Service Law – Promotion – Seniority – Date of induction – Date of promotion – The GO dated 24.12.2002 issued by the Ordinance Factory Board placed on record clarifies the position regarding counting of seniority by laying down that seniority will be counted from the date of promotion to skilled grade and not from the date of induction/entry/promotion in semiskilled grade – However, the appellant has placed reliance on GO dated 04.08.2015, the rule position qua the fixation of seniority has been restored to be governed by OM dated 04.11.1992, 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: Held: The clarification issued vide GO dated 04.08.2015 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 dated 04.11.1992 – 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 – In the instant case, the subsequent GO dated 04.08.2015 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 dated 04.11.1992, and supersedes the orders/circulars dated 24.12.2002 and 13.01.2003, which were holding the field over more than a decade – Therefore, giving retrospective effect to the GO dated 04.08.2015 would have catastrophic effect on the seniority of the entire cadre – As 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 crystallized rights regarding seniority, rank and promotion which would have accrued to them during the intervening period – This Court is of the view that applicability of the Government Order dated 04.08.2015 cannot enure to the benefit of the appellant as its operation is clearly prospective. [Paras 41, 42, 43, 50, 51]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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