Delhi High Court
Ramesh Chander And Anr. vs Vishveshwar Dayal Sharma And Anr. on 13 September, 2006
Author: Manmohan Sarin
Bench: Manmohan Sarin, Aruna Suresh
JUDGMENT Manmohan Sarin, J.
1. By this common judgment, the above writ petitions, which raise question of inter se seniority of Sub Inspectors, who were on deputation in the Department of Transport and were eventually absorbed there, are being decided.
2. Petitioners in WP(C). No. 6736/2003 are Ramesh Chander and Tara Parsad Sharma, who challenge and assail the order dated 18th September, 2003, passed by the Central Administrative Tribunal, hereinafter referred to as the Tribunal, in OA. No. 1905/99, wherein after noting the principles and the basis for fixing seniority among deputationists, certain directions were given. The deputationists were Asst. Sub-Inspectors of Delhi Police. They were absorbed as Sub-Inspector (Enforcement) in the Transport Department of NCT. Their inter se seniority barring Attar Singh Kaushik, had been fixed based on the date of entry into Delhi Police Service. Attar Singh's seniority was determined from the date of absorption and he was placed at number one. A tentative seniority list dated 19th June, 1998 was issued.
3. OA. No. 1905/99 had been filed by Vishveshwar Dayal Sharma, who is one of the respondents in the present writ petition, before the Tribunal. He had sought quashing of the tentative seniority list dated 19th June, 1998. Petitioners Ramesh Chander and Tara Parsad Sharma prayed for dismissal of the said OA, filed by Vishveshwar Dayal Sharma.
4. Attar Singh Kaushik, petitioner in WP(C). No. 6710/2003, also seeks quashing of judgment dated 18 September, 2003 of the Tribunal and dismissal of the original application, as filed by Vishveshwar Dayal Sharma/respondent No. 2, before the Tribunal.
5. WP(C). No. 1678/2004 is a petition filed by the Secretary/Commissioner, Transport Department, who also assails the judgment dated 18th September, 2003 in OA. No. 1905/99 and seeks its dismissal.
6. The facts in brief culminating in the filing of the above writ petitions may be briefly noted:
(i)Seven Assistant Sub-Inspectors, whose names are given hereinafter, came on deputation to Transport Department as Sub-Inspectors (Enf.), Government of NCT of Delhi. They gave their willingness for absorption in the Transport Department vide Order bearing No. F.3(1)/87-ADMN/TPA/PT.File 984 dated 28th May, 1993, they were absorbed as Sub-Inspectors in the pay scale of Rs. 1200 ? 1800/- per month. The said order mentioned their inter se seniority being based on the date of their respective appointments in Delhi Police. Further, option was given to the officers to revert back to their parent office within two years from the date of their absorption. None of the officers exercised the said option.
(ii)Attar Singh, petitioner in WP(C). No. 6710/2003 got absorbed prior to the seven officers on 29th April, 1993, though he was not the first to join on deputation. For facility of reference, we are giving below the relevant details and particulars regarding date of joining the Delhi Police, respective dates of promotion as ASI, the date of deputation and the date of their absorption.
Name Date of Rank Date of Date of Date of
appointment promotion deputation absorption
in Delhi Police as ASI in Tpt. Deptt in Tpt.Deptt
Attar Singh 15/02/73 Constable 08/02/90 21/08/91 29/04/93
Mathura Prasad 17/03/69 Constable 08/02/88 10/12/91 28/05/93
Kartar Singh 23/09/69 Constable 29/06/88 21/08/91 28/05/93
Ramesh Chander 29/06/74 Constable 28/08/89 20/08/91 28/05/93
Tara Parsad 29/06/74 Constable 28/08/89 21/08/91 28/05/93
Inder Pal Singh 01/09/78 Head Constable 01/01/87 16/08/91 28/05/93
Joginder Singh 02/06/80 Constable 30/01/91 14/08/91 28/05/93
V.D. Sharma 28/04/82 Head Constable 03/06/88 14/08/91 28/05/93
(iii)Department of Transport on 19th June, 1998 issued a tentative seniority list of Sub-Inspectors (Enforcement). The seniority in the tentative list was again on the basis of the dates of appointment in Delhi Police i.e., the same as in the order dated 28th May, 1993. Objections were invited to the said seniority list.
