VERY IMPORTANT POINT
Seniority of an employee has to be determined in accordance with the Rules which remain in force at the time when he was born in the cadre. The question of re-determination of the seniority in the cadre on the basis of any amended criteria of Rules would arise only when the amendment in question is given a retrospective effect.

Headnote:(i) Andhra Pradesh Subordinate Service Rules, 1961-Appointment of cadre of Deputy Tehsildars-Rule 4(e) (amended on 4.10.1980) giving it retrospective effect w.e.f. 12.10.61-Amendment providing inter se seniority between the direct recruits to the category of Deputy Tehsildars and the promotees to that category would be determined from the date of their confirmation in the substantive vacancy further amendment on 24.9.92 applying pre-existing memoranda which provided reckoning length of continuous service-Deputy Tehsildars appointed between 9.10.1980 and 23.9.1992-Whether their seniority be governed by Rule 4(e) as it stood prior to its amendment in 1992 or by the new rule which came into force on 24.9.1992 -Administrative Tribunal holding that it would be determined in the cadre according to Rules in force on the date of appointment-High Court holding to the contrary-Appeal to Supreme Court by the direct recruits-Who was right Tribunal or High Court? (the former) Case law discussed.
       Held : 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-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 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 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 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 (1997) 8 SCC 522. 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 same must be adhered to unless any valid reason is indicated for non-compliance of the same. (Para 17)
       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 1998(2) SCC 201 seniority of Deputy Tehsildars appointed between 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 existence in September 1992, as has been held 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 O.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 stand dismissed. (Para 18)
       (ii) Inter se seniority in the cadre of Deputy Tehsildars between direct recruits and promotees under A.P. Revenue Subordinate Service Rules-Conflicting decisions of Wing Commander case (1988(2) SCC 116 and Subbarao case, 1988(2) SCC 201)-Rival views on Subbarao s case as to nature of dispute and the relief granted-Explained a clarified-Wing Commander case dissented from. (Para 14)
       Held : 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 granted by this Court in Subba Rao s case (supra)? In the aforesaid case the relevant Rule for determination of inter se 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 that category in the proportion of 1:1, 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 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 of total number, fill up the same and then draw up the seniority list on the 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 had issued such instructions and the Administrative Tribunal also has 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 General Rules. It is interesting to notice that notwithstanding the positive direction of this Court in Subba Rao s case (supra), in fact no seniority list had been prepared between the period 1980 till 1992. Thus there 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. (Para 6)
       (iii) Respondents 28 to 33 appointed subsequent to the amended Rules-Whether should be treated to have been appointed earlier than the rules came into force-Not considered.
       Held : 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 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. (Para 19)

JUDGMENT

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. Union of India1, and the decision in K.V. Subbarao and others v. Government of Andhra Pradesh and others2, 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 Rules, 1961 (hereinafter referred to as The Special Rules ). Under the Special Rules appointment to the cadre of Deputy Tehsildars could be made either by direct recruitment or by transfer from members 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 1 : 1. 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 confirmation in the substantive vacancy in that category in the proportion 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 Court came to hold that the amended Rules can operate only prospectively from 9th October 1980 and shall not have any retrospective effect. A further direction was given that the State shall within 4 months from the date of the judgment 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 of the total number, fill up the same by making direct recruitment within a period of 4 months thereafter. The State Government was further directed to draw up a seniority list on the basis of Rule 4(e) on or before 31st December, 1988. Pursuant to the aforesaid direction seniority lists were prepared but alleging that lists have not been prepared strictly in accordance with the judgment of this Court, Original Applications were filed before the Andhra Pradesh Administrative Tribunal. On 24.9.1992 Special Rules of 1961 were further amended by limiting the direct recruits to 30 of approved substantive vacancies and further providing that notwithstanding 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 1:1 between the direct recruits and promotees would be the criteria. The Commissioner of Land Revenue issued instructions that the aforesaid amendments to the Rules being effective from 24.9.1992, persons whose services are to be regularised prior to the same date, their services would be governed by the pre-amended 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 have their seniority fixed in a

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2001 Supreme(SC) 299

Cases Referred (16)