1. Appeal against High Court order quashing seniority list and directing re-arrangement of seniority. (Para 3 )
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2000 Supreme(SC) 444
SUPREME COURT OF INDIA
D.P.Mohapatra : J.Jagannadha Rao
Mangal Das K.Desai
Versus
Shashikant R.Desai
Case No. : 1918 of 2000
Date of Decision : 2/28/00
Seniority already determined under existing rules and protected by an express saving clause in a notification cannot be reopened or disturbed by subsequent orders directing a general rearrangement of seniority rosters.
Headnote:(A) Service Law - Seniority - Saving Clause - Seniority determined in accordance with existing rules on the date of issue of a notification shall not be reopened - If recruitment action had already been taken by way of direct recruitment or promotions on the date of issue of the notification, seniority continues to be determined in accordance with existing rules - Express language of a saving clause protects finalized seniority from being disturbed (Paras 4 and 6).
Facts of the case:
An order was passed by the lower court quashing a seniority list and directing the re-arrangement of seniority of personnel in a specific cadre based on the actual date of entry. The appellant, who was not a party to the original proceedings, contended that their seniority had been finalized prior to the issuance of certain rules. These rules contained a saving clause stating that seniority already determined according to existing rules on the date of notification would not be reopened.
Findings of Court:
The contention that the seniority of the appellant cannot be interfered with is well-founded in view of the express language of the saving clause. Consequently, the directions of the lower court must be modified to ensure that seniority finalized under the previous list remains undisturbed.
Issues: Whether seniority finalized under existing rules and protected by a saving clause in a subsequent notification can be reopened or disturbed by a judicial order directing a general re-arrangement of seniority.
Ratio Decidendi: The court held that when a saving clause explicitly provides that seniority determined under existing rules will not be reopened, such an express provision precludes the disturbance of seniority already finalized.
Result: Appeal disposed of with the modification that seniority as per the finalized list cannot be disturbed.
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Table of Contents
2. Appellant argued seniority could not be reopened due to a saving clause in the rules. (Para 4 , 5 )
3. Court held the appellant's contention was well-founded given the express language of the saving clause. (Para 6 )
4. Seniority determined under existing rules before a saving clause is protected and cannot be disturbed. (Para 4 , 6 )
5. Appeal allowed by modifying High Court order to protect appellant's seniority as per 1986 list. (Para 6 , 8 )
6. Can a saving clause in service rules protect previously determined seniority from being reopened?
Yes, a saving clause that expressly bars reopening seniority already determined under existing rules protects that seniority from being disturbed. (Para 4 , 6 )
(1) DELAY condoned.
(2) LEAVE granted.
(3) THE appellant before us was not a party to the Writ Petition No. 103 of 1998 which was disposed of by the High Court on 8.7.98. In the said order, the Writ Petition was allowed and certain directions were given quashing the seniority list dated 21.3.1996 and directing the re-arrangement of seniority of the personnel from the Cadre of Sub-Inspector, in accordance with the actual date of their entry in that Cadre. It was further directed that if recruitment was made from both sources at the same time, then inter seniority be fixed amongst them by following the principle of rota quota and that after fixing such seniority, the Government should regulate all promotions higher to the post of Sub-Inspector.
(4) THE appellant has come before us contending that the Rules which were issued on 29.5.97, published in Gazette Notification No. 2/33/76 PER dated 6.2.1987 contains a Saving clause which reads as follows:
"SENIORITY already determined in accordance with the existing rules on the date of issue of this Notification will not be reopened. In respect of the vacancies for which recruitment action has already, been taken, on the date of issue of this Notification either by way of direct recruitment or promotions, seniority will continue to be determined in accordance with the existing rules."
(5) LEARNED senior counsel appearing on behalf of the appellant has submitted that the seniority of the appellant in the Cadre of Sub-Inspector was finalised on 21.1.1986 in which list the appellants name occurs at serial No. 22. According to learned counsel that seniority of the appellant cannot be interfered with in view of the above said Saving clause.
(6) AFTER hearing counsel on both sides, we are of the view that the said contention is well founded in view of the express language of the Saving clause. We, therefore, modify the directions issued by the High Court in the impugned order to the effect that, so far as the seniority of the appellant as per the seniority list dated 21.1.1986 is concerned, the same cannot be disturbed under the impugned order.
(7) IT appears that the appellant had filed a Writ Petition No. 298/1998 challenging the seniority list dated 21.3.1996 and also another Writ Petition No. 404/1998 challenging the seniority list dated 28.12.1998, which was issued subsequent to the judgment of the High Court, impugned before us. So far as these writ petitions are concerned, these may be disposed of on their own merits, but subject to the above modifications which we have made in this appeal.
(8) THE appeal is disposed of accordingly.
