Central Administrative Tribunal - Delhi
Shri D.M.Sharma vs Union Of India on 18 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.3245 of 2009
New Delhi this the 18th day of January, 2011
Honble Mr. Shailendra Pandey, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
Shri D.M.Sharma,
Son of Late Shri Vidhya Bhushan Sharma,
Aged about 48 years,
R/o H.No.302, Type IV, Multi Storey Flat,
North West Moti Bag,
New Delhi-110021
at present employed on the post of Inspector of Police CBI, SIU-IX, SC.III, New Delhi
Applicant
(By Advocate: Shri Amit Anand)
VERSUS
Union of India
Through the Secretary to Govt. of India,
Ministry of Personnel, Public Grievances and
Pensions,
Department of Personnel and Training, North Block,
New Delhi-110 001
2. Director, Central Bureau of Investigation,
Govt. of India, Block No.3,
3rd Floor, CGO Complex, Lodhi Road,
New Delhi-110003
3. Shri P.Haldar,
Dy. SP, Economic Offences Wing, CBI,
Kolkata
4. Mrs. Jayshree Sanjeeva Rao,
Special Crime Branch (SCB), CBI,
Chennai
Respondents
(By Advocate: Shri H.K.Gangwani)
O R D E R
Dr. Dharam Paul Sharma, Member (J) The question in issue in this application is whether seniority of the applicant in the rank of Inspector is to be counted from 6.7.1993, the date on which he was absorbed in the said post after having joined as Inspector on deputation in Central Bureau of Investigation (CBI) on 15.12.1988 or from the date he held the analogous post in his parent office namely CRPF, to which he was promoted on 16.12.1991 on regular basis.
2. The claim of the applicant has been that he should be given seniority in the post of Inspector from the date he joined CBI on deputation i.e. 15.12.1988, if not, then he is entitled to seniority in this post at least from 16.12.1991 on which date he was promoted as regular Inspector in CRPF in his parent department.
3. The applicants claim as aforesaid has been opposed by the respondents on the ground, inter alia, that he is entitled to seniority in the post of Inspector in CBI from the date he was absorbed in the said post when he became member of the service of the respondents. In support of this, reliance has been placed on DOPTs OM dated 27.3.2001 which, according to the respondents, is prospective in its application. Since the applicant has been absorbed in the service of the respondents prior to the date of issue of this OM, he is not entitled to its benefit. Furthermore, the applicant is not entitled to the seniority claimed by him as the post of Inspector in CRPF is not equivalent to the post of Inspector in CBI for the reason of having lower scale than that of Inspector in CBI.
4. For better understanding and appreciation of the issue involved in the matter as aforesaid, it would be expedient to recapitulate the factual background in the context of which it has arisen for our consideration in these proceedings.
5. The applicant, having B.Com, LL.B qualifications, initially joined CRPF as Sub Inspector on 15.12.82. After having served CRPF for about 6 years in that capacity, the applicant joined CBI as Inspector on 15.12.1988 on deputation basis. He opted for the pay scale of Rs.2000-3200/- of CBI Inspector instead of deputation allowance. Vide Office Order No.161/2008 dated 5.2.2008, a copy of which is at Annexure A-3, the applicant was granted the first financial upgradation under the Assured Career Progression Scheme (ACP) w.e.f. 15.12.2000. While doing so, the applicants service with the respondents on deputation basis was taken into consideration based on which the applicant claims that his service in CBI w.e.f. 15.12.88 to 15.12.2000 be treated as regular service. In the proforma placed before the Screening Committee for consideration of grant of first financial upgradation under the ACP Scheme in respect of the applicant, he is shown to have been holding an equivalent post in his parent department at the time of his absorption in the CBI. It has been submitted by the applicant that while granting the benefits under the ACP