Central Administrative Tribunal - Delhi
Lokesh Jain vs M/O Home Affairs on 30 August, 2024
1
(C-5, Item -87) OA No. 4233/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 4233/2018
M.A. No. 1610/2023
M.A. No. 1641/2019
Reserved on: 21.08.2024
Pronounced on: 30.08.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
1. Lokesh Jain (Data Processing Assistant Grade 'A') S/o
Late Shri R.M. Jain,
Aged about 50 years.
Posted at Directorate of Census Operations, Rajasthan
6-B. Jalat Directorate of Census Operations.
Rajasthan Jallana Dongri, 02004, R/o B-90 Janta
Colony, Jaipur-302004, Group 'B'
2. Ms. Shagufta Nasreen Bhat (DPA Grade 'A'),
S/o Late Shri B.A. Bhat, Aged about 47 years, Posted
at Registrar General, India,
D.P. Division Shastri Park, New Delhi
R/o B-II/38 Udap Colony, Nehru Nagar,
New Delhi, Group 'B'
3. Mr. B. Madhu Kumar (DPA Grade 'A'),
S/o K. Balakrishna Nair, Aged about 52 years Posted
at Directorate of Census Operations Kerala, CGO
Complex, Poonkulum, Vellayani, P.O. Trivandrum,
Kerala R/o Madhavam, TNRA-118, Cheruvalli Lane,
Enikkara, Karakulam, Trivandrum, Kerala-695544
Group 'B'
....Applicants
(By Advocate: Mr. Ajesh Luthra)
VERSUS
1. Union of India Through Secretary,
Ministry of Home Affairs, North Block,
New Delhi-110001
2
(C-5, Item -87) OA No. 4233/2018
2. Registrar General of India,
Ministry of Home Affairs 2-A, Mansingh Road, New Delhi
Also at : Room No. 110, AD-II, Section, Sewa Bhawan,
R.K. Puram New Delhi
3. Union of India Through its Secretary, Department of
Personnel & Training (DoP&T), Ministry of Personnel,
Public Grievance & Pension, North Block, New Delhi
4. Union Public Service Commission Through its
Secretary, Dholpur House, Shahjahan Road, New Delhi-
110069
5. Priyanka Sharma,
D/o not known
R/o not known
6. Praveen Kumar Tripathi
S/o not known
R/o not known
7. Anurag Gupta,
S/o not known
R/o not known
8. Mukesh Kumar Mahawar
S/o not known
R/o not known
9. Digvijay Singh
S/o not known
R/o not known
10. Nongsaibam Akbar
S/o not known
R/o not known
.... Respondents
(By Advocates: Mr. Ranjan Tyagi for official respondents;
Mr. T N Tripathi for R - 5 to 10)
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(C-5, Item -87) OA No. 4233/2018
ORDER
Hon'ble Mr. Manish Garg, Member (J):
The instant Original Application (OA) has been filed by the applicants seeking the following reliefs:-
"(a) quash the order dated 25.10.2018 issued by the respondent No.2.
(b) Direct the respondents to count the service rendered by the applicants on deputation towards seniority and consider the applicants for promotion to the promotional post of Assistant Director (EDP).
(c) Accord all consequential benefits and
(d) If deemed necessary, appropriate modification in the seniority list of Data Processing Assistant, Grade A, may also be ordered.
(e) award costs of the proceedings; and
(f) Pass any other order/direction which this Hon'ble Tribunal deem fit and proper in favour of the applicants and against the respondents in the facts and circumstances of the case."
2. The facts in the present case are undisputed. It is submitted on behalf of the applicants that vide office Circular No. A-24011/1/2002-Ad-II dated 26.10.2004, an advertisement was published in weekly Employment News of 1-7 January 2005, wherein eights posts of DPA Grade 'A' were to be filled up on deputation basis in ORGI/DCOs. 2.1 In response to the said advertisement the following eights employees were selected as DPA Grade 'A' on deputation basis.
Sl No Name Post/Scale Present Proposed Joining
Posting Posting Date as
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(C-5, Item -87) OA No. 4233/2018
DPA Gr 'A'
1. Shri Naveen Jr. Sup./ ORGI ORGI 17.04.2007
Madhok Rs. 5000- (Hqrs.) (Hqrs.)
