Central Administrative Tribunal - Delhi
Smt. Suman Shukla vs Govt. Of Nct Of Delhi on 31 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.1660/2012 MA 1009/2013 New Delhi this the 31st day of May, 2013 Honble Mr. A.K.Bhardwaj, Member (J) Honble Mr. Shekhar Agarwal, Member (A) 1. Smt. Suman Shukla, w/o Shri A.K.Shukla, R/o 5, M-3, Street, IIT, Hauz Khas, New Delhi. 2. Smt. Anshu Garg, w/o Dr. Onkar Mittal, R/o 184, Pocket-B, Sukhdev Vihar, New Delhi. 3. Shri Arun Tandon, S/o Shri M.D.Tandon, R/o 2845, Gali No 5, R P II, Gandhi Nagar, Delhi. 4. Smt. Sneh Dutt, S/o Shri M.S.Dutt, R/o C-550, Sarita Vihar, New Delhi. 5. Smt. Saroj Gupta, w/o Late Shri Mahesh Kumar, R/o K-1/40, Model Town, Delhi-110009 6. Ms. Anita Rani Sharma, W/o Shri Anand Sharma, R/o N-575, Sector-25, Noida, Gautam Budh Nagar, U.P. 7. Shri Harish Kumar Sharma, S/o Shri B N Sharma, R/o WZ-1598, G/IF, Nangal Raya, New Delhi-110046 8. Smt. Anjli Tyagi, D/o Shri U.Tyagi, R/o 1466, Sector-A, Pocket B, Vasant Kunj, New Delhi-110070 9. Smt Archna, W/o Shri Nathuram, R/o 150, Dayanand Vihar, Delhi-110091 10. Ms Meera, W/o Shri Kehari Singh, R/o Oucket-13, House No.25, Sector 20, Rohini, Delhi-86 11. Smt. Amarjeet Kaur, W/o Shri I P S Bhatia, R/o R-300, Ground Floor, Greater Kailash, Part-1, New Delhi-48 12. Smt. Priya Chaudhary W/o Shri S.K.Chaudhary, R/o G-3995, Shiv Mandir Road, Swaroop Nagar, New Delhi. 13. Shri Narender Kumar, S/o Late Shri Kishori Lal Verma, R/o R-9/137, Raj Nagar, Ghaziabad ( U.P). 14. Sh. Sylvesster Kujur, S/o Shri Simon Kujur, R/o RZ-31, F Block, Sitapur Part-II, New Delhi-110045 15. Smt Bimla Devi W/o Ashok Kumar R/o A-52, First Floor, Shankar Garden, Vikaspuri, New Delhi-18 . Applicants (By Advocate Shri C.Hari Shankar ) VERSUS 1. Govt. of NCT of Delhi Through the Chief Secretary, 5th Floor, Delhi Sachivalaya, New Delhi. 2. The Secretary (Services), GNCT of Delhi B Wing, 7th Level, Delhi Secretariat, I.P.Estate, New Delhi. 3. The Secretary, Urban Development Department, GNCT of Delhi, C Wing, 8th Level, Delhi Sachivalaya, New Delhi. 4. The Secretary, Social Welfare Department, GNCT of Delhi, GLNS, New Delhi Complex Delhi Gate, New Delhi-110001 5. Shri I A Khan, Inspactor VAT, (Through VATO, Admn.), Department of Trade and Taxes, Vyapaar Bhawan, I.P.Estate, Delhi-110002 6. Shri Ganesh Chand Bhatt Grade-II/DASS, Department of Drug Control, F-17, Karkardooma, Delhi-92 7. Shri Lachman, Inspector, Food and Civil Supplies, Office of the Asstt. Commissioner (Admn.), Department of Food and Civil Supplies, K-Block, Vikas Bhawan, IP Estate, Delhi-110002 8. Shri Vinod Tyagi, Inspector/Grade-II, Department of Industries, 419, F.I.E. Udyog Sadan, Patparganj Industrial Area, Delhi-110092 9. Shri Janardhan Prasad, Grade-II, DASS, Department of Urban Development, 9th Level, Delhi Sectt., IP Estate, Delhi-110002 . Respondents (By Advocate: Shri N.K.Singh for Mrs. Avnish Ahlawat counsel for respondent Nos 1 to 4 and Ms. Jyoti Singh, counsel for respondent Nos 5 to 9 ) O R D E R Honble Mr. A.K.Bhardwaj, Member (J):
As alluded in the Original Application and also by Shri C.Hari Shankar, counsel for applicants, during the course of hearing, applicants were initially appointed on different dates as Assistant Project Officer (APO) on a consolidated salary in the Urban Basic Service Programme (UBSP) directly on contractual basis. The consolidated emoluments were to be paid out of the funds placed at the disposal of UBSP by UNICEF. The contractual appointment was on yearly basis. Vide Circular No. 343(126)/90/UD/UBS/748-53 dated 15.01.2004, Government of NCT of Delhi (Department of Urban Development) circulated the seniority list of APO including the applicants and private respondents. For easy reference, the list is extracted hereinbelow:-
Seniority list of Assistant Project Officers S.No. Name of the APO Date of Birth DOJ/Date of regularization
1. Smt. Eva Singh 31.01.1960 08.05.1987
2. Smt. Anshu Garg 29.04.1962 01.05.1987
3. Sh. Arun Tandan 01.01.1963 11.06.1987
4. Smt. Suman Shukla 17.10.1961 07.07.1987
5. Smt. Priya Chaudhary 11.01.1963 01.07.1988
6. Smt.Bimla Devi (SC) 10.01.1960 01.07.1988
7. Sh.Intikhab Ahmed Khan 06.04.1964 01.07.1988
8. Smt. Anita Rani Sharma 12.11.1966 01.07.1988
9. Smt.Amarjeet Kaur Bhatia 22.03.1960 08.07.1988
10. Smt. Sneh Dutt 20.01.1958 05.07.1988
11. Smt. Saroj Gupta 26.06.1960 04.07.1988
12. Smt. Meera (SC) 06.12.1960 07.07.1988
13. Sh. Narender Kumar 15.04.1960 24.07.1990
14. Smt. Anjli Tyagi 16.08.1961 05.08.1991
15. Sh. Manveer Singh 19.07.1963 05.08.1991
16. Shr. Ganesh Chand Bhatt 02.04.1965 02.08.1991
17. Ms. Archana (SC) 06.04.1962 05.08.1991
18. Sh. Lachhman (SC) 21.02.1963 05.08.1991
19. Sh. Sylvester Kujur (ST) 17.11.1958 12.08.1991
20. Sh.Harish Kumar Sharma 05.01.1966 10.05.1994
21. Sh. Vinod Kumar 02.01.1962 10.05.1994
22. Sh. Janardhan Prasad 21.06.1963 09.05.1994
2. The position of the applicants herein in the list is at serial nos. 4, 2, 3, 10, 11, 8, 14, 17, 12, 9, 5, 13, 19 and 6 while the same of respondent nos. 5 to 9 is at serial no. 7, 16, 18, 21 and 22. Thus, it cannot be stated that all the applicants are senior to respondent nos. 5 to 9. Subsequently, on the recommendations of the DPC, the Principal Secretary (UD) regularized the services of all the APOs mentioned in the aforementioned list except Sh. Janardhan Prasad, i.e. respondent No. 9. An order No. 343(126)/90/UD/UBS/ 1927-36 to this effect was issued on 06.02.2004 (Annexure A-5). As can be gathered from the background note of the meeting held at 3.00 P.M. on 16.03.2005 under the Chairmanship of Chief Secretary, Delhi regarding Urban Basic Services Programme (Annexure A-6), in a plan review meeting held on 28.02.2004 under the Chairmanship of Chief Secretary, it had been decided that an impact assessment study of the UBS Programme might be conducted at the earliest so as to facilitate the decision for transfer of the Scheme along with staff to the Social Welfare Department or any other suitable Department/Agency. The issue of transfer of UB Scheme and staff was raised in the Chief Secretarys review meeting by Planning Department keeping in view the fact that no other activity of the UBS Programme except crhches was being implemented by the UD Department and the staff employed for the purpose was being utilized for the routine work in the Department. In a meeting held on 14.07.2004 chaired by the Principal Secretary (UD), the issue of transfer/utilization of the UBS staff was discussed in the backdrop of the decision of the review meeting held under the Chairmanship of Chief Secretary and it could be decided to constitute a Committee under the Chairmanship of Director (Social Welfare) to find out a feasible mechanism (solution) for transfer of the Scheme/staff of the UBS Programme. The Committee so constituted met on 31.07.2004 and decided to conduct an impact assessment study in the first instance before taking a final decision in the matter and the Planning department was requested to conduct the study vide letter dated 9.09.2004 of UD Department. The Evaluation Unit of the Planning Department conducted the study of the UBS Programme and submitted a report that no other activity of the UBS Programme was being executed on the ground for previous 2-3 years except 89 creches/pre school centres. In the meeting of the Committee constituted under the Chairmanship of Director, Social Welfare, it could be observed that the department was not enthusiastic in taking over the UBS Programme and to absorb/ accept UBS staff. Having an apprehension of future complications of seniority/promotion prospects for their employees vis-`-vis UBS staff as such absorption normally lead to seniority and promotion dispute. Nevertheless it could be noticed that APOs in the pay scale of Rs.5000-8000 working under UBS programme being well qualified, i.e. possessing the qualification like MSW, MA (Sociology/Psychology and other related subjects) for urban community services/welfare programme were not to be utilized for routine clerical work. The worry of UBS staff regarding their fate was also noticed in the aforementioned note and finally it was suggested that UBS programme along with staff might be transferred to Social Welfare Department. Shri Harish Kumar Sharma (applicant No.7) sent a letter dated 18.05.2005 to the Chief Secretary, Govt. of NCT of Delhi expressing his gratitude for the keen interest taken in employment and career prospects of the Assistant Project Officers. In the said representation, he espoused that there was no justification in retaining the staff either partly/fully by the Urban Development Department, thus a uniform decision could be taken in respect of all the APOs. Such representation was also made by the applicant No.15 (Annexure A-7 collectively). In a meeting held on 11.05.2005 at 3.00 PM under the Chairmanship of Chief Secretary, Govt. of NCT of Delhi, a decision was taken as under:-
i. The following staff of the UBS will be transferred to the Social Welfare Department:-
a. Project Director 01
b. Project Officer All 05
c. Asstt. Project Officer 13
d. Enumerators 04
e. Driver 02
ii) The remaining staff of the UBS will continue to work in the UD Department.
iii) Director (Social Welfare) will utilize this staff to the best possible extent keeping in view their qualification and experience. Some ex-cadre posts may also be created in due course for providing them incentive of promotion. However, on creation of such ex-cadre posts for their promotion, the resulting vacancy of their original status will not be filled up by Social Welfare Department. Some Refresher Training Courses may also be organized for these UBS officers so as to make them well acquainted with the new job and assignment in the Social Welfare Department.
iv) The officers of the Social Welfare Department and UD Department will sort out this issue of transfer before 31st May, 2005 and this transfer will be physically implemented positively with effect from Ist June, 2005
v) Director (Social Welfare) will approach Finance (Budget) Department for allocation of budget at their disposal out of sanctioned budget for UBS in the current year in proportion to the transfer of staff to the Department.
vi) Secretary (AR) will move a proposal for creation of a Surplus Cell in the Govt. of Delhi on the same pattern as already functioning in the Govt. of India. All surplus staff being identified/declared in any Department of Delhi Govt. will be transferred to the Surplus Cell and their absorption will be made against the vacancies in different Departments of the Govt. keeping in view the requisite qualification and experience prescribed in the Recruitment Rules for the post for which vacancies arises. However, in case of non-absorption of the surplus staff within the prescribed period of six months, such staff will stand compulsory retired from the Govt. Service. AR Department will submit complete proposal to the Services Department for approval of the Government at the earliest. As a result, Govt. of NCT of Delhi (Department of Urban Development) issued order No. 7 (436)/2003/UD/Admn/3713-28 dated 31.05.2005 transferring 15 APOs including, i.e. the applicants from UBS to Social Welfare Department (GNCTD). For easy reference, relevant excerpts of said order are extracted hereinbelow:
xxx xxx (C) Asstt. Project Officer (15 1. Smt. Anshu Garg, APO 01.5.87 MA Sociology, MCD B.Ed. 2. Sh.Arun Tandon, APO 11.06.87 M.S.W. UPA 3. Smt.Priya Chaudhary, 01.07.88 M.A.Sociology Plg. APO 4. Smt. Anita Rani 01.07.88 M.A.Sociology NDMC Sharma, APO Smt. Amarjeet Kaur, 08.07.88 M.A.Sociology Admn. APO 6. Smt. Sneh Dutt, APO 05.07.88 M.S.W MCD 7. Smt. Saroj Gupta, APO 04.07.88 M.A.Sociology Water 8. Smt. Meera, APO 07.07.88 M.A.Sociology Accounts 9. Smt. Anjli Tyagi, APO 05.08.91 M.A.Sociology UC Cell B.Ed. 10. Smt. Bimla Devi, APO 01.07.88 B.A. Admn. 11. Ms. Archana, APO 05.08.91 M.A.Sociology UC Cell 12. Sh. Shlvester Kujur 12.08.91 M.A.Sociology, LLB UC Cell APO 13. Sh.Harish Kr.Sharma, 10.05.94 M.A.Sociology UC Cell APO M.B.A. P.B 14. Smt. Suman Shukla, 07.07.87 B.Sc. (Home Sce.) Admn. APO 15. Sh. Narender Kumar, 24.07.90 M.Sc. Plg. APO.
