Full Judgment Text
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PETITIONER:
K. MADHAVAN AND ANR. ETC.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS. ETC.
DATE OF JUDGMENT09/10/1987
BENCH:
DUTT, M.M. (J)
BENCH:
DUTT, M.M. (J)
MISRA RANGNATH
CITATION:
1987 AIR 2291 1988 SCR (1) 421
1987 SCC (4) 566 JT 1987 (4) 43
1987 SCALE (2)727
ACT:
Service matter-Dispute about seniority-Notional/deemed
date of appointment-Effect of-Length of service prior to
transfer-Whether to be considered after transfer for
purposes of seniority.
HEADNOTE:
(1) Writ Petitions Nos. 9847 and 9848 of 1983 involved
a dispute as to seniority between the petitioners K.
Madhavan and Santunu Sen on the one hand and respondent No.
5, O.P. Sharma, on the other.
The two petitioners were directly recruited as Deputy
Superintendents of Police (DSP) in the Delhi Special Police
Establishment (S.P.E.) in the Central Bureau of
Investigation (C.B.I.) on 6.7.1963 and 10.8.1963,
respectively. The respondent No. 5, appointed to the post of
D.S.P. On 13.7.1962 in the Rajasthan State Police, came on
deputation to the C.B.I. as D.S.P. On 1.7.1967, where
majority of the officers are deputationists. The two
petitioners were confirmed in the post of D.S.P. in the
C.B.I. On 30.3.1967. The respondent No. 5 was confirmed as
D.S.P. in the Rajasthan State Police on 1.12.1964. The two
petitioners were promoted to the rank of Superintendent of
Police (S.P.) in the C.B.I. On 21.10.1971 and 25.1.1972. The
respondent No. 5 was appointed to the post of S.P. On 28.
10.1972.
The Inspector General of Police, Delhi Special Police
Establishment, and Director of C.B.I.-Respondent No. 2-
published a seniority list of departmental S.Ps. On
1.10.1978, in which the respondent No. 5 was shown below
both the petitioners. The respondent No. 2 also published
another seniority list on 17.10.1981, in which the date of
appointment of the respondent No. 5 was mentioned as
21.10.1971 (notional) instead of 28.10.1972, and on the
basis of such notional date of appointment to the post of
S.P. in the C.B.I., the name of the respondent No. 5 was
placed above the names of the petitioners in that seniority
list. The two petitioners felt aggrieved by the latter
seniority list, showing them as junior to the respondent No.
5 on the basis of a notional date of appointment with
retrospective effect from 21.10.1971. The two petitioners
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moved this Court by Writ Petitions, challenging the said
seniority list.
422
2. In the Writ Petition No. 1021 of 1986, filed by the
petitioner A Dwarka Nath, the petitioner was regularly
promoted on 14.6.1976 to the post of the Deputy Commandant
in the BSF, which, according to him, was equivalent to the
grade of S.P. in the CBI. The respondent No. S in the Writ
Petition was promoted on 4.8.1978 and the respondents Nos. 6
and 7 in the petition were promoted on 28.7.1978 to the
posts of S.P. in the CBI. The petitioner joined the CBI on
deputation as S.P. On 29.9.79 and was permanently absorbed
in the CBI in the rank of SP on 28. 10.1983. The respondents
5 to 7 were confirmed in the post of SP with effect from
4.8.1980. The principal question involved was whether in
computing the seniority of the petitioner in the CBI in the
rank of SP, his length of service from 14.6.1976, when he
was the Deputy Commandant in the BSF, should be taken into
account or not, as if his service from 14.6.1976 is taken
into consideration, he would be senior to the respondents
Nos. 5 to 7, who were appointed in 1978.
