1. Ex-servicemen appointed to civil service — Dispute over seniority fixation — Application of repealed rules versus current rules for counting military service. (Para 2 )
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2021 Supreme(SC) 174
SUPREME COURT OF INDIA
Ashok Bhushan, S. Abdul Nazeer, Hemant Gupta, JJ.
Jagmohan Singh Dhillon Etc.Etc. – Appellant
Versus
Satwant Singh & Ors. – Respondent
Civil Appeal Nos.4616-4618 of 2010
Decided On : 26-03-2021
Important Points
IMPORTANT POINT
Determination of seniority of an employee is dependent upon extant Rules.
Determination of seniority of an employee is dependent upon extant Rules.
Subject
Employment Law - Seniority
Act Referred
ARMED FORCES PERSONNEL RESERVATION OF VACANCIES IN THE PUNJAB CIVIL SERVICE EXECUTIVE BRANCH RULES: R.4, R.4(1)
PUNJAB RECRUITMENT OF EX-SERIVCEMEN RULES: R.9(3)
PUNJAB RECRUITMENT OF EX-SERIVCEMEN RULES: R.9(3)
Headnote
Service Law – Seniority – Determination of – Rule 4 of 1972 Rules provided that period of military service rendered by a candidate appointed against reserved vacancy shall count towards fixation of pay and seniority, which provision was no longer continued in Rule 4 of 1982 Rules – However, provision for reservation of vacancies was maintained to the extent of fifteen percent of vacancies – Advertisement against which appellant was appointed after enforcement of 1982 Rules – Although 1972 Rules have been repealed but in 1982 Rules, as per Rule 9(3), nothing in 1982 rules was to be construed as depriving any person of any right which had accrued under rules in force immediately before commencement of Rules 1982 – Question of determination of seniority comes only after a person enters into service and becomes a member of service – Under 1972 Rules, it cannot be held that fact that vacancies were in existent prior to enforcement of 1982 Rules, and appointment of a person subsequent to enforcement of 1982 Rules, he shall be entitled to benefit of Rule 4, i.e., to add his military services for the purposes of his seniority, especially when benefit which was available for the purposes of seniority under Rule 4 of 1972 Rules is no longer continued under 1982 Rules – Rule 4 of 1972 Rules which provided for benefit of seniority of Army service was no longer entitled to be counted for seniority for personnel who was appointed after enforcement of 1982 Rules – Appellant was not entitled to claim benefit of military service for purpose of seniority for appointment to Punjab Civil Service(Executive Branch) since benefit of Rule 4(1) of 1972 Rules was not continued in 1982 Rules – His seniority was to be governed by statutory rules applicable after enforcement of 1982 Rules – No error in judgment of Division Bench of High Court – Appeals dismissed. [Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Service) (Executive Branch) Rules, 1972 – Rule 4 – Punjab Recruitment of Ex-servicemen Rules, 1982 – Rule 9(3)] (Paras 11, 12, 15, 16, 23 and 24)
Facts of the case:
Appellants are ex-servicemen, who after being released from the Army were appointed to Punjab Civil Service (Executive Branch). Rules were framed namely Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Service) (Executive Branch) Rules, 1972, under which Rules Twenty percent of the vacancies in Punjab Civil Service (Executive Branch) were to be filled in by direct recruitment from amongst Released Indian Armed Forces Personnel, who joined military service or were commissioned on or after the first day of November, 1962. The vacancies existed under Rules, 1972 for direct recruitment were from 1979 to 1981.Only question which needs to be considered and answered in this appeal is as to whether the appellant for determination of his seniority was entitled for the benefit of Rule 4 of 1972 Rules.
Findings of Court:
Determination of seniority is entirely a different concept and determination of seniority is governed by seniority rules enforced at the time of appointment of the personnel. The view of learned Single Judge that the appellant shall be deemed to be appointed under 1972 Rules cannot be approved.
Result : Appeals dismissed
Legal Category Hierarchy
Advocates:
Advocate Appeared:
For the Appellant : Mr. D. Mahesh Babu, AOR
For the Respondent: Mr. Vineet Bhagat, AOR Mr. Karan Bharihoke, AOR Ms. Neha Sahai Bharihoke, Adv. Mr. Siddhant Sharma, Adv.
Advocate Appeared:
For the Appellant : Mr. D. Mahesh Babu, AOR
For the Respondent: Mr. Vineet Bhagat, AOR Mr. Karan Bharihoke, AOR Ms. Neha Sahai Bharihoke, Adv. Mr. Siddhant Sharma, Adv.
Table of Contents
2. Appellants claim seniority based on repealed rules for pre-existing vacancies — State contends seniority is governed by rules applicable at the time of appointment. (Para 4 , 5 , 6 )
3. Reservation percentages for pre-existing vacancies differ from seniority determination — Seniority is generally fixed by entry date — Repealed benefits do not automatically carry over. (Para 13 , 14 , 15 , 16 , 18 , 20 , 21 )
4. Determination of seniority is governed by the rules in force at the time of appointment, regardless of when the vacancy first arose. (Para 15 , 16 , 20 , 23 )
5. Appeals dismissed — Judgment of the Division Bench upheld. (Para 24 )
6. Does the rule governing the percentage of reserved vacancies also govern the determination of seniority for those appointed?