Vide Notification dated 16.04.2007, in view of the provisions contained in Clause (h) of Rule 2, read with sub-clause (1) of Rule 4 of Delhi Administration Subordinate Service Rules, 1967, the Lt. Governor of the National Capital Territory of Delhi declared 17 posts of Assistant Project Officer in Urban Development as duty posts in Schedule-1 under various grades in the Delhi Administration Subordinate Service Rules, 1967 ( as amended from time to time). For easy reference, said Notification is extracted hereinbelow:-
Dated 16.04.2007 NOTIFICATION No.F.2 (16)/99-S-III/Pt. File : In pursuance of the provisions contained in Clause (h) of Rule 2, read with sub-clause (1) of Rule 4 of the Delhi Administration Subordinate Service Rules, 1967, the Lt. Governor of the National Capital Territory of Delhi is pleaded to declare with immediate effect the following permanent posts as duty post in Schedule-I, under various grades in the Delhi Administration Subordinate Service Rules, 1967 (as amended from time to time), as detailed hereunder:-
S.No. Name of the post Name of the Pay Number of posts Duty post under and Department Department Scale DASS Rule,1967 1. Assistant Project Urban Rs.5500-9000 17 Grade II Officer Development 2. Enumerator Urban Rs.4000-6000 8 Grade III Development 3. UDC Urban Rs.4000-6000 4 Grade III Development 4. Date Entry Urban Rs.3050-4590 1 Grade IV Operator Development 5. LDC Urban Rs.3050-4590 5 Grade III Development The Notification led to representation dated 26.04.2007 preferred by applicant No. 14 to the Chief Secretary claiming for upgradation of their pay scale from Rs.5000-150-8000 to Rs.5500-175-9000 and merger with Grade-II DASS Cadre. Probably the said applicant could not understand the context of the Notification No. F. 2(16)/99-S-III/part file/1016-1026 dated 16.04.2007 correctly, thus instead of asking for declaration of his post also as duty post in Schedule-I, he claimed his merger with DASS. The declaration of a post as duty post in a particular service and its merger with such service have entirely different ramification for the purpose of fixation of seniority. A meeting was convened by the Chief Secretary and 24 officers working in Social Welfare
Department were repatriated back to UD Department. On 15.05.2008, it was proposed by the Chief Secretary, Delhi that the remaining APOs of UD Department, i.e. the applicants should also be eligible for encadrement in DASS and their pay should be upgraded from Rs.5000-8000 to Rs.5500-9000. The proposal was placed before the Honble Lt. Governor of Delhi on 23.05.2008. Thereafter, in terms of Notification dated 12.12.2008, 16 permanent posts of Assistant Project Officer in Urban Development Department in the pay scale of Rs.5500-9000 were declared as duty post of Grade-II in Schedule 1 of DASS Rules, 1967. For easy reference, said Notification is extracted hereinbelow:-
SERVICES DEPARTMENT (SERVICES IV BRANCH) NOTIFICATION Delhi, the 12th December, 2008 No.F.2(16)/99-S-III/Pt.File/1550-1556.- In pursuance of the provisions contained in Clause (h) of rule 2, read with sub-clause (1) of rule 4 of the Delhi Administration Subordinate Service Rules, 1967 ( as amended from time to time), the Lt. Governor of the National Capital Territory of Delhi is pleased to declare with immediate effect the 16 (sixteen) permanent posts of Assistant Project Officer in Urban Development Department in the pay scale of Rs.5500-9000 as duty post of Grade II in Schedule I of the DASS Rules, 1967.
By Order and the Name of the Lt. Governor of The National Capital Territory of Delhi.
D.Varma, Dy.Secy. On their posts being declared as duty post of Grade-II in Schedule I of DASS Rules, 1967, the applicants filed OA No.3103/2010 alleging that the Government had failed to assign them proper seniority vis-`-vis those APOs who remained in UDB. The prayer made by them in the OA read as under:-
Keeping in view the facts and circumstances of the case, it is respectfully prayed that this Honble Tribunal may graciously be pleased to:
(a) direct the respondents to immediately consider and determine seniority interse of such officers who were appointed as APOs in Urban Development Department and later merged in DASS cadre (Gr.II) keeping in view the submissions made above and with consequential benefits.
b) any other relief
c) award costs of the proceedings and
d) pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
3. When it was alleged by the applicants in the aforementioned OA that they have not been assigned correct seniority, during the course of hearing, they could not produce any seniority list of DASS Grade-II or of APO after being declared as duty posts of Grade-II in Schedule 1 of DASS Rules, 1967 which contained anomaly in their position. Anyhow, the aforementioned OA was disposed of in terms of order dated 18.11.2011 which reads as under:-
The applicants are aggrieved by the alleged inaction on the part of the respondents in not determining their inter-se-seniority and that of all such Asstt. Project Officer (APOs in short) who were initially appointed in Urban Development Department of GNCT of Delhi and later got merged in DASS cadre, even though it is a mandatory requirement that the respondents should fix their seniority in accordance with the rules.
2. It is seen from the records that out of the 33 posts of APOs which have been merged into DASS Gr.II, only 24 APOs are parties in this Original Application.
3. In our considered view unless the competent authority takes a view in the matter, this Tribunal is not in a position to exercise its power of judicial review. Therefore, we direct the respondents to consider the requests of the applicants and to take suitable decision in the matter by passing a reasoned and speaking order according to law within a period of two months from the date of receipt of a copy of this order, under intimation to them. They may also consider this Original Application as an additional representation in this regard. In implementation of the said order, Govt. of NCT of Delhi (Services Department: Branch-IV) issued the impugned order No.F.10 (21)/2010 (S.IV)/212-232 dated 31.01.2012 taking the view that the applicants herein had duly accepted the fact that their seniority in Grade-II of DASS would be fixed only from the date of their induction in the cadre which, under no circumstances could precede the date of notification of encadrement of the posts of APO held by them. For easy reference, relevant excerpts of said order are extracted hereinbelow:-
I (applicants name) S/o W/o D/O___________( DOB)_____presently working on the post of Assistant Project Officer in the Urban Development Department, Government of NCT of Delhi opt to join corresponding grade as per the scale of pay. Consequential benefits would accrue to me with effect from the date of Induction and seniority in the DASS will be assigned to me below all the officials who are appointed in respective grades on regular basis prior to the date of order of Induction.
(Name of the Official) Designation Date:
given by the present applicants. It is pertinent to mention here that from the option given by all the applicants in the said O.A. it is evident that they were fully aware of the contents & conditions in the option form and the present applicants had willingly accepted the fact that seniority in Grade-II of DASS Cadre would be assigned only from their date of induction in the DASS cadre, which in any case cannot precede the date of Notification of encadrement of the posts of APO held by the present applicants. However, inter se seniority as APOs amongst the present applicants before Honble Tribunal may be sought from Urban Development/Social Welfare department while determining seniority in Grade-II DASS. Assailing the aforementioned order, applicants have filed the present OA praying therein:-
to quash and set aside the impugned order dated 31.1.12 passed by respondent No.2 consequently, to issue direction to Respondent No. 2 to treat the applicants senior to Respondent No. 5 to Respondent No.8 and other similarly situated persons in the DASS cadre.
to grant costs of this OA to the applicants herein, and to pass such other order or orders as may be deemed fit and proper in the interests of justice. Mr. C.Hari Shankar, learned counsel for the applicants contended:
(i) It was only owing to their forced transfer to the Social Welfare Department that the applicants were denied the benefit of Notification dated 16.04.2007 (Annexure A-10), whereby 17 posts of APO in the office of respondent No.3 were encadred in DASS cadre under Rule 4 (1) read with Rule 2 (h) of the DASS Rules.