8000 (Pre-
revised)
and merged
in the scale
of the Rs.
9300-
3480o+
Grade Pay
of Rs. 4200
in 6 CPC
2. Shri Vikas DEO Gr 'B' ORGI ORGI 17.04.2007
/ Rs. 4500- (Hqrs.) (Hqrs.)
7000
3. Shri DEO Gr 'B' ORGI ORGI 17.04.2007
Gurvinder / Rs. 4500- (Hqrs.) (Hqrs.)
Singh 7000
4. Shri Lokesh DEO Gr 'B' DCO, DCO, 18.04.2007
Jain / Rs. 4500- Rajasthan Rajasthan
7000
5. Shri DEO Gr 'B' DCO, DCO,Kerala 20.04.2007
Jayakumar / Rs. 4500- Kerala
N. 7000
6. Shri B DEO Gr 'B' DCO,Kerala DCO,Kerala 20.04.2007
Madhu / Rs. 4500-
Kumar 7000
7. Miss DEO Gr 'B' Sale Tax, ORGI 07.06.2007
Shagufta / Rs. 4000- Sri Nagar, J (Hqrs.)
Nasreen 6000 &K
Bhat
8. Shri Amit Directorate ORGI 06.07.2007
Bhatnagar of (Hqrs.)
Metrology,
Delhi
2.2 Out of the aforesaid eight employees, the following
three (Shri Lokesh Jain, Ms Shagufta Nasreen Bhat and Shri B Madhu Kumar) were also selected as DPA Grade A and appointed on 17.4.2007. Out of these eight, six were from the 5 (C-5, Item -87) OA No. 4233/2018 ORGI/DCO whereas Ms Shagufta Nasreen Bhat belonged to Commercial Tax, Govt. of J&K and Shri Amit Bhatnagar belong to the Directorate of Metrology, Delhi. They were initially appointed on deputation basis for a period of three years. Shri Amit Bhatnagar went back to his parent department (Directorate of Metrology, Delhi) on completion of one year of deputation period. Remaining seven employees completed their three years deputation period which was further extended for one more year on 17.05.2010. 2.3 The absorptions of applicants were based on recommendations from Union Public Service Commission. Vide the office letter no. A-24011/6/2005-Ad- Il dated 07.02.2011(Annexure R/3) seven employees were absorbed as DPA Grade 'A' in the Office of the Registrar General of India and DCOS.
Sl.No. Name Place of
Posting
1. Naveen O/o RGI
Madhok (Hqrs.)
2. Vikas O/o RGI
(Hqrs.)
3. Gurvinder O/o RGI
Singh (Hqrs.)
4. Lokesh Jain DCO,
Rajasthan
5. Jay kumar N. DCO,Kerala
6. B Madhu DCO,Kerala
Kumar
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(C-5, Item -87) OA No. 4233/2018
7. Shagufta O/o RGI
Nasreen Bhat (Hqrs.)
2.4 It is stated that under the prevalent Recruitment Rules
(RRs) (Annexure R/4) for the post of DPA Gr 'A', the method of the recruitment was 50% by the Deputation (including short term contract/ absorption) and 50% by the Direct Recruitment. Before absorption, all the seven employees who were on deputation were requested to submit their NOC from their parent Departments/ offices. Six employees were from the ORGI /DCO whereas Ms Shagufta Nasreen Bhat belonged to Commercial Tax Department, Sri Nagar, Govt. of the Jammu & Kashmir. Ms Shagufta Nasreen Bhat had requested to their dept vide this office letter No. A-24011/06/2005- Ad-II (Vol.II) dated 28.01.2009 and subsequent reminders on 20.02.2009, 06.04.2009 and 26.05.2009 for "No Objection Certificate (NOC) but the reply was received on 23.08.2010 from her parent department. Hence, the cases of remaining six employees were sent to UPSC for absorption. The case of Ms. Shagufta Nasreen Bhat was sent to UPSC after receiving her NOC from her parent department. The absorption was made in the consultation with the UPSC and keeping in view the UPSC letter No. 3/24/29)/2010-ADT-3 dated 01 02:2011(Annexure 7 (C-5, Item -87) OA No. 4233/2018 R/5) Under DoPT OM No. No. 20011/1/2000-Estt (D) dated 27.03.2001(Annexure R/6):-
"In the case of a person who is initially taken on deputation and absorbed later (i.e. where the relevant recruitment rules provide for "transfer on deputation/transfer", his seniority in the grade in which he absorbed will normally be counted from the date of absorption. If he has, however, been holding already from the date of absorption) the same or equivalent grade on regular basis in this parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from
- The date he/she has been holding the post on deputation, Or
- The date from which he/she has been appointed en a regular basis to the same or equivalent grade in his parent department Whichever is earlier.
