Central Administrative Tribunal - Delhi
Presently Working As Registrar (On ... vs Union Of India on 2 June, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA. No. 1343/2007 New Delhi, this the 2nd day of June, 2011 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE MR. SHAILENDRA, PANDEY, MEMBER (A) HONBLE DR. A.K. MISHRA, MEMBER (A) Shri Raghubir Singh S/o Shri Seo Dhan Singh R/o 674, Sector-22B, Urban State, Gurgaon, Haryana. Presently working as Registrar (on deputation) Ravi & Beas Water Tribunal, East Bloc-VII, R.K. Puram, New Delhi. Aged about 59 years Group A Service Applicant (By Advocate Shri S.K. Gupta) Versus 1. Union of India Through Secretary Department of Personnel & Training Ministry of Personnel, Public Grievance And Pension, North Block, New Delhi. 2. Central Administrative Tribunal Principal Bench, New Delhi Through Principal Registrar, 61/35, Copernicus Marg, New Delhi. 3. Shri A.K. Ajmani 4. Shri V.K. Bawa 5. Shri Govind Ballabh 6. Shri S.P. Singh 7. Shri B. Stephen 8. Shri N.N. Pradeep 9. Shri A.V.S. Raju 10. Smt. V.P. Kamallama 11. Shri K Raja Ram 12. Shri Diwakar Kukreti 13. Shri M. Ramachandran 14. Shri Rama Nath Panda 15. Shri J.M. Bhattacharya 16. Shri G.C. Sharma 17. Shri N. Ramamurthy 18. Shri V.C. Vijay (Through Principal Registrar, Central Administrative Tribunal, Principal Bench, New Delhi). Respondents. (By Advocate Shri A.K. Behera for Respondents 1 and 2, none for other respondents) ORDER
By Honble Mrs. Meera Chhibber, Member (J) This matter was decided by the Full Bench vide judgment dated 5.12.2008. However, the matter was carried to the Honble High Court of Delhi by filing Writ Petition No. 8216/2009. Their Lordships were pleased to set aside the judgment dated 5.12.2008 and 12.1.2007 passed in OA No. 1343/2007 and RA No.4/2009 and restored the OA for fresh adjudication. This is how the matter has now been placed before us.
2. The short point involved in this case is whether the applicant would be entitled to reckon his seniority as Deputy Registrar from the date of his absorption in the Central Administrative Tribunal or from the date he was holding the analogous post in his parent department. Applicant has sought the following relief:-
(i) to quash and set aside the Revised Final Seniority List No.PB/1/35/97/E-I/Vol-2 dated 10.9.2007 (Annexure A-19).
(ii) to quash and set aside the impugned Memorandum dated 6.10.2006 (Annexure A-1) and revised draft seniority list dated 26.4.2006 (Annexure-I).
(iii) to direct the respondents to fix the seniority of the applicant in the cadre of Dy. Registrar after taking into account the service rendered by him as Civilian Staff Officer (CSO) in the Ministry of Defence w.e.f. 1.10.1988, by applying the DOP&T instructions and the principle as laid down by the Honble Supreme Court in case of SI Roop lal, and restore the position of the applicant as it was in the Final Seniority List of Dy. Registrars issued on 17.2.2005 above Shri N. Ramamurthy by making correction in column 7 of this seniority list showing 1.10.1988 instead of 6.8.1995.
(iv) to declare the applicant to be entitled for all consequential benefits with retrospective effect, i.e., promotion to the grade of Principal Registrar from the date the voluntary retirement of its incumbent Shri Gautam Ray was approved to join the post of Member, CAT which was delayed due to unknown reasons.
3. The brief facts of the facts of the case are that the applicant had initially joined the Central Administrative Tribunal (hereafter referred to as CAT) on 8.5.1992 on deputation, as Deputy Registrar while in the parent department, he was holding the post of Civilian Staff Officer (hereinafter referred to as CSO) in the Ministry of Defence in the same pay scale as that of Dy. Registrar in CAT. He was regularly absorbed in the Tribunal with effect from 6.8.1995. Subsequently due to legal proceedings his date of joining in the post of CSO was refixed as 1.10.1988.