(ii). The communication dated 7.11.2007 from respondent No. 4 to respondent No.3 specifically recommended that the matter of upgradation of pay scale of the persons who had been transferred from respondent No. 4 be considered and taken up.
(iii) Once the applicants were granted upgraded scale of Rs.5500-9000 at par with respondents no 5 to 9, they cannot be deprived of their seniority.
(iv). The impugned communication dated 31.1.2012 is entirely unreasonable and proceeds only on the premise that the applicants had in the option tendered by them agreed to fixation of their seniority in DASS cadre below the official appointed in the respective grade prior to their date of induction. The said option was, in fact, thrusted upon the applicants.
(v). The seniority commensurate with service rendered by an official has now attained status of fundamental right and cannot, therefore, be abandoned, as held in Bisheshar Nath Vs. CIT ( AIR 1959 SC 149). The decision of respondent No. 2 to treat the applicants as junior to Respondents No. 5 to 9 and other similarly situated APOs in DASS cadre is arbitrary and violative of Articles 14 and 16 of the Constitution.
(vi). The reference to the deployment of the applicants with the Department of Social Welfare as transfer is a misnomer inasmuch as the posts in UBS programme were ex-cadre posts and there was no proposal to shift some of the officials in the said scheme to Department of Social Welfare and retain others in the UBS programme.
4. In the counter reply filed on behalf of official respondents, it is pleaded that an encadred employee cannot take benefit of his past service in seniority in a cadre where he was inducted much later. Paras 4.18 to 4.21 of the reply read as under:
4.18 to 4.21. Paras 4.18 to 4.21 is matter of record. It is however submitted that Grade II DASS is a regular cadre of Govt. of NCT Delhi where the posts are identified in Schedule 1. However, any ex-cadre post if it gets encadred the incumbents holding that post get benefit of their seniority from the date the post is encadred. A encadred employee cannot take benefit for his past service in seniority in a cadre where he was inducted much later. As such the petitioners herein can get the benefit of seniority only from the date they were encadred in Grade II DASS. Mrs. Jyoti Singh, learned senior counsel appearing on behalf of private respondent Nos 5 to 9 contended that there is no provision of law providing for fixation of seniority of the employee/employees encadred or merged in different cadre from a date prior to their encadrement. She also pleaded that in view of the undertaking given by the applicants extracted in the speaking order they had given up any claim for fixation of their seniority in DASS Grade II from a date prior to their encadrement. Undertaking given by the applicants as relied upon by Ms. Jyoti Singh, learned senior counsel and referred to in the speaking orders read as under:-
I (applicants name) S/o W/o D/O___________( DOB)_____presently working on the post of Assistant Project Officer in the Urban Development Department, Government of NCT of Delhi opt to join corresponding grade as per the scale of pay. Consequential benefits would accrue to me with effect from the date of Induction and seniority in the DASS will be assigned to me below all the officials who are appointed in respective grades on regular basis prior to the date of order of Induction.
(Name of the Official) Designation Date: She also relied upon the following judgments of Honble Supreme Court:-
S.I Rooplal and Anr Vs. Lt. Governor through Chief Secretary, Delhi and ors ( 1999 (7) Scale 466)
(ii) Indu Shekhar Singh & Ors Vs. State of UP & Ors (AIR 2006 SC 2432)
(iii) Arun Kumar & Ors Vs. Union of India & Ors ( JT 2007 (5) SC 181)
(iv) Probodh Purkait v State of West Bengal and Ors (JT 2007 (5) SC 190)
(v) Union of India and Ors V Deo Narain & Ors (JT 2008 (10) SC 294)
(vi) Indian Farmers Fertilizers Co-operative and Ahmedabad Vs. Union of India and Ors ( 1997 (7) Scale 478)
5. We have heard learned counsel for parties and perused the record. Unfortunately neither of the parties addressed the issue of fixation of seniority of applicant and private respondents correctly. The entire factual premise set up by them is misconceived. Such misconception has taken place on account of incorrect understanding of the Notification dated 16.04.2007 (Annexure A-10) as also Notification dated 12.12.2008 (Annexure R-3) extracted hereinabove. Though in terms of the said Notifications, the posts of APOs were declared as duty post in Schedule I under various grades in DASS, Rules 1967 ( as amended from time to time), but the parties have understood such declaration as enadrement. The declaration of a post as duty post in a cadre and encadrement or merger of a service or post in another cadre are entirely different aspects having all together different ramification. A duty post with reference to a service is one which can be occupied by incumbents of such service. Thus, once a post is declared as duty post in a schedule to a particular service, the incumbents of the same may treated as member of such service from the very inception or the date of declaration, as decided by the competent authority. In the present case, since the APOs were in lower pay scale than that of DASS Grade-II, the authority need to keep the same in view. However, in the absence of the plea taken before us and exchange of pleadings in this regard, we are unable to pronounce on the issue of fixation of seniority of incumbents of the post on the basis of declaration of the same as duty post as all the parties have referred to such declaration as encadrement only. We will have to pronounce upon a legal proposition as set up before us. Such propositions arises for our determination are:-
(i) Whether on encadrement/merger in a different service or cadre on his own request, an incumbent can claim fixation of his seniority from a date prior to his encadrement/merger
(ii) Whether after having given an option for joining/induction with an undertaking to accept the seniority below all officials who are appointed in the respective grade on regular basis prior to the date of their induction, the applicants could claim seniority of an earlier date on the ground that those encadred earlier came from a common seniority list and were junior to them.
6. Where persons already in government service are transferred in the public interest from one department to another to an equivalent post, they are entitled to count the entire service rendered in the department from which they are transferred in the department to which they are transferred. (P.K.Menon Vs. State of Mysore ) (1974 (1) Kar LJ 15.) A rule providing for fixation of the seniority taking into account the services rendered in the department from which an official is transferred gives a just and fair treatment to the transferred officials and the fixation of such seniority in the manner cannot be challenged by the officials in the department to which an official is so transferred (Murthy V.S. Vs. Deputy Chief Accounts Officer ( AIR 1983 SC 403). When a parent cadre is merged with another cadre, the relative seniority of direct recuits vis-`-vis the mergerists has been a matter of dispute. Where the State through law grants relative seniority to direct recruits for a given year, as compared to the cadre merged in the same year, such legislation cannot be held to be discriminatory ( Prafulla Kumar Das Vs. State of Orissa ) (2003 (11) SCC 614). In case of surplus or retrenched staff who are re-deployed in another post they would be treated as fresh entrants in the new department and their past service rendered in earlier department or authority cannot be taken into account and the seniority of others already fixed in service in the department of redeployment cannot be disturbed (Superintendent Engineer Vs. A. Sankariah (2003) 11 SCC 641). However, the case of persons who get transferred to another department or to another post on their request stand on a different footing. In such a case, they have to take seniority from the date on which they enter the new post. An official who agrees to such a condition and gets himself transferred to another department cannot subsequently claim that his previous service should be counted for the purposes of seniority in the department to which he is transferred at his own request. His seniority would count from the date of joining duty on transfer. A permanent civil servant transferred at his own request has to be placed only next below the last permanent civil servant in the unit to which he is transferred and not below the temporary civil servants. Where an employee has been transferred to another department on his own request, while he may lose seniority, he does not lose other benefits such as experience and eligibility for promotion in time bound promotion etc. ( Union of India v. M.Mathivanan ( 2006 (6) SCC 57). Before fixing the seniority of civil servants finally, the principles of natural justice require that opportunity should be given to the civil servants concerned to make representations (Shivasharanppa v. State of Mysore (AIR 1968 SC 850).
7. In Arun Kumar Chatterjee Vs. South Eastern Railway and Others (AIR 1985 SC 482), Honble Supreme Court viewed as under:-
10. There can be no doubt on the terms of R. 312 of the Manual read with Railway Board's Circular No. 1565A dated Jan 31, 1950 that the appellant having been transferred, at his own request, from one railway to another, had to be placed below all the existing confirmed and officiating staff in the relevant grade, irrespective of the date of his confirmation or the length of his service. The appellant on the date of his transfer i.e. on Oct 15, 1958 was not governed by the Railway Board's Circular dated Dec. 31, 1966. In Lal Mohan Paul's case, supra, Anil Kumar Sen, J. in a case where a railway employee was transferred on September 30, 1959, at his own request, from one railway to another held that he was governed by the Railway Board's Circular No. 1565A dated Jan. 31, 1950 and not by the subsequent circulars and therefore was entitled to be placed in the seniority list below the existing confirmed and officiating staff in the relevant grade and not below the temporary staff. We uphold the view expressed by Sen, J. in Lal Mohan Paul's case, (supra).
11. That apart, the Railway Board's interpretation in the aforesaid Circular dated Dec 31, 1966, of the term 'officiating' in R. 312 of the Railway Establishment Manual, as including both officiating as well as temporary staff, was apparently wrong. According to its ordinary connotation, the word 'officiating' is generally used when a servant having held one post permanently or substantively is appointed to a post in a higher rank, but not permanently or substantively, while still retaining his lien on his substantive post i.e. officiating in that post till his confirmation. Such officiating appointment may be made when there is a temporary vacancy in a higher post due to the death or retirement of the incumbent or otherwise. In contrast, the word 'temporary' usually denotes a person appointed in the civil service for the first time and the appointment is not permanent but temporary i.e. for the time being, with no right to the post Also in Union of India Vs V.N.Bhat ( 2003 (8)SCC 714), it could be countenanced that in the event of transfer to different department, the past service will count for eligibility for certain purposes though it may not count for seniority. Para 5 of the judgment reads as under:-
5. The aforementioned decisions have been followed by this Court in Dwijen Chandra Sarkar and another v. Union of India and others, 1999 (2) SCC 119, n the following paras :
"(14) The words "except seniority" in the 1983 circular, in our view, mean that such a benefit of a higher grade given to the trans-ferees will in no way affect the seniority of employees in the P and T Department when the turn of the P and T employees comes up for promotion to a higher category or post. The said words "except seniority" are in-tended to see that the said persons who have come from another Department on transfer do not upset the seniority in the transferee Department. Granting them higher grade under the Scheme for time-bound promo-tion does not, therefore, offend the condition imposed in the transfer order. We are, therefore, of the view that the appellants are entitled to the higher grade from the date on which they have completed 16 years and the said period is to be computed on the basis of their total service both in the Reha-bilitation Department and the P and T De-partment.
(17) On the facts of the present case and especially in view of the aforesaid decisions, we are of the view that when the transfer is in public interest and not on request, the two employees transferred cannot be in worse position than those in the above rul-ings who have been transferred on request and who in those cases accepted that their names could appear at the bottom of the seniority list. Even in cases relating to re-quest transfers, this Court has held, as seen above, that the past service will count for eligibility for certain purposes though it may not count for seniority."
8. In K.P.Sudhakaran and another Vs. State of Kerala and Others ( 2006) 5 SCC 386), it could be ruled that in service jurisprudence, general rule is that if a Government servant holding a particular post is transferred to the same post in the same cadre, the transfer will not wipe out his length of service in the post till the date of transfer and the period of service in the post before his transfer has to be taken into consideration in computing the seniority in the transferred post. But where a Government servant is so transferred on his own request, the transferred employee will have to forego his seniority till the date of transfer, and will be placed at the bottom below the junior-most employee in the category in the new cadre or department. This is because a government servant getting transferred to another unit or department for his personal considerations, cannot be permitted to disturb the seniority of the employees in the department to which he is transferred, by claiming that his service in the department from which he has been transferred, should be taken into account. Para 11 of the judgment reads as under:-
11. In service jurisprudence, the general rule is that if a Government servant holding a particular post is transferred to the same post in the same cadre, the transfer will not wipe out his length of service in the post till the date of transfer and the period of service in the post before his transfer has to be taken into consideration in computing the seniority in the transferred post. But where a Government servant is so transferred on his own request, the transferred employee will have to forego his seniority till the date of transfer, and will be placed at the bottom below the junior-most employee in the category in the new cadre or department. This is because a government servant getting transferred to another unit or department for his personal considerations, cannot be permitted to disturb the seniority of the employees in the department to which he is transferred, by claiming that his service in the department from which he has been transferred, should be taken into account. This is also because a person appointed to a particular post in a cadre, should know the strength of the cadre and prospects of promotion on the basis of the seniority list prepared for the cadre and any addition from outside would disturb such prospects. The matter is, however, governed by the relevant service Rules.
9. In Indu Shekhar Singh & Ors Vs. State of UP and Ors ( AIR 2006 SC 2432), relied upon by Ms. Jyoti Singh, learned senior counsel, it could be viewed that having exercised his right of option and obtained entry on the basis of election, one cannot be allowed to turn round and contend that the condition was illegal. Paras 22 to 25 of the judgment read as under:-
22. The High Court evidently proceeded on the premise that seniority is a fundamental right and thereby, in our opinion, committed a manifest error.
23. The question which arises is as to whether the terms and conditions imposed by the State in the matter of absorption of Respondent Nos. 2 to 4 in the permanent service of Ghaziabad Development Authority is ultra vires Article 14 of the Constitution of India.
24. The State was making an offer to the Respondents not in terms of any specific power under Rules, but in exercise of its residuary power (assuming that the same was available). The State, therefore, was within its right to impose conditions. The Respondents exercised their right of election. They could have accepted the said offer or rejected the same. While making the said offer, the State categorically stated that for the purpose of fixation of seniority, they would not be obtaining the benefits of services rendered in U.P. Jal Nigam and would be placed below in the cadre till the date of absorption. The submission of Mr. Verma that for the period they were with the Authority by way of deputation, should have been considered towards seniority cannot be accepted simply for the reason that till they were absorbed, they continued to be in the employment of the Jal Nigam. Furthermore, the said condition imposed is backed by another condition that the deputed employee who is seeking for absorption shall be placed below the officers appointed in the cadre till the date of absorption. The Respondent Nos.2 to 4 accepted the said offer without any demur on 3.9.87, 28.11.91 and 6.4.87 respectively.
25. They, therefore, exercised their right of option. Once they obtained entry on the basis of election, they cannot be allowed to turn round and contend that the conditions are illegal. [See R.N. Gosain vs. Yashpal Dhir (1992) 4 SCC 683, Ramankutty Guptan vs. Avara (1994) 2 SCC 642 and Bank of India & Ors. vs. O.P. Swarnakar & Ors. (2003) 2 SCC 721.] Further more, there is no fundamental right in regard to the counting of the services rendered in an autonomous body. The past services can be taken into consideration only when the Rules permit the same or where a special situation exists, which would entitle the employee to obtain such benefit of past service. The judgments in S.I Rooplal and Anr Vs. Lt. Governor through Chief Secretary, Delhi and Ors (1997 (7) Scale 466) and Arun Kumar & Ors Vs. Union of India & Ors (JT 2007 (5) SC 181) are the cases relating to fixation of seniority of deputationists on their absorption have no application to the facts of the present case.
10. In Union of India & Ors Vs. Deo Narain and Ors (JT 2008 (10) SC 294) relied upon by her, it could be viewed that the applicants who opted for voluntary and unilateral transfer foregoing their seniority and joined Meerut Collectorate with open eyes, could not make grievance if the LDCs shown above them in the seniority list are considered for promotion to the cadre of LDC, as neither law nor equity supports their so-called claim. Para 44 of the judgment reads as under:-
44. In our considered opinion, there the High Court was not right. The statutory rules referred to above, empower the Central Government to relax the provisions of the Rules. In exercise of the said power under Rule 7 of the Rules, the Central Government relaxed eligibility condition. Such action, therefore, cannot be held illegal or unlawful and could not have been interfered with by the CAT or by the High Court. Moreover, the applicants opted for voluntary and unilateral transfer foregoing their seniority and joined Meerut Collectorate with open eyes and were placed below all LDCs who were serving in the said Collectorate. It was, therefore, not open to them to make grievance if LDCs shown above them in the seniority list are considered for promotion to the cadre of LDC. Thus, neither law nor equity supports the so-called claim of the applicants.
Normally, the induction to an organized service should be in accordance with the rules prescribed for the purpose. As and when any attempt is made to permit induction to such service in deviation of such rules, there should be prior exercise of amendment or relaxation of the rules. Despite merger or encadrement done even after amendment of the rules, the dispute and controversy on seniority is inevitable, as the incumbents of different services develop their stand on legitimate expectation. In such circumstances, one ideal solution may be that as and when the merger or encadrement of different services/cadre/seniority unit is concerned essential, the incumbent/ members in such cadre/services may be allowed to stay back in their own seniority in the unit and given the nomenclature of service in which they sought to be empanelled. In the present case, admittedly the applicants herein had sought their induction in DASS and committed to accept the seniority below all the officer appointed in the respective grades on regular basis prior to their induction. At the cost of repetition, the format of such undertaking is extracted hereinbelow:-
I (applicants name) S/o W/o D/O___________( DOB)_____presently working on the post of Assistant Project Officer in the Urban Development Department, Government of NCT of Delhi opt to join corresponding grade as per the scale of pay. Consequential benefits would accrue to me with effect from the date of Induction and seniority in the DASS will be assigned to me below all the officials who are appointed in respective grades on regular basis prior to the date of order of Induction.
(Name of the Official) Designation Date:
Thus, in view of the settled legal position if it is accepted that their existence in DASS Grade II is encadrement/merger, the applicants would be entitled to their seniority only from the date of Notification dated 12.12.2008 i.e. in view of the language of the Notification dated 23.04.2007 and 12.12.2008. The inclusion of the applicants in DASS Grade II is not an encadrement but is declaration of the post held by them, i.e. APOs as duty post of Grade II in Schedule I of DASS Rules, 1967. In such situation one may be considered as Member or incumbent of a service from the date of holding the post which is declared as duty post of such service. However, there is not even a penumbra or dim fringe of such argument by either of parties before us. Besides, we are also conscious of the fact that pay scale of APO was Rs.5000-8000 and only on their posts being declared as duty post DASS Grade II, they are granted the pay scale of Rs.5500-9000. The date of grant of such pay scale is a vital factor, as it may have a ramification that the post of APO would acquire the status of duty post of Grade II in Schedule I of DASS Rules, 1967 only from the date of granting the said scale. Such issue may be taken up by the applicants with the Department or may be addressed to by the Respondent Nos. 1 to 4 on their own and decided. Under no circumstances, the employee who seek their encadrement/induction in different service on their own request giving an undertaking to accept the seniority in the new service from the date of their induction, can seek fixation of seniority from a date prior to the date of their encadrement/induction even if some of their juniors in earlier service could be inducted in the new service from an earlier date. Thus, the relief prayed in the OA is declined.
Subject to aforementioned, OA stands disposed of. No costs.
