment Rules provide 50% of the vacancies of a grade to be filled by promotion and the remaining 50% by direct recruitment, and a assuming there are ten vacancies in the grade arising in each of the year 1986 and 1987 and that two vacancies intended for direct recruitment remain unfilled during 1986 and they could be filled during 1987, the seniority position of the promotees and direct recruits of these two years will be as under:
1986 1987
1. P1 9. P1
2. D1 10. D1
3. P2 11. P2
4. D2 12. D2
5. P3 13. P3
6. D3 14. D3
7. P4 15. P4
8. P5 16. D4
17. P5
18. D5
19. D6
20. D7
2.4.3 In order to help the appointing authorities in determining the number of vacancies to be filled during a year under each of the methods of recruitment prescribed, a Vacancy Register giving a running account of the vacancies arising and being filled from year to year may be maintained in the proforma enclosed.
2.4.4 With a view to curbing any tendency of under-
reporting/suppressing the vacancies to be notified to the concerned authorities for direct recruitment, it is clarified that promotees will be treated as regular only to the extent to which direct recruitment vacancies are reported to the recruiting authorities on the basis of the quotas prescribed in the relevant recruitment rules. Excess promotees, if any, exceeding the share failing to the promotion quota based on the corresponding figure, notified for direct recruitment would be treated only as ad-hoc promotees. (emphasis is ours) The following conclusions have been drawn by us from the O.M. dated 3.7.1986:-
(a) If adequate number of direct recruits (or promotees) do not become available in any particular year, rotation of quotas for the purpose of determining seniority, would stop after the available direct recruits and promotees are assigned their slots for the concerned recruitment year.
(b) To the extent direct recruits were not available for the concerned recruitment year, the promotees would be bunched together at the bottom of the seniority list, below the last position upto which it was possible to determine seniority, on the basis of rotation of quotas. And vice versa.
(c) The unfilled direct recruitment quota vacancies for a recruitment year, would be carried forward to the corresponding direct recruitment vacancies of the next year (and to subsequent years, where necessary). And vice versa. In this behalf, it is necessary to understand two distinct phrases used in the OM dated 3.7.1986. Firstly, the phrase in that year which connotes the recruitment year for which specific vacancies are earmarked. And secondly, the phrase in the subsequent year, which connotes carried forward vacancies, filled in addition to, vacancies earmarked for a subsequent recruitment year.
(d) The additional direct recruits selected, against the carried forward vacancies of the previous year, would be placed en-bloc below the last promotee. And vice versa.
It is, therefore, apparent, that the position expressed in the O.Ms. dated 7.2.1986 and 3.7.1986, on the subject of inter se seniority between direct recruits and promotees, was absolutely identical. This is indeed how it was intended, because the OM dated 3.7.1986 was only meant to consolidate existing governmental instructions, on the subject of seniority.
26. Before examining the merits of the controversy on the basis of the OM dated 3.3.2008, it is necessary to examine one related submission advanced on behalf of the direct recruits. It was the contention of learned counsel, that the OM dated 3.3.2008 being an executive order issued by the Department of Personnel and Training, would apply only prospectively. In this behalf it was pointed out, that the disputed seniority between rival parties before this Court was based on the appointment to the cadre of Income Tax Inspectors, well before the OM dated 3.3.2008 was issued. As such, it was pointed out, that the same would not affect the merits of controversy before this Court. We have considered the instant submission. It is not possible for us to accept the aforesaid contention advanced at the hands of the learned counsel. If the OM dated 3.3.2008 was in the nature of an amendment, there may well have been merit in the submission. The OM dated 3.3.2008 is in the nature of a clarification. Essentially, a clarification does not introduce anything new, to the already existing position. A clarification, only explains the true purport of an existing instrument. As such, a clarification always relates back to the date of the instrument which is sought to be clarified. In so far as the instant aspect of the matter is concerned, reference may be made to the decision rendered by this Court in S.S. Garewal vs. State of Punjab, (1993) 3 Suppl. 234, wherein this Court had observed as under:
8 .. In the alternative, it was urged that the order dated April 8, 1980 could only have prospective operation with effect from the date of issue of the said order and the sub-roster indicated by the said order could be given effect to only from that date and on that basis the first post reserved for Scheduled Castes should go to Balmikis or Mazhabi Sikhs and on that basis also respondent No. 3 was entitled to be placed against point No. 7 in the 100-point roster and Shri G.S. Samra against point No. 9 in the said roster.