4. According to the applicant, after he was absorbed in the Tribunal, the Ist seniority list was issued on 17.2.2005, till which date, he had no grievance because he was shown above the private respondents. His grievance arose when a draft revised seniority list was published on 26.4.2006 whereby his position was pushed down by the respondents by reckoning his seniority from the date of absorption in the Tribunal. Being aggrieved, he gave a representation. Since no reply was given, he filed OA No. 947/2006. This OA was disposed of with a direction to the respondents to dispose of the pending representation of the applicant in the light of the decision of the Honble Supreme Court in SI Roop Lals case. The above order was challenged by the Administration by filing Writ Petition (Civil) No.14051/2006 which was disposed of 6.9.2006 by giving liberty to the respondents to distinguish the case and to give reasons as to why SI Roop Lals case would not be attracted, while deciding his representation. The representation of the applicant was accordingly decided on 6.10.2006 (page 64) rejecting his claim for counting the service rendered on the analogous post in the parent department by observing as follows:-
5. The contention of Shri Raghubir Singh to rely upon the decision of SI Roop Lals case is totally misplaced. The issue is regarding date of his regular appointment in his parent department. The Ministry of Defence, his parent department, vide their letters dated 20.7.1988 and 3.8.2006 have intimated that consequent to Court orders which have reached finality, the date of regular appointment of Shri Raghubir Singh as CSO will count from 1.10.1988. Therefore, SI Roop Lals case is not attracted.
It is this order which has been challenged in the present OA.
5. Counsel for the applicant submitted that while reckoning his seniority in the Tribunal, his earlier period should be counted, from the date, when he was holding the analogous post in the parent Department. To buttress this argument counsel for the applicant placed reliance on the judgments of Honble Supreme Court in the case of SI Roop Lal (supra), M. Ramachandran VS. Govind Ballabh & Others reported in JT 1999 (7) SC 271, the judgment given by the Honble High Court of Delhi in the case of UOI & Another Vs. Dr. Pankaj Agnihotri decided on 22.7.2010 (W.P. (Civil) No. 3845/2010 and other connected matters) and also on Umesh Singh & Others Vs. U.O.I. & Others decided by the Tribunal vide judgment dated 4.4.2002 in OA No.2174/2001.
6. Respondents have opposed the OA. They have stated that since there are specific rules in the Central Administrative Tribunal which lay down how seniority of absorbed officers has to be determined, the seniority of the applicant has rightly been fixed from the date of his absorption in the CAT as per Rule 5 (2) of the Central Administrative Tribunal (Group A) Recruitment Rules (herein referred to as the Rules). The counsel for the respondents also relied on the judgment of M. Ramachandran Vs. Govind Ballabh and others (Supra) by stating that it only interpreted the proviso to Rule (5) of the Rules which dealt with the aspect of how seniority would be fixed, when persons taken on deputation from the same source are absorbed on the same day. He also tried to distinguish the judgment of SI Roop Lal by stating that there were no rules in Delhi Police to fix the seniority of officers taken on deputation and absorbed, whereas in the instant case the applicant is governed by Rule 5 (2) of the Rules, therefore, the said judgment would not be applicable. He further submitted that at this belated stage, when applicant has already retired from service as far back as on 31.5.2008 and most of the private respondents had also retried. Moreover the applicant was already getting the pay scale of Rs.18400-22400 at the time of his retirement in Ravi & Beas Water Tribunal where he had gone on deputation from the Tribunal, which is the same scale as that of Principal Registrar in the CAT and thus no purpose would be served by adjudicating the issue. It would be a futile exercise, as it would not make any difference to the applicant. On the contrary, if the OA is decided in his favour, it would unsettle a settled position. He thus submitted that court should refrain from entertaining an academic issue only. To buttress his argument, he placed reliance on the following judgments:-
(i) R.S. Nayak Vs. A.R. Antulay reported in 1984 (2) SCC 183.
(ii) Bimlesh Tanwar Vs. State of Haryana and Others reported in 2003 (5) SCC 604.
(iii) Kushal Singh Vs. CAT (OA No. 48 of 2009) decided on 25.1.2010.
