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Therefore, in our opinion, the finding of the tribunal that the posts of Sub-inspector in the BSF and Sub-Inspector (Executive) in Delhi Police are not equivalent, is erroneous, and the same is liable to be set aside, This leaves us to consider the Validity of the Office Memorandum which was relied upon by the tribunal in the impugned judgment We have noticed earlier in the judgment that the constitutional validity of this Memorandum is independently challenged by the appellants in W.P.c No. 191/99. There is considerable force in the argument addressed on behalf of the appellants that this Memorandum had neither been made public nor the existence thereof made known to anybody concerned with the controversy in question. We have already referred to this fact. Hence, we do not want to repeat the same in detail. On facts, we are of the opinion that the respondents ought not to have been permitted to rely upon this document because there is no material whatsoever produced by the respondents to shown that this Memorandum which was issued by the Government of India was either ipso facto applicable to the Delhi Police Force or the same was adopted and applied by the Delhi Police Force. It is to be noted that the law in regard to the right of a deputationist to count his service for purpose of seniority in the transferred Department was settled as far back as in the year 1982 itself in the cases of R.S. Mokashi and Ors. and Wing Commander J. Kumar (supra) (if not earlier). Therefore, it is reasonable to expect that a deputationist when his service is sought to be absorbed in the transferred department would certainly have expected that his seniority in the parent department would be counted. In such a situation, it was really the duty of the respondents, if at all the conditions stipulated in the impugned Memorandum were applicable to such person, to have made the conditions in the Memorandum known to the deputationist before absorbing his services, in all fairness, so that such a deputationist would have had the option of accepting the permanent absorption in Delhi Police or not. The very fact that such steps were not taken, shows that this Memorandum was, in fact, never acted Upon. Apart from the above question of equity, the appellants have challenged the constitutional validity of the above Memorandum on the ground that the same violates Articles 14 and 16 of the Constitution. One of the grounds raised is that their vested right of counting the seniority in the deputed Department, after absorption in an equivalent post, is arbitrarily taken away, if the Memorandum in question is applicable to them. Therefore, they had prayed for a declaration that the Memorandum be declared as ultra vires to (he extent it offends their fundamental right.
(iv) to para 7 of general principles communicated vide O.M dated 22nd December, 1959, "(iv) In the case of a person who is initially taken on deputation and absorbed later (i.e. where the relevant recruitment rules provide for "Transfer on deputation/Transfer"), his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has so ever been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from the date he has been holding the post on deputation, or the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department, whichever is later" (emphasis supplied) A perusal of clause (iv) of the Memorandum shows that the author of this Memorandum has taken inconsistent views in regard to the right of a deputationist to count his seniority in the parent department. While in the beginning part of Clause (iv) :in clear terms he says that if a deputationist holds an equivalent grade on regular basis in the parent department, such regular service in the grade shall also be taken into account in fixing the seniority. In the latter part the author proceeds to say-"subject to the condition that he will be given seniority from the date he has been holding the post or the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department whichever is later." The use of the words "whichever is later" negatives the right which was otherwise sought to be conferred under the previous paragraph of Clause (iv) of the Memorandum. We are unable to see the logic behind this. The use of the words "whichever is later" being unreasonable, it offends Article 14 of the Constitution. It is also argued on behalf of the appellants that this Memorandum is further violative of Articles 14 and 16 of the Constitution inasmuch as it arbitrarily takes away the service rendered by the deputationist when he is absorbed in Delhi Police which right of a civil servant cannot be taken away without authority of law. We have noticed earlier that the petitioners who are the appellants in the civil appeals, were regularly appointed as Sub-Inspectors in the BSF on the date of their deputation. We have also accepted the fact that the post of Sub-Inspector held by them in the BSF is equivalent to the post of Sub-

However, in that case this Court instead of striking down the said regulation, upholding the contention that a deputationist is entitled to count his seniority when absorbed in the deputed post, observed thus:

"xxx When the Commission finally takes a decision to permanently absorb these deputationists after obtaining' their option the question of their inter se seniority in the Commission crops up and Regulation 9 (2) deals with the said situation. In the case of R.S. Mokashi v. I.M. Menon this Court had indicated that it is a just and wholesome principle commonly applied to persons coming from different sources and drafted to serve a new service to count their pre-existing length of service for determining their ranking in the new service cadre. The said principle was reiterated by this Court in K. Madhavan case. A three-Judge Bench judgment of this Court in the case of Wing Commander J. Kumar also reiterated the aforesaid well- known principle in the service jurisprudence, xxx"

It is clear from the ratio laid down in the above case that any Rule, Regulation or Executive Instruction which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Articles 14 and 16 of the Constitution. Hence, liable to be struck down. Since the impugned Memorandum in its entirety does not take away the above right of the deputationists and by striking down the offending part of the Memorandum, as has been prayed in the writ petition, the rights of the appellants could be preserved, we agree with the prayer of the petitioners/ appellants and the offending words in the Memorandum "whichever is later" are held to be violative of Articles 14 and 16 of the Constitution, hence, those words are quashed from the text of the impugned Memorandum. Consequently, the right of the petitioners/appellants to count their service from the date of their regular appointment in the post of Sub-Inspector in BSF, while computing their seniority in the cadre of Sub- Inspector (Executive) in the Delhi Police, is restored.