Allowing all the Writ Petitions, the Court,
^
HELD: (1) In the Writ Petitions Nos. 9847 and 9848 of
1987, the two petitioners, Madhavan and Sen, and the
respondent No. S, o.P. Sharma, are all now holding the posts
of D.I.G. The real question, therefore, boils down to the
seniority of the petitioner vis-a-vis the respondent No 5 in
the post of DIG, and that will depend upon the decision of
the question of the seniority of the petitioners and
respondent No. S in the post of SP in the CBI. [431D-E]
The most significant and crucial fact is the
appointment of the respondent No. 5 to the post of SP with
retrospective effect from a deemed date of appointment, that
is, 21.10.1971. The petitioners strongly urged that such a
deemed appointment with retrospective effect from 21.10.1971
was wholly illegal and should be struck down. The plea of
the respondent Nos. 1, 2 and 5 was that the respondent No. 5
became eligible for appointment to the post of SP in the CBI
in July 1970, and, indeed, the meeting of the DPC was
scheduled to be held in October, 1970, but was arbitrarily
postponed. [432G-G]
There can be no doubt that if the meeting of the DPC is
scheduled to be held but is arbitrarily or mala fide
cancelled without any reasonable justification, to the
prejudice of an employee, the Government can in a suitable
case do justice to such an employee by granting him
promotion or appointing him to the higher post for which the
DPC was to be held with retrospective effect so that he is
not subjected to a lower position in the seniority list. But
if the postponement or cancellation of
423
the meeting of the DPC is not arbitrary and is supported by
good reasons, the employee concerned can have no grievance
and the Government will not be justified in appointing him
to the higher post with retrospective effect; an employee
may become eligible for a certain post, but surely he cannot
claim appointment to such a post as a matter of right.
[433B-D]
It is true that the meeting of the DPC was to be held
on 13. 10.1970 but the Director of the CBI appears to have
considered that as the vacancies that existed were meant for
non-deputationist DSPs and as two of such DSPs would become
eligible for promotion in January and March, 1971, he
postponed the meeting of the DPC to be held on 13. 10.1970.
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The Court does not find any arbitrariness in the decision of
the Director of the CBI to postpone the meeting of the DPC
till after March, 1971. There was ample justification for
the postponement or cancellation of the meeting of the DPC.
The respondent No. S might have been eligible for being
considered for appointment to the post of SP in July, 1970,
but he had no right to claim such consideration when the
vacancies were meant for non-deputationist DSPs. Therefore,
the Government had no reasonable justification to contend
that the postponement of the DPC meeting was arbitrary and
high-handed. As the foundation of the appointment of the
respondent No. 5 to the post of SP with retrospective effect
from 21.10.1971, namely, postponement of the meeting of the
DPC in October, 1970 arbitrarily, is shaken to a great
extent, there was no question of any injustice done to the
respondent No. 5. The retrospective promotion or appointment
to a post should be given most sparingly and on sound
reasoning and foundation. In this case, there was no
justification for the appointment of the respondent No. 5 to
the post of SP in the CBI with retrospective effect from
21.10.1971, so as to make him senior to the petitioner. The
impugned order dated September 25, 1981, appointing the
respondent No. 5, O.P. Sharma, with retrospective effect
from a notional date, viz. 21.10.1971, and the seniority
list dated 17.10.1981, showing the respondent No. 5 as
senior to the petitioners, quashed. Writs in the nature of
Certiorari, and mandamus, directing the respondents Nos. 1
and 2 to publish a fresh seniority list showing the
petitioners as senior to the respondent No. 5, issued.
[434E-H; 435A-B; 440B]
(2) In the Writ Petition No. 1021 of 1986, the
principal question involved is whether the length of service
of the petitioner Dwarka Nath in the Border Security Force
(BSF) should be taken into account for the purpose of
deciding his seniority in the CBI in the rank of SP. [435C]
424
The period from 14.6.1976 when the petitioner was
promoted to A the post of Deputy Commandant in the BSF upto
his joining the CBI on deputation on 29.7.1979 should be
taken into consideration for the purpose of deciding his
seniority in the CBI in the rank of SP. Paragraph 3 of the
office memorandum dated 22.12.1959 relied upon by the
respondents 3 to 5, which provides inter alia that permanent
officers of each grade shall be ranked senior to persons who
were officiating in that grade does not militate against the
view taken by the Court as expressed above ’Grade’ in
paragraph 3 undoubtedly refers to the grade in respect of
which the seniority is to be decided. The petitioner was a
permanent officