Central Administrative Tribunal - Delhi
Mukhtiar Singh vs Union Of India on 28 October, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 316/2013 Reserved On:24.09.2014 Present On:28.10.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Mukhtiar Singh, Aged 46 years, S/o Shri Narain Singh, R/o Quarter No.102, Type-2 Lancers Road, Timarpur, Delhi-110054. Applicant By Advocate: Shri Amit Kumar. Versus 1. Union of India Through the Secretary, Government of India, Ministry of Law and Justice, Legislative Department, Shastri Bhawan, New Delhi-110001. 2. The Deputy Secretary (Admn.LD-1), Ministry of Law & Justice, Legislative Department, Shastri Bhawan, New Delhi. 3. Shri Devender Singh, Copy Holder. 4. Shri Sushil Kumar, Copy Holder. 5. Shri Shiv Kumar, Proof Reader. 6. Shri Rajbir Singh, Proof Reader. Respondents (Respondent No.3 to 6 to be served Through Respondent No.2). By Advocate: Shri Rajesh Katyal. ORDER
G. Geroge Paracken, Member(J) Applicants prayer in this Original Application is for a direction to the Respondents No.1 and 2 to revise his position in the seniority list of Copy Holder on the basis of the DOP&Ts OM dated 27.03.2001 issued after the judgment of the Apex Court in the case of SI Roop Lal and Others Vs. Lt. Governor through Chief Secretary, Delhi JT 1999 (9) SC 597.
2. The brief background of the case: The Respondent-Legislative Department had 10 posts of Copy Holder in the pre-revised scale of pay of Rs.3050-75-3950-80-4590 (revised scale w.e.f. 01.01.2006 Rs.5200-20200 with Grade Pay of Rs.1900/-), at the relevant time. According to the Recruitment Rules for the aforesaid post, 50% of the posts are filled up through direct recruitment and the rest 50% on deputation/absorption. One post of Copy Holder under the deputation/absorption quota fell vacant in the year 2006-07. The Applicant was selected for the aforesaid post from among 14 persons who applied for the same and he was appointed with effect from 26.03.2008. At that time, he has already been working as Lower Division Clerk (LDC for short) in the same pay scale in the Border Roads Organisation (BRO for short) under the Ministry of Shipping and Transport, with effect w.e.f. 18.11.1988. As he had completed 12 years of regular service as LDC, he had already been granted the first financial upgradation under the Assured Career Progression Scheme (ACP Scheme for short) in the grade of Upper Division Clerk (UDC for short) in the pay scale of Rs.4000-100-6000 with effect from 01.12.2000 and his pay was fixed at Rs.4000/-. Since he has already been drawing the basic pay of Rs.4700/- in the scale of pay of Rs.4000-6000 when he was appointed as Copy Holder, his pay was duly protected.
3. Later on, the Applicant made an application on 20.10.2008 to the Respondent-Legislative Department requesting them to revert him to his parent department due to his personal problems and the financial loss arisen due to his fixation of pay on the basis of 6th CPC pay scales. Considering the aforesaid application, the Respondent-Department, vide its Office Order No.79/2008 dated 04.12.2008 changed his mode of his appointment from on absorption basis to on deputation/absorption basis. His parent department also, vide its letter dated 27.06.2009, recalled him and posted to 1409 SPL(P) Vartak. On receipt of the aforesaid posting order, he changed his mind and requested the Respondent-Legislative Department again, vide his letter dated 02.07.2009, to cancel his earlier request for reversion to his parent department dated 20.10.2008. He has also submitted his technical resignation from the post of LDC held on lien basis in his parent department. The Respondent-Legislative Department accepted his request and, vide its letter dated 28.07.2009, appointed him again as Copy Holder on permanent absorption basis with effect from 28.07.2009. However, his parent department, vide its letters dated 18.08.2009, 12.11.2009 and 12.02.2010, objected to the aforesaid absorption and pressed for his relieving and to direct him to join his parent department. The Respondent-Legislative Department, has, therefore, finally, vide its letter dated 08.03.2010, relieved him from his duties with effect from 15.03.2010 with the direction to report to his parent cadre immediately. He challenged the aforesaid order before this Tribunal vide OA No.822/2010 as the same was issued without any notice to him and this Tribunal, vide order dated 01.09.2010, quashed the same with liberty to the Respondent to take appropriate action in the matter after giving him show cause notice to him and after considering his reply. However, the Respondents have not taken any further action in the matter.