(iv)Vishveshwar Dayal Sharma filed objection contending that his seniority ought to be fixed from the date of deputation in the department, which was 14th August, 1991. In the event, in August, 1999, Vishveshwar Dayal Sharma filed OA. No. 1905/99, contending that he was the first, who came on deputation i.e., on 14th August, 1991, apart from Joginder Singh. Further, he claimed the benefit of OM. No. 20020/7/80-Estt.(D) dated 29th May, 1986.
(v)The said OM provides that seniority of persons absorbed on deputation is to be counted normally from the date of absorption. However, if an incumbent has been holding, on the date of absorption, same or equivalent grade on regular basis in his parent department, such regular service in the grade shall be taken into account in fixation of his seniority. This is subject to the condition that seniority would be given from the date, he has been holding the post on deputation or the date from which he has been appointed on regular basis in the same or equivalent grade in the parent department, whichever is later.
7. At this stage, we may notice that in Sub Inspector Rooplal and Anr. v. Lt. Governor through Chief Secretary, Delhi and Ors. , the above referred OM dated 29th May, 1986 came up for consideration. Tribunal had denied the benefit of service rendered by the Sub-Inspectors in their parent department i.e BSF. The Supreme Court, apart from considering the validity of the order also considered the constitutional validity of the expression ?whichever is later? occurring in the above OM. This was challenged as violative of Articles 14 and 16 of the Constitution of India. The Supreme Court upon consideration of the provisions of the OM, held that the impugned OM in its entirety does not take away the right of deputationists to have their services rendered in an equivalent cadre in the parent department considered for fixation of seniority. The Supreme Court struck down the offending words of the impugned OM ?Whichever is later? holding them violative of Article 14 and 16 of the Constitution. Accordingly, the right of the appellants to count their service from the date of their regular appointment in the post of Sub Inspector in BSF for computing their seniority as Sub Inspector (Executive) in Delhi Police was upheld. Pursuant to the said judgment, amended OM dated 27th March,2001 was issued wherein instead of words ?Whichever is later? the words ?Whichever is earlier? were substituted.
8. Respondent No. 1 had contended before the Tribunal that seniority could not be reckoned from the date of original appointment in Delhi Police especially since his recruitment, as would be seen from the chart appearing at para 6(ii), was as a Head Constable. He submitted that the date of appointment to the grade/post which is a feeder grade for the post on which absorption has been done, has to be considered, i.e., date of appointment as an A.S.I. He submits that date of joining, in different capacity, i.e., as a Constable, a Head Constable etc does not provide any rationale criteria at all for computation and fixation of seniority. It has to be the appointment to the post which is the feeder post for absorption to the rank of SI. The grade to be considered is the feeder post i.e post of ASI in Delhi Police and not Head Constable or other lower ranks. Based on the above criteria, respondent submitted that seniority be determined either from the date of absorption or from the date a person held the rank of ASI, which in respondent's case was 3rd June, 1988. The Tribunal accepted the submission and held that it was not the total length of service alone, which is relevant for determining the seniority but the length of service in a particular class or category or grade. The Tribunal held that inter se seniority list issued by the respondent dated 28th May, 1993 based on the dates of entry in Delhi Police was not valid. The impugned tentative list dated 19th June, 1998 based on the same criteria which was adopted in 1993 was also held to be not valid.
9. It may also be noted that respondent-V.D. Sharma in the original OA had earlier prayed that he should be placed at Sr. No. 1 in the grade of SI (Enforcement). In the amended OA, respondent-V.D. Sharma prayed that he be placed at Sr. No. 3 in the revised seniority list based on the years of regular service in the feeder grade. Counsel submitted that all that the respondent was seeking was a correct placement in the revised seniority list, made in accordance with law and the seniority may be redrawn accordingly. The Tribunal quashed the seniority list issued vide letter dated 19th June, 1998 and final seniority list dated 15th February, 2002. It also quashed part of the order dated 28th May, 1993 fixing the inter se seniority on the basis of absorption in Transport Department. Direction was issued to revise the seniority list of Sub Inspectors in accordance with law, rules and instructions within three months. Costs of Rs. 2000/- was imposed on respondent No. 1 to be paid to the opposite party.
10. Having noted the factual matrix as also the events culminating in the order of the Tribunal which is sought to be impugned in the present writ petition and the legal contention that were raised before the Tribunal, let us consider the submission now made by the writ petitioners. The main plank of the petitioner's submission is the aspect of limitation. Petitioners in the writ petitions urge that inter se seniority of the deputationists was determined vide order dated 28th May, 1993. The said order fixed the inter se seniority on the date of their respective appointment in Delhi Police where they joined either as Constable, Head Constable etc. The said order gave option to the officers to revert back to their parent office within two years from the date of absorption. The order had clearly specified that inter se seniority was based on the dates of their appointments. This, petitioners contend, was challenged on 30th June, 1998 by filing objections to the tentative seniority list, that was issued on 19th June, 1998. Petitioners allege that respondent Vishveshwar Dayal Sharma while filing OA concealed the factum of the absorption order dated 28th May, 1993 which had also fixed the inter se seniority. Re-issuance of tentative seniority list in 1998 cannot provide a fresh cause of action to challenge the seniority which had been fixed way back in 1993.
11. Mr. Shyam Babu, counsel for the petitioner in WP(C) 6736/2003 submitted that neither in the original OA nor amended OA, was there any specific challenge to the order fixing inter se seniority on 28th May, 1993. In the absence of specific challenge to the order dated 28th May, 1993, the Tribunal had exceeded its jurisdiction in quashing the absorption order of 28th May, 1993 to the extent that it fixed the inter se seniority. Mr. Shyam Babu further assailed the order of the Tribunal by saying that respondent-Vishveshwar Dayal Sharma had sought relief relying on the OM dated 29th May, 1986, by which seniority was to be reckoned from the date of absorption. In the interregnum, following the judgment of SI Rooplal, without seeking leave of the Tribunal, amended petition was filed praying that said respondent be placed at Sr. No. 3 based on the computation of seniority by reckoning the service rendered in the feeder grade. Thus the respondent had in fact changed the entire cause of action. He submitted that belated challenge in 1999 to the well settled seniority of 1993 could not be permitted in 1999 without any cause.
12. Ms. Avnish Ahlawat appearing for respondent No. 2 in WP(C) 6736/2003 and as respondent in WP(C) 6710/2003 and for petitioner in WP(C) 1678/2004 supports the submission of Mr. Shyam Babu. She pointed out that Mr. Attar Singh Kaushik had been absorbed on 29th April, 1993 i.e prior to 28th May, 1993. In view of his absorption on 29th April, 1993, his case would stand on a different footing with his appointment having preceded the others. She contended that rest of the deputationists were absorbed on 29th May, 1993. Hence the question of fixing of inter se seniority would arise in case of these candidates only.
13. Ms. Avnish Ahlawat attempted to distinguish the present case from SI Roop Lal's case. She submits that in the present case, the parties were fully in the knowledge of the dates from which their seniority was being reckoned. SI Roop Lal's case proceeded on the premise that parties were not advised of the dates from which seniority would be reckoned. She submits that in the present case the order dated 28th May, 1993 had duly notified the concerned parties that their seniority was being fixed based on the date of their respective appointments and they had the option, within two years, to revert back to their parent Department, if they had any grievance on this count. None of them had exercised the option. Despite having been notified of the seniority, no protest or question was raised. Hence no ground was made out for revision of seniority list.
14. Mr. Shyam Babu on behalf of the petitioners in WP(C) 6736/2003 apart from laying great emphasis on the challenge to the seniority being barred by limitation, submitted that Tribunal had exceeded its jurisdiction in granting relief which had not been sought, on the basis of unauthorized amendments to the OA. Assailing the proposition that seniority should be reckoned from the entry point at Assistant Sub Inspector Level, which was the eligibility post for SI (Enforcement), Mr. Shyam Babu submitted that this was contrary to the principles of Service Jurisprudence as it negates and militates against the principle of total length of service. He submitted that when people were coming from different departments on deputation, the safest principle to be adopted to determine inter se seniority is the total length of service. He, therefore, submitted that the impugned order of the Tribunal was not sustainable and seniority as per memorandum of 28th May, 1993 which had been maintained for over 10 years, be restored.