( Shekhar Agarwal) ( A.K.Bhardwaj) Member (A) Member (J) sk Per Contra: Mr. Shekhar Agarwal, Member (A)
I have gone through the judgment prepared by my Esteemed Brother Honble Mr. A.K. Bhardwaj, Member (J). With due respect I state that I hold a divergent view in the matter, which is expressed hereunder:-
2. Having heard the learned counsel for both sides and perused the material on record, I first looked closely at the sequence of events. Applicants were working as APOs in Urban Development of Govt. of NCT of Delhi. By an order of Principal Secretary of the Urban Development Department dated 31.5.2005 they were transferred to Social Welfare Department. This order was passed in the backdrop of meetings held at the level of Chief Secretary in which it was found that not enough work was available in the Urban Development Department and, therefore, some APOs may be transferred to Social Welfare Department where their services could be better utilized. Subsequently, vide order dated 16.4.2007, 17 posts of APOs of Urban Development Department, amongst others, were declared as duty post in Schedule-1 of DASS in the pay scale of Rs.5500-9000. It appears that with this order, the respondents have also treated the APOs working in Urban Development Department on these posts to have also got inducted into DASS cadre. Thereafter those APOs, who had been transferred to Social Welfare Department, started representing not only for higher grade of Rs.5500-9000 (as compared to Rs.5000-8000 that they were drawing) but also for their induction into DASS. As a result of these representations, the respondents issued an order No.45(89)/2005/DSW/ Estt/UBSP/PF/10214-221 dated 31.8.2009 by which the applicants were also granted the scale of Rs.5500-9000 retrospectively w.e.f. 1.1.1996. Even then the applicants continued to represent for induction in the DASS cadre. From para 8 of the counter filed by respondents it appears that a meeting was held in the chamber of Chief Secretary on 17.4.2008 in which it was decided that in order to avoid discrimination against the APOs working in Social Welfare Department vis-`-vis their colleagues working in the UD Department who had already been absorbed in the DASS cadre, Secretary, Social Welfare will issue order relieving these APOs from Social Welfare Department and transferring them back to UD Department. The UD Department was directed to move a proposal to the Service Department for absorbing these APOs (applicants) in DASS cadre. The applicants were consequently absorbed in DASS cadre by notification dated 12.12.2008. Thus, the applicants were able to get the benefit of higher pay scale as well as absorption in DASS cadre like their other colleagues, namely, the APOs, who were left behind in the UD Department had got. However, the respondents have treated the date of encadrement in DASS of the applicants as 12.12.2008, i.e. later than the date 16.4.2007 on which their other colleagues have been encadred and consequently taken a decision to give them seniority in DASS only from that date. Thus, the applicants have become junior to some of their colleagues who stayed back in UD Department despite the fact that as APOs working in UD Department, many of them were senior. Hence, they have filed this OA before us for grant of seniority
3. Next I closely looked at the various orders passed by the respondents having a bearing on this case. The first order I looked at was the order dated 31.5.2005 issued with the prior approval of Principal Secretary, UD. By this order 15 APOs (applicants) were transferred to the Social Welfare Department. As stated above, this decision was taken in the meeting of the Chief Secretary to better utilize services of the applicants since sufficient work was not available in the UD Department. From this order it appears that the 15 APOs who were transferred were not selected on the basis of seniority. Thus, in the seniority list of -25- APOs Smt. Eva Singh was at No.1 but she was not transferred. It appears that the APOs transferred were chosen on the basis of educational qualifications they possessed and not on the basis of seniority. Further, though it is not clear from the order, it appears that the applicants were transferred to the Social Welfare Department along with their posts since on their joining that department no posts were created nor were they posted against any of the existing posts. The Chief Secretary also directed the Social Welfare Department to get budget allocated for meeting their expenses. It also appears that no consent of the APOs was taken for such transfer as no such evidence is available on record. Further the order was issued as an office order and not as a notification by the Services Department as was done while encadring their posts in the DASS cadre. It also appears that there was no induction of the posts of the applicants in any other cadre as that would have required a notification. The Chief Secretary also directed the Social Welfare Department to create some ex cadre posts for providing promotional avenues to the applicants in future.
4. From all the facts stated above, it appears that the transfer of the applicants from UD Department to Social Welfare Department was a case of simple transfer and not a change of cadre. This is because neither a notification stating so was issued nor is their any evidence of merger of the applicants in any other cadre. It is noteworthy that in a meeting taken by Chief Secretary on 16.3.2005 the Social Welfare Department had opposed transfer of APOs of UD Department to Social Welfare Department on the grounds that this leads to future applications of seniority/promotion between transferred UD Department staff and staff already working in the Social Welfare Department. However, after transfer of the applicants to Social Welfare Department, there is no evidence of any such dispute having arisen. This is because the applicants were treated as a separate group and not merged in the cadre of Social Welfare Department. Learned counsel for applicants had rightly argued that the applicants continued to be governed by the same recruitment rules which were applicable to them in the UD Department. I find merit in this contention of the learned counsel.
5. Thus, the inevitable conclusion that can be drawn from the above is that though the applicants were transferred to Social Welfare Department, it was a case of simple transfer and not a cadre transfer since they continued to be part of the same cadre of APOs to which they belonged in the UD Department. Respondents have stated in the impugned order that it is the prerogative of the Government to transfer their officials from one department to another as per requirement of work. The respondents are right if it is a case of simple transfer. However, cadre change would have required consent of the applicants which was not taken. This further strengthens the claim of the applicants that their cadre was never changed and they continued to be APOs of the UD Department even while their posts were housed in the Social Welfare Department.
6. Next I looked at the notification No.F.2 (16)/99-S-III/Pt. File/1016-1026 dated 16.4.2007 by which 17 posts of APOs, inter alia, were encadred in the DASS. It is admitted that altogether there were 22 posts of APOs in the UD Department. 15 of them along with the incumbents holding those posts, i.e., the applicants were transferred to Social Welfare Department. Therefore, only 7 posts would have remained in the UD Department. However, by this notification 17 posts were encadred in DASS. It is not clear from where the remaining 10 posts had come. Be that as it may, the respondents did issue the aforesaid notification. Not only that, the respondents have treated this notification as sufficient for induction of the APOs in DASS cadre, who remained back in UD Department. Neither any separate qualifications were prescribed for such induction nor was any selection -27- procedure laid down. The consent of the officers was perhaps taken and the notification was issued by the Services Department.
10. In our considered opinion, encadrement of posts and induction of officers in a particular service are two separate activities and separate orders should have been issued for both. However, the respondents have treated the notification encadring the posts in DASS cadre as also sufficient for induction of the APOs holding these posts in DASS.
7. As mentioned above, the respondents had not prescribed any qualification nor any procedure for inducting these APOs in the DASS cadre. In absence of any other criteria, the only criteria possible is seniority, that is to say that if the number of officers consenting for induction in DASS were more than the number of posts encadred, the seniormost consenting officers should have been inducted.
8. In the instant case, however, the posts encadred were 17 and the APOs left behind in the UD Department were only 7, hence, the respondents did not face any problem. However, in my opinion, where they erred was in not considering the APOs who had been transferred to Social Welfare Department also for induction into DASS. As already mentioned above, these officers had only been transferred to another department with their posts but had continued to be part of the same APOs cadre of the UD Department. Hence, they could not have been ignored when it came to induction of the cadre officers in the DASS. The right course of action for the respondents would have been to take consent of these APOs also for induction in the DASS and thereafter had they found that the number of consenting officers was more than the number of posts encadred, they should have inducted the seniormost 17 officers in absence of any other criteria for selection. Thus, I hold that the action of the respondents in ignoring the applicants for induction in the DASS at the time of issue of notification dated 16.4.2007 cannot be sustained.
9. If this be so, then subsequent action of the respondents of inducting the applicants in DASS cadre from a later date also cannot be sustained. The proper course of action for the respondents should have been to follow the seniority while inducting these officers in the DASS. Consequently, seniormost consenting 17 APOs should have been inducted in the first go w.e.f. 16.4.2007 and the remaining could have been inducted later. Had the respondents followed this course of action this dispute would not have arisen giving rise to this OA.