The fixation of seniority of an absorbee in accordance with the principle will not, however, affect any regular promotions to the next higher grade made prior to the date of such absorption in other words, it will be operative only in filling up of vacancies in higher grade taking place after such absorption."
2.5 Learned counsel for the applicants draws our attention to the office order dated 29.12.2008, 17.01.2009, 05.02.2009, 11.02.2009, 30.09.2009 and 06.11.2009 (Annexure A-10), whereby the private respondents have been promoted to the post of Data Processing Assistant- Grade 'A'. 8
(C-5, Item -87) OA No. 4233/2018 2.6 It is not disputed that the applicants were absorbed and
the only issue which remains to be examined is counting of service rendered by the applicants.
2.7 During the pendency of the present matter, promotion orders to the post of Assistant Director (EPD) were issued in respect to the private respondent Nos. 5, 6, 7 on 26.06.2019 whereas of applicant as well as private respondent Nos.8,9,10 were issued on 28.12.2020.
2.8 Learned counsel for the applicants in support of his case relied upon the following judgments:-
(i) S.I. Rooplal and Anr Vs. Lt. Governor Through Chief Secretary decided on 14.12.1999;
(ii) OA No.1820/2013 decided on 23.09.2014 titled SC Sharma Vs. Union of India, wherein the issue for consideration was whether the qualifying period for grant of seniority for promotion to the post of Inspector shall take effect from the date of absorption of the applicant in the respondents organization or from the date of deputation.
(iii) He further draws attention to the decision rendered in Dr. Rajendra Kumar & Ors. Vs. Govt. of NCT of Delhi decided on 11.10.2006. Relevant portion of the same reads as under:-
9
(C-5, Item -87) OA No. 4233/2018 "We find merit in the petitioners' submission, as noted above. Petitioners in view of the decision in K. Madhavan and Ors. v. Union of India (Supra) and K.B. Rajoria v. Union of India and Ors. (Supra) are entitled to have the period of service on deputation with the respondent counted towards the eligibility period for the post of Assistant Director."
3. Per contra, pursuant to the notice issued by the Tribunal, the respondents entered appearance and filed their reply thereby vehemently opposing the claims of the applicants. Learned counsel for the respondents relies on the following paragraphs of the counter affidavit:-
"4.5 Yes, the applicants were subsequently absorbed in 2011vide this office Order No. A 24011/06/2005-Ad(Vol.II) dated 7th February, 2011. It is stated that applicants were working in the post of DEO Gr 'B' which was lower than the post of DPA Gr 'A' at the time of their absorption. 4.6 The provisional Seniority List was issued on 10th March, 2015 vide this Office letter No. A 24011/06/2005-Ad-II dated 10th March, 2015 and subsequently final Seniority List was issued vide office letter No 24011/06/2005-Ad-IV dated 07th April, 2015(Annexure R/9).
4.7 The applicants became entitled to MACP as per the provision of MACP which have no relevance with seniority. 4.8 Yes, the applicant submitted representations dated 20.03.2017, 21.11.2017, 20.01.2018 and 24.08.2018 for count of period deputation for seniority. The representations were considered with reference to the rules for purpose and also comments were sought from UPSC/DoP&T. UPSC and DoP&T had clearly stated that when an employee is in the same grade, before the deputation, seniority shall be counted from the date of deputation but the when the employee is in the lower grade before the deputation, the seniority shall be counted for the date of absorption to the post. Accordingly the seniority position fixed in 2014 was clarified.
4.9 The position of applicants in seniority list of DPA Gr 'A' was finalized vide final seniority list 30.01.2014 Annexure R/8).
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(C-5, Item -87) OA No. 4233/2018 4.10 As far as the Seniority is concerned, it was finalized in terms of DoP&T OM No. 20011/1/2000-Estt (D) dated 27.03.2001(Annexure R/6), vide order No. A 24011/06/2005-Ad-II (Vol-11) 30.01.2014. The position in seniority list. dated was reiterated and clarified that it is counted from the date of absorption and not from the date of occurring of vacancy.
4.11 Yes, the respondents 5-10 were appointed as DPA Grade 'A' vide this Order No. A-24011/06/2005-Ad-11 dated 17 April, 2007 they have already acquired settled right for seniority and promotion before the applicants who are guilty of not taking up the issue at appropriate time period.
4.12 That the contents of para No. 4.12 of this O.A. are wrong, false and denied. It is submitted that the applicants (No. 1-No. 3) are not eligible for promotion to the post of Assistant Director (EDP) as they have not had the regular 8 years service in the grade of DPA Gr 'A' as per seniority list of the post. Accordingly their names, cannot been included in the eligibility list for the promotion." 3.1 He further draws our attention to the OM dated 27.03.2001, which was issued pursuant to the decision rendered in the case of S.I. Rooplal (supra). 4 Learned counsel for the private respondents relies upon the detailed counter affidavit filed on behalf of the private respondents. Relevant paragraphs read as under:-
"(1) The present application filed by the above named applicants are without cause of action, and hence liable to dismiss on the sole ground. The applicant in the above O.A. were working as Data Entry operator grade 'B' prior to coming on deputation in respondents department on 17.4.2007 in their parent cadre in the scale of 4500-125-
7000, thereafter next scale of the above named applicant in P.B.-1, Rs. 5200-20200 Grade Pay Rs. 2800/-. The applicants came on deputation as Data Processing Assistant grade 'A' for a period of 3 years, vide order dated 17.4.2007, wherein it is clearly mentioned that the official 11 (C-5, Item -87) OA No. 4233/2018 (including applicants herein) will stand repatriated to their parent cadre on expiry of their term of deputation, even if no separate order of their repatriation is issued, the copy of order dated 17.4.2017 is already on record as Annexure A/4. It is submitted that the as per term of RRs of Data Entry operator, the applicant were holding lower post prior to coming on deputation on the post of Data Processing Assistant, as the pay scale of the both the post Data Entry Operator Grade 'B' and Data Processing Grade 'A' are different and hence, it is abundantly clear that the applicants were not holding the analogous posts prior to date of deputation i.e. on 17.04.2017. The claim of the applicant is contrary Office Memorandum dt. 27.3.2001 and law laid down by Hon'ble Supreme Court in SI Roop law and other u/s Lt. Governor through Chief Secretary Delhi J.T.1999 (9) SC 597 and latest judgment dt 10.7.2017, passed by Hon'ble Supreme Court Mrigank Johri & Ors. V/s Union of India & Ors Civil Appeal No. 9316-9320/2013. The copy of Office Memorandum dt. 27.3.2001 is annexed as Annexure PR-1 (2) That the abovementioned O.A. is liable to be dismissed on the ground of delay, in challenging the seniority list of Data Processing Assistant Grade 'A' which was published on 26.11.2013 and then the above applicants had no grievances / objections in respect of said seniority list, which now attained the finality. The only applicant No. 2 gave representation on 20.03.2017, onward, but prior to that none of the applicant in the above mentioned O.A. had any grievance / objection in respect of the said seniority list of Data Processing Assistant Grade 'A'. The applicants have now awakened from a deep slumber, when the next promotion on the post of Assistant Director (EDP), likely to filled up.