4. Thereafter, the Applicant gave a representation that the persons viz. S/Shri Shiv Kumar and Prem Singh working as Copy Holder in Ministry of Law were getting higher pay than him as their pay scale of Rs.4000-6000 (pre-revised) had been upgraded to Rs.4500-7000 with effect from 28.7.2005. He, therefore, requested that he should also be given the same benefit with effect from 19.3.2008 to 17.11.2008 and thereafter the 2nd ACP benefits with effect from 18.11.2008 on completion of 20 years. As no reply was given to him, he gave another representation dated 26.10.2009. Again, since there was no response from the Respondents, he filed OA No.1161/2010 seeking a direction to the Respondents to grant him the Grade Pay of Rs.2800/- instead of Rs.2400/- in the Pay Band of Rs.5200-20200 which is the upgraded pre-revised scale of Rs.4500-125-7000. He has also requested to fix his pay at par with similarly situated employees applying the principle of equal pay for equal work and to pay the difference of arrears with effect from 19.03.2008 to 17.11.2008, with interest. This Tribunal dismissed the aforesaid OA on 02.03.2012. The relevant part of the said order reads as under:-
17. From above, it is clear that there were many ups and downs in the career of applicant. He was not at par with Shri Shiv Kumar and Shri Prem Singh. The fact also remains that he knew from day one that he has been absorbed in the post of Copy Holder which is in the pay scale of Rs.3050-4590. The pay which was protected by the Ministry of Law at the time of absorption at Rs.4700/- was personal to him as he was granted Ist financial updgradation in his parent department in their hierarchy to the post of UDC which scale was not upgraded whereas Shri Shiv Kumar and Shri Prem Singh were granted the benefit of Ist financial upgradation in their hierarchy to the post of Proof Reader which was further upgraded as Rs.4500-7000, therefore, they got benefit of this upgraded scale in 2006 itself when applicant was still in BRO. Applicant was thus given the pay as personal to him, which he was drawing in his parent department at the time of absorption in Ministry of Law. In view of the facts as explained above, the pay parity claimed by the applicant is not sustainable in law because Prem Singh and Shiv Kumar were already getting higher pay than the applicant, when he was absorbed in the Ministry of Law. There can be no comparison between uncomparables.
18. As far as grant of benefit under MACP is concerned, since the status of applicant was always in dispute due to his own letters or his parent department, naturally it couldnt have been released earlier. Respondents have annexed letters to show that they had asked for the CR dossiers of applicant (page 162 onwards) which were sent somewhere in 2010 and vide order dated 02.02.2011, applicant was granted the 2nd financial upgradation and after applicant exercised his option, his pay was also fixed vide order dated 22.02.2011 (page 161). In view of above, the relief, as claimed, cannot be granted.
19. Counsel for the applicant had placed reliance on the judgment in the case of Food Corporation of India & Ors. Vs Ashis Kumar Ganguly & Ors. reported in 2010 (1) SC 52 However, perusal of same shows it was decided in a different context. The facts of the case were that the respondents therein were employees of State of West Bengal on deputation with Food Corporation of India. Similarly, officials were taken on deputation from Central Govt. also. In 1968 Section 12A was inserted in the Act so as to enable the Central Government to make an order directing its employees to be transferred to the services of the Food Corporation of India. Those employees who had been working as deputationists from the Central Government were absorbed. They admittedly were given one extra increment purported to be on the basis of a circular letter issued in this behalf while the same was denied to the respondents. They had filed writ petition in 1997 inter alia contending that in terms of the proviso appended to Regulation 81 of the Food Corporation of India (Staff) Regulations, 1971 (for short "the Regulations"), they were also entitled to grant of one additional increment.