10. Learned counsel for the respondents had argued that the applicants had themselves given their consent for absorption in DASS with an undertaking that seniority in DASS will be assigned to them below all the officials who had already been appointed in DASS cadre on regular basis prior to the date of their induction. She argued that having given their consent once they cannot go back on the same now. In this regard, she had also relied on the citations mentioned in the para 4 of this judgment. However, I find that the citation S.I Rooplal and Anr Vs. Lt. Governor through Chief Secretary, Delhi and ors ( 1999 (7) Scale 466) and Arun Kumar & Ors Vs. Union of India & Ors, (JT 2007 (5) SC 181) are cases related to fixation of seniority of deputationist on their absorption and are not applicable to the present case. Similarly, Union of India and Ors Vs. Deo Narain & Ors, (JT 2008 (10) SC 294) deals with cases where the applicants had opted voluntarily for transfer foregoing their seniority and joining Meerut Collectorate. Again this case is also not applicable to the present facts since in this case of applicants, no consent was taken while transferring them from UD Department to Social Welfare Department. Moreover, as already stated by me above, the respondents had erred by ignoring the applicants for induction in the DASS cadre while issuing notification dated 16.4.2007. Therefore, not only this action of the respondents is unsustainable but also subsequent actions of the respondents, namely, inducting the applicants into DASS cadre from a later date and also taking an undertaking from them that they could be given seniority below those who had been inducted in the DASS cadre earlier, was also unsustainable.
11. In view of the above, this OA succeeds. The impugned order dated 31.1.2012 (Annexure A-1) is quashed. I am not quashing notifications dated 16.4.2007 and 12.12.2008 because in those only the posts encadred are mentioned and names of APOs who were inducted in DASS were not given. The respondents are directed to consider induction of the applicants in DASS cadre in order of their seniority of APO cadre in the UD Department by passing a separate order. This exercise will be completed within a period of six weeks from the date of receipt of certified copy of this order. No order as to costs.
( Shekhar Agarwal) Member (A) /sd/ The Member (Judicial) authored the order on behalf of the Division Bench declining the relief prayed in the Original Application. However, the Member (Administrative) could not agree with the view taken by the Member (Judicial) and authored a dissenting order taking the view that the applicants deserve to be considered for induction in DASS cadre in order of their seniority of APO cadre in the UD Department, thus the Members of the Bench have difference of opinion on the following points:
Whether the seniority of the applicants fixed before their regularization, i.e. on 15.01.2004 or even their seniority so fixed after their regularization can be considered relevant for the purpose of assigning them seniority in DASS Grade II.
When in paragraph 4.10 of the Original Application applicants have taken a stand that the benefit of the notification dated 16.4.2007 did not enure to them, as they stood transferred to the Department of Social Justice and in the present Original Application filed before us they have not claimed the extension of benefit of said notification, whether a view can be taken that respondent Nos. 1 to 4 in not considering the APOs, who had been transferred to the Social Welfare Department also for induction to DASS (applicants) in the year 2007 committed an error.
When in paragraph 4.11 of the Original Application it is the stand of the applicants that after the notification dated 16.4.2007, for giving them upgraded pay scale as well as merging them in DASS Grade II they made a representation dated 26.4.2007 and in paragraph 4.13, it is specifically stated that they gave their consent for merger on 18.7.2007 and it is not their prayer that they should be deemed merged in the said grade in terms of the notification dated 16.4.2007 and nor they have questioned their non-merger in terms of the said notification, whether a view can be taken that for the purpose of giving benefit of the aforesaid notification they should not have been ignored.
When it is not the case set up by the applicants that before issuance of notification dated 16.4.2007 or for the purpose of giving benefit of said notification, respondents ought to have taken their consent for induction in DASS cadre, whether a view can be taken that the right course of action for the respondents could have been to take their consent also for induction in DASS cadre and thereafter 17 senior-most officials should have been inducted in said Service. In the representation dated 26.4.2007 (Annexure A-11) one of the applicants, i.e., applicant No.14 has specifically prayed for upgradation of the staff working for Department of Social Welfare and their merger in DASS Grade II and did not pray that they should have been deemed merged in said cadre in terms of the said notification dated 16.4.2007.
When it is admitted by the applicants in paragraphs 4.15 and 5.2 of the Original Application that they submitted their option for merger in DASS Grade II in May, 2008, whether they can be assigned seniority in said grade from a date prior to they being declared incumbent of duty post of the same, i.e., 12.12.2008.
When the option from all the UBS officials received from Social Welfare Department, their vigilance clearance as well as work & conduct reports was sent by the Urban Development Department to Department of Social Welfare on 7.05.2008 and it was only on 4.7.2008 that the Department of Urban Development called for option of the applicants in the prescribed form for expressing their willingness for absorption in Grade II (DASS) Cadre (Annexure A-14 collectively) and it was thereafter that they were absorbed in DASS Grade II, whether it can be presumed that they could be deemed inducted in DASS Grade II or treated as incumbent of duty post of said grade from any prior date.
When it is not the prayer of the applicants that they should have been inducted in DASS Grade II at the time of issuance of notification dated 16.4.2007, whether it can be held as under:
Thus, I hold that the action of the respondents in ignoring the applicants for induction in the DASS at the time of issue of notification dated 16.4.2007 cannot be sustained. Whether an employee declared holder of a duty post in different Cadre/Service on his own request and not in public interest can claim seniority in said cadre from any date prior to the date of his induction in said Service, even when his juniors could be brought in the same Service from an earlier date?
When it is not the prayer of the applicants that they should have been inducted in DASS Grade II w.e.f. 16.4.2007, whether it can be held thus Consequently, seniormost consenting 17 APOs should have been inducted in the first go w.e.f. 16.4.2007 and the remaining could have been inducted later. Had the respondents following this course of action this dispute would not have arisen giving rise to this OA. When the applicants gave specific option for their induction in DASS Grade II with undertaking (Annexure A-14 paragraphs 4.15 and 5.2 of the Original Application) that the consequential benefits of the same would accrue to them with effect from the date of the order of induction and seniority in the DASS cadre would be assigned to them below all the officials who are appointed in respective grades on regular basis prior to the date of order of induction, whether it can be viewed that the judgment of the Honble Supreme Court in Union of India & others v. Deo Narain & others, JT 2008 (10) SC 294 has no application to the facts of the present case?
2. Thus, a reference is made to the Honble Chairman in terms of the provisions of Section 26 of the Administrative Tribunals Act, 1985.
( Shekhar Agarwal ) ( A K Bhardwaj ) Member (A) Member (J) /sunil/
In my opinion instead of having series of over lapping issues which my brother Honble Sh.A.K.Bhardwaj, Member (J) has framed, one issue stated as under would suffice:-
The applicants have prayed for re-fixation of their seniority in DASS cadre in accordance with the seniority they were holding as APOs in UBSP Department. This relief can be granted only if their date of induction into DASS cadre is reconsidered. The issue to be decided is whether in the absence of any specific prayer by the applicants for reconsidering the date of their induction into DASS cadre can they are provided this relief?
(Shekhar Agarwal) Member (A) /Vinita/