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Synopsis

The Supreme Court recently held that once an employee completes their probation period and is confirmed in service, even if the confirmation is delayed, it should be considered effective from the date of their initial appointment. Any deviation from this principle, whether through statutory rules, executive instructions, or other means, must comply with the provisions of Articles 14 and 16 of the Constitution, which guarantee equality and non-discrimination in public employment.

A bench of Justices Sandeep Mehta and R Mahadevan upheld the Madras High Court's 2011 judgment which allowed writ petitions by private respondents and reversed the 2010 decision by the Central Administrative Tribunal that rejected a plea challenging the proposed action of revision and fixation of the private respondents' seniority in the Engine Factory, Avadi, Chennai.

The court held that the Government Order dated August 4, 2015, could not benefit the appellant because its application was strictly prospective, meaning it applied only to future cases and not to past events or actions.

"To alter a seniority list after such a long period would be totally unjust to the multitudes of employees who could get caught in the labyrinth of uncertainty for no fault of theirs and may suffer loss of their seniority rights retrospectively," the bench said.

The matter related to the promotion of appellant, V Vincent Velankanni and the private respondents who were engaged on semi-skilled posts in 1996 such as Fitters and Machinists in the respondent Factory. 

The private respondents were promoted to the skilled grade on January 11, 1998 and further promoted to the highly skilled grade on May 20, 2003. On the other hand, the appellant was promoted to the skilled grade on July 17, 1998 (after completing his extended probation period of 6 months and clearing the mandatory trade test). 

Given that the private respondents were promoted to the highly skilled grade in May 2003, the appellant, under normal circumstances, should have been promoted to the same grade by the end of 2003. However, his promotion was delayed by approximately five years, and he was eventually promoted to the highly skilled grade on March 26, 2008.

The court noted the primary issue that required adjudication was as to whether the seniority of the appellant was to be reckoned from the date of induction/initial appointment or as per the date of promotion/confirmation in the skilled grade. 

"It is a well-settled proposition that once an incumbent is appointed to a post according to the rules, his seniority has to be reckoned from the date of the initial appointment and not according to the date of confirmation, unless the rules provide otherwise," the bench said.

However, the court pointed out that a GO of December 24, 2002 issued by the Ordinance Factory Board placed on record clarified the position regarding counting of seniority in the trades for the industrial establishments. This order stated that where passing of trade test/competency test or any other statutory certificate is required, the same must be adhered to and cannot be done away with and seniority will be counted from the date of promotion to Skilled grade and not from the date of induction/entry/promotion in semi-skilled grade.

The court noted that the validity of this GO was never assailed by the appellant at any stage either before the CAT or the high court. 

The appellant, in support of his plea, placed reliance on a GO of August 4, 2015, whereby the GO of December 24, 2002 had been superseded and it had been decided by the Competent Authority that “henceforth”, the seniority in respect of Industrial Establishments would be governed by the relevant clause of OM of November 4, 1992.

"By virtue of this GO, the rule position qua the fixation of seniority has been restored to be governed by OM dated 4th November, 1992, according to which the relevant date for fixation of seniority would be the date of initial appointment and not the date of upgradation/promotion to the skilled grade," the bench said.

The OM of August 4, 2015 further clarified that the person higher in the merit list will not lose his seniority and will be placed the person lower in the merit list after getting upgradation to the skilled grade. However, the clarification issued by the 2015 GO does not operate retrospectively as it is specifically provided in the said GO that “henceforth”, the seniority in respect of Industrial Establishments will be governed by the relevant clause of OM of 1992, the court noted.

The bench pointed out that it is trite law that an Office Memorandum/Government Order cannot have a retrospective effect unless and until there is an express provision to make its effect retrospective or that the operation thereof is retrospective by necessary implication. 

"If a Government Order is treated to be in the nature of a clarification of an earlier Government Order, it may be made applicable retrospectively. Conversely, if a subsequent Government Order is held to be a modification/amendment of the earlier Government Order, its application would be prospective as retrospective application thereof would result in withdrawal of vested rights which is impermissible in law and the same may also entail recoveries to be made," the bench said.

Applying these principles to the case at hand, the bench said, "We are of the view that the subsequent GO dated 4th August, 2015 cannot be read simply as a clarification and therefore cannot be made applicable retrospectively."

The said GO has substantively modified the position governing seniority in the Industrial Establishments by reviving the earlier OM of 1992, and superseded the orders/circulars of December 24, 2002 and January 13, 2003, which were holding the field over more than a decade, the court said.

"Therefore, giving retrospective effect to the GO dated 4th August, 2015 would have catastrophic effect on the seniority of the entire cadre," the bench said.

The bench also felt altering the seniority list at a belated stage may adversely affect the employees whose seniority and rank had been determined in the meantime. 

In the intervening period, before the GO of 2015 came to be issued, seniority of multitudes of employees must have been fixed according to the GO of 2002, which is according to the date of promotion to skilled grade and not from the date of induction/entry in semi-skilled grade, the bench noted. 

As a matter of fact, the court found that respondent Nos. 3, 4 and 5 who were below the appellant in the order of merit at the time of induction in the semi-skilled grade, had been promoted to the skilled grade and the highly skilled grade much before the appellant by application of the GO of 2002. The appellant did not question their promotions before any court or tribunal at any stage. 

"Thus, much water has flown under the bridge and retrospective application of the GO issued in 2015 would open floodgates of litigation and would disturb the seniority of many employees causing them grave prejudice and heartburn as it would disturb the crystallised rights regarding seniority, rank and promotion which would have accrued to them during the intervening period," the bench said.

The court thus held the judgment of the high court did not suffer from any infirmity warranting interference. Accordingly, it dismissed the appeal as being devoid of merit. 

Case Title: V Vincent Velankanni Vs The Union of India And Others