Central Administrative Tribunal - Delhi
Alok Kumar vs Union Of India on 22 July, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.3314/2012
With
O.A. No.3849/2012
Order Reserved on: 21.02.2014
Order Pronounced on: 22.07.2014
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. A.K. Bhardwaj, Member (J)
OA No.3314/2012
Alok Kumar,
S/o Late Shri Harish Chandra,
R/o C-605, Rajhans Apartments,
Indira Puram,
Ghaziabad-201014. -Applicant
(By Advocate: Shri Pradeep Dahiya)
Versus
1. Union of India
Through The Secretary
Department of Personnel and Training
Ministry of Personnel,
Public Grievance and Pensions,
North Block, New Delhi-110001.
2. The Director,
Central Bureau of Investigation,
Block No.5B, CGO Complex,
Lodhi Road, New Delhi-110003.
Union Public Service Commission,
Through the Secretary,
Shahjahan Road, New Delhi.
B.M. Pandit,
Inspector, CBI, EO-I,
New Delhi.
K. Subbian,
Inspector, CBI, ACB,
Chennai.
Ajay Kumar Pandey,
Inspector, CBI, EO-III,
New Delhi.
S.K. Sharma,
Inspector, CBI, AC-III,
New Delhi.
T.V. Joy,
Inspector, CBI, ACB,
Bangalore.
C.B. Ramadevan,
Inspector, CBI, ACB,
Cochin.
10. R.K. Bhattacharjee,
Inspector, CBI, SCB,
Kolkata.
11. M. Sundaravel,
Inspector, CBI, SU,
Chennai.
12. P. Chakraborty,
Inspector, CBI, ACB,
Patna.
Respondent No.4-12 through The Director,
Central Bureau of Investigation,
Block No.5B, CGO Complex,
Lodhi Road, New Delhi-110003.
Respondents.
(By Advocate : Shri R.V. Sinha & Shri Amit Anand)
OA No.3849/2012
Samar Pal Rana
S/o Late Shri Krishan Pal Rana,
Dy. S.P. CBI, E-II,
4th Floor, 5B, CGO Complex,
New Delhi. -Applicant
(By Advocate: Shri Pradeep Dahiya)
Versus
1. Union of India
Through The Secretary
Department of Personnel and Training
Ministry of Personnel,
Public Grievance and Pensions,
North Block, New Delhi-110001.
2. The Director,
Central Bureau of Investigation,
Block No.5B, CGO Complex,
Lodhi Road, New Delhi-110003.
Union Public Service Commission,
Through the Secretary,
Shahjahan Road, New Delhi.
B.M. Pandit,
Inspector, CBI, EO-I,
New Delhi.
K. Subbian,
Inspector, CBI, ACB,
Chennai.
Ajay Kumar Pandey,
Inspector, CBI, EO-III,
New Delhi.
S.K. Sharma,
Inspector, CBI, AC-III,
New Delhi.
T.V. Joy,
Inspector, CBI, ACB,
Bangalore.
C.B. Ramadevan,
Inspector, CBI, ACB,
Cochin.
10. R.K. Bhattacharjee,
Inspector, CBI, SCB,
Kolkata.
11. P. Chakraborty,
Inspector, CBI,
Patna.
Respondent No.4-11 through
The Director,
Central Bureau of Investigation,
Block No.5B, CGO Complex,
Lodhi Road, New Delhi-110003.
Respondents.
(By Advocate : Shri R.V. Sinha & Shri Amit Anand)
O R D E R
Per Mr. Sudhir Kumar, Member (A):
These two OAs were heard together and reserved for orders together and are, therefore, being disposed of through a common order.
OA No.3314/20122. The applicant of this OA is before this Tribunal challenging the revised Seniority List of Inspectors in Central Bureau of Investigation (CBI, in short) as on 01.10.2010, issued vide impugned Annexure A-1 dated 25.07.2012. The applicant had represented against that list, and his representation was rejected through the orders at Annexure A-2 dated 22.08.2012, which also the applicant has assailed.
3. The applicant was appointed as Sub-Inspector (SI) of Police in CBI directly on 08.08.1993, and had later been promoted as Inspector in the year 1999, by being granted retrospective seniority w.e.f. 21.07.1997. Later, a Seniority List of Inspectors of Police in CBI as on 01.06.2007 was issued in which the name of the applicant figured at Sl. No.140. In the subsequent Seniority List as on 31.12.2008 issued on 22.01.2009/16.02.2009, his name figured at Sl. No.134. Later, another Seniority List as on 01.01.2010 was issued on 04.01.2010 in which the name of the applicant had been shown at Sl. No.103. Yet another Seniority List as on 01.01.2011 was issued on 14.01.2011 in which the name of the applicant had been shown at Sl. No.16.
4. Thereafter on the basis of the judgment and order dated 18.01.2011 in OA No.3245/2009 D.M. Sharma vs. Union of India and dated 25.01.2011 in OA No.1021/2010 Sunil Dutt vs. Union of India & Ors. pronounced by this Tribunal, a revised proposed Seniority List of Inspectors of Police in CBI was issued on 09/12.09.2011, and the name of the applicant in that list had been shown at Sl. No.107. A number of representations were made by the affected Inspectors and Deputy Superintendents of Police (Dy. S.P.) against this revised proposed Seniority List, and the matter was examined by the respondent-department, and vide order dated 08.12.2011, it was decided to withdraw the said revised proposed Seniority List. The applicant has contended that with this, the Seniority List as on 01.01.2010 issued on 04.01.2010 stood restored. However, since the orders of this Tribunal dated 18.01.2011 in OA No.3245/2009 D.M. Sharma (supra) had to be given effect to, further changes were required to be made in the Seniority List of Inspectors. At that time the applicant came to know about a third OA No.1543/2012 Sandeep Kumar Sharma & Ors. vs. Union of India dated 27.07.2012 having been filed before this Tribunal by some deputationists, who had come on deputation from Central Industrial Security Force (CISF, in short) to the CBI, and had later been absorbed. Those absorbees had been claiming seniority from the time when they were promoted as regular Inspectors in their parent department. For doing so, they had challenged the order dated 08.12.2011, and the Seniority List of Inspectors in CBI as on 01.01.2010 issued on 04.01.2010.
5. As the applicant had been all along shown to be senior to the applicants of that OA No.1543/2012, he filed an M.A. No.2022/2012 in that O.A., pleading for being impleaded as party respondent. In the meantime, vide impugned orders dated 25.07.2012, a revised Seniority List of Inspectors in CBI as on 01.01.2010 was issued, in which the applicants in the said third OA No.1543/2012 Sandeep Kumar Sharma & Ors. (supra), who were absorbees, had been given seniority from the time when they were promoted as regular Inspectors in their parent department.
6. After the issuance of this order dated 25.07.2012, the next day on 26.07.2012 this Tribunal permitted the said OA No.1543/2012 Sandeep Kumar Sharma & Ors. (supra) to be withdrawn, granting liberty to the applicants therein to challenge the order passed by the CBI the previous day circulating a revised Seniority List, if so advised. But since the applicant before us was more affected by that revised Seniority List, he submitted a representation dated 30.07.2012 against the impugned Seniority List dated 25.07.2012, and pointed out that seniority had wrongly been assigned to the Inspector Shri D.M. Sharma w.e.f. 15.12.1988, from the date when he had joined CBI on deputation. In this representation, the applicant had pointed out that the post of Inspectors in CBI is not equivalent to the post of Inspectors in CISF, and had pointed out various grounds for this submission, which we shall shortly revert to. But the Respondent No.2 rejected the representation of the applicant and other persons against the Seniority List of Inspectors in CBI as on 01.01.2010 issued on 25.07.2012, without noticing and commenting upon the distinctions and differences pointed out by the applicant and others to buttress their arguments that the post of Inspectors in CBI is not equivalent to the post of Inspectors in CISF. The applicant has alleged that they mechanically followed the Honble Apex Courts judgment in the case of SI Roop Lal and another Vs. Lt. Governor through Chief Secretary, Delhi & Others (2000) 1 SCC 644, for the purpose of assigning seniority to the Private Respondents/R-4 to12 without appreciating the true and correct position of law and facts. The applicant was apprehending that further promotions to the post of Dy. S.P. were also envisaged by the respondents on the basis of this impugned revised Seniority List dated 25.07.2012. He, therefore, filed this OA, taking a number of grounds from A to F, which we shall shortly revert to. In the end, the applicant had prayed for the following reliefs:-
a) Allow the Original Application;
b) Quash and set aside impugned seniority list of Inspectors in CBI as on 01.01.2010 issued vide letter dated 25.07.2012 and restore the seniority of applicant as per the earlier seniority list as on 01.01.2010 issued on 04.01.2010 and later confirmed on 08.12.2011;
Quash and set aside order dated 22.08.2012 issued by the office of respondent No.2 rejecting the representations of the applicant and other persons against the revised seniority list of Inspectors in CBI as on 01.01.2010 issued vide letter dated 25.07.2012;
Pass such other and further orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case in the interest of justice.