9. From a perusal of the letter dated April 8, 1980, we find that it gives clarifications on certain doubts that had been created by some Departments in the matter of implementation of the instructions contained in the earlier letter dated May 5, 1975. Since the said letter dated April 8, 1980 is only clarificatory in nature, there is no question of its having an operation independent of the instructions contained in the letter dated May 5, 1975 and the clarifications contained in the letter dated April 8, 1980 have to be read as a part of the instructions contained in the earlier letter dated May 5, 1975. In this context it may be stated that according to the principles of statutory construction a statute which is explanatory or clarificatory of the earlier enactment is usually held to be retrospective. (See:
Craies on Statute Law, 7th Ed., p.58). It must, therefore, be held that all appointments against vacancies reserved for Scheduled Castes made after May 5, 1975 (after May 14, 1977 in so far as the Service is concerned), have to be made in accordance with the instructions as contained in the letter dated May 5, 1975 as clarified by letter dated April 8, 1980. On that view, the appointment of Shri Bal want Rai in 1979 has to be treated to be an appointment made under the said instructions and operation of these instructions cannot be postponed till April 8, 1980.. In view of the above, it is not possible for us to accept that the OM dated 3.3.2008, would only apply prospectively. We are also satisfied, that the OM dated 3.3.2008 which is only a clarification of the earlier OM dated 3.7.1986, would relate back to the original instrument, namely, the OM dated 3.7.1986.
33. Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 (in paragraphs 20 and 21 hereinabove), we are satisfied, that not only the requisition but also the advertisement for direct recruitment was issued by the SSC in the recruitment year in which direct recruit vacancies had arisen. The said factual position, as confirmed by the rival parties, is common in all matters being collectively disposed of. In all these cases the advertised vacancies were filled up in the original/first examination/selection conducted for the same. None of the direct recruit Income Tax Inspectors herein can be stated to be occupying carried forward vacancies, or vacancies which came to be filled up by a later examination/selection process. The facts only reveal, that the examination and the selection process of direct recruits could not be completed within the recruitment year itself. For this, the modification/amendment in the manner of determining the inter-se seniority between the direct recruits and promotees, carried out through the OM dated 7.2.1986, and the compilation of the instructions pertaining to seniority in the OM dated 3.7.1986, leave no room for any doubt, that the rotation of quotas principle, would be fully applicable to the direct recruits in the present controversy. The direct recruits herein will therefore have to be interspaced with promotees of the same recruitment year.
9. Subsequently, the respondents constituted a committee consisting of 4 members for review of inter-se-seniority of Store Officers and finally another seniority list was issued against which also the applicants submitted the objections/ representations and finally the respondents rejected the same by means of the impugned order.
10. The learned counsel for the applicants has also relied upon the decision of Sarwan Kumar Vs. Madan Lal Aggarwal reported in LAWS (SC) 2003-2-124 decided on 6.2.2003 , the Honble Apex Court has been pleased to observe as under:-
8. For the first time this Court in Golak Nath Vs. State of Punjab, AIR 1967 SC 1643 accepted the doctrine of "prospective overruling". It was held:
"As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, we would like to move warily in the beginning. We would lay down the following propositions: (1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by the highest court of the country, i.e., the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its "earlier decisions" is left to its discretion to be moulded in accordance with the justice of the cause or matter before it."
The doctrine of "prospective overruling" was initially made applicable to the matters arising under the Constitution but we understand the same has since been made applicable to the matters arising under the statutes as well. Under the doctrine of "prospective overruling" the law declared by the Court applies to the cases arising in future only and its applicability to the cases which have attained finality is saved because the repeal would otherwise work hardship to those who had trusted to its existence. Invocation of doctrine of "prospective overruling" is left to the discretion of the court to mould with the justice of the cause or the matter before the court. This Court while deciding the Gian Devi Anand's case (supra) did not hold that the law declared by it would be prospective in operation. It was not for the High Court to say that the law laid down by this Court in Gian Devi Anand's case (supra) would be prospective in operation. If this is to be accepted then conflicting rules can supposedly be laid down by different High Courts regarding the applicability of the law laid down by this Court in Gian Devi Anand's case (supra) or any other case. Such a situation cannot be permitted to arise. In the absence of any direction by this Court that the rule laid down by this Court would be prospective in operation the finding recorded by the High Court that the rule laid down in Gian Devi Anand's case (supra) by this Court would be applicable to the cases arising from the date of the judgment of this Court cannot be accepted being erroneous.
This Court in Sushil Kumar Mehta vs. Govind Ram Bohra 1990 (1) SCC 193 after referring to and exhaustively dealing with and following various judgments of this Court held that a decree passed by a civil court in a rent matter, the jurisdiction of which was barred by the Haryana Urban (Control of Rent & Eviction) Act, 1973, having been passed by a court lacking inherent jurisdiction to entertain the suit for ejectment was a nullity and the judgment-debtors successfully could object to the execution of the said decree being a nullity.
10. This decision was later on followed by this Court in Urban Improvement Trust vs. Gokul Narain 1996 (4) SCC 178. We need not refer to the earlier decisions of this Court taking the same view which have been referred to and find mentioned in Sushil Kumar Mehta's case (supra).