(3) That the applicants are not even eligible for the post of Assistant Director, as per the recruitment Rules for the post Assistant Director as Grade 'A' the 8 years regular service as Data Processing Assistant is required, thus none of the applicant have completed 8 years regular service as Data Processing Assistant Grade 'A'. The applicant were of absorbed in 2011, hence they have not completed 8 yrs regular service till date. The copy of RR for Assistant Director Grade 'A' is annexed as Annexure PR-2."
5. We have heard learned counsel for the parties at length.
6. ANALYSIS 12 (C-5, Item -87) OA No. 4233/2018 6.1 As per own assertion of the applicants in the present OA the respondent Nos.5 to 10 are such Date Processing Assistant 'G' who were appointed by way of direct recruitment vide separate order dated 29.12.2008, 17.1.2009, 5.2.2009, 11.2.2009, 30.9.2009 and 6.11.2009 (Annexure A/10). It sis submitted that the private respondents are likely to be effected by the relief claimed in the OA and as such they are being impleaded as respondents/party.
6.2 The six applicants were from the ORGI/DCO whereas Ms Shagufta Nasreen Bhat belonged to Commercial Tax, Govt. of J&K and Shri Amit Bhatnagar belong to the Directorate of Metrology, Delhi. The prevalent Recruitment Rules (RRs) (Annexure R/4) for the post of DPA Gr 'A', is 50% by Deputation (including short term contract/ absorption) and 50% by Direct Recruitment.
6.3 The applicants deputation period was lastly extended for a period of one year vide Office Order dated 17.5.2010 in furtherence of office order dated 17.4.2007. Before absorption, all the seven employees who were on deputation were requested to submit their NOC from their parent Departments/ offices. Six employees belonged to the ORGI /DCO whereas Ms Shagufta Nasreen Bhat belonged to Commercial Tax Department, Sri Nagar, Govt. of the Jammu & 13 (C-5, Item -87) OA No. 4233/2018 Kashmir. Ms Shagufta Nasreen Bhat had requested to her dept vide letter No. A-24011/06/2005- Ad-II (Vol.II) dated 28.01.2009 and subsequent reminders on 20.02.2009, 06.04.2009 and 26.05.2009 for "No Objection Certificate (NOC), however, the reply was received on 23.08.2010 from her parent department. Hence, the cases of remaining six employees were sent to UPSC for absorption. The case of Shagufta Nasreen Bhat was sent to UPSC after receiving her NOC from her parent department.
6.4 Admittedly, the applicants cannot equate themselves with the respondents no.5-10, who were appointed as direct recruits on regular basis. Neither there is a challenge to the said appointment nor can it be made in as much as method of recruitment is by direct recruitment or by promotion or by deputation /absorption and percentage thereto is 50% by Deputation (including short term contract/ absorption) and 50% by Direct Recruitment.
6.5 In the event, we were to grant relief(s), i.e., ante dating of seniority, we would not only be disturbing seniority inter se amongst persons who have come from different channels viz-a- viz direct recruitment or by promotion or by deputation /absorption but also they being appointed on regular basis at different point of time. The applicants herein would become 14 (C-5, Item -87) OA No. 4233/2018 seniors to direct recruits, if we were to extend the benefits of date of deputation, i.e., from 17.4.2009, whereas vide office order dated 29.12.2008, 17.01.2009, 05.02.2009, 11.02.2009, 30.09.2009 and 06.11.2009, the private respondents were appointed on the basis of appointment order dated 15.10.2008, which was prior on time. The date of appointment order is relevant date for determining the inter-se seniority. 6.6. In the case of Pawan Pratap Singh and others vs. Reevan Singh and others, (2011) 3 SCC 267, the Hon'ble Apex Court observed as under:-
"45. From the above, the legal position with regard to determination of seniority in service can be summarised as follows:
(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory of rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may 15 (C-5, Item -87) OA No. 4233/2018 adversely affect the employees who have been appointed validly in the meantime."