15. Mr. Naresh Kaushik for petitioner-Attar Singh Kaushik in WP(C) 6710/2003 submitted that respondents challenge was a belated one and in contravention of the period prescribed under Section 21 of the Central Administrative Tribunal Act. Mr. Kaushik further submitted that as Attar Singh had been appointed and absorbed on regular grade on 29th April, 1993, he would in any event be senior to the respondent. A feeble attempt was made to urge that respondent was not even eligible being a ministerial candidate for the posts of SI (Enforcement). It was contended that SI (Enforcement) was a ?Grade-C Non Gaz. Non Ministerial post?. This was duly rebutted by Mr. P.P. Khurana who pointed out that respondent and others were fully eligible to come on transfer or deputation as the requirement for the post was persons holding post of ASI in Delhi Police/CRPF/RPF and having educational and other qualifications prescribed for direct recruits. Simply because the recruitment rules had classified the post as ?Grade-C, Non Gaz., Non Ministerial? did not ipso facto exclude the eligible candidates from applying. Eligibility had to be determined based on the requirement of qualification and experience as prescribed in the Recruitment Rules which as noted above only mentioned ASI from Delhi Police, CRPF, RPF etc with qualification of graduation as prescribed for direct recruits. He also referred to the Circular issued by Deputy Commissioner of Police with regard to deputation of A.S.I to Transport Department, which re-confirms the same.
16. We have heard learned Counsel for the parties. While it is correct that settled seniority is not to be disturbed and belated challenges to the same ought not to be permitted. However, in the present case, it has to be recognized that while the order of absorption did mention the inter se seniority, the petitioner-Department itself had issued a tentative list on 19th June, 1998. The said seniority list did not refer to the earlier list, it would appear that no attention was paid by the parties to the seniority indicated in the absorption order till June, 1998, since there was no prospect of promotion, attention was not bestowed on the same.
17. The Department having issued the tentative seniority list on 19th June, 1998, respondent Vishveshwar Dayal Sharma and others were entitled to raise their objections within the period stipulated and same ought not to be defeated if they were otherwise legally sustainable on the ground of limitation. The Tribunal has also burdened respondents with costs for the amendments made in the OA. Besides, in our view the criteria and principle of determining seniority for the posts of SI (Enforcement) on the basis of total length of service in the Police Force would bring in irrationality as the candidates joined in different capacities at entry point. Moreover the same would be contrary to the judgment of the Supreme Court in SI Roop Lal's case and Office Memorandum dated 27th March, 2001. The apposite principle would be to take into account the services rendered in the equivalent grade either on deputation or in the parent department. In our view the fixation of inter se seniority that had been based on the seniority reckoned from the entry point in the Delhi Police was irrational and illogical and therefore, unsustainable. Moreover, no prejudice had been caused to either of the parties by this belated challenge since the issue of correction to the seniority list had arisen much before the question of promotion of the candidates.
18. The plea that seniority of Attar Singh Kaushik should be determined on the basis of his date of absorption in the Transport Department which is a month prior to other deputationists cannot be sustained. It would not be in conformity with the provisions of Clause 3.4.1 of the Chapter on Seniority of Absorbees in Swamy's Manual on Establishment and Administration for reasons recorded hereinafter in the judgment. Besides, we find that his prior absorption is not a bona fide one and is in contravention of Clause 10.2(ii) under heading ?Absorption of an Officer? in the chapter on Recruitment by Absorption/Deputation.
Attar Singh Kaushik came to the Transport Department on deputation on 21st August, 1991. By the said time, Joginder Singh and Vishveshwar Dayal Sharma had already joined the Department on deputation on 14th August, 1991. Mr. Inder Pal Singh joined the Department on deputation on 16th August, 1991. Thus, three of them i.e Joginder Singh, Vishveshwar Dayal Sharma and Inder Pal Singh had come on deputation prior to him. For unexplainable reasons, Attar Singh Kaushik was absorbed a month prior to them. During the course of hearing, we had directed the Standing Counsel for Government of NCT of Delhi to inform the court after making necessary queries as to how and in what circumstances, Mr. Attar Singh Kaushik was absorbed in the Department a month prior to the other three. No explanation is forthcoming. In fact the record produced before us also does not throw any light on it. Reference is invited to Clause 10.2(ii) requiring the Administrative Ministry to certify that there is no other deputationists in position appointed earlier to the officer proposed for absorption. It is also required to be certified that if there is any such person, he is not willing to be considered for appointment on absorption basis. There is nothing to indicate that this procedure was followed or certification given. Such a certification in fact could not have been given as the officers who had come on deputation prior to Attar Singh Kaushik were absorbed subsequently. Thus, the absorption of Attar Singh Kaushik a month prior to the others stands vitiated for the purpose of claiming seniority.