In the present case because of the operation of Section 14 of the Act the only authority to pass a decree for ejectment of the tenanted premises is the Rent Controller appointed under the Act and Section 50 of the Act specifically bars the jurisdiction of the civil court to entertain any suit or proceeding in so far as it relates to the eviction of any tenant from the premises which were covered by the Delhi Rent Control Act. The civil court lacked the inherent jurisdiction to take cognizance of the cause and to pass a decree. Challenge to such a decree on the ground of nullity could be raised at any later stage including the execution proceedings. Tenancy of the building was governed by a special Act and therefore the decree passed by the civil court was a nullity and therefore inexecutable. Judgment-debtors had not filed their written statement in the civil court and no issue regarding the jurisdiction of the civil court to try the suit was framed. Tenant in the special leave petition in this Court raised the contention that the eviction decree passed by the civil court could not be executed against them. This Court refused to go into that question as it was not the subject matter of the order under appeal. It was left open to the judgment-debtors to raise this ground before the appropriate forum, if available to them under law. The only forum where the judgment-debtors could raise the objection regarding the executability of the decree was in the execution proceedings which they did. Since the jurisdiction of the civil court was barred, the decree passed by it was a nullity and the judgment-debtors could successfully raise objection regarding the executability of such a decree. The executing court erred in holding that judgment-debtors could not raise the objection to the executability of the decree being nullity having been passed by a court lacking inherent jurisdiction to do so. This Court in Gian Devi Anand's case (supra) did not lay down any new law but only interpreted the existing law which was in force. As was observed by this Court in Lily Thomas's case (supra) the interpretation of a provision relates back to the date of the law itself and cannot be prospective of the judgment. When the court decides that the interpretation given to a particular provision earlier was not legal, it declares the law as it stood right from the beginning as per its decision. In Gian Devi Anand's case (supra) the interpretation given by the Delhi High Court that commercial tenancies were not heritable was overruled being erroneous. Interpretation given by the Delhi High Court was not legal. The interpretation given by this Court declaring that the commercial tenancies heritable would be the law as it stood from the beginning as per the interpretation put by this Court. It would be deemed that the law was never otherwise. Jurisdiction of the civil court has not been taken away by the interpretation given by this Court. This Court declared that the civil court had no jurisdiction to pass such a decree. It was not a question of taking away the jurisdiction it was the declaration of law by this Court to that effect. The civil court assumed the jurisdiction on the basis of the interpretation given by the High Court in Gian Devi Anand's case, which was set aside by this Court.
11. Apart from this, the learned counsel for applicants has also relied upon a decision rendered in the case of Rajasthan State Road Transport Corporation Vs. Bat Mukund Bairwa reported in LAWS (SC) 2009-2-172 decided on 12.2.2009 and the Honble Apex Court has been pleased to observe as under:-
14. An assumption on the part of this Court that all such cases would fall only under the Industrial Disputes Act or sister laws and, thus, the jurisdiction of the civil court would be barred, in our opinion, may not be the correct interpretation of Premier Automobiles Ltd. (supra) which being a three-Judge Bench judgment and having followed Dhulabhai (supra), which is a Constitution Bench judgment, is binding on us.
We may also observe that the application of doctrine of prospective overruling in Krishna Kant (supra) may not be correct because either a court has the requisite jurisdiction or it does not have. It is well settled principle of law that the court cannot confer jurisdiction where there is none and neither can the parties confer jurisdiction upon a court by consent. If a court decides a matter without jurisdiction as has rightly been pointed out in Zakir Hussain (supra) in view of the seven-Judge Bench decision of this Court in A.R. Antulay (Supra), the same would be nullity and, thus, the doctrine of prospective overruling shall not apply in such cases. Even otherwise doctrine of prospective overruling has a limited application. It ordinarily applies where a statute is declared ultra vires and not in a case where the decree or order is passed by a court/tribunal in respect whereof it had no jurisdiction. [See C. Golak Nath & ors. vs. State of Punjab & anr. (AIR 1967 SC 1643)] In M.A. Murthy v. State of Karnataka and Ors. [(2003) 7 SCC 517], this Court held:
"...It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. ....."
(See also Ashok Kumar Sonkar vs. Union of India & ors. [(2007) 4 SCC 54] As has been pointed by Justice Cardozo, in his famous compilation of lectures - The Nature of the Judicial Process - that in the vast majority of cases, a judgment would be retrospective. It is only where the hardship is too great that retrospective operation is withheld. A declaration of law when made shall ordinarily apply to the facts of the case involved.
12. Learned counsel for applicants has also relied upon the decision rendered by this Tribunal and has also indicated that the said order of the Tribunal has attained finality and no writ petition is filed against the said order.
13. Learned counsel for applicants has also relied upon a decision of coordinate bench at New Delhi in O.A. No. 1854/2013 (Sri Gaurav Singh and others Vs. Union of India and others) decided on 12.5.2014 and has indicated that the Tribunal deals with the issue in respect of Union of India Vs. N.R. Parmar (supra) case . After perusal of the decision Bench, New Delhi in O.A. No. 118/2013, we have no occasion to defer with the observations made in the aforesaid judgments.
14. Since the matter has been decided by the Honble Apex Court in the case of Union of India Vs. N.R. Parmar (supra), and the observation of the Honble Apex Court is clearly in favour of the applicants. Accordingly, the impugned order dated 8.5.2015 is liable to be quashed . The respondents are directed to re-cast the seniority in accordance with the observations of Honble Supreme Court in the case of N.R. Parmar with all consequential benefits and the same shall be done within three months from the date the certified copy of order is submitted by the applicants.
15. With the above observations, O.A. is allowed. No order as to costs.
(Ms. Jayati Chandra) (Navneet Kumar) Member (A) Member (J) HLS/-