6.7. A Civil Appeal Nos. 8324-8327 OF 2022 [Arising out of Special Leave Petition (Civil) Nos. 30734- 30737 of 2014] Amit Singh Vs. Ravindra Nath Pandey decided on 11.11.2022 by the Hon'ble Apex Court is a clincher to the issue in hand. It was held that in case of inter-se-seniority between the direct recruits and promotees, the seniority list shall be prepared by applying the rota system to direct recruits and promotees appointed in one recruitment year and not otherwise when the recruitment process took a long time and did not end within the said recruitment year. The Hon'ble Apex Court observed as under:-
"22. A bench of three learned Judges of this Court in the case of P. Sudhakar Rao and others vs. U. Govinda Rao (2013) 8 SCC 693 and othershas approved the law as laid down by this Court in the case of Pawan Pratap Singh and others (supra).
23. It is thus clear that the inter se seniority between the promotees and the direct recruits will have to be determined in accordance with the 1992 Rules. The 1992 Rules fix the quota of 67% for direct recruits and 33% for promotees. A "year of recruitment" has been defined to be a period of twelve months, commencing from the first day of July of the calendar year and as such, in the present case, the year of recruitment would be from 1st of July of 1997 to 30th of June 1998.
24. Admittedly, the direct recruits were appointed on 18th August, 1997, whereas the promotees were appointed on 16th December, 1997, i.e. both were appointed in the selection/recruitment year 1997-98. In view of sub-rule (2) of Rule 19 of the 1992 Rules, where the appointment of both the direct recruits and of the promotees were to be made in the same year of recruitment, regular appointments should not have been made unless selections were made from both the sources and a combined list was prepared in accordance with Rule 18 of the 1992 Rules. In view of sub-
rule (3) of Rule 19 of the 1992 Rules, since the 16 (C-5, Item -87) OA No. 4233/2018 appointments in the same selection/recruitment year were made both by direct recruitment and by promotion, the names were required to be arranged in accordance with the cyclic order referred to in Rule 18 of the 1992 Rules. In view of Rule 18 of the 1992 Rules, a combined select list has to be prepared by taking the names of candidates from the relevant list, as per the quota for the direct recruits. In other words, the first name in the list was required to be that of a promotee.
25. A combined seniority list was initially prepared in accordance with the said provisions of the 1992 Rules on 18th September 2003. However, it had been erroneously changed on 29th July, 2005, thereby giving undue benefits to the direct recruits over the promotees. Such a list was in contravention of the provisions of Rules 18 and 19 of the 1992 Rules. When the 1992 Rules specifically emphasized that, where in any year of recruitment, appointments were to be made both by direct recruitment and by promotion, regular appointments could not have been made unless selections were made from both the sources and a combined list was to be prepared in accordance with Rule 18 of the 1992 Rules, the seniority list dated 29th July 2005, which provided a higher seniority to the direct recruits, is, for the aforesaid reasons, not sustainable in law.
26. Insofar as the judgment of this Court in the case of Uttaranchal Forest Rangers' Assn. (Direct Recruit) and others (supra) is concerned, the same would not be applicable to the facts of the present case. In the said case, the promotees, who were promoted in 1991, claimed seniority over the direct recruits who were substantively appointed at a prior point of time in 1990. In any case, the 1992 Rules did not fall for consideration in the said case.
27. As already discussed herein above, we are of the considered view that, in view of Rules 18 and 19 of the 1992 Rules, the seniority list dated 29th July 2005, impugned before the High Court, is not sustainable in law.
28. In the result, we find no merit in the present appeals. The appeals deserve to be dismissed and, as such, are dismissed."