No. The court held that reservation of vacancies and determination of seniority are distinct concepts. Rules governing the percentage of reserved vacancies for pre-existing vacancies do not extend to the determination of seniority, which is governed by rules in force at the time of appointment. (Para 14 , 15 , 20 )
7. Can a candidate claim benefits from repealed rules if the vacancy existed before the rules were repealed?
No. If the benefit, such as counting military service for seniority, is not continued in the new rules and the appointment occurs after the repeal, the candidate cannot rely on the repealed rules. (Para 15 , 16 , 23 )
8. What is the general rule for fixing seniority in civil service?
The normal rule is that seniority is determined with reference to the date of entry into the service, consistent with Articles 14 and 16 of the Constitution, unless there are very weighty reasons for departure. (Para 18 )
9. When does a saving clause in new rules protect rights under repealed rules?
A saving clause protects rights that have already accrued. It does not extend benefits to a person who has not yet joined the service or whose right to a specific benefit had not accrued before the new rules took effect. (Para 12 , 21 )
JUDGMENT :
ASHOK BHUSHAN, J.
These appeals have been filed against the Division Bench Judgment of High Court of Punjab and Haryana dated 28.07.2009 in LPA No.213 of 2007 with LPA No.177 of 2007. The High Court vide the impugned judgment has allowed the LPA filed by the State of Punjab and set aside the judgment of learned Single Judge and dismissed the writ petitions filed by the appellants before us.
2. Brief facts of the case necessary to be noted for deciding these appeals are :
i. The appellants are ex-servicemen, who after being released from the Army were appointed to Punjab Civil Service (Executive Branch). Rules were framed namely Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Service) (Executive Branch) Rules, 1972, under which Rules Twenty percent of the vacancies in the Punjab Civil Service (Executive Branch) were to be filled in by direct recruitment from amongst Released Indian Armed Forces Personnel, who joined military service or were commissioned on or after the first day of November, 1962. The vacancies existed under Rules, 1972 for direct recruitment were from 1979 to 1981.
ii. Another set of Rules were framed namely Punjab Recruitment of Ex-servicemen Rules, 1982 which were gazetted on 12.02.1982. Fifteen percent of the vacancies to be filled by direct appointment were reserved for being filled in the recruitment by ex-servicemen. By 1982 Rules, the Rules 1972 as above mentioned were repealed. An advertisement was published on 01.05.1982 being advertisement No.2 advertising the post of Punjab Civil Service (Executive Branch). The examination was held in the year 1985 and the appellants were appointed vide order dated 18.03.1986 to Punjab Civil Service (Executive Branch). The seniority list was issued in the year 1994 in which seniority of the appellant was fixed at S.No.25 without granting him any benefit of earlier services in the Army.
iii. The appellant submitted representation against wrong fixation of his seniority. The appellant filed a Writ Petition No.8069 of 2001. In the writ petition, the appellant claimed that his seniority be re-fixed by granting military services benefit in terms of Rule 4 of 1972 Rules. The writ petition of the appellant was taken along with other three writ petitions and allowed by learned Single Judge of the High Court vide its judgment dated 31.07.2007.
iv. The learned Single Judge held that appellants shall be deemed to be appointed under 1972 Rules and benefits flowing there from shall be admissible to the appellant as per 1972 Rules. The earlier judgment of the High Court dated 08.04.1986 in Writ Petition No.3236 of 1995, Ishwar Singh and others versus State of Punjab , was relied by learned Single Judge. Aggrieved against the judgment of learned Single Judge dated 31.07.2007, State of Punjab filed LPA No.213 of 2007. LPA No.19 of 2008 and LPA No.20 of 2008 were decided along-with LPA No.213 of 2007, by judgment and order of the Division Bench dated 28.07.2009. LPA filed by the State of Punjab was allowed. Judgment of the learned Single Judge was set aside and the writ petition filed by the appellant was dismissed. Aggrieved by the judgment of Division Bench, these appeals have been filed.
3. We have heard Shri Gurminder Singh, learned senior counsel appearing for the appellant. Shri Karan Bharihoke has appeared on behalf of State of Punjab and Shri Vineet Bhagat has appeared for respondent Nos.1 to 4.
4. Learned senior counsel for the appellants contends that the vacancies against which appellants were appointed in the year 1986 were vacancies which were all in existence prior to enforcement of 1982 Rules, hence, 1972 Rules were applicable and the appellants were entitled for the benefit of Rule 4 , i.e., their seniority is to be determined giving the benefit of military services which should count towards fixation of pay and seniority. It is submitted that learned Single Judge has rightly allowed the writ petition of the appellant.