Scheme, the complete formalities are required to be fulfilled. Accordingly, as and when the next vacancy becomes available, one would only be granted the particular rank and assigned the work of the promotional post without any benefit of pay fixation on such promotion. These conditions have specifically been mentioned in the office order whereby ACP benefits have been granted to the applicant. During his deputation period in CBI, the applicant was promoted as regular Sub Inspector in his parent department w.e.f. 16.12.91 and this information was duly conveyed by the CRPF to CBI vide their letter dated 23.10.1992. After putting on about four years of service in CBI, the applicant applied for permanent absorption in CBI on 5.10.92. After due process, the respondents issued order for absorption vide Office Order dated 15.7.1993, a copy of which is annexed as Annexure A-7. In the said absorption order, the service particulars of the applicant are stated to have been wrongly mentioned in Column No.3 that he has been Sub Inspector w.e.f. 12.12.82 whereas he should have been shown as Inspector in CRPF w.e.f. 16.12.1991 when he was promoted on regular basis in his parent department. The applicant has contended that this discrepancy led to wrong fixation of his seniority from the date of his absorption whereas as per the rules in force, his seniority ought to have been fixed w.e.f. 16.12.1991, the date on which he stood promoted as Inspector in his parent department. In support of this claim, the applicant has relied upon the judgment of the Honble Supreme Court in SI Roop Lal & Anr. Vs. L.G. through the Chief Secretary, Delhi (JT 1999 (9) SC 597). Consequent upon this judgment, the aforesaid OM dated 27.3.2001 was issued by the DOPT. The said OM, inter alia, provides that in case of a person who is initially taken on deputation and absorbed later, his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. However, if he has 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 earlier, a copy of which is at Annexure A-8. The earlier O.M. dated 29.5.1986 on the subject contained the expression whichever is later. This expression was held to be unconstitutional by the Honble Supreme Court in Roop Lals case (supra). This expression has been substituted with the expression whichever is earlier in the OM dated 27.3.2001 which has been issued pursuant to the Honble Supreme Courts judgment in Roop Lals case (supra). The instructions contained in this O.M. have been made effective from 14.12.1999 which is the date of judgment of the Honble Supreme Court referred to above.
6. Para 4 of the said OM dated 27.3.2001 thus prescribed its effective date as 14.12.1999 being the date of judgment in SI Roop Lals case (Supra). The said Para 4 was, however, declared as unconstitutional by the Division Bench of this Tribunal in OA No.2103/2005 and OA No.2104/2005 in the matter of Jaibir Singh & others Vs. Union of India & Ors. Since then there have been a number of Orders of this Tribunal allowing benefit of analogous post in the parent department in the matter of fixation of seniority. Accordingly, seniority in such cases is to be reckoned from the date of holding equivalent grade in parent department and not from the date of his absorption. The applicant has referred to the case of one Shri S.D. Sharma who also belonged to CRPF and also absorbed in CBI vide order dated 15.7.1993 by which the applicant has also been absorbed. It has been pointed out that Shri S.D .Sharma was given seniority from 25.6.90 which was the date of his promotion to the rank of Inspector in his parent department on analogous/equivalent post of Inspector. The applicant has also referred the cases of other persons; namely S/Shri D.S. Dagar, M.S.Hazari, S.K.Tripathi, N.R.Nair, P.Haldar, Ms. Jayshree S. Rao and A. Lazarus who have been given seniority in the similar circumstances. However, the applicant has been denied the same benefits which were accorded to the persons referred to above.
7. The applicant thereupon made a representation requesting for assigning him correct seniority but the same did not find favour with the respondents and his seniority continued to be fixed from the date of his absorption. The respondents issued a seniority list on 16.2.2009 in respect of Inspector CBI as on 31.12.2008 where the name of the applicant was shown at Serial No.12 maintaining his seniority from the date of absorption. While the applicant was feeling aggrieved on account of his incorrect fixation of his seniority as aforesaid, he was issued another show cause notice on 13.5.2009, a copy of which is at Annexure A-12 calling upon him to show cause as to why he should not be placed below the Inspectors promoted as such in CBI before his absorption. The applicant replied to this show cause notice vide letter dated 8.7.2009, a copy of which is at Annexure A-13. The applicant made a further representation to the Secretary, DOPT through proper channel on 11.8.2009 seeking correct seniority. A copy of this representation is at Annexure A-14. Upon examination of the applicants representation, the respondents passed Office Order dated 31.7.1990 on the basis of their finding that the seniority of the applicant on absorption in CBI was correctly fixed on 6.7.1993 i.e. the date of his absorption as Inspector in CBI but insertion of his name at Sl. No.12 in the seniority list as on 31.12.2008 was wrong and consequently, his name was shifted from Serial No.12 to Serial No.31 (A) i.e. between the names of Shri K.Panchaksharan Sl. No.32 since retired on 28.2.2009 and S.P.Kundan, Sl. No.33, since retired on 31.3.2009. While passing the said Order, the respondents have observed that as per the provisions in the Recruitment Rules, when a person is appointed by absorption in accordance with the provisions in the Recruitment Rules providing for such absorption in the event of non-availability of suitable candidate by direct recruitment or promotion, such absorbee shall be grouped with direct recruits or promotees, as the case may be. He shall be ranked below all direct recruits or promotees, as the case may be, selected on the same occasion. Therefore, the applicant could not be placed above promotee Inspector in the year 1993. It has further been observed that the applicant was not holding equivalent grade/post to the post of Inspector in CBI in his parent department i.e. CRPF at the time of his absorption in CBI i.e. 6.7.1993 because at the relevant time, the pay scale of Inspector/CPOs was Rs.1640-2990 where as the pay scale of Inspector, CBI was Rs.2300-3200, which was not equivalent/analogous to the post of Inspector, CBI. It has further been observed in this order that DOPT OM dated 27.3.2001 is effective from 14.12.1999 only and as such it is not applicable in the case of the applicant as his case of absorption is of 1993. Feeling aggrieved of this order, the applicant has filed the present application challenging the correctness and legality of the impugned order dated 31.7.2009 as at Annexure A-1, seeking direction for the respondent to assign due seniority to him in the post of Inspector CBI either from the date of deputation i.e. 15.12.1988 or at least from the date of holding analogous post in his parent department i.e. 16.12.1991. The grievance of the applicant has been further confounded as his juniors have stolen march over him as a result of incorrect fixation of his seniority. Accordingly, the applicant seeks direction for considering him for further promotion at par with his immediate junior. Two of the affected persons are impleaded as party respondents in representative capacity since there are large number of such persons. However, neither these two nor anyone else entered appearance.
8. In support of his claim, the applicant has taken a number of grounds in his application. It has thus been, inter alia, contended that the applicant was holding the post of Inspector in CRPF from 16.12.1991 at the time of his absorption as Inspector in CBI on 6.7.1993. The post of Inspector in CRPF is equivalent to the post of Inspector in CBI. The applicant is, therefore, entitled for assignment of seniority on the post of Inspector in CBI from the date he was holding the equivalent/analogous post of Inspector in his parent department i.e. CRPF. It has further been contended that the OM dated 27.3.2001 would apply to the case of the applicant in its true spirit and intent. Since para 4 of the said OM has been struck down to the extent that the instructions contained in the said O.M. are effective from 14.12.1999, the said OM has to be applied retrospectively. As such the ratio of SI Roop Lals case (supra) would apply to the case of applicant on all fours. A judgment is always retrospective until said to be prospective. A law cannot be said to be good for some time and bad for other time. In other words, law would be either good or bad but for all times and it cannot be said to be good till it is so declared and bad after such declaration. It has been vehemently contended that the applicant has been given discriminatory treatment in the employment in as much other similarly situated persons were assigned seniority from the dates they were holding equivalent post and by treating the post of Inspector in CRPF/CISF as equivalent to the post of Inspector in CBI but the same has been denied to the applicant. The classification sought to be made in the case of applicant is without any intelligible differentia and having no nexus with the object sought to be achieved thereby. The applicant has been superseded by a number of his juniors and has been denied consideration for his promotion as a result of which there has been infringement of his fundamental right as enshrined under Article 16 of the Constitution. The applicants representation in the matter has been turned down arbitrarily in a stereotyped manner. The impugned orders of the respondents are not sustainable in law.
9. In reply, the respondents have opposed the applicants contentions, referred to above. It has been submitted that the applicant cannot be said to have been working in equivalent post for the reason the post of Inspector in the applicants parent office has been in the scale of Rs.1640-2900 as against the post of Inspector in CBI carries the pay scale of Rs.2000-3200. The seniority of the applicant has been fixed in accordance with the instructions contained in DOPT OM dated 29.5.1986, according to which seniority of a person, who is initially taken on deputation and absorbed later on, is normally counted from the date of absorption. However, if he is already holding the same or equivalent post in his parent department at the time of his absorption on regular basis, the seniority will be given to him from the date he has been holding the post on deputation or the date from which he has been appointed on regular basis to the same or equivalent post in his parent department, whichever is later. The expression whichever is later has been struck down by the Honble Supreme Court in SI Roop Lals case (supra). Thereupon, the expression whichever is later is substituted with the expression whichever is earlier. This change has, however, been made effective from 14.12.1999 i.e. on the date of judgment in SI Roop Lals case (supra) vide DOPT OM dated 27.3.200. Since the case of the applicant is of 1993, the OM dated 27.3.2001 is not applicable to him. The seniority of the applicant on his absorption in CBI has been correctly fixed w.e.f. 6.7.1993 the date of his absorption as Inspector in CBI as per rule. The reliance placed by the applicant on the cases of S/Shri M.S.Hazari, S.K.Tripathi, N.R.Nair, P.Haldar, and Ms. Jayshree S. Rao, all the then Inspectors, now Deputy S.P. , were permanently absorbed in CBI w.e.f. 31.08.2000 and accordingly their seniority has been fixed in the rank of Inspector as per DOPT OM dated 27.3.2001. However, in so far as the case of Shri S.D.Sharma is concerned, he was given seniority by mistake since he has retired on superannuation. No further action has to be taken. Another Inspector, namely Shri A. Lazarus was reverted to the post of Inspector w.e.f. 2009. Accordingly, it has been submitted that the application is devoid of substance and is liable to be dismissed as such.
10. We have given our careful consideration to the submissions of both the parties. We have also carefully perused the records of the case.
11. Two questions arise for our consideration:
i) Whether the applicant is entitled to count his service rendered by him as Inspector in CRPF for the purpose of his seniority after absorption as Inspector in CBI?
ii) Whether the post of Inspector in CRPF and the post in CBI are equivalent posts?
12. The question as to reckoning of past service in equivalent post in the parent department for determining seniority in the transferred post, it 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. The Honble Court expressed the opinion 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 cases 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)."
13. Similar view had been taken by the Honble Apex Court in the cases of R. S.Makashi and Wing Commander J.Kumar (Supra) which judgments have been followed by the Honble Supreme Court in Madhavans case (supra). Applying the principle laid down in these cases, it has been 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. The Court then proceeded to deal with the OM in question, the relevant para of which reads as follows:
"Even in the type of cases mentioned above, that is, where an officer initially comes on deputation and is subsequently absorbed, the normal principles that the seniority should be counted from the date of such absorption, should mainly apply. Where, however, the officer has already been holding on the date of absorption in the same or equivalent grade on regular basis in his parent department, it would be equitable and appropriate that such regular service in the grade should also be taken into account in determining his seniority subject only to the condition that at the most it would be only from the date of deputation to the grade in which absorption is being made. It has also to be ensured that the fixation of seniority of a transferee in accordance with the above principle will not effect any regular promotions made prior to the date of absorption. Accordingly it has been decided to add the following sub-para (iv) to para 7 of general principles communicated vide O.M. dated 22nd December, 1959.
"(iv) 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 date of absorption. If he has so ever, 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."
(Emphasis supplied) A perusal of clause (iv) of the Memorandum shows that the author of this Memorandum has taken inconsistent views in regard to the right of a deputationist to count his seniority in the parent department. While in the beginning part of Clause (iv) in clear terms he says that if a deputationist holds an equivalent grade on regular basis in the parent department, such regular service in the grade shall also be taken into account in fixing the seniority. In the latter part the author proceeds to say "subject to the condition that he will be given seniority from the date he has been holding the post 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."
14. With regard to the aforesaid specific expression whichever is later, the Honble Court observed as follows:
The use of the words "whichever is later" negatives the right which was otherwise sought to be conferred under the previous paragraph of Clause (iv) of the Memorandum. We are unable to see the logic behind this. The use of the words "whichever is later" being unreasonable, it offends Art.14 of the Constitution. It is also argued on behalf of the appellants that this Memorandum is further violative of Arts. 14 and 16 of the Constitution inasmuch as it arbitrarily takes away the service rendered by the deputationist when he is absorbed in Delhi Police which right of a civil servant cannot be taken away without authority of law. We have noticed earlier that the petitioners who are the appellants in the civil appeals, were regularly appointed as Sub-Inspectors in the BSF on the date of their deputation. We have also accepted the fact that the post of Sub-Inspector held by them in the BSF is equivalent to the post of Sub-Inspector (Executive) in the Delhi Police to which they stood deputed. That being the case, in view of the judgment in the cases of R.S. Mokashi (AIR 1982 SC 101 : 1982 Lab IC 38), Wing Commander J. Kumar (AIR 1982 SC 1064 : 1982 Lab IC 1586) and Madhavan, AIR 1987 SC 2291 : (1988 Lab IC 26) (supra), it is clear that they are entitled to count the service rendered by them in the post of Sub-Inspector in the BSF for the purpose of seniority in the cadre of Sub-Inspector (Executive) in Delhi Police. Therefore, such a right of the petitioners/appellants could not have been taken away in the garb of an Office Memorandum which is impugned in the above writ petition.
15. Relying upon the case of K.Anjaiah Vs. K. Chandraiah (1998(3) SCC 218) involving statutory regulation which was in almost similar terms used in the Office Memorandum with which we are concerned, the Honble Supreme Court observed as follows:-
24. It is clear from the ratio laid down in the above case that any Rule, Regulation or Executive Instruction which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Arts. 14 and 16 of the Constitution. Hence, liable to be struck down. Since the impugned Memorandum in its entirety does not take away the above right of the deputationists and by striking down the offending part of the Memorandum, as has been prayed in the writ petition, the rights of the appellants could be preserved, we agree with the prayer of the petitioners/appellants and the offending words in the Memorandum "whichever is later" are held to be violative of Arts. 14 and 16 of the Constitution, hence, those words are quashed from the text of the impugned Memorandum. Consequently, the right of the petitioners/appellants to count their service from the date of their regular appointment in the post of Sub-Inspector in BSF, while computing their seniority in the cadre of Sub-Inspector (Executive) in the Delhi Police, is restored.
16. Consequent upon the judgment in SI Roop Lals case (supra), the Office Memorandum dated May 29, 1986 was amended vide Office Memorandum dated March, 27,2001 whereby the expression whichever is later was substituted by expression whichever is earlier w.e.f. December, 14,1999 which was the date of judgment of the Honble Supreme Court, referred to above. The validity of this came up for consideration of this Tribunal Umesh Singh Vs. UOI & Ors., in OA-2174/2001, whereby, vide Order dated 04.04.2002, it was ruled that the judgment of the Honble Apex Court would not be prospective as the wordswhichever is later were found to be violative of Articles 14 and 16 of Constitution from the very inception i.e., 29.5.1986, the date of issuance of the OM in question. As such, the decision to apply the ratio of the judgment in SI Roop Lals case (supra) prospectively was held to be unconstitutional. This was followed in the case of Sanyukta Arjuna Vs. Union of India & Ors. (OA-1180/2002) wherein vide Order dated 01.01.2003, para 4 of O.M. dated 27.3.2001 specifying 14.12.199 as the date from which the instructions contained therein would take effect, was declared ultra vires and quashed accordingly.
17. The same question came up for consideration in the case of T.N.Malhotra Vs. Election Commission of India & Anr. (OA No.1138/2004). While allowing the OA, a Coordinate Bench of this Tribunal vide Order dated 10.5.2005 has observed as follows:
The words whichever is later are held violative of Articles 14 and 16 of the Constitution of India and were quashed. Consequently, it shall be deemed that these words were illegal, invalid and void ab initio. On the same principle on which those words were held ultra vires of Articles 14 and 16 of the Constitution, the words whichever is earlier have to be held ultra vires of Articles 14 and 16 of the Constitutionand they are invalid and illegal. As a result fixing cut off date of 14.12.1999 for granting benefit accruing from the judgment of Honble Supreme Court in S.I. Roop Lals Case (Supra) is illegal and cannot be given effect to.
In view of this, the OM dated 27.3.2001 so far as it has substituted the term whichever is later with the word whichever is earlier and has made the OM applicable w.e.f. 14.12.1999 is no more available to the respondents as a defence to the claim of the applicant.
