Full Judgment Text
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CASE NO.:
Appeal (civil) 4791 of 2007
PETITIONER:
Attar Singh Kaushik
RESPONDENT:
Secretary/Commr. Transport Department & Anr
DATE OF JUDGMENT: 11/10/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
(Arising out of SLP ) No.18135 of 2006)
S.B. Sinha, J.
1. Leave Granted.
2. Inter se seniority amongst the deputationists is in question in this
appeal which arises out of a judgment and order dated 13.9.2006 passed by a
Division Bench of the High Court of Delhi whereby and whereunder the writ
petition filed by the appellant herein assailing the order of the Tribunal dated
18.9.2003 allowing the original application filed by Visheshwar Dayal
Sharma was dismissed. With a view to appreciate the fact of the matter
involved herein, we may notice the particulars of the requisite service
records amongst others of the Appellant vis-‘-vis Respondent No.2 herein :
\023Seniority 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 (Respondent)
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 (Appellant)
8. Joginder Singh 30.01.1991\024
3. Indisputably, Appellant was appointed as a Constable. He was
promoted in the year 1980; whereas the respondent was appointed as a Head
Constable on or about 28.4.1982. They both were promoted to the post of
Assistant Sub-Inspector, the respondent on 3.6.1988 and the appellant on
3.2.1990. Both of them were deputed to the Vigilance Department of the
Transport Authority, National Capital Territory of Delhi on 12.8.1991.
4. It is not in dispute that both groups of employees were absorbed
permanently in the Vigilance Department of the Transport Authority.
Seniority of the deputationists upon absorption in the said department is
governed by clause 3.1 of Establishment and Administration Rules (see
Swamy\022s Manual). Indisputably, Respondent was deputed prior to the
appellant herein, although he was absorbed in the Department, a month prior
to him.
5. The High Court while determining the disputes examined the record
of the Department. It noticed that in doing so, the relevant Rules,
particularly Rule 10.2(ii), in terms whereof Administrative Ministry is
required to certify that there was no other deputationist in position appointed
earlier to the officer proposed for absorption, was not carried out. In terms
of the said Rules, the borrowing department was further required to certify
that if there had been any such person and he had not been willing to be
considered for appointment on absorption basis. Keeping in view the
aforementioned provision as also Clause 3.4.1 of the seniority of the
absorbees as contained in Establishment and Administration Rules
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(Swamy\022s Manual), the High Court opined that seniority of the parties
hereto should be determined on the basis of their respective seniority in the
equivalent grade in the parent department which is the feeder grade being
the post of Assistant Sub Inspector of Police.
6. Mr. Nagendra Rai, learned senior counsel appearing on behalf of the
appellant, in support of the appeal, inte ralia, would submit:
(1) Third respondent being belonging to ministerial cadre was not eligible
for appointment in the Vigilance Department under the Rules;
(2) The inter se seniority between the parties having been determined by
the authorities as far back as on 28.5.1993, the original application
filed by the respondent was barred by limitation; and
(3) Respondent No.3 could not have continued to remain on deputation
despite his repatriation as directed by the order dated 16.12.1991.
(4) In the light of the decision of this Court in Sub-Inspector Rooplal &
Anr. v. Lt. Governor Through Chief Secretary, Delhi & Ors. [(2000) 1
SCC 644], operates in the field, impugned judgment cannot be
sustained.
7. Mr. P.P. Khurana, learned counsel appearing on behalf of the
respondent, on the other hand, contended :
1. Respondent No.3 indisputably was senior to the Appellant as the entry
point of the Appellant and the other respondents was different;
2. whereas the Appellant entered in the services as a Constable of the
Transport Department, Respondent No.3 entered in the services as a
Head Constable and, indisputably, he was promoted to the post of
Assistant Sub Inspector earlier than the appellant and, thus, for all
intent and purport he was senior; and
3. Even Respondent No.3 was deputed to the Transport Department prior
to the Appellant, the same was of no consequence for the purpose of
determining inter se seniority.