20. It was noted by the Honble Supreme Court that on or about 19.11.1965, the Food Corporation of India had issued a circular stating that the transferees and deputationists were to be brought to the scales of pay of the Corporation as contained in Para 4.8 of the Manual with effect from 1.04.1965, subject to the instructions contained therein which inter alia are as under:
"Fixation of pay in the case of transferees (2) Transferees from the Food Department may either opt for the Corporation pay scales or, if they so choose, retain their existing scales of pay.
21. Honble Supreme Court had further referred to circular dated 19.03.1984 in terms of which respondents were absorbed. The terms clearly mentioned as follows:-
"(i) The State Government employees who opt for permanent absorption in the service of the Corporation will be treated as direct recruit and will be subject to the terms and conditions as prescribed in FCI (Staff) Regulations, 1971.
Reference was also made to para 4.70 of the manual. It was held that the respondents would be entitled to the benefit of increment as per proviso to Regulation 81 and para 4.70 of the manual itself.
22. This judgment, according to us, is based on different set of facts. Applicant could have asked for the benefit of upgraded scale of Rs.4000-6000 if he had been granted this upgradation in Ministry of Law because the pay scale of Rs.4000-6000 in Ministry of Law was attached to the post of Proof Reader which alone was upgraded. The applicant was given financial upgradation in BRO in the pay scale of Rs.4000-6000 which was attached to the post of UDC. This pay scale was never upgraded. The financial upgradation is personal to a person, therefore, simply because 1st financial upgradation happened to be Rs.4000-6000 in BRO, it doesnt mean applicant would be entitled to get Rs.4500-7000 in Ministry of Law. Since line of hierarchy is different in BRO and Ministry of Law, therefore, no parity can be sought with Prem Singh and Shiv Kumar. In any case, they have been regularly promoted as Proof Reader whereas applicant is still a copy holder, therefore, no parity can be claimed with them.
23. The O.A. being devoid of merit is dismissed. No costs.
5. The Applicant challenged the aforesaid order before the Honble High Court of Delhi vide Writ Petition (Civil) No.3519/2012. However, the High Court dismissed the aforesaid Writ Petition vide order 15.04.2013. The relevant part of the said judgment is as under:-
12. From the facts noted above it is apparent that the petitioner cannot claim any parity with Shiv Kumar and Prem Singh. He came with open eyes to the Ministry of Law in a lower post. His last drawn pay in BRO in sum of Rs.4700 per month was protected as personal to him. First Financial Upgradation in the parent department was personal to him as was the one earned by Shiv Kumar and Prem Singh. We concur with the view taken by the Tribunal in paragraph 17 to 22 of the impugned decision wherein the Tribunal has distinguished the decision of the Supreme Court reported as 2010 (1) SCC 52 FCI & Others Vs. Ashis Kumar Ganguly and Others.
6. Meanwhile, the Applicant made a representation dated 05.09.2011 followed by reminders dated 21.10.2011 and 12.01.2012 for fixing his seniority taking into account of his service rendered in the parent department with effect from 18.11.1988 to 18.03.2008. In this regard, he has relied upon the DOP&Ts OM No.20011/1/2000-Estt.(D) dated 27.03.2001 and the order of this Tribunal in the case of Shri Kushal Singh Vs. Central Administrative Tribunal and Others 2011 (2) AISLJ(CAT) 275. The relevant part of the said order is reproduced as under:-
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 of the same principle irrespective of the mode by which it is brought about. Even at the cost of repetition, it is expedient to reiterate 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 words whichever 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.
28. 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.
29. In view of the aforesaid, the respondents action in fixing the applicants seniority w.e.f. 15.05.1996, the date on which he was absorbed in the post of UDC in the Tribunal, without taking into consideration his regular service in the same and equivalent post in the parent department is not admissible in law. We accordingly quash and set aside the impugned Memorandum dated 22.04.2009 (Annexure A-1). We further direct the respondent to refix the seniority of the applicant in the grade of UDC after taking into consideration his regular service in the equivalent post of UDC in Central Ground Water Board i.e. his parent department. The applicant should also be considered for further promotions consequent upon revised seniority as per rules.
30. The OA is accordingly allowed in the above terms. No order as to costs.
7. As the said representations were not considered by the Respondents, the Applicant approached this Tribunal vide OA No.1187/2012 seeking a direction to the Respondents to dispose of those representations. This Tribunal, vide order dated 09.07.2012, directed the Respondents to dispose of those representations. Pursuant to the aforesaid directions, the Respondents have passed the Impugned Speaking Order dated 12.12.2012 rejecting his aforesaid representations. In the said order, they have stated that the Applicant was originally appointed as a Copy Holder on absorption basis with effect from 26.03.2008. As he requested for his reversion to his parent department, mode of his appointment was changed to deputation basis modifying the earlier order. Thereafter, on his request for permanent absorption, he was once again considered favourably and appointed him on absorption basis with effect from 20.07.2009 only on his personal request. Thus, his appointment as Copy Holder was changed twice from absorption to deputation and vice versa. Since the aforesaid changes are at his personal request, and without even having the concurrence of his parent department, his absorption cannot be treated as strictly in public interest. Therefore, he cannot claim seniority over the officers appointed earlier as his permanent absorption to the post of Copy Holder on 28.07.2009 was on his own request.
8. As far as the consequential benefits like promotions and financial upgradation under the MACP Scheme sought by the Applicant in the aforesaid representations are concerned, they have stated that matters relating to financial upgradations and other financial benefits etc. they have already been rejected by this Tribunal vide OA No.1161/2010 (supra).
9. The Applicant has, therefore, filed this OA seeking the following reliefs:-
(i) Quash and set aside the impugned order dated 12.12.2012 (Annexure A-1) and Seniority List of Copy Holder as on 01.04.2012 (Annexure A-2).
(ii) Direct the Respondents No.1 and 2 to revised the seniority list by fixing the seniority of the Applicant over and above the private Respondents in terms of DOP&Ts OM No.20011/1/2000-Estt.(D) dated 27.03.2001 and Shri S.I. Roop Lals case (supra) and Kushal Singhs case (supra) within a time bound period as this Honble Court may deem just and proper.
(iii) Pass any other and further orders as this Honble Tribunal may deem fit and proper in the interest of justice.
10. According to the Applicant, since he was absorbed by the Respondents with effect from 19.03.2008 as Copy Holder in the equivalent grade of LDC carrying the same pre-revised scale of Rs.3050-4590 in the parent department with effect from 18.11.1988, his seniority should have been fixed taking into consideration of his regular service in the equivalent grade in the parent department. Consequently, he was also to be considered for further promotion on the basis of his revised seniority. In this regard he has relied upon the judgment of the Apex Court in the case of SI Roop Lal (supra). He has also relied upon DOP&Ts OM No.20011/1/2000-Estt.(D) dated 27.03.2001 issued on the basis of the aforesaid judgment. The said Memorandum reads as under:-
No. 20011/1/2000-Estt.D Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training New Delhi 110001 March 27, 2001 Office Memorandum Sub: Seniority of persons absorbed after being on deputation.
The undersigned is directed to say that according to our O.M. No.20020/7/80-Estt.D dated May 29, 1986 (copy enclosed) 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, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from
- the date he has been holding the post on deputation, or
- the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department, whichever is later.
2. The Supreme Court has in its judgment dated December 14, 1999 in the case of Shri. S.I. Rooplal & Others Vs. Lt. Governor through Chief Secretary, Delhi, JT 1999 (9)SC 597 has held that the words whichever is later occurring in the Office Memorandum dated May 29, 1986 and mentioned above are violative of Articles 14 and 16 of the Constitution and, hence, those words have been quashed from that Memorandum. The implications of the above ruling of the Supreme Court have been examined and it has been decided to substitute the term whichever is later occurring in the Office Memorandum dated May 29, 1986 by the term whichever is earlier.
3. It is also clarified that for the purpose of determining the equivalent grade in the parent department mentioned in the Office Memorandum dated May 29, 1986, the criteria contained in this Department Office Memorandum No. 14017/27/75-Estt.D)(Pt.) dated March 7, 1984 (copy enclosed), which lays down the criteria for determining analogous posts, may be followed.
4. These instructions shall take effect from the December 14, 1999 which is the date of the judgment of the Supreme Court referred to above.