7. DOP&T has stated that the applicant came on deputation to Central Administrative Tribunal as Dy. Registrar on 8.5.1992 and was absorbed w.e.f. 6.8.1995. Thus his seniority would be governed by OM No.20020/7/80-Estt. (D) dated 29.5.1986 in terms of which his seniority would be counted from the date he was appointed to the post of Dy. Registrar on deputation basis, i.e., 8.5.1992 or the date from which he was appointed on regular basis to the same or equivalent post in the parent department, i.e., 1.10.1988, whichever is later. Thus the seniority of the applicant would be counted from 8.5.1992, i.e., the date he joined as Dy. Registrar in CAT on deputation basis meaning thereby that the DOP&T is of the view that applicants seniority should be reckoned from the date he joined the Tribunal on deputation, i.e. 8.5.1992. Though other officers who were likely to be affected were impleaded as private respondents, were served but they opted not to contest the case.
8. We have heard all the counsel and perused the pleadings as well.
9. We would first deal with the last contention of the counsel for the respondents. It must be kept in mind that till 2005 the applicant had no grievance because in the seniority list dated 17.2.2005 his earlier service was counted which is evident from page 74 at Sl.No.12. In this seniority list, he was placed above Shri Diwakar Kukreti. His grievance arose only in 2006 when revised seniority list was issued and applicant was pushed down in the seniority without putting him on notice. He immediately gave a representation. Since the representation was not decided, he filed OA No. 947/2006. This OA was disposed of on 2.5.2006 with a direction to the respondents to decide his representation by passing a detailed and speaking order in the light of SI Roop Lal (page 80). This order was challenged by the respondents in Honble High Court of Delhi by filing Writ Petition NO.1405/2006. The order was passed on 6.9.2006 in the Writ Petition as follows:-
Impugned order dated 2nd May, 2006 which was passed without notice for hearing the petitioners is quashed.
We leave it open to the petitioners to pass a reasoned order and it would be open for them to distinguish the present case and give reasons as to why SI Rooplals case is not attracted in case they reach the said conclusion.
Let the representation be now decided by the petitioners within three weeks in accordance with law.
10. Pursuant to above liberty, respondents passed order dated 6.10.2006 rejecting the claim of the applicant by observing Sthat I Roop Lal is not attracted. Simultaneously final seniority list of Dy. Registrars was issued on 10.9.2007 (page 110 at 124) wherein the applicant was shown at Sl.No.17 by reckoning his seniority from the date of his absorption and Diwakar Kukreti and others were placed above him e.g. Diwakar Kukreti was shown at Sl.No.7 while applicant at Sl.No.17.
11. The present OA was filed at this stage challenging the seniority list dated 10.9.2007, memorandum dated 6.10.2006 and revised seniority list dated 26.4.2006 with a further direction to the respondents to fix his seniority in the cadre of Dy. Registrar by taking his service on analogous post of CSO in the Ministry of Defence into consideration w.e.f. 1.10.1988 and restore the seniority list of 17.2.2005 and grant him all the consequential benefits viz. promotion to the grade of Principal Registrar from the date the voluntary retirement of its incumbent Shri Gautam Ray was approved to join the post of Member, CAT which was delayed due to unknown reasons. This OA was heard and referred to the Full Bench on 3.6.2008. The Full Bench decided the case on 5th December, 2008 and dismissed the OA by observing there is no illegality committed by the respondents. Applicant challenged the above judgment in the Honble High Court of Delhi by filing Writ Petition No.8216/2009 which was decided on 20.7.2010 (page 123) whereby judgment of Full Bench and the RA were set aside and the OA was restored for fresh adjudication. This is how the matter has now been placed before us.
12. From the above, it is clear that the applicant had approached the court in time. If the matter got prolonged due to rounds of litigation, applicants claim cannot be rejected on the ground that applicant has retired and the issue raised has become academic. More so while promoting applicant as Registrar (Outlying Benches) in order dated 18.1.2000, it was mentioned that his appointment is subject to review/revision of seniority list of Dy. Registrar based on the representations made by Dy. Registrars (page 70). Similarly while issuing seniority list of Registrar on 16.6.2008 a note was inserted which reads as under:-
Note1:- Shri Raghubir Singh was promoted as Registrar (OB) w.e.f. 20.2.2000 on the basis of seniority list of Dy. Registrar existing at the relevant time. Subsequently, in implementation of the judgment in Writ Petition 11256/2003 filed by Smt. V.P. Kamlamma, the seniority list in the grade of Dy. Registrar was prepared on year wise basis as per directions of the Honble High Court and issued on 10.9.2007. In the revised seniority list the position of Shri Raghubir Singh was relegated and he has been placed in the said seniority list of the year as on 31.12.1995. As per the revised seniority list, Sh. Raghubir Singh was not within the zone of consideration for promotion as Jt. Registrar as his immediate senior, namely, Sh. A.K. Ajmani was still a Dy. Registrar. The review DPCs to revert Shri Raghubir Singh from the post of Registrar/Jt. Registrar could not be held as Sh. Raghubir Singh has filed OA No.1343/2007 challenging his position in the revised seniority list of Dy. Registrar dated 10.9.2007. Since the matter is sub-judice, the name of Shri Raghubir Singh is not being included in the present list. His name will be included in the seniority list of the relevant grade at appropriate place in accordance with decision of the court case filed by him.
Note 2:- The Final seniority list being issued is subject to the outcome of the Court cases filed by Shri V.K. Bawa or any other court case pending as on date, if any.
meaning thereby that if applicants case is not decided on merits, he may be reverted. It, therefore, becomes our duty to decide the case on merits rather than adopting a short cut method of disposing of the case. It also cannot be stated that applicant had acquiesced to the situation because he was promoted in 2000 while his seniority was depressed in 2006. He has been agitating the matter since 2006 itself. The last contention of the counsel for the respondents is, therefore, rejected.
13. Coming to the merits of the case, counsel for the respondents relied heavily on the rules. His basic argument was that since the applicant was governed by Rule 5 (2) which lay down the norms to fix the seniority of an officer, taken on deputation and later absorbed, naturally the applicant would be governed by those rules, and since in the rules it was clearly mentioned that his seniority would be reckoned from the date of appointment, as such applicants seniority has rightly been reckoned from the date, he was regularized as Deputy Registrar in the Tribunal.
14. In order to appreciate the controversy involved, it would be necessary to quote the relevant rules. The Central Administrative Tribunal (Group A) Recruitment Rules, were notified in 1988. Rule 5 deals with absorption/regularisation of existing employees and how their seniority would be fixed, which for ready reference is extracted below:-
5. Absorption/regularisation of existing employees - (1) Notwithstanding anything contained in the provisions of these rules, the persons holding the posts of Registrar (Principal Bench), Registrar, other Benches, Joint Registrars and Deputy Registrars on the date of commencement of the rules either on transfer or on deputation basis and who fulfill the qualifications and experience laid down in the rules and who are considered suitable by Departmental Promotion Committee and are eligible for absorption/regularization in the respective grade subject to condition that such persons exercise their option for the absorption and that their parent departments do not have any objection to their being absorbed in the Tribunal.
(2) The seniority of officers mentioned in sub-rule (1) shall be determined with reference to the dates of their regular appointment to the posts concerned:
Provided that the seniority of officers recruited from the same source and in the posts held by in the parent department shall not be disturbed.
15. As per Clause 11 of the RRs for the post of Deputy Registrar under Schedule II, it is clear that 50% of the posts are to be filled by promotion and 50% by way of by transfer/transfer on deputation. Even against 50% promotion quota, the posts may be filled in by transfer on deputation in case promotion is not otherwise possible. How the post is to be filled by transfer/transfer on deputation is further explained in Clause 12 which reads as under:-
In case of transfer/transfer on deputation:-
Officers possessing a Degree in Law and holding analogous post in Central Government/State Government/High Court or holding posts of Deputy Registrar in High Court or Officers of Central/State Government/High Court in the scale of Rs.2000-3500 with a minimum of eight years regular service.
16. It is not even disputed by the counsel for the respondents that before coming on deputation to the Tribunal, the applicant was holding an analogous post in the parent department as CSO. The only question which needs to be decided is, whether after absorption, his seniority has to be counted from the date of absorption or from the date, he was holding the analogous post in the parent department. This point need not detain us for long as it has already been considered and decided by the Honble Supreme Court in M. Ramachandran Vs. Govind Ballabh [reported in JT 1999 (7) SC 21].
17. According to the counsel for respondents, this judgment deals with only proviso to Rule 5 (2) and lays down how seniority of those officers are to be fixed who are taken on deputation from the same source and absorbed on the same date, whereas counsel for the applicant submitted that Honble Supreme Court has laid down general principle of seniority in para 10 and 11 of the judgment.