8. It has not been disputed before us that all the employees concerned
who were parties to the original application before the Tribunal as also the
writ petition before the High Court were working as Assistant Sub Inspector
of Police in the parent department. It does not appear that any eligibility
criteria had been laid down for the purpose of absorption by the State in its
Transport Department. There is moreover nothing on record to show that
the employees working in the Executive cadre alone were entitled to be
absorbed in the Transport Department. From the Rules, as noticed
hereinbefore, it appears that the only condition laid down for deputation was
that employees concerned should be working in the cadre of Assistant Sub
Inspector of Police.
9. It may be true that Respondent No.3 was directed to be repatriated to
his parent Department but for one reason or the other the same has not been
given effect to. The said order of repatriation admittedly was not
implemented. Appellant, in our opinion, at this juncture, cannot, therefore,
be permitted to question the very absorption of respondent No.3 on the
deputed post on that ground or otherwise. Furthermore, the said question
viz. continuity of respondent No.3 by the Transport Department was not
even raised before the Tribunal or before the High Court and, thus, he cannot
be permitted to do so before us.
10. The office order dated 28.5.1993 which is in the following terms :
\023In pursuance of the issue of No Objection by the
Dy. Commr. Police Q(1) Delhi, vide letter
No.21610/CB-VI dated 20.5.93 and willingness
given by the Asstt. Sub Inspectors to their
absorption in the Transport Deptt. Govt. of NCT of
Delhi, the following Asstt. Sub-Inspectors are
hereby absorbed as Sub-Inspectors (Enf.) in the
pay scale of Rs.1200-1800 with immediate effect.
Since all the officials are absorbed in the Transport
Department from the days of the issue of the order,
their inter se seniority will be on the date
mentioned against their names :-
S.No. Names of the official Date of Appointment
1. Sh. Mathura Prasad 17.3.1969
2. Sh. Kartar Singh 23.9.1969
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3. Sh. Ramesh Chander 29.6.1974
4. Sh. Tara Prasad 29.6.1974
5. Sh. Inder Pal Singh 1.9.1978
6. Sh. Joginder Singh 2.6.1980
7. Sh. V.D. Sharma 28.4.1982
The above mentioned Sub-Inspectors (Enf.)
have, however, option to revert back to their parent
office within two years from the date of their
absorption in the Transport Deptt., Govt. of NCT
of Delhi.\024
11. It appears that only for the purpose of classification, they were
mentioned as being belonging to Ministerial or Executive cadre but the
qualifications laid down in the Recruitment Rules for the post of Assistant
Sub Inspector on deputation were as under :
Recruitment Rules for the post of Asst. Sub-Inspector, Sub-Inspector & Inspector
S.
No.
Name of the
Post
No. of
Posts
Classification
Scale of
the Post
Whether selection
post or non-
selection post
Age limit for
direct
recruitment
Educational and other
qualification required for direct
recruitment
2.
Sub-Inspector
17
Group \021C\022 non
Gazetted
Non-Ministerial
1200-1300
Non-selection
25-30 years
1. Graduation from the
recognized University
2. Sufficient knowledge of
Motor Vehicle Law
3. 3 yrs. (illegible) of all typed
of vehicle
Whether age &
Educational
Qualifications
prescribed for direct
recruits will apply in
the case of
Promotees
Period of Method of rectt. In case of rectt by if a DCP Circumstance
s in which
promotion Whether by direct promotion/categories/ exists, DPC\022s is to be co
ssujted
if any rectt. or by position transfer (illegible) what is in making rectt.
or by deputation/transfer from which promotion/ composition
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and percentage of the deputation/transfer
vacancies to be filled to be made.
by various notices
N.A. 2 Yrs. 33-1/3 promotion failing (illegible) Group \021C\022 N.A.
which by transfer on Asstt. Sub-Inspector of D.C.P.
deputation failing both by direct Enf. Branch of the Dte
rectt, of transport with 5 yrs
66-2/33 by transfer on Transfer of deputation:
deputation failing which by Persons holding the post of ASI
direct rectt. In Delhi Police/CRPF/RPF
and having educational
and other qualifications
prescribed for direct recruits.