18. This question again came up for consideration in a bunch of applications in the case of Jaibir Singh & Ors. Vs. Union of India & Ors. (OA No.2103/2005 and OA No.2104/2005). In this case, it was, inter alia, contended by the respondents that when question had been examined by the Ministry of Home Affairs, it vide their letter dated 18.8.2004 clarified to the respondents/Commissioner of Delhi Police that the directions of this Tribunal in the case of Sanyukta Arjuna (supra) were case specific and cannot be said to be the law of the land and advised to take action in view of the instructions contained in OM dated 27.03.2001 which was challenged in the applications referred to above. While allowing the applications vide its order dated 09.12.2005, this Tribunal referred to above and relied upon the following observations made earlier in the case of Umesh Singh (Supra):-
5. From the perusal of the reply, we find that the respondents have admitted that the Honble Apex Court had held that the words whichever is later appearing in the OM dated 29.5.86 are violative of Articles 14 and 16 of the Constitution. So the effect of the same will be as if the word whichever is later were not there in the OM dated 29.5.86. It cannot be said that the judgment of the Honble Apex Court is prospective and will be applicable only from the date of the judgment because if the word whichever is later is violative of Articles 14 and 16 of the Constitution then the same are violative of Articles 14 and 16 right from the date the same were incorporated, i.e. from 29.5.1986 and hence it cannot be said that the same are not violative till 14.12.1999. So the reasoning adopted by the DOPT that the amended OM is to be applied only from 14.12.99 cannot stand and it has to be read as if the words whichever is later did not exist in the OM dated 29.5.1986. So in the case of applicants also, these words whichever is latter did not exist in the OM, as such the applicants are entitled to count their past service rendered in their respective department for the purpose of counting their seniority. Thus, we find that the OA deserves to be allowed.
19. The same was followed in the subsequent cases of Sanyukta Arjunas case (supra) and T.N.Malhotra (supra) by this Tribunal.
20. It may be noted in this regard that the respondents did not file a detailed reply to the applications in Jaibir Singhs case (Supra) and the matter was disposed of with the consent of both the parties. Accordingly, the matter was remanded back to the respondents to determine the seniority of the applicants reckoning the past service rendered by them from the date of their regular appointment in the parent department. However, the respondents took a U turn and filed a review application pleading that they were prevented from filing a detailed reply and had they filed a detailed reply, the decision of the OA would have been something other than what had been observed in the case. This plea did not find favour with the Tribunal, which rejected the application vide order dated 28.2.2006.
21. We have come across another order of the Co-ordinate Bench of this Tribunal (Honble Mr. Justice V.K.Bali, Chairman and Honble Mr. L.K.Joshi, Vice Chairman (A) in Anil Kumar Choudhary and Anrs. Vs. Union of India & Ors. (OA-944/2006, decided on 11.8.2009) wherein the grievance of the applicants was that while absorbing them in the Intelligence Bureau, their claim for consideration of their services in equivalent grade in the erstwhile parent department i.e. Central Industrial Security Force (CISF)(the third respondent in that OA) was rejected on the ground that they were absorbed in the year 1997 while the instructions for counting of the services in equivalent grade in the parent department became applicable w.e.f. 14.12.1999 vide Department of Personnel and Training Do P & T) OM dated 27.03.2001. The representation of the first applicant was rejected by the second Respondent vide letter dated 30.10.2003 stating that the instructions contained in the DoP&T OM dated 27.03.2001 were effective only from 14.12.1999 as mentioned in paragraph 4 of the OM and it would not apply to the first applicant as he was absorbed w.e.f. 30.04.1992 (wrongly mentioned as 30.04.1992 but the correct date which was not contested was 27.04.1997. While allowing the OA, the first and the second respondents were directed to assign to the applicants seniority after reckoning the entire period they had served in their parent cadre, i.e. the third respondent in the equivalent grade as S.I. on regular basis. It would be relevant to note in this regard that the aforesaid order of the Tribunal was appealed against by the Union of India in Writ Petition (C ) No.13819/2009 in the matter of Union of India and Anr. Vs. Anil Kumar Choudhar yand Ors. While dismissing the said petition vide its judgment dated 14.12.2009 a Division Bench of Honble Delhi High Court made the following observations in Para 14 of the judgment which reads as follows:-
14. The declaration of the law by the Supreme Court in S.I Roop Lal (Supra) could not have been restricted in its application only w.e.f. 14.12.1999. When the Supreme Court declares the law, it declares the law as it has always been. Unless the Supreme Court decides to restrict the effect of its declaration prospectively, the said declaration cannot be given only prospective effect. Therefore, the O.M. dated 29.05.1986 would have to be read with the substituted words whichever is earlier and given effect to even in respect of cases of absorption which took place prior to the judgment of the Supreme Court being rendered. The ratio of the said decision in S.I. Roop Lal (supra) would have application to the case of the respondent Nos.1 & 2, even if it were to be assumed that they were validly absorbed in the year,1997 as contended by the petitioners or in 1999, when the NOC were issued by CISF. For this reason as well, we are of the opinion that the action of the respondents in denying seniority to respondent Nos.1 & 2 by not counting their service rendered in the grade of S.I. (Executive) in CISF was erroneous.
22. A careful consideration of the cases, referred to above, clearly reveals that the view which has consistently been judicially taken on the question under consideration, has been that the services rendered by the deputationist in the equivalent cadre in the parent department cannot be totally wiped out or otherwise taken away. The OM dated 29.5.1986 which sought to take away this benefit by use of expression whichever is later with regard to the date on which one has been holding the post on deputation on one hand or the date from which one has been holding the post in the parent department on regular basis on the other, was held to be unreasonable offending the provisions of Articles 14 and 16 of the Constitution. Such a vitiating effect was sought to be avoided by substituting the expression whichever is later with the expression whichever is earlier by issuance of OM dated 27.3.2001. However, by confining the applicability of the OM dated 27.3.2001 to 14.12.1999, the date of judgment in S.I. Roop Lals Case (Supra), the said OM exposes itself to the same vitiating element that rendered the expression whichever is earlier in OM dated 29.5.1986 as bad for it too operates so as not to take into account the service rendered by the deputationist in the equivalent cadre in his parent department prior to 14.12.1999. What needs to be seen in such cases is whether the effect of any rule, regulations and instructions leads to taking away the services rendered by a deputationist in an equivalent cadre in the parent department. If the effect is such, which has already rendered the earlier corresponding norm bad in law, the validity of the revised/subsequent norm will also have to be tested on the touchstone on the same principle irrespective of the mode, was brought about. Even at the cost of repetition, it is expedient to reiterate is that what needs to be kept in mind is the ratio laid down by the Honble Apex Court in S.I. Roop Lals Case (Supra) to the effect that any rule, regulation or executive instructions which have the effect of taking away the service rendered by the deputationist in an equivalent cadre in the parent department while counting while counting his service rendered by him in the parent department would be violative of Articles 14 and 16 of the Constitution and hence liable to be struck down. Since the Memorandum in that case in its entirety did not take away the right of the deputationist, the Honble Court proceeded to strike down the offending wordswhichever is later being violative of Articles 14 and 16 of the Constitution and accordingly quashed the aforesaid words in the impugned OM. On the same analogy, the instructions contained in para 4 of OM 29.5.1986 confining the applicability of the revised OM dated 27.3.2001 from 14.12.1999 onwards is liable to be quashed and set aside for the reason that it seeks to discount the service rendered by the deputationist in the parent department which cannot be approved as sustainable in law in view of the Honble Apex Courts judgment in S.I. Roop Lals Case (Supra). However, this can be avoided by interpreting the OM dated 29.5.1986 in the manner it has been done by the Honble Delhi High Court as aforesaid to the effect that the O.M. dated 29.05.1986 would have to be read with the substituted words whichever is earlier and given effect to even in respect of cases of absorption which took place before the judgment of the Supreme Court being rendered.
23. In view of the aforesaid, the contention of the respondents that the applicant cannot be given benefits of service rendered by him in an equivalent cadre in the parent department for the reason that he was absorbed in the services of the respondents before the date on which the OM dated 27.3.2001 became available, is not sustainable and the same is accordingly rejected.