OA No.3849/20127. This OA has been filed by the applicant through the same counsel, and naming 8 of the 9 Private Respondents named by the applicant of the previous OA, leaving out Shri M. Sundaravel, Private Respondent/R-11 of the previous OA. The applicant of this OA has also impugned the same revised Seniority List of Inspectors in CBI as on 01.01.2010 issued on 25.07.2012. The applicant of this OA had also been appointed as a Sub-Inspector in CBI on the same date of 08.08.1993, and had thereafter been promoted as Inspector in the year 1999, with seniority w.e.f. 21.07.1997, and further promoted as Dy. S.P. vide order dated 24.12.2010, which second promotion has eluded the applicant of the first OA so far. Describing the same facts, in almost the same sequence, the applicant of this OA had pointed out that his name was shown at Sl. No.135 in the Seniority List as on 01.06.2007, at Sl. No.130 in the Seniority List as on 31.12.2008 and at Sl. No. 99 in the Seniority List dated 01.01.2010 issued on 04.01.2010. After the judgments of this Tribunal dated 18.01.2011 in OA No.3245/2009 D.M. Sharma (supra) and dated 25.01.2011 in OA No.1021/2010 Sunil Dutt (supra) when the revised proposed Seniority List of Inspectors of police in CBI as on 01.01.2010 was issued on 09/12.09.2011, the name of the applicant of this OA was shown at Sl. No.103, with the Private Respondents being placed above him. Since representations were received, and that list was ultimately withdrawn, and it was decided that no further changes were required to be made in the Seniority List as on 01.01.2010 issued on 04.01.2010 other than refixing the seniority of Shri D.M. Sharma, as ordered by this Tribunal in OA No.3245/2009, finally the applicant of this OA was shown at Sl. No.99, but above the Private Respondents/R-4 to 12 in the list circulated on 08.12.2011. Private Respondent/R-7 and others had filed the third OA No.1543/2012 Sandeep Kumar Sharma & Ors. (supra), claiming seniority from the time when they were promoted as regular Inspectors in their parent department, and, as discussed above, vide impugned order dated 25.07.2012, a revised Seniority List of Inspectors in CBI as on 01.01.2010 was issued, in which the Private Respondents/R-4 to11 were given seniority from the time when they were promoted as regular Inspectors in their parent department, while the applicant of this OA was placed at Sl. No.109 below the Private Respondents/R-4 to11, which he has termed to be erroneous.
8. The applicant of this OA has submitted that though the said OA No.1543/2012 Sandeep Kumar Sharma & Ors. (supra) was withdrawn on 26.07.2012, with this Tribunal granting liberty to the applicants therein to challenge the order dated 25.07.2012, but no such challenge was laid by the private respondents against that Seniority List once again. The applicant of this OA has further alleged that he thereafter came to know that a proposal has been sent on 05.09.2012 for holding a review DPC for promotion to the rank of Dy. S.P., on the basis of the revised Seniority List dated 25.07.2012 of Inspectors in CBI, and he had every reason to believe that 9 more persons, including the Private Respondents/R-4 to 11, would be considered for promotion at that DPC, against the remaining 5 more vacancies of 2010. Since the Private Respondents/R-4 to11 have already been shown senior to the applicant in the revised Seniority List dated 25.07.2012, there was an apprehension in the mind of the present applicant that though he had already been promoted as Dy. S.P. vide order dated 24.12.2010, in which he was holding the second last position in the list of Dy. S.Ps. so promoted, perhaps he could now be reverted from that post, in the event of the DPC being held on the basis of the impugned revised Seniority List dated 25.07.2012. He, therefore, represented on 03.10.2012 for re-fixation of seniority and for not holding the review DPC on the basis of the presently notified impugned Seniority List of Inspectors till rectification of the same.
9. The applicant of this second O.A. had thereafter taken the plea exactly similar to that in the first OA No.3314/2012 to submit that the post of Inspectors in CBI is not equivalent to the post of Inspectors in CISF, and had thereafter taken the grounds in support of his contentions in this regard, to which we shall revert to shortly. In the result, the applicant had prayed for the following reliefs:-
a) Allow the Original Application;
Quash and set aside impugned seniority list of Inspectors in CBI as on 01.01.2010 issued vide letter dated 25.07.2012 and restore the seniority of applicant as per the earlier seniority list as on 01.01.2010 issued on 04.01.2010 and later confirmed on 08.12.2011;
Quash and set aside order/reply dated 25.10.2012 issued by the office of respondent No.2 rejecting the representations of the applicant and other person against the revised seniority list of Inspectors in CBI as on 01.01.2010 issued vide letter dated 25.07.2012;
Pass such other and further orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case in the interest of justice.
Common discussion of grounds taken in both OAs:-
10. In both these OAs, the applicants have pointed out the following differences in between the posts of Inspectors in CISF held by the Private Respondents before they came on deputation to CBI, and the posts held by those like the two applicants of these OAs, who had been directly appointed to the CBI:-
i) That though the Staff Selection Commission conducts a common examination for the post of SI in CBI and in other Central Police Organizations including CISF, but after the written test and interview, the candidates with higher rankings in the merit list are selected for CBI, and those with lower rankings in the merit list opt for other Central Police Organizations, including CISF.
ii) That the SIs selected for CBI are given the higher pay scale of Rs.1640-2900/- as compared to the pay scale of Rs.1400-2300 given to the SIs selected for the other Central Police Organizations.
iii) That the training of the CBI Inspectors and CISF Inspectors is also different, inasmuch as a CISF Inspector is not provided with detailed knowledge of Law and investigation procedures and skills during his basic training, unlike the intensive knowledge of Law and investigating procedures and skills in which training is imparted to those to be inducted into the CBI.
iv) That the post of Inspector in itself cannot be compared to the post of Inspector of any other department just on the basis of holding of post with similar name, and that the pay scale and the nature of duties, responsibilities and powers provided to the post have also to be looked into before considering the two posts as equivalent, as already decided by the Honble Apex Court in the case of SI Roop Lal (supra).
v) That even on promotion from Sub-Inspectors to Inspectors in CISF, the pay scale of Inspectors in CISF is Rs.1640-2900/- while that in the CBI it is Rs.2000-3200/-.
vi) That the four factors observed by the Honble Apex Court in Para-17 of the SI Roop Lals case (supra) for considering the equivalence of two posts do not get satisfied in the case of the claim regarding equivalence of the post of Inspectors in CBI and CISF. Thereafter the applicants have cited Section-10,11,12 & 13 of the CISF Act, 1968 to point out the powers, functions and duties of Inspectors in CISF, and had cited the duties and powers of Inspectors in CBI as provided for in Delhi Special Police Establishment Act, 1946. It was further pointed out that all executive officers of the CBI of the rank of Sub-Inspector and above, exercise all powers of a Station House Officer (SHO) In-charge of a police station for the purpose of conducting investigation into the criminal cases referred to CBI. Further details of the duties, powers and functions of the officials of CBI have also been provided.