12. Relevant portion of the circular letter dated 10.5.1991 on the basis
whereof the parties hereto, amongst others, volunteered for being deputed in
the Transport Departments reads as under :
\023The service of Assistant Sub Inspector are
required to fill up the post of Sub-Inspector in
Transport Authority on deputation basis in the pay
scale of Rs.1200-1800 and having the following
qualification/experience are eligible for the above
posts:-
1) Graduate from recognized University.
2) Sufficient knowledge on Motor Vehicle
Law.
3) 3 years driving experiences of all types of
vehicle.
2. Volunteers amongst ASI having above
qualification/experience may please be called and
names of willing officers may please be sent to this
Hdqrs. on the enclosed pro forma by 20.5.91
positively. The officers so recommended for
deputation under no circumstances may be
permitted to withdraw their nomination either
before or after the selection.\024
13. Clauses 3.1 and 3.4.1 of the Rules relating to seniority of the
absorbees from Swamy\022s Manual on Establishment and Administration read
as under :
\023Seniority 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
3.4.1 In the case of a person who is initially taken
on deputation and absorbed later (i.e., where the
relevant Recruitment Rules provide for
\023deputation/absorption\024), 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 \026
- the date he has been holding the post on
deputation.
(or)
- the date from which he has been appointed
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on a regular basis to the same or equivalent grade
in his parent department, whichever is earlier.\024
14. The tentative seniority list was circulated only on 19.6.1998. Only
when the tentative seniority list was circulated, the original application was
filed although the appellant was impleaded as a party in the said original
application at a later date. We may, furthermore, notice that the said
question is now wholly academic as the seniority list was published only in
2002. The Tribunal, as also the High Court, having laid down the principles
for determining seniority list on the basis whereof now a fresh seniority list
is to be published, the question of limitation loses all significance.
15. A bare perusal of the said provisions would furthermore clearly go to
show that the position of the employees concerned in the same or equivalent
cadre on regular basis in parent department is a relevant factor for
determining the inter se seniority. The date from which the employee had
been holding the post on deputation is another relevant factor. However, it
has also been provided that date from which he has been appointed on
regular post to the same or equivalent grade in his parent department,
whichever is earlier would be considered for determining the inter se
seniority. The Rules have rightly been interpreted by the High Court
keeping in view its purport and tenor. The Rules are required to be
interpreted harmoniously so as to give effect to all the relevant provisions.
Makers of the Rules furthermore must be presumed to have in mind, while
laying down the same, to give justice to all concerned. It is axiomatic that
those who were senior in the parent department in the equivalent post should
continue to be senior in the deputed post unless there exists a statutory rule
to the contrary.
16. In Rooplal (supra) itself, whereupon Mr. Rai placed strong reliance,
this Court opined :
\023Therefore, 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.\024
17. The question as regards determination of inter se seniority has been
considered by this Court in Indu Shekhar Singh & Ors. V. State of U.P. &
Ors. [(2006) 8 SCC 129], relied upon by Mr. Rai, wherein it was stated :
\023The decisions referred to hereinbefore, therefore,
lay down a law that past services would only be
directed to be counted towards seniority in two
situations: (1) when there exists a rule directing
consideration of seniority; and (2) where
recruitments are made from various sources, it
would be reasonable to frame a rule considering
the past services of the employees concerned.\024
The said case has no application in the instant case.
18. We, therefore, do not find any merit in this appeal. It is dismissed
accordingly with costs. Counsel\022s fee assessed at Rs.25,000/- (Rupees
twenty five thousands only).