24. The question which remains for consideration now is whether the applicant can be said to have served in an equivalent post in his parent department. The stand of the respondents in this regard has been that the applicant has not been holding the equivalent post in the parent department as the pay scale for the post of Inspector in CRPF was lower to the pay scale of Inspector in CBI. The applicant, on the other hand, strongly contended that the pay scale alone is not decisive of the question as to whether two posts are equivalent or not. A number of factors have to be taken into consideration for determining equivalence of two posts as has been mentioned by the Honble Supreme Court in the case of S.I. Roop Lal (Supra) and if that is done, the two posts would be equivalent to each other. Besides, the respondents themselves have extended the benefits claimed by the applicant herein to other persons who were similarly placed having joined the CBI from CRPF and, therefore, they cannot take a contradictory stand in the case of the applicant in the same set of circumstances. We find force in the contention of the applicant.
25. The same question was before the Honble Supreme Court in S.I. Roop Lals Case (Supra) where the appellants who were Sub-Inspectors in BSF and later on transferred as Sub Inspectors (Executive) in Delhi Police on deputation basis, claimed, on being permanently absorbed on transfer post, counting of their services in the BSF in the cadre of Sub Inspectors in Delhi Police. The claim of the appellants had been denied for the reason that the pay scales of two posts i.e. Sub Inspector in BSF and SI (Exe) in Delhi Police were not the same. It would be expedient to refer in this regard paras 17 and 18 of the judgment in S.I. Roop Lals Case (Supra) which read as follows:-
17. In law, it is necessary that if the previous service of a transferred official is to be counted for seniority in the transferred post then the two posts should be equivalent. One of the objections raised by the respondents in this case as well as in the earlier case of Antony Mathew is that the post of a Sub-Inspector in the BSF is not equivalent to the post of a Sub-Inspector (Executive) in Delhi Police. This argument is solely based on the fact that the pay-scales of the two posts are not equal. Though the original Bench of the tribunal rejected this argument of the respondent, which was confirmed at the stage of SLP by this Court, this argument found favour with the subsequent Bench of the same tribunal whose order is in appeal before us in these cases. Hence, we will proceed to deal with this argument now. Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than 'Pay' will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India v. P. K. Roy (1968) 2 SCR 186 : (AIR 1968 SC 850). In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganisation Act, 1956. These four factors are (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post; the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criterion. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different, would not in any way make the post 'not equivalent'. In the instant case, it is not the case of the respondents that the first three criteria mentioned hereinabove are in any manner different between the two posts concerned. Therefore, it should be held that the view taken by the tribunal in the impugned order that the two posts of Sub-Inspector in the BSF and the Sub-Inspector (Executive) in Delhi Police are not equivalent merely on the ground that the two posts did not carry the same pay-scale, is necessarily to be rejected. We are further supported in this view of ours by another judgment of this Court in the case of Vice-Chancellor, L. N. Mithila University v. Dayanand Jha (1986) 3 SCC 7: (AIR 1986 SC 1200) wherein at para 8 of the judgment, this Court held : "Learned counsel for the respondent is therefore right in contending that equivalence of the pay-scale is not the only factor in judging whether the post of Principal and that of Reader are equivalent posts. We are inclined to agree with him that the real criterion to adopt is whether they could be regarded of equal status and responsibility ... The true criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts."
18. Therefore, in our opinion, the finding of the tribunal that the posts of Sub-Inspector in the BSF and Sub-Inspector (Executive) in Delhi Police are not equivalent, is erroneous, and the same is liable to be set aside.
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.
27. In the facts and circumstances of the case, and the reasons stated above, the impugned order dated 31.7.2009 (Annexure A-1) is quashed and set aside. The respondents are directed to assign to the applicants seniority after reckoning the entire period of service he had in his parent department in the equivalent grade of Inspector on regular basis. The applicant shall be entitled to all consequential benefits including promotion if and when due under the applicable rules at par with his immediate junior. The impugned order dated 9.1.2009 (Annexure A-2) shall be modified by the respondents accordingly.
28. The OA is accordingly allowed. No order as to costs.
(Dr. Dharam Paul Sharma) (Shailendra Pandey) Member(J) Member(A) /usha/