19. The argument that the absorption order of Attar Singh dated 29th April, 1993 was never challenged, will also not hold good. The tentative seniority list dated 19th June, 1998 as well as the final seniority list dated 15th February, 2002 were under challenge. Quashing of these lists would necessarily result into redrafting of the seniority list of all 8 officers and Attar Singh Kaushik cannot be treated as a class apart. Learned Counsel appearing for Attar Singh Kaushik had laid much emphasis on Clause 3.1 and the first portion of Clause 3.4.1 of the Seniority of Absorbees from Swamy's Manual on Establishment and Administration quoted herein below:
Seniority of Absorbees 3.1. The relative seniority of persons appointed by absorption to a Central service from the Subordinate Officers of the Central Government or other departments of the Central or a State Government shall be determined in accordance with the order of their selection for such absorption.
3.2 Where such absorbees are effected against specific quotas prescribed in the Recruitment Rules, the relative seniority of such absorbees vis-a-vis direct recruits or promotees shall be determined according to the rotation of vacancies which shall be based on the quotas reserved for absorption, direct recruitment and promotion respectively in the Recruitment Rules. Where the vacancies in any quota or quotas are carried forward, the principles stated in Para 2.4.2 will apply, mutates mutants in determining inter se seniority of the appointees.
3.3 Where a person is appointed by absorption in accordance with the provisions in the Recruitment Rules providing of such absorption in the event of non-availability of suitable candidate by direct recruitment or promotion, such absorbee shall be grouped with direct recruits or promotees, as the case may be. He shall be ranked below all direct recruits or promotees, as the case may be, selected on the same occasion.
3.4.1. In the case of a person who is initially taken on deputation and absorbed later ( i.e, where the relevant Recruitment Rules provide for ?deputation/absorption?), 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 earlier.
3.4.2 The fixation of seniority of an absorbee in accordance with the above principle will not, however, affect any regular promotions to the next higher grade made prior to the date of such absorption. In other words, it will be operative only in filling up of vacancies in higher grade taking place after such absorption.
3.5 In cases in which absorbees are not strictly in public interest, the transferred officers will be placed below all officers appointed regularly to the grade on the date of absorption.? It was urged that the date of absorption would be determinative for the purposes of reckoning seniority.
20. The above clause has to be read in entirety and interpreted in a harmonious way so as to give effect to all its provisions. We are of the view that the underlined portion of Clause 3.4.1 would apply to the facts of the present case. The said portion of the Clause would be applicable especially when in the present case, prior date of absorption for purposes of seniority has been held to be vitiated by us. The Officers were holding equivalent grade of A.S.I. on regular basis in their parent Department which is feeder grade for the post of SI in the transport Department. Accordingly, regular service in the said grade has to be taken into account in determination of the seniority. Attar Singh Kaushik's seniority also would thus have to be determined on the above criteria which is to be applied to all of them.
21. In view of the foregoing discussion, the challenge in the writ petitions to the impugned order of the Tribunal by which the tentative seniority list dated 19th June, 1998 and final seniority list dated 15th February, 2002 were quashed along with part of the order dated 28th May, 1993, fixing the inter se seniority, is without merit. These writ petitions are accordingly liable to be dismissed and are dismissed.
22. The Tribunal had given directions to revise the seniority list of Sub Inspectors (Enforcement) in accordance with law, rules and instructions. All the parties in these batch of writ petitions had made submissions on the various aspects and facets for determination of inter se seniority at length. There was consensus amongst the parties that rather than remitting the matter to the respondents for re-determination of seniority, since all factual aspects have been urged before the court, the court, for expeditious resolution of this long standing matter be pleased to decide and declare their inter se seniority. In deference to the above request and applying the principles enumerated herein before, we find that inter se seniority between different petitioners/respondents would be as under:
Seniority List Date of promotion as A.S.I 1. Inder Pal Singh 01.01.1987 2. Mathura Prasad 08.02.1988 3. Vishveshwar Dayal Sharma 03.06.1988 4. Kartar Singh 29.06.1988 5. Ramesh Chander 28.08.1989 6. Tara Prasad 28.08.1989 7. Attar Singh Kaushik 08.02.1990 8. Joginder Singh 30.01.1991