vii) That from a comparison of the two, it can be fairly concluded that a CISF Inspector has got no powers to investigate a case, which power is available to the CBI Inspector. The powers to conduct search, or to make arrest as per the provisions of CrPC, are quite limited in the case of CISF Inspectors while such powers of investigation under CrPC are available to CBI Inspectors. A CISF Inspector has to compulsorily hand over any arrested accused/suspect person to a Police Officer, or to the nearest Police Station, as per the provision under Section-13 of the CISF Act, 1968 itself, and he also does not have any powers to summon or to issue notice to any witnesses or accused/suspect persons for the purpose of carrying out investigation of a case under Law, which authority is available with CBI, apart from the difference in pay scales as already mentioned above.
viii) That the action of Respondent No.2 in having passed the impugned order is in contravention of Articles 14 & 16 of the Constitution of India.
ix) That the respondents have failed to appreciate that the claim of deputationist absorbees for claiming seniority from the time when they were promoted as regular Inspectors in their parent department was a time barred and belated claim.
x) That the respondents have failed to appreciate the qualitative differences between the nature, duties, status, powers and responsibilities of the Inspectors in CBI and CISF.
xi) That the respondents have erroneously applied the Honble Apex Courts judgment in SI Roop Lal (supra) for assigning higher seniority to the Private Respondents/R- 4 to 11.
xii) That the case of D.M. Sharma (supra) already decided by this Tribunal earlier was distinguishable.
xiii) That the respondents had violated the order dated 31.08.2004 passed by this Tribunal in OA No.101/2004 D.S. Dagar & 4 Ors. vs. Union of India & Ors. wherein a categorical finding had been arrived at that nature of duties of the posts of Inspectors in CBI are different from Inspectors in CISF, and that the same are not analogous posts, which order had not been brought to the notice of the Tribunal during the hearing of the OA No.3245/2009 D.M. Sharma (supra).
xiv) That the respondents have wrongly stated in the impugned order that the private respondents had been absorbed by following the criteria contained in the DoP&T OM dated 07.03.1984 for determining analogous posts, and that the representation of both the applicants had been wrongly rejected by the respondents, by passing a non-speaking order, without assigning any reason for the conclusions arrived at, and without replying to the apprehension of the applicant of the second OA No. 3849/2012 in regard to his reversion in view of the likelihood of the review DPC being convened.
11. Both the official and the private respondents have filed similar counter replies in the two OAs. In the reply dated 04.02.2013 filed by the official respondents in OA No.3314/2012, it was denied that the revised Seniority List as now circulated on 25.07.2012 suffered from any illegality or infirmity. It was further pointed out that the Private Respondents/R-4 to 12 were already holding the post of Inspectors on regular basis in their parent department from dates prior to the dates on which the applicant was promoted as Inspector in CBI w.e.f. 21.07.1997.
12. It was further submitted that after receipt of objections from the Inspectors in respect of the revised Seniority List issued on 9/12.09.2011, the respondent No.2 had considered the matter afresh and modified the earlier Seniority List only in respect of Shri D.M. Sharma, the applicant of OA No.3245/2009, who had obtained orders of this Tribunal dated 18.01.2011 in his favour, while the seniority of other Inspectors had been kept intact. It was also pointed out that the Private Respondents/R-4 to 12 had been assigned seniority as Inspectors from the date 10.10.1997, which was the date when the pay scales of Inspectors of Central Police Organizations including CISF were made equivalent to the pay scale of Inspectors in CBI. It was submitted that thereafter Private Respondents/R-4,6 & 7 had filed OA No. 1543/2012 Sandeep Kumar Sharma & Ors. (supra) seeking for restoration of their seniority by considering their services from the date on which they were holding the post of Inspectors in their parent cadre on regular basis. However, the matter of fixation of their salary was examined, and it was noticed that in its order dated 18.01.2011 in OA No.3245/2009 D.M. Sharma and Ors. (supra), this Tribunal had held that if three of the four criteria for determining equivalence are met, and there is difference only in the pay scale, the posts should be considered to be equivalent. Since all the Private Respondents were holding the posts of Inspectors prior to their deputation to CBI, a total of 17 officers, including the Private Respondents named in the present OAs, had been assigned seniority from the dates of their promotion as Inspector on regular basis in their parent organization. The official respondents had thereafter helpfully provided a chart giving the respective dates for all the 9 Private Respondents of the OA No.3314/2012, 8 of which had been included in the second OA also as Private Respondents.
13. It was further pointed out that the DoP&T OM dated 27.03.2001 lays down only two scenarios for fixation of seniority of absorbees:-
(i) From the date of absorption or
(ii) In case the person is holding the substantive post on the date of absorption, then from the date of deputation, or from the date he is holding the substantive post, whichever is earlier.
14. It was pointed out that since in the case of absorbee Inspectors like in the case of D.M. Sharma (supra), who had been holding analogous substantive posts on the date of their absorption, their seniority had been fixed from the date of deputation, provided they had attained their substantive appointment after coming on deputation, and before date of absorption, as per DoP&T OM dated 27.03.2001.
15. It was further submitted that deputationist Inspectors have been permanently absorbed in CBI by exercising the powers conferred by Rule 4 of the Dy. S.P. (Subordinate Ranks) (Discipline and Appeal) Rules, 1961, and on the basis of guidelines issued, NOC of parent department, and Vigilance Clearance etc., and the criteria contained in the OM No.14017/27/75-Estt.(D)(Pt.) dated 7/3/1984 for determining analogous posts (equivalent grade) for absorption was also followed at the time of their permanent absorption in CBI (Annexure R-5).
16. It was further submitted that the applicant of OA No.3314/2012 had submitted a representation based upon the judgment of this Tribunal in OA No.101/2004 D.S. Dagar & Ors. (supra), but without waiting for a decision on his representation, he had filed the present OA, and the same is, therefore, pre-mature. It was also pointed out that he had also not challenged the order/judgment dated 18.01.2011 of this Tribunal in OA No.3245/2009 D.M. Sharma & ors. (supra), which has been complied with by the respondents, and till that judgment holds the field, the claim of the applicant is not admissible.
17. Para-wise replies were given accordingly thereafter on the same lines as prescribed above, and it was submitted that the seniority in the case of absorbee Inspectors has been rightly fixed from the date of their deputation, provided that they have attained the substantive post after deputation, and before the date of absorption in accordance with DoP&T OM dated 27.03.2001. It was submitted that once the OA No.1543/2012 Sandeep Kumar Sharma & Ors. (supra) had been withdrawn, and the revised Seniority List of Inspectors in CBI as on 01.01.2010, 01.01.2011 and 01.01.2012 had been circulated, there was no bar to the process of review DPC, and DPC for the post of higher rank, i.e., Dy. Superintendent of Police in CBI being conducted.
18. It was submitted that all actions of the respondents have been in accordance with the orders of this Tribunal in OA No.3245/2009 D.M. Sharma & Ors. (supra), in which it was held that service rendered as Inspector in the parent department prior to absorption should be considered while determining seniority. It was further submitted that these two OAs are misconceived, devoid of any merits, and deserve to be dismissed with costs.
19. The Private Respondents of OA No. 3314/2012 filed their counter reply on 16.04.2013. They had also explained the factual situations in great detail, as to the dates of their appointment as Inspector in CISF, deputation in CBI, absorption in CBI, and the revised dates from which they had been given seniority. Thereafter they have discussed the amendments brought about in the DoP&T OM dated 29.05.1986 on account of the judgment of the Honble Apex Court in SI Roopl Lal & Anr. (supra) because of which the DoP&Ts amended OM dated 27.03.2001 had been issued, which, they submitted, has been followed by the official respondents. It was further pointed out that the following judgments of this Tribunal have also, in the meanwhile, attained finality:-
(i) OA No.2174/2001 (Umesh Singh vs. Union of India & Ors.)
(ii) OA No.1180/2002 (Sanyukta Arjuna vs. Union of India & Ors.)
(iii) OA No.1138/2004 (T.N. Malhotra vs. Election Commission of India & Anr.)
(iv) OA No.2103/2005 (Jaibir Singh & Ors. vs. Union of India & Ors.)
20. It was further pointed out that the Honble Apex Court has further analyzed the position of deputationists and absorbees in the case of Director, CBI vs. D.P. Singh 2009 (14) SCALE 593; (2010) 1 SCC 647, according to which also seniority has to be counted from the date a person was holding the same or equivalent grade in his parent department. They had thereafter relied upon the findings of the Honble Apex Court in SI Roop Lals case (supra), and in particular para-17 thereof, which had been followed by this Tribunal in D.M. Sharmas case that if the first three criteria mentioned for determining equivalence are fulfilled then the fact that salaries of the two posts are different would not in any way make the posts not equivalent. They had thereafter given certain details to try to establish that CISF was in itself a specialized Force of equivalent importance as compared to CBI, and in many respects Inspectors of CISF are better placed than the Inspectors of CBI, and have more onerous duties. They had also pointed out that their eligibility criteria and status of Inspectors in CISF had never been questioned by anyone, including the applicants, when they were taken on deputation, and that many of these deputationists have been awarded as best Investigators for their investigation skills. It was further submitted that the training of CISF officials also includes the training in Laws, and it was wrong on the part of the applicants to submit that the CISF officials do not possess the knowledge of Laws.
21. In respect of 11th private respondent, whose name has been omitted by the applicant of the second OA No.3849/2012, it was pointed out that his parent department is Railway Protection Force, which is entrusted with the task of safeguarding the Railway properties, and maintaining Law and Order, including the powers to arrest, search & seizure, under a Special enactment, and that, therefore, the averment of the applicant of the first O.A. that that respondent No.11 had no policing experience is also incorrect. They had, therefore, prayed that the OA is not maintainable, and deserves to be rejected.
22. The applicant filed rejoinder to these counter replies. In the rejoinder filed on 04.03.2013 in OA No.3314/2012, the averments as made in the OA were reiterated. It was submitted that the respondents have themselves submitted that earlier the Private Respondents/R-4 to R-12 had been assigned seniority from the date of 10.10.1997, i.e., the date when the pay scales of Inspectors of Central Police Organizations including CISF were made equivalent to the pay scale of Inspectors in CBI, and, therefore, it has to be held that prior to the date Private Respondents/R-4 to R-12 were not holding the posts of Inspectors equivalent/analogous to the posts of Inspectors in CBI, and, therefore, they cannot be given seniority from the retrospective dates prior to 10.10.1997. It was further submitted that when the respondents were reconsidering the matter regarding fixation of seniority of 14 absorbee Inspectors, on the basis of the order dated 18.01.2011 passed by this Tribunal in OA No.3245/2009 D.M. Sharma (supra), they ought to have also considered along with that the Tribunals judgment and order dated 31.08.2004 in OA No.101/2004 D.S. Dagar & Ors. (supra), in which it had been specifically held that the nature of duties of the posts of Inspectors in CISF and CBI are not the same. It was submitted that this very important earlier order of this Tribunal dated 31.08.2004 in OA No.101/2004 D.S. Dagar & Ors. (supra) was not even pointed out to the Tribunal at the time of hearing of OA No.3245/2009 and OA No.1543/2012, and if proper facts had been placed before this Tribunal, especially the earlier order dated 31.08.2004 D.S. Dagar & Ors. (supra), this Tribunal would not have granted relief in OA No.3245/2009. It was, therefore, reiterated that when Private Respondents/R-4 to R-12 were not holding analogous posts of Inspectors prior to their deputation in CBI, they cannot be given seniority from the dates of regular promotion in their parent cadre.
23. Therefore, it was submitted that in view of the OM dated 07.03.1984 and OM dated 27.03.2001, they cannot be given seniority from the date of their regular promotion as Inspectors on regular basis in their parent department, but can be given seniority in the post of Inspectors in CBI only from the dates of their absorption in CBI. It was, therefore, prayed that the OA be allowed, since the official respondents have only given a very vague and evasive reply to the contentions raised by the applicant, and, therefore, the averments made in the respective paras in the OA should be treated as true and correct.
24. After the counter reply was filed on behalf of the private respondents, a rejoinder was filed to that by the applicant on 16.05.2013, reiterating the same stand. It was further submitted that there was no similarity/applicability from the case of Shri S.D. Sharma, which the respondents had themselves admitted that Shri S.D. Sharma had been given seniority by mistake, as had been noted by this Tribunal also in its judgment dated 18.01.2011 in OA No.3245/2009 D.M. Sharma (supra). It was further reiterated that the order dated 26.07.2012 in OA No.1543/2012 was regarding the OA having been dismissed as withdrawn, while the order dated 18.01.2011 in OA No.3245/2009 was in respect of the applicant therein D.M. Sharma only. It was further submitted that CBI is basically meant to investigate cases under Prevention of Corruption Act, wherein only Inspector rank and higher rank officers of CBI are authorized to investigate, and only the officers of the rank of Dy. S.P. and ACP level and above in the State Police are investigated. It was submitted that the absorbee officers, while on deputation to CBI, but before their absorption in CBI, were not entitled to carry out investigations under Prevention of Corruption Act, as they were neither regular CBI Officers till their absorption, nor were they holding Dy. S.P. and ACP rank in the parent cadre, and now granting status equivalent to CBI Inspectors to them retrospectively may turn out to be illegally bypassing/surpassing a specific clause inserted in Prevention of Corruption Act, passed by the Parliament of India. It was, therefore, prayed that the OA be allowed.
25. Another additional affidavit was filed on behalf of the applicant on 08.01.2014 more or less reiterating his contentions, but filing Annexures A-13 to A-24 along with that.
26. In OA No. 3849/2012, a detailed counter reply had been filed by the official respondents on 04.02.2013, in which the issuance of the Seniority List of Inspectors in CBI as on 01.01.2010 dated 25.07.2012 was justified, and the course of events as already discussed above in the context of earlier OA had been repeated. It was pointed out that the judgment and order dated 18.01.2011 in OA No.3245/2009- D.M. Sharma & Ors. (supra) and the DoP&Ts OM dated 27.03.2001, had been followed scrupulously, and all 17 officers including the Private Respondents had been assigned seniority from the dates of their promotion as Inspector on regular basis in their parent department. It was further submitted that after following the criteria for determining analogous posts for the purpose of absorption, the deputationist Inspectors have been permanently absorbed in the CBI properly, as per the instructions in this regard, and in the absence of a decision on his representation, the applicant has pre-maturely approached this Tribunal, and that till the judgment and order passed by the Tribunal in D.M. Sharma (supra) holds the field, the impugned order dated 25.07.2012 issued in compliance of that order is also correct in law. Individual cases were described thereafter, and a Tabular Chart was produced in respect of the dates against which the 8 Private Respondents of this case were accorded seniority. The remaining submissions of the respondents also being the same as in the earlier OA need not be repeated here once again. Finally, it had been prayed that the OA be dismissed as being devoid of any merit whatsoever.
27. The private respondents filed a counter reply on 16.04.2013, and it was submitted that the contention of the applicant in this OA is ironical and illogical, to say that if a person is already holding a higher post before deputation to CBI, he will not get the seniority, but he is promoted to higher post in his parent cadre after his deputation to CBI, he will get the seniority. A Tabular Chart in respect of 9 Private Respondents had been produced, and DoP&T OM dated 29.05.1986, as amended after the judgment of the Honble Apex Court in SI Roop Lal and Another (supra) was reproduced. In a similarly worded counter reply as in the other OA, most of the contentions were reiterated, and need not be repeated here once again.
28. In the rejoinder filed by the applicant on 16.05.2013, once again the grounds as taken in the rejoinder filed in the other case were repeated, and need not be reproduced here once again.
29. Through an MA No.1821/2012, a rejoinder was filed in respect of the reply of the Private Respondents on 08.07.2013, which was also almost exactly worded as the rejoinder to the reply of Private Respondents in the earlier OA and need not be discussed in detail here.
30. Reliance had been placed on the various Seniority Lists issued over the years at Annexures R-1 & R-2 dated 09/12.09.2011 and dated 25.07.2012, the judgment of this Tribunal in OA No.1543/2012 at Annexure R-3, a copy of the DoP&T OM dated 27.03.2001 at Annexure R-4, a copy of the DoP&T OM dated 07.03.1984 at Annexure R-5, a copy of the order/judgment dated 3/8/04 at Annexure R-6, and a copy of the judgment and order dated 18.01.2011 in OA No.3245/2009 D.M. Sharma (supra) at Annexure R-7, and a copy of the judgment and order dated 25.01.2011 in OA No.1021/2010 at Annexure R-8 dated 25.01.2011.
31. The two cases were argued vehemently by learned counsel for both the sides, including the learned counsel for private respondents in both the cases, on the lines of their pleadings and written submissions.
32. Learned counsel for the applicant had on 14.08.2013 submitted copies of the judgment dated 31.08.2004 in OA No.101/2004 and also filed a copy of the Honble Delhi High Courts judgment in WP (C) No.372-376/2006 Rajender Guglani & Others vs. Union of India & Ors., seeking to place reliance on the ratio of these two judgments.
33. During the course of their arguments, all the three counsels had relied upon a number of cases, and the learned counsel for the applicant had, after the hearing had been completed, submitted his written submissions on behalf of the applicants on 22.02.2014. In the written submissions on behalf of the applicants also it was pointed out that though the Private Respondents/R-4 to R-12 had come to CBI on deputation in between the years 1999-2000, and they were absorbed in the years 2006 to 2008, but in the Seniority Lists of Inspectors issued in respect of the years 2007, 2008,2009, 2010, & 2011 they were all granted seniority only from 10.10.1997, i.e., the date from which their pay scales had been upgraded from Rs.1640-2900 to Rs.2000-3200, and these Private Respondents had never challenged such assignment of seniority to them w.e.f. 10.10.1997. It was further submitted that the OA No.1543/2012 had been filed by these absorbees without naming the applicants as party-respondents, claiming seniority from the time when they were promoted as regular Inspectors in their parent department by challenging the order dated 08.12.2011, and the Seniority List of Inspectors in CBI as on 01.01.2010 issued on 14.01.2010. It was submitted that by the latest revised Seniority List dated 25.07.2012 impugned in these two OAs, the seniority position of the Inspectors in CBI as on 01.01.2010 had been unsettled, and the applicants of these two OAs had been deprived of their earlier seniority positions, which was settled since 2007.
34. The action of the respondents was assailed to have been in contravention of DoP&T OMs dated 07.03.1984, 29.05.1986 and 27.03.2001, as the criteria for determining as to whether the posts of Inspectors in CISF are analogous to the posts of Inspectors in CBI had not been followed, and the fact that the posts of Inspectors in CISF and CBI were in different groups, had also not been noticed. The learned counsel for the applicant relied upon four judgments of the Honble Apex Court as follows, apart from the order dated 31.08.2004 in OA No.101/2004 D.S. Dagar & Ors. (supra):-
i) Union of India vs. Tarsem Singh (2008) 8 SCC 648;
ii) S.S. Mohapatra vs. State of Orissa (2010) 12 SCC 471 Arun Kumar vs. Union of India & Ors. (2007) 5 SCC 580 Union of India vs. K.S. Permer & Ors. 2003(6) SCALE 460.
35. It was contended that the order dated 18.01.2011 in OA No.3245/2009 D.M. Sharma (supra) was not applicable in the instant cases, as the same had been passed in peculiar facts, and was sub-silentio on the issue involved in these two OAs, and also because the earlier judgment in OA No.101/2004 D.S.Dagar & Ors. (supra) had not been brought to the notice of the Tribunal before the order in OA No.3245/2009 had been passed. It was submitted that since in D.S. Dagar & Ors. (supra) this Tribunal had come to a definite conclusion that the post of Inspector in CISF is not equivalent to the post of Inspector in CBI, and, therefore, the ratio of SI Roop Lals case (supra) was not held to be applicable, and the facts of the present case are identical to the facts of the case of D.S. Dagar & Ors. (supra).
36. Learned counsel for the official respondents laboriously argued on the basis of the documents filed by him along with their counter reply that the official respondents had strictly gone by the Standing Instructions of DoP&T in this regard through its various Circulars, as well as by the latest judgment of this Tribunal in OA No.3245/2009-D.M. Sharma (supra). He had denied any wrong doing on the part of the respondents, and submitted that these two OAs deserve to be dismissed.
37. Thereafter very strong and laborious arguments were put forward by the learned counsel for the Private Respondents, who had made his submissions in the case on 14.08.2013, 26.08.2013, 27.09.2013 and again on 21.04.2014, when the case was finally reserved for orders. He had filed a copy of the Recruitment Rules to various posts in the CBI. Learned counsel for the Private Respondents had relied upon the following judgments and documents:-
i) Union of India vs. Kuldip Singh Permer and Ors. AIR 2003 SC 3614;
ii) Rajendra Prasad Gupta vs. Registrar, Barkatullah in WP (C) No.434/2004 decided on 28.06.2012
iii) Judgment dated 18.01.2011 in OA No.3245/2009 D.M. Sharma vs. Union of India;
iv) Judgment dated 12.04.2013 in OA No.1651/2012-Dr. Rani Gera vs. Union of India;
v) A copy of the DoP&T Notification dated 15/17.10.1996 being the Central Bureau of Investigation Group (C) and Group (D) Executive Posts Recruitment Rules, 1987;
vi) A copy of the Gazette Notification dated 25.01.2000 being the Central Industrial Security Force, Security Wing (Subordinate Ranks) Recruitment Rules, 1999;
vii) A copy of the Gazette Notification dated 04.07.2013 being the CBI (Group B and Group C Executive Posts) Recruitment Rules, 2013;
viii) A copy of the judgment and order dated 11.08.2009 in OA No.944/2006 Sh. Rajinder Razdan vs. Union of India;
ix) A copy of the Honble Apex Court judgment in Indu Shekhar Singh and Others vs. State of U.P. & Others (2006) 8 SCC 129;
x) A copy of the Honble Delhi High Courts judgment dated 01.09.2011 in WP (C) 4835/2011 & CM No.9816/2011 Subhash Baloda & Ors. vs. Lok Sabha Secretariat & Ors;
A copy of the Honble Apex Courts judgment in R.S. Makashi & Ors. vs. I.M. Menon and Others (1982) 1 SCC 379, in Director, Central Bureau of Investigation and Another vs. D.P. Singh (2010) 1 SCC 647, and in Attar Singh Kaushik vs. Secretary Commissioner, Transport Department and Another (2008) 1 SCC 400;
38. Apart from this, a copy of the Honble Apex Court judgment in Arun Kumar and Others vs. Union of India and Ors. (2007) 5 SCC 580 had also been filed before us.
39. In his written submissions the learned counsel for the private respondents had taken the preliminary ground that the applicants have not challenged the DoP&T Circular dated 29.05.1986, in pursuance to which the impugned Seniority List had been issued. It was submitted that even otherwise the Honble Apex Court has categorically held that comparison of equivalent posts is an executive function, and judiciary should not interfere in such a matter.
40. It was further submitted that by filing these OAs, the applicants are effectively trying to challenge the judgment of this Tribunal in D.M. Sharma (supra), without even asking in the relief portion for that judgment being quashed, and, therefore, the OAs are not maintainable, and are liable to be dismissed on that ground. It was submitted that there is a vast difference between the deputation as per Recruitment Rules for deputations to the posts of Sub Inspectors and Inspectors. In the case of Inspectors, as the Private Respondents herein were working as such in their parent organizations CISF and RPF, they could be deputed to CBI only if it was determined that they were holding an analogous post. It was submitted that once the respondents have allowed their deputation, after having carefully examined that they were holding the analogous posts, then there is no question of their seniority in their parent department not to be counted after their absorption. It was submitted that the applicants have desperately tried to create an artificial comparison with respect to the nature of duties being performed by the deputationists in their parent department of the private respondents, as well as in the CBI. It was submitted that reliance placed by the applicants on the Honble High Courts judgment where absorbees were from combatized force/Central Police Force and on deputation to the Intelligence Bureau, which case law could not be applied to the instant case. It was further submitted that the nature of duties of the private respondents in their parent department were even higher than the ones being performed by the CBI. He had tried to distinguish that the judgment of D.S. Dagar & Ors. (supra) was decided on its own peculiar facts, inasmuch as in that case, there had not been any examination by the department themselves as to whether there was any equivalence with respect to duties being performed, whereas in the instant case, the official respondents have categorically stated that the matter of analogous posts has been examined, and after the judgment in the case of D.M. Sharma (supra), the seniority has thereafter been fixed.
41. It was further pointed out that the posts of Inspectors in Central Police Organizations was a Group B post. Therefore, it was pleaded that it was obvious that the nature and responsibilities of Sub Inspectors in Central Police Organization in group B ranks was higher than of the applicants in CBI, who were recruited in a Group-C post. It was pleaded that there is a complete parity between the persons selected as Inspectors as the selection of Inspectors both in CBI and other Police Organization is done by the Staff Selection Commission on the basis of a Combined Graduate Level Test.
42. Once again assailing the shelter sought by the applicants behind the judgment in D.S. Dagar & Ors. (supra), it was submitted that in that judgment the Tribunal had used the words may be different from the duties and responsibilities in CBI, and it was submitted that it was thus clear that the Tribunal was uncertain in that case about the difference in duties and responsibilities in between the Inspectors of CISF and CBI. But the same is not the case now in the judgment in the case of D.M. Sharma (supra), and when the official respondents found that the Private Respondents were holding equivalent grade, and the nature of duties were also found to be similar, they had been given retrospective seniority correctly.
43. We have given our anxious consideration to the facts of these two cases.
44. The fixation of seniority of deputationists has been adjudicated by this Tribunal, by the Honble High Courts, and by the Honble Apex Court, in numerous cases, many of which had been cited before us. We shall first try to examine the cases cited by the learned counsel for the applicants. In the case of D.S. Dagar & Ors. (supra), this Tribunal has, after considering the Honble Apex Courts judgment in SI Roop Lal vs. Lt. Governor (supra), in the case of CBI itself, appreciated and approved the fact that when a person, who is working in the parent department is taken on deputation and subsequently absorbed, he should rightly be entitled to count his earlier service for the purpose of seniority, if the nature of duties of the posts are identical, responsibility and powers exercised are similar, minimum qualifications prescribed for the post are the same, and the last criteria that has to be seen is as to what was the salary of the post concerned, and if the first three conditions are fully satisfied, the mere fact that the salaries of two posts are different would not make any difference. Thereafter the Bench of the then Chairman C.A.T. Honble Mr. Justice V.S. Aggarwal had noted that the nature of duties of the posts of the applicants before they came on deputation from CISF was different than the post to which they came on deputation in the CBI, and also that an Inspector in the CBI is drawing a higher pay scale, and even the Sub-Inspector in CBI has to be a graduate, while it is no so prescribed in the case of corresponding CISF posts, and even for Inspectors posts in other central Police Organizations. Therefore, even after having taken notice of the judgments in the case of O.P. Singla & Anr. vs. Union of India & Ors. (1985) 1 SCR 351; Union of India & Ors. vs. C.N. Ponnupam, 1996(1) SLR 18; L. Chandrakishore Singh vs. State of Manipur & Ors. 1999 (5) SLR 538, and Umed Singh & Ors. vs. Union of India & Ors. (O.A. No.2174/2001 decided on 4/4/2002), the Tribunal had held that the OAs were without any merit, as the posts were not analogous/equivalent.
45. In Rajender Guglani & Ors. (supra) the Honble Delhi High Court had examined the case of Junior Engineers (Electrical), who had initially been appointed in the All India Radio, and were then later sent on deputation to the Electrical Wing of the Postal Department as Junior Engineers. They were later on absorbed as Junior Engineers on permanent transfer basis in the Postal Wing, but in the terms and conditions it was mentioned that their past services will count for all purposes except their seniority in the cadre. Later on, they claimed seniority based upon the counting of their past service rendered in the All India Radio, which claim was contested both by the Department of Posts, and also by the Private Respondents, relying on the Honble Apex Court judgment in SI Roop Lals case (supra). When that case had been considered by the Tribunal in OA No.1490/2004 V.S. Kundlass & Others v. Union of India & Others, and orders passed on 30.08.2005, the Tribunal had held that such person could not be estopped from claiming their seniority by counting the services rendered prior to the date of their absorption, and had held that the terms and conditions of the absorption which took away such benefit of counting of past services were violative of Articles 14 and 16 of the Constitution, and the principles of law as laid down by the Honble Apex Court in SI Roop Lals case (supra). Challenge having been laid to that order of the Tribunal, the Honble High Court had noted that the Private Respondents before it, who were applicants before the Tribunal, had accepted their conditional absorption in the Department of Posts, and that, therefore, when they came on deputation willingly, and after giving their consent, they had opted for their permanent absorption on the terms and conditions as agreed, and had even consented for absorption on the condition that they would be junior to all the Junior Engineers (Electrical) of Civil Wing, it was held that they cannot claim grant of seniority to them over those Junior Engineers, who had already joined the Postal Civil Wing before the date of issuance of the letter of absorption of such Private Respondents.
46. Relying upon the Honble Apex Courts judgment in Union of India & Others vs. Deo Narain & Others, JT 2008 (10) SC 294, the Honble High Court had reiterated the Honble Apex Courts observations that the employees who had voluntarily and unilaterally sought transfer, forgoing their seniority, and had joined another cadre with open eyes, and were placed below the employees already working in the cadre, cannot later make a grievance regarding their seniority. The Honble High Court had also accepted the reliance placed before it by the learned counsel for the petitioners on the Honble Apex Courts judgment in Arun Kumar & Others v. Union of India & Others, JT 2007 (5) SC 181, in which it was held that direct appointment as a source of recruitment is not synonymous and equivalent to recruitment by deputation/transfer. In the result, the Honble High Court had allowed the Writ Petition, and had directed the respondents to redraw the seniority, and assign a proper position in the Seniority List to the Private Respondents, and had held that the counting of their regular past service on the analogous post of Junior Engineers in All India Radio as unsustainable.
47. The learned counsel for the applicant had relied upon the judgment in Rajender Guglani & Ors. (supra) to state that this judgment of the Honble Delhi High Court squarely applied to the present case, since the Private Respondents had come of deputation to CBI with their eyes open, and had prayed for and accepted their absorption without raking up the issue of seniority at the time of their absorption, and, therefore, they cannot now be allowed to plead for grant of seniority by counting their past service in CISF even in an analogous post.
48. In his written submissions the learned counsel for the applicants had relied upon the same judgment in Arun Kumar and Others (supra), and also in Union of India vs. K.S. Permer & Ors. (supra), and had drawn sustenance from the Honble High Courts judgment in Rajender Guglani & Ors. (supra) on the basis of both these cited judgments.
49. The official respondents had, on the other hand, in the oral arguments, denied the applicability of D.S. Dagar & Ors. (supra) to the instant case, as mentioned above, and placing their reliance on SI Roop Lals case, they had submitted that the Private Respondents of this case before us had actually been performing more onerous duties before their absorption in the CBI, when they were in the Para-Military Forces.
50. As already mentioned above, the learned counsel for the Private Respondents had argued their case in great detail, and had also relied upon the various case laws. In the first case Union of India vs. Kuldip Singh Permer & Ors. (supra), the case had reached the Honble Apex Court against an order of the Chandigarh Bench of this Tribunal, where the Tribunal had allowed assignment of seniority from the date the deputationists had joined the department on deputation, which was much prior to the date of his absorption in the department. In the context of the Special Services Bureau (Junior Executive) Service Rules, 1976, which was the Rules concerned in that case, the Honble Apex Court had held them to be entitled to the benefit of service rendered by them on regular basis after counting their past service in their parent department from the date they were holding a post in a rather higher grade already in their parent cadre. Here, in the instant case, the Inspectors in CISF were holding Group B posts, though in a lower pay scale, while the Inspectors in the CBI were holding Group C posts, though in a higher pay scale, which incongruity must have flowed from some recommendation of the relevant Pay Commission, which had allowed such incongruity to perpetuate. While the judgment in SI Roop Lals case (supra) has mentioned about the salary of the post being the 4th and the last aspect to be looked into for the purpose of adjudging the equivalence or analogous nature of the approved posts or cadres, that judgment of the Honble Apex Court had never talked about the class or group of the post being a relevant criteria. To our mind, even though the post of Inspectors in Central Para Military Forces may have carried lower pay scales, because of the extra benefits of ration etc. admissible to them in those Forces, but they were in Group B posts, and a person in a Group B post coming on deputation to a Group C post, which is lower in the Governmental hierarchy of posts, ought certainly to be able to lay a claim to at least equivalence, if not the superiority of his earlier service in his parent cadre. Therefore, to our mind, the benefit of the cited judgment in Union of India vs. Kuldip Singh Permer & Ors. (supra), ought to be made available to the Private Respondents of this case.
51. The next case cited by the learned counsel for the Private Respondents was Rajendra Prasad Gupta vs. Registrar, Barkatullah.decided on 28.06.2012 by the Honble Madhya Pradesh High Court at Jabalpur in WP (C ) No.434/2004. That case related to the deputation of a clerk from one organization working under the control of the Indian Council of Agricultural Research (ICAR, in short) to another, which Institute was also under I.C.A.R., and the post was quite equivalent. Since the deputationist wanted to continue in the organization to which he had been deputed, and even the Institute had felt that they needed his services permanently, because of his experience and efficiency, and felt his service to be indispensable, they had appointed him to the post of Senior Clerk, and fixed his seniority in the grade of Senior Clerk from the date of such appointment. However, even after such appointment, the individual concerned was aggrieved with the Institution about counting of his seniority from the date of such appointment, since according to him he was already holding equivalent grade in his parent Institute from a much earlier date. The Tribunal had upheld his contention, and directed fixation of the seniority of the individual concerned from a prior date, the date on which the proforma promotion had been granted to him in absentia in his parent Institute. The Honble Madhya Pradesh High Court held that when a person has already been holding the same or equivalent grade on regular basis in his parent department on the date of his absorption, such regular service in the grade in the past in his parent organization shall also be taken into account in fixing his seniority, on the condition that he will be given seniority either from the date he has been holding the post on deputation, or the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department. Honble Madhya Pradesh High Court upheld the order of the Tribunal directing the seniority of the concerned individual to be fixed from the date he was promoted to the post of Senior Clerk on proforma basis in his parent department. It appears to us that the benefit of this judgment also ought to be made applicable to the Private Respondents of the case before us.
52. In the case of Indu Shekhar Singh & Others vs. State of U.P. and Others (2006) 8 SCC 129, the Honble Apex Court was examining the very same question of the claim for benefit of past services after absorption. The Private Respondent employees therein were appointed in the U.P. Jal Nigam, but were deputed to the Ghaziabad Development Authority on various dates, when such Town Planning Authorities were created. The lending Authority, the U.P. Jal Nigam, had never been a Development Authority, and the borrowing authority, the Ghaziabad Development Authority, did not have a centralized service. After considering the Rules of the organizations concerned, and the terms and conditions of appointment on deputation, in Para-47 of the judgment, the Honble Apex Court had, therefore, summarized the law as follows:-
The decisions referred to hereinbefore, therefore, lay down a law that past services would only be directed to be counted towards seniority in two situations: (1) when there exists a rule directing consideration of seniority; and (2) where recruitments are made from various sources, it would be reasonable to frame a rule considering the past services of the employees concerned.
(Emphasis supplied)
53. But the above conclusion not being applicable to the facts of the case before the Honble Apex Court, after further examining the case law on the subject, the Honble Apex Court had finally held that it was open to the incumbent concerned not to agree to any adverse conditions at the time of his absorption, as they had already been working with a statutory authority, but, however, when the Private Respondents had expressly consented to do so, and exercised their option, having regard to benefits to which they were entitled to in the new post, the Honble Apex Court was of the view that when such an option was exercised, the consequences attached thereto would ensue. Applying this case law to the instant case, the only thing relevant for determining the inter-se seniority would be the condition which were put before the deputationists at the time of their seeking absorption, to which conditions they had agreed, and got absorbed in the CBI. In the absence of pleadings and documents in this regard before us, we cannot decide on this aspect at this stage.
54. In the case of Subhash Baloda & Ors. (supra), on 01.09.2011, the Honble Delhi High Court had also dealt with the case of 9 petitioners, who were working as Head Constable/Constable (Executive) in Delhi Police for several years, and were on deputation with the Parliament, but when once they were unsuccessful in being selected to the vacancies in the posts of Security Assistants Grade-II in the Lok Sabha Secretariat and Rajya Sabha Secretariat, they had filed a Writ Petition, seeking a writ of certiorari to quash the action of the respondents in not offering appointments to them, and seeking a mandamus for directing the respondents to place and offer them appointments to the said posts against the available vacancies. In that case, the Honble Delhi High Court had examined the case, but from the very nature of that case, it is apparent that the facts of that case are not on all fours with the case before us, and the Private respondents cannot derive any sustenance from that case.
55. Learned counsel for the Private Respondents had relied upon the case of R.S. Makashi & Ors. (supra) in which a three Judges Bench of the Honble Apex Court had examined the issue of seniority and promotion and inter-se seniority of persons drawn from difference sources into a single cadre. In that context, since the Rules provided preservation and maintenance of pre-existing inter-se seniority of persons drawn from the same source even after their absorption in the new service, such Rule was held not to be arbitrary and unreasonable, and not liable to hamper the operation of the general Rule for fixation of seniority of all the personnel. In that cited case, the parties on both the sides had come on deputation, and all competing their arguments were only in regard to inter-se seniority of various sets of deputationists. The facts of that case also, therefore, are not on all fours with the instant case, and the Private Respondents cannot derive any sustenance from that judgment.
56. Learned counsel for the Private Respondents had further relied upon the case in Director, Central Bureau of Investigation and Another (supra), which is perhaps the case closest to the instant case before us, as it related to the same organization, and related to the same issue of determination of seniority of a deputationist absorbed in the borrowing organization. The respondent in that case, Inspector in the State Police had been taken on deputation in CBI on 31.12.1970 from the State Police. While on deputation, proforma promotion had been accorded to him in his parent Organization-State Police-as ad hoc Deputy Superintendent of Police (DSP), vide order dated 24.11.1997. He did not return to his parent cadre to actually avail of that ad hoc promotion. Continuing in the CBI, he opted for absorption, which was allowed to him in the CBI as DSP vide order dated 15.05.1995, but on the recommendation of the UPSC, it was made retrospective from 29.06.1987. When he then claimed retrospective seniority as DSP in CBI from 24.11.1977, the date he had been granted proforma ad hoc promotion in his parent cadre, it was held by the Honble Apex Court that he cannot be granted retrospective seniority as DSP from that date, and he was held to be entitled to seniority as DSP in CBI only from the date of his absorption, i.e., 29.06.1987. In deciding that case, the Honble Apex Court had laid down the ratio that a deputationist, whose services are absorbed later, would get his seniority in the grade in which he is absorbed normally from the date of his absorption. However, in case of a person, who was already holding the same and equivalent grade in his parent department on regular basis, his seniority has to be counted from the date he was holding the same or equivalent grade in his parent Department, in accordance with OM dated 22.12.1959, read with OM dated 29.05.1986, issued by the DoP&T. In this context we may reproduce here Paragraph-15 of the Honble Apex Court judgment as below:-
15. As a matter of fact, the plain reading of sub-para (iv) which has been added to earlier O.M. dated December 22, 1959 vide O.M. dated May 29, 1986 would show that it provides that a deputationist whose services are absorbed later would get his seniority in the grade in which he is absorbed normally from the date of his absorption. However, in a case of person who has already been holding the same or equivalent grade in his parent department on regular basis, his seniority shall be counted from the date he was holding same or equivalent grade in his parent department. (Emphasis supplied)
57. Reliance had been placed by the learned counsel for the Private Respondents on the judgment of this Tribunal in Rajender Razdan (supra). That case concerned absorption of deputationists from CISF to Intelligence Bureau. In the context of that case, the Tribunal had directed to assign seniority to the applicants therein after reckoning the entire period they had served in their parent cadre in the equivalent grade of Sub-Inspector on regular basis, and had held that they will be entitled to all consequential benefits, including promotion, and upgradation under the Assured Career Progression Scheme, if and when due. It appears that the deputationist absorbees, who were the Private Respondents before us, would be entitled to the benefit of this judgment.
58. In the case of D.M. Sharma (supra) in OA No.3245/2009, in the order dated 18.01.2011, parallel questions were examined in Paragraphs 22 to 26 of that judgment, which we need not reproduce here, as both the parties have relied upon and cited the same. Finally, directions had been issued to assign seniority to the applicants after reckoning the entire period of service of the deputationists in their parent department, in the equivalent grade of Inspectors, on regular basis, with all consequential benefits, including promotion if and when due under the applicable Rules, at par with their juniors. We are bound by that judgment of the Coordinate Bench, especially so because in essence, it has examined the law and the issue concerned as on 18.01.2011, though it has arrived at a conclusion slightly different from that arrived at by another Bench in D.S. Dagar on 31.08.2004 in OA No.101/2004 (supra). We do not find that the slight conflict between these two judgments of D.M. Sharma (supra) and D.S. Dagar (supra) is such that we may have to refer the matter to a Larger bench for consideration of any dichotomy in between these two judgments of two equivalent Coordinate Benches.
59. The judgment of Dr. Rani Gera (supra) had also been cited by the learned counsel for the Private Respondents, in which also the counting of past service for fixing seniority of deputationists, who were absorbed in the Central Health Service in terms of the order dated 22.04.2009 passed in OA No.1436/2007 and connected matters had been directed. We are bound by the ratio of this judgment of a Coordinate Bench also.
60. There is also some substance in the submission of the learned counsel for the official and private respondents that by filing the present OAs, without including such a prayer in the prayer clause, the applicants have, in-effect, sought this Tribunal to re-consider and re-write the judgment and order pronounced in the case of D.M. Sharma (supra) by a Coordinate Bench, which we are certainly not empowered to do. Therefore, it appears to us that the view taken by two different Coordinate Benches of this Tribunal in D.M. Sharma vs. Union of India in OA No.3245/2009 dated 18.01.2011, and in D.S. Dagar & 4 Ors. vs. Union of India & Ors. in OA No.101/2004 dated 31.08.2004, noticed hereinabove, are directly in conflict with each other. When, in D.M. Sharma vs. Union of India in OA No.3245/2009 dated 18.01.2011, it could be viewed by the Tribunal that the post of Inspector in CrPF would be treated as equivalent to Inspector in CBI, in D.S. Dagar & 4 Ors. vs. Union of India & Ors. in OA No.101/2004 dated 31.08.2004, it could be viewed that the Tribunal had refused to believe that the nature of duties of the posts of Inspectors in CISF and CBI are the same. For easy reference Para-26 of the order in D.M. Sharma vs. Union of India in OA No.3245/2009 dated 18.01.2011, and Para-11 of the order in D.S. Dagar & 4 Ors. vs. Union of India & Ors. in OA No.101/2004 dated 31.08.2004, are reproduced herein below:-
OA No.3245/2009/Order dated 18.01.2011 26. Accordingly, it would be seen that two posts would be treated as equivalent if they have equal status and responsibility. While determining equivalence the qualification and the pay scales for the two posts in question too will have to be given due consideration. In the ultimate analysis, what is to be seen is the status and responsibility of the two posts and the pay scales of the two posts by itself would not be decisive of the issue especially when the other facts, having regard to the facts mentioned by the Honble Supreme Court as aforesaid, justify such equivalence. The learned counsel for the respondents was unable to point out if these facts were given any consideration by the respondents while holding the two posts as not equivalent. He also did not put forth any material as to the nature of duties, responsibilities, powers, and the minimum qualification for the two posts which would negate the equation between two posts. Besides the fact that the respondents themselves have already granted the benefits sought by the applicant herein to the persons joining their services from CRPF in the post of Inspectors clinches the issue as the same cannot be denied to the applicant mainly for the reason that the equivalence between the two posts has already been established by the respondents own conduct as such. If the person joining the respondents services from the cadre of Inspector in CRPF after 14.12.1999 can be given benefit of equivalence, there is no reason why such benefits cannot be given to the applicant only for the reason he joined the respondents services prior to this date, especially when all other things remaining the same.
xxx xxx xxx xxx OA No.101/2004/Order dated 31.08.2004 11. Admittedly, the applicants were in CISF. They came on deputation with C.B.I. It cannot be believed that nature of duties of both the posts are same. The nature of duties of an Inspector in CISF is basically security while in the C.B.I. it is the investigation of important matters, which is the main duty of such a person. The Inspector in Central Police Organizations performs duties like security, patrolling, Maintenance of law and order, vigilance and collection of intelligence etc., which may be different from the duties and responsibilities of an Inspectors in the CBI.
61. Though we could have followed the order dated 18.01.2011 passed in OA No.3245/2009 D.M. Sharma vs. Union of India, which is the order of a subsequent date, but again the conflicting orders of different Benches of the Tribunal would remain, and the position on facts and law would remain uncertain, giving rise to further litigation. In SI Roop Lal and another Vs. Lt. Governor through Chief Secretary, Delhi & Others (supra), the Honble Supreme Court viewed that the over-ruling of the judgment of a Bench of equal strength by another Coordinate Bench is opposed to all principles of judicial discipline, and if the subsequent Bench of the Tribunal is of the opinion that the earlier view taken by the same Tribunal was incorrect, it should refer the matter to a Larger Bench, so that the difference of opinion between the two Coordinate Benches on the same point could be avoided. For easy reference, we may reproduce Para-12 of the Honble Apex Courts judgment as follows:-
12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law from the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bounded by the enunciation of law made by the superior courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhuvandas Purshottamdas Thakar v. Ratilal Motilal Patel, [1968] 1 SCR 455 while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same court observed thus:
"The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J., in Pinjare Karimbhai's case and of Macleod, C.J., in Haridas `s case did not lay down the correct Law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C.J. observed in Lala Shri Bhagwan and Anr, v. Shri Ram Chand and Anr.
"It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re- considered, lie should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."
62. In view of the aforementioned, we are of the considered opinion that it needs to be determined as to which of the two views taken in the aforementioned two judgments, i.e., in D.M. Sharma vs. Union of India in OA No.3245/2009 dated 18.01.2011, and in D.S. Dagar & 4 Ors. vs. Union of India & Ors. in OA No.101/2004 dated 31.08.2004, is correct, and for that the present case needs to be referred to Honble Chairman. In the circumstances, let the aforementioned question be placed before the Honble Chairman u/s 26 of the Administrative Tribunals Act, 1985, read with the judgment of the Honble Supreme Court in SI Roop Lal and another Vs. Lt. Governor through Chief Secretary, Delhi & Others (supra).
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.