18. We have perused the judgment. It is correct that both the parties in the said case were employees of the Tribunal. The controversy raised in this case was with regard to the inter-se seniority of those persons who had initially come on deputation from the same source and were absorbed on the same date in the CAT. However, if the judgment is read in its entirety, we find that not only the proviso to Rule 5 of the CAT (Group B & C Miscellaneous Posts) Recruitment Rules, 1989 but the general principle of reckoning the seniority and the relevance of OM dated 3.7.1986 were also considered. One of the contentions raised by the parties in that case were that as per OM dated 3.7.1986, the relative seniority of direct recruits had to be determined in terms of para 3.4.1 of the said Office Memorandum which read as under:-
3.4.1 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 is absorbed will normally be counted from the dale of absorption. If he has, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his 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 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, whichever is later."
Honble Supreme Court after discussing the rival contentions, came to the conclusion that OM dated 3.7.1986 would not be applicable in the said case. To be precise, their Lordships observed as follows:-
We also feel that, as the Rules hold the field, the Official Memorandum has to give way in the matter of determination of inter se seniority of the persons recruited to the service on the same date.
From the above, it is clear that OM would not be relevant as seniority of employees of Tribunal is governed by Rule 5 (2). Having said so, Their Lordships further observed as follows:-
We are of the considered opinion that Sub-rule (2) of Rule 5 is the relevant rule relating to the determination of the seniority of the officers recruited to the service under Sub-rule (1) of Rule 5. The seniority of such recruited officers is required to be determined with reference to the dates of their regular appointment to the posts. The proviso to Sub-rule (2) shall cover the case of such officers whose seniority cannot be determined under Sub-rule (2) as is the present case of the persons appointed/recruited on the same date. In such a case the seniority of the officers recruited from the same source has to be determined by giving them the benefit of the equivalent post held by them in their parent departments. Sub-rule (2) and its proviso is based upon the general principle of service jurisprudence. It is not correct to say that the rules do not provide any method of determining the seniority of the persons recruited to the service and that in the absence of there being specific rule, resort be had to the Official Memorandum relied upon by the respondents. Seniority is a relevant term having reference to the class, category and the grade to which the reference is made. Length of service is a recognised method of determining the seniority. Such length of service shall have reference to the class, category or grade which the parties were holding at the relevant time. It, therefore, follows that total length of service is not relevant for determining the seniority but length of service to a particular class, category or grade is relevant consideration for the purposes of counting the period with respect to length of service for the purposes of determining the seniority. In other words the period of holding of the equivalent post in the parent department would be the relevant period to be taken note of for the purposes of determining the seniority under Rule 5(2) and its proviso. Any other interpretation would be against the settled rules of service jurisprudence and is likely to create many anomalies resulting in failure of justice and defeating the acquired rights of the civil servants based upon their length of service. A perusal of the Rules does not, in any way, show and rightly so that the rule making authority had ever intended to take away the benefit of the length of service of a person in his parent department before his deputation and absorption in the service.
We are of the opinion that the Tribunal has taken a very casual approach while passing the order impugned in this appeal and completely ignored the basic principles of service jurisprudence as confirmed and applied by this Court by way of pronouncements in various cases, some of which have been noted hereinabove. We are of the view that all the employees recruited in the service under Rule 5(1) are entitled to the benefit of the service on equivalent post in their parent departments.
Under the circumstances, the appeal is allowed and the order impugned is set aside. The official-respondents are directed to finalise the seniority list of all the employees recruited in the service under Rule 5(1) of the Rules strictly applying the provisions of Sub-rule (2) and its proviso keeping in mind the observations made hereinabove.
19. From the above paragraphs of the judgment, two things are absolutely clear:
(1) OM dated 3.7.1986 would not apply, as employees of the Tribunal are governed by Rule 5 (2) and the proviso thereto for fixing of their seniority. In view of this, the judgment in the case of Sanyukta Arjuna Vs. U.O.I. and Others reported in ATJ 203 (1) 559 would not at all be relevant because that case dealt with the effective date of OM dated 3.7.1986.
(2) Even if the seniority is to be governed by Rule 5 (2), the rules do not intend to take away the benefit of the length of service of a person in his parent department before his deputation and absorption in the service. It was clearly held that the period of holding of the equivalent post in the parent department would be the relevant period to be taken note of for the purposes of determining the seniority under Rule 5 (2) and its proviso. It was further clarified that all the employees recruited under Rule 5 (1) are entitled to the benefit of the service on equivalent post in their parent department (emphasis laid).
20. Perusal of the language used in para 10 of the judgment shows that the principle of determining seniority in general was discussed and the penultimate para dealt with all the employees recruited under Para 5 (1); so it is wrong to suggest that the judgment has to be read in the context of seniority of only those employees, who were absorbed on the same date. In Para 10 it is specifically observed that A perusal of the Rules does not, in any way, show and rightly so that the rule making authority had ever intended to take away the benefit of the length of service of a person in his parent department before his deputation and absorption in the service. It is further relevant to note that in para 12 the respondents were directed to finalise the seniority list of all the employees recruited under Rule 5 (1) of the Rules. The expression used in the judgment in para 11 and 12 is all employees recruited under Rule 5 (1) are entitled to the benefit of the service on equivalent post in their parent departments so the ratio of judgment cannot be restricted to only those persons, who were absorbed on the same date as suggested by the counsel for the respondents. We accordingly reject the contention of the counsel for the respondents. Since general principle of reckoning the seniority of all those who were absorbed under Rule 5 (1) of the Rules was laid down in M. Ramachandrans case, therefore, according to us, the applicant would also be entitled to reckon his seniority as Dy. Registrar in the Tribunal from the date when he was holding the analogous post in his parent department.
21. Since the issue stands settled in the above terms by the judgment of Honble Supreme Court, the stand of DOP&T is also not correct because they have placed reliance on OM dated 3.7.1986 whereas Honble Supreme Court has clearly held no OM would apply in this case as there are specific rules which hold the field.
22. It is further relevant to note that another employee of this Tribunal viz. Kushal Singh had also filed a case in the Tribunal because his seniority as UDC was fixed from the date he was absorbed in the Tribunal. He had also sought a direction to fix his seniority from the date he held analogous post in his parent department viz. Central Ground Water Board from where he had come on deputation. While deciding the said case, the Bench observed as follows:-
the similar issue came up before this Tribunal in OA No.1935/2004 Mahender Kumar Goyal Vs. Central Administrative Tribunal, Principal Bench, New Delhi. While allowing the said OA, directions were issued to Respondent No.1, the Tribunal, to absorb Shir Mahender Kumar Goyal after according seniority from the date Shri Goyal was promoted to the post of UDC in his parent department.
On 11.8.2009 in OA 944/2006 in the matter of Anil Kumar Choudhary & Anr. Vs. Union of India & Ors., the respondents therein were directed in similar set of facts to count the service rendered by the applicants therein in their parent department in the equivalent grade with all consequential benefits.
Similarly the learned Bench also noted as follows:-
Furthermore, the respondent Tribunals reference to yearwise centralized seniority prepared in compliance with the judgment in V.P.Kamalammas case (supra) is not relevant to the issue in this case because that case did not deal with the counting of regular service in equivalent post in the parent department.
On the question of reckoning of past service it was observed as follows:-
19. The question as to reckoning of past service in equivalent post in the parent department for determining seniority in the transferred post has been the subject matter of consideration in a number of cases. What emerges therefrom is the well established principle of service jurisprudence, that is, when a Government servant holding a particular post is transferred to the same and equivalent post in another Government department, he carries with him the service in his parent department as is inherent in the mode of appointment by transfer which envisages continuity of service. The same was sought to be denied on the strength of the executive instructions contained in OM dated 29.5.1986, the legality and correctness of which came up for consideration in SI Roop Lals case (supra). In this case, the Honble Apex Court was called upon to deal with the question as to whether the appellants therein were entitled to count their service rendered by them as Sub Inspector in BSF for the purpose of seniority after absorption as Sub-Inspectors (Executive) in Delhi Police. While answering the question in the affirmative, the Honble Court expressed the view that this question was not res integra and was squarely covered by the ratio of judgments of the Honble Supreme Court in more than one case namely K.Madhavan Vs. Union of India (1987 (4) SCC 566; R. S.Makashi Vs. I.M. Menon(1982 (1) SCC 379 and Wing Commander J.Kumar Vs. Union of Inda (1982 (2) SCC 116). The Honble Supreme Court referred to Para 21 of the judgment in Madhavans case ( Supra) which reads as follows:
" 21.We may examine the question from a different point of view. There is not much difference between deputation and transfer. Indeed, when a deputationist is permanently absorbed in the CBI, he is under the rules appointed on transfer. In other words, deputation may be regarded as a transfer from one government department to another. It will be against all rules of service jurisprudence, if a government servant holding a particular post is transferred to the same or an equivalent post in another government department, the period of his service in the post before his transfer is not taken into consideration in computing his seniority in the transferred post. The transfer cannot wipe out his length of service in the post from which he has been transferred. It has been observed by this Court that it is a just and wholesome principle commonly applied where persons from different sources are drafted to serve in a new service that their pre-existing total length of service in the parent department should be respected and presented by taking the same into account in determining their ranking in the new service cadre. See R. S. Mokashi v. L M. Menon (1982) 1 SCC 379 : (AIR 1982 SC 101 : 1982 Lab IC 38) Wing Commander J. Kumar v. Union of India (1982) 3 SCR 453 : (AIR 1982 SC 1064 : 1982 Lab IC 1586)."
20. Similar view had been taken by the Honble Apex Court in the cases of R. S.Makashi and Wing Commander J.Kumar (Supra) which was followed by the Honble Supreme Court in Madhavans case (supra). Applying the principle laid down in these cases, it was held that the applicant was entitled to count the service rendered by him in the post of Sub Inspector in BSF while counting service in the post of Sub Inspector (Executive) in the Delhi Police.
23. It was finally held as under:-
29. In view of the aforesaid, the respondents action in fixing the seniority w.e.f. 15.5.1996, the date on which he was absorbed in the post of UDC in the Tribunal, without taking into consideration his regular service in the same and equivalent post in the parent department is not admissible in law. We accordingly quash and set aside the impugned Memorandum dated 22.4.2009 (Annexure A-1). We further direct the respondent to fix the seniority of the applicant in the grade of UDC after taking into consideration his regular service in the equivalent post of UDC in Central Ground Water Board, i.e., his parent department. The applicant should also be considered for further promotions consequent upon revised seniority as per rules.
24. Respondents have filed additional affidavit wherein it is stated as follows:-
4. That the OA No. 48/2010 was filed by Shri Kushal Singh claiming for re-fixation of his seniority in the grade of UDC by counting his analogous service in parent department w.e.f. 6.10.1987 and to grant consequential benefits. Honble Court vide orders dated 25.1.2011 has allowed the OA with directions to re-fix the seniority in UDC grade by taking into account his regular service in equivalent grade in parent department and to consider the applicant for further promotion consequent upon such revised seniority as per rules.
5. That the orders passed by Honble Court in OA No.48/2010 are under process of implementation which needs revision of seniority list in the grade of UDC/Assistant also. However, taking into account past analogous service of the applicant in the aforesaid case, he has been promoted as Section Officer on ad hoc basis for the time being.
meaning thereby the directions given in Kushal Singh are being implemented. If that be so, respondents cannot have two different sets of rules for fixing the seniority of those who had come on deputation and were later absorbed. In Kushal Singh, respondents have already been directed to refix the seniority of applicant therein in the grade of UDC after taking into consideration his regular service in the equivalent post of UDC in his parent department. The same directions were given earlier in Anil Kumar Chaudhary and Mahender Kumar Goel also which have since been implemented, therefore, the same benefit would be available to the applicant herein also. Accordingly, this OA is allowed. Memorandum dated 6.10.2006 and revised seniority list dated 26.4.2006 are quashed and set aside. Respondents are directed to fix the seniority of the applicant as Dy. Registrar by taking into account his past service in the analogous post in his parent department, i.e., w.e.f. 1.10.1988 and give him all the consequential benefits including promotions by holding review DPCs. In case he is found fit, he should be promoted from the due date and his pay and retiral benefits also fixed accordingly. In case any arrears become payable to the applicant after the above exercise, the same shall be paid to the applicant along with a due and drawn statement within 3 months from the date of communication of this order.
25. OA is allowed. No costs.
(DR. A.K. MISHRA) (SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (A) MEMBER (J)
Rakesh