6.8. In Civil Appeal No. __ of 2022 (Arising out of Special Leave to Appeal (C) No. 27603/2019) titled Smt. Imlikokla Longchar & Ors. vs. The State of Nagaland & Ors. decided on 11.10.2022, the Hon'ble Apex Court observed as under:
"12. The facts which emerge from the sets of events determining seniority positions of the appellants and K in the subject posts are that at the time of regularisation of K, 17 (C-5, Item -87) OA No. 4233/2018 the 2003 Rules was not in existence. So far as the appellants are concerned, their regularisation in the posts in which they were officiating was effected on 8 th November 2007. By that time the 2003 Rules had become operational. Once the said Rules became operational, the requirement of five year service in the feeder grade also become applicable to be eligible for promotion in the next higher grade. Our attention had been drawn to Clause 4.2 of the Memorandum issued in the month of March 2005 through which K was regularised in the post of senior lecturer to contend that K could not object to the appellants being made senior. We shall deal with this aspect of the appellants' case in the next paragraph of this Judgment. The general principle of service jurisprudence is that the time spent in the immediate superior grade on stopgap or adhoc basis ought not to be computed for determining the length of service of an incumbent in that cadre. This is of course, subject to any contrary provision made in the applicable Rules itself. But no such contrary provision has been shown to us at the time of hearing of this appeal on behalf of the appellants or the State. Thus, computation of the appellants' period of service in the feeder grade can take place only from the date of their regular appointment in that cadre. This view has been taken by the Constitution Bench of this Court in the case of Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra & Others [(1990) 2 SCC 715], Swapan Kumar Pal and Others vs. Samitabhar Chakraborty and Others [(2001) 5 SCC 581], State of Rajasthan and Others vs. Jagdish Narain Chaturvedi [(2009) 12 SCC 49], Amarjeet Singh and Others vs. Devi Ratan and Others [(2010) 1 SCC 417], and Malook Singh and Others vs. State of Punjab and Others [(2021) SCC OnLine SC 876].
15. The appellants had no doubt completed three years of service in the feeder grade on operationalisation of 2003 Rules on 30 th April 2007. But so far, the said Rules seek to give them regularisation in the cadre of senior lecturer with effect from 2003 and 2001 respectively, their service in the feeder grade do not meet the required stipulation of five year period. Judgment of a Coordinate Bench in the case of Girish Kumar vs. State of Maharashtra and Others [(2019) 6 SCC 647], construed the term 'continuous service' in relation to the specific rules this Court was dealing with in that case. So far as the present appeal is concerned, the ratio of this judgment would not be applicable because the appellants here did not fulfil the eligibility requirement for being promoted to the post of senior lecturer. If retroactivity of order is given effect to for calculating the officiating period, as we have already observed, time spent as officiating senior lecturer could not be deemed to be the dates of their birth in the cadre of senior lecturer. In Girish Kumar (supra), it has also been held that such interpretation shall not be applicable while considering eligibility criteria. In the present appeal, one of the eligibility criterion is five years continuous service in the feeder post. We cannot ignore this factor and proceed on the basis as if the term continuous service is being construed only for determining interse seniority in the 18 (C-5, Item -87) OA No. 4233/2018 promotional post. We are testing here if the appellants' entry in the promotional cadre was as per the eligibility criteria or not. In our opinion, it was not. To hold otherwise would require entire stretch of K's service in the post of senior lecturer since 1993 to be taken into account for determining the interse seniority among the appellants and K."
6.9. In view of the above, it is only on the date of absorption, the applicants who were on deputation were actually born in the cadre. Likewise, the direct recruits were born in the cadre on the date of their respective appointment order. Therefore, having regard to the facts and circumstances of the present case and the rule position thereto, the reliance placed by the learned counsel for the applicant on the decision rendered in SC Sharma vs. Union of India (supra) cannot be applied to the facts and circumstances of the present case. 6.10 The grant of financial up gradation and promotion to a post cannot be equated. Both financial up gradation and promotion operate on different parameters under Scheme/Rules. We also find that during the pendency of the present OA, promotion orders to the post of Assistant Director (EPD) were issued in respect to the private respondent Nos. 5, 6, 7 on 26.06.2019 whereas for applicant as well as private respondent Nos.8,9,10 were issued on 28.12.2020. There is no challenge to the same either by way of amendment or otherwise. The RR's for promotion to the post of Assistant Director (EDP) contemplates as under:-
19
(C-5, Item -87) OA No. 4233/2018 "(b) Possessing the educational qualifications and experience prescribed for direct recruits under Column 8. Note: Only persons belonging to Central State Government are eligible for absorption.
Note: The departmental officers in the feeder category who are in the direct line of promotion shall not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration of appointment by promotion.
(Period of deputation including period of deputation in another ex-cadre post held immediately proceeding this appointment in the same or some other organization/department of the Central Government shall ordinarily not exceed three yeas. The maximum age limit for appointment by deputation shall be not exceeding fifty six year as on the closing date of receipt of applications). 6.11 In W.P.(C) 3737/2015 titled UNION OF INDIA Vs Ashwani Kumar decided on 27.7.2023, similar contentions and law was cited by the learned counsel for the applicants herein which were repelled and rejected by the Hon'ble High Court of Delhi as under :-
"18. The plea of Mr. Saini that the rule does not contemplate such a situation, cannot be accepted. This we say so, for more than one reason, inasmuch as, the rule do not contemplate that the service put in by the respondent no.1 as a deputationist shall be counted for the purpose of eligibility. Secondly, Mr. Shankar is justified in relying upon the judgment of the Supreme Court in the case of State of Punjab and Ors. (supra) wherein, the Supreme Court has culled out the concept of deputation, which will clearly demonstrate that the service as a deputationist is a temporary service outside the cadre / department, as the Officer has come on deputation with an intention to go back. In that sense, the officer does not hold a lien on the deputation post. If he does not have a lien on a deputation post, it cannot be treated as a regular service. In State of Punjab and Ors. (supra), the Supreme Court has in paragraph 18, has held as under:
"18. The concept of "deputation" is well understood in service law and has a recognised meaning. "Deputation"20
(C-5, Item -87) OA No. 4233/2018 has a different connotation in service law and the dictionary meaning of the word "deputation" is of no help. In simple words "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be. " (emphasis supplied)
19. Additionally, if the plea as advanced by Mr. Saini is accepted, it will cause the prejudice to the officers who were senior to the respondent in the grade of JDD (IA), as the respondent would become eligible for being promoted to the post of DD (IA) over those seniors, much earlier, and shall supersede them. Hence, the Tribunal has clearly erred in construing the rule in the manner as it has done in the impugned order. The interpretation sought to be given is nowhere in the service jurisprudence, wherein, a service put in on deputation shall be treated as a regular service for purpose of eligibility for promotion.
20. Mr. Shankar is justified in relying upon the judgment of the Supreme Court in the case of Punjab State Electricity Board and Ors. (supra), wherein in paragraph 20, the Supreme Court has held as under:
"20. A reading of the scheme framed by the Board makes it clear that the benefit of time-bound promotional scales was to be given to the employees only on their completing 9/16 years' regular service. Likewise, the benefit of promotional increments could be given only on completion of 23 years' regular service. The use of the term "regular service" in various paragraphs of the scheme shows that service rendered by an employee after regular appointment could only be counted for computation of 9/16/23 years' service and the service of a temporary, ad hoc or work-charged employee cannot be counted for extending the benefit of time-bound promotional scales or 21 (C-5, Item -87) OA No. 4233/2018 promotional increments. If the Board intended that total service rendered by the employees irrespective of their mode of recruitment and status should be counted for the purpose of grant of time- bound promotional scales or promotional increments, then instead of using the expression "9/16 years' regular service" or "23 years' regular service", the authority concerned would have used the expression "9/16 years' service"or "23 years' service".
However, the fact of the matter is that the scheme in its plainest term embodies the requirement of 9/16 years' regular service or 23 years' regular service as a condition for grant of time-bound promotional scales or promotional increments as the case may be."
21. The only way to interpret the provision of the recruitment rules is that, it is only the period of regular service as JDD (IA), in the petitioner organisation, of five years can be said to be the eligibility criteria for promotion to the post of DD (IA) and not the manner the Tribunal has held.
22. We are of the view that the Tribunal has clearly erred in giving the direction to treat the period of service of deputation of the respondent between October 4, 2004 to April 30, 2007, as regular service, for the purpose of eligibility for promotion to the post of DD (IA) and as such the order dated November 28, 2014 of the Tribunal is set aside. The writ petition is disposed of. No costs."
7. CONCLUSION In view of the above analysis, we do not find any infirmity in action of the respondents in not according the benefit of counting of services rendered from date of deputation till date of absorption to the applicants herein. The OA is devoid of merits and hence, dismissed. All pending applications, if any, are also disposed of. No costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/sm/