5. In so far as personnel serving in Indian Audit and Accounts Departments are concerned, these instructions are issued in consultation with the Comptroller and Auditor General of India. However, these orders (in keeping with paragraph 4 of the Office Memorandum dated May 29, 1986 as referred to above) will not be applicable to transfers within the Indian Audit and Accounts Department which are governed by orders issued by the C&AG from time to time.
6. The above instructions may be brought to the notice of all concerned for information, guidance and necessary action.
Sd/-
(K.K. Jha) Director (Establishment) To All Ministries/Departments of the Government of India
11. He has further submitted that after his absorption on 19.03.2008, the Respondents have promoted S/Shri Prem Singh, Rajbir Singh and Dalip Singh, all Copy Holders as Proof Readers without considering him in terms of the aforesaid OM dated 27.03.2001. He has also submitted that the Respondents themselves have admitted in their impugned letter dated 12.12.2012 that his appointment as LDC in the parent department was with effect from 19.11.1988 and his subsequent appointment as Copy Holder by absorption were in the equivalent post and in the same grade. Hence, he is also entitled for counting his past service in the parent department for the purpose of seniority in terms of the aforesaid OM dated 27.03.2001. He has also stated that on the basis of the aforesaid OM, he deserves seniority over and above the Private Respondents.
12. The Official Respondents have filed their reply reiterating their position in the Impugned Order dated 12.12.2012. They have also relied upon the judgment of the High Court of Delhi in the case of Union of India Vs. B.L. Gupta 1999(82) DLT 721 wherein it has been held that obtaining of consent of government servant to the termination of lien is necessary in certain circumstances where the government servant is to be confirmed in a non-government service and the proper course in such cases, where it is proposed to absorb him in non-government service in public interest, would be to ask the government servant concerned to resign appointment under the Government with effect from the date of such permanent absorption and the lien will stand automatically terminated with the cession of the government service as under:-
4. Therefore, the short question for consideration is whether the respondent after having severed relation with COD and getting permanently absorbed in the STC could claim benefit of past service which he had voluntarily foregone? Whether his absorption in the STC was in public interest.
5. The law is well settled that obtaining of consent of government servant to the termination of lien is necessary in certain circumstances where the government servant is to be confirmed in a non-government service. The proper course in such cases, where it is proposed to absorb him in nongovernment service in public interest, would be to ask the government servant concerned to resign appointment under the Government with effect from the date of such permanent absorption and the lien will stand automatically terminated with the cession of the government service. Such resignation from government service will be without prejudice to the entitlement of the government servant to the retirement benefits provided the transfer or the absorption of the government servant in Public Sector Undertaking or semi-government corporation is in public interest. It is due to this provision of the law that the petitioner sought for the resignation of the respondent. After resignation his lien with COD stood terminated. He was, therefore, got absorbed permanently with the STC. As the absorption of the respondent in the STC was of his own volition and not in public interest, hence he was made aware that his past service rendered in the Government Department would not be counted towards retiral benefits. Had his absorption in STC been in public interest the respondent would have definitely been entitled to retiral benefits and/or counting of his past service rendered in the COD, Delhi Cantt. This is what has been provided under Rule 37 of the Central Civil Services (Pension) Rules, 1972. The said Rule provides:
"A Government servant who has been permitted to be absorbed in a service or post in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government shall, if such absorption is declared by the Government to be in the public interest be deemed to have retired from service from the date of such absorption and shall be eligible to receive retirement benefits which he may have elected or deemed to have elected, and from such date as may be determined in accordance with the orders of the Government applicable to him :
Provided that no declaration regarding absorption in the public interest in a service or post in or under such corporation, company or body shall be required in respect of a Government servant whom the Government may, by order, declare to be a scientific employee."
13. Even though notices were issued to the Private Respondents No.3 to 6, yet they have chosen not to file any reply or to contest the case.
14. We have heard the learned counsel for the Applicant Shri Amit Kumar and the learned counsel for Respondents No.1 and 2 Shri Rajesh Katyal. Admittedly, the Applicant was initially appointed as LDC in his parent department, namely, Border Roads Organisation. He served there with effect from 18.11.1988 to 18.03.2008. Later on, he was appointed as Copy Holder in the Respondent-Department on absorption basis with effect from 26.03.2008. Both the posts of LDC and Copy Holder were in the same pay scale. When the Applicant has requested for his reversion to his parent department, to facilitate his reversion, the Respondents, vide its order dated 04.12.2008, changed his appointment on absorption basis to appointment on deputation basis, modifying their earlier order. However, due to changed circumstances, the Applicant requested for permanent absorption with Respondent-Department and the Respondents again agreed with his aforesaid request and appointed him on absorption basis with effect from 28.07.2009. In other words, the Respondents order dated 04.12.2008 changing his appointment on deputation basis was not given effect to. The contention of the Respondents that the said appointment on absorption basis was on personal basis. We do not appreciate the said submission of the Respondents. Just because the Applicant has requested the Respondents to make his appointment on deputation basis, it cannot be held that his appointment was on personal basis. In a Government Department, the appointments are made on the basis of the Recruitment Rules. The personal requests are allowed only if it is covered by the Recruitment Rules. Therefore, the objection raised by the Respondents for not counting his past service that his absorption was on personal basis is not sustainable in the eyes of law. The Apex Court in the case of SI Roop Lal (supra) held that 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. The Department of Personnel and Training also based on the aforesaid decision of the Apex Court, passed the OM No.20011/1/2000-Estt.(D) dated 27.03.2001 revised its earlier position as contained in their OM No.20020/7/80-Estt(D) dated 29.05.1986. According to the said OM, 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 would normally be counted from the date of his absorption. If he has, however, been holding the same or equivalent grade on regular basis in his parent department on the date of his absorption, such regular service in the grade 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 basis 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. However, based on the judgment of the Apex Court, the Department of Personnel and Training has clarified that the seniority shall be fixed from the date he has been holding the post on deputation or from the date he has been appointed on regular basis to the same or equivalent grade to his parent department whichever is earlier. The aforesaid Memorandum clearly covers the case of the Applicant.
15. We also do not find merit in the submission of the Respondents that the Applicants case is hit by principles of res judicata as he had approached the Tribunal earlier with the same grievance. In fact the Applicant had earlier approached this Tribunal vide OA No.822/2010 (supra) and OA No.1161/2010 (supra) for different purposes. Vide OA No.822/2010 (supra) he had challenged the Respondents order dated 08.03.2010 whereby he was relieved of his duties w.e.f. 15.03.2010 to report to his parent cadre. The Tribunal, vide order dated 01.09.2010 quashed and set aside the same. Vide OA No.1161/2010 (supra) the Applicant has sought a direction to the Respondents to grant him the Grade Pay of Rs.2800/- instead of Rs.2400/- in the Pay Band of Rs.5200-20200 which is the upgraded pre-revised scale of Rs.4500-125-7000 from Rs.4000-100-6000 (pre-revised) having been merged in the revised pay band of Rs.5200-2000 as per 6th CPC w.e.f. 19.03.2008 to 17.11.2008 at par with similarly situated employees applying the principle of equal pay for equal work. This Tribunal dismissed the said OA stating that Applicant could have asked for the benefit of upgraded scale of Rs.4000-6000 if he had been granted this upgradation in the Respondents-Department, i.e., Ministry of Law because the pay scale of Rs.4000-6000 in Ministry of Law was attached to the post of Proof Reader which alone was upgraded. Applicant was given financial upgradation in the parent department in the pay scale of Rs.4000-6000 which was attached to the post of UDC. The said pay scale has never been upgraded. Since the financial upgradation is personal to a person simply because 1st financial upgradation happened to be Rs.4000-6000 in his parent department, it did not mean he was also entitled to get Rs.4500-7000 in his parent department. Therefore, those OAs were nothing to do with his seniority.
16. In the above facts and circumstances of the case, we allow this OA. Consequently, we quash and set aside the Annexure A-1 Impugned Order dated 12.12.2012 and the Annexure A-2 Impugned Seniority List of Copy Holder as on 01.04.2012. We also direct the Respondents No.1 and 2 to revise the seniority list by fixing the seniority of the Applicant over and above Private Respondents in terms of DOP&T OM dated 27.03.2001 and the judgment of the Apex Court in SI Roop Lal and Others (supra). The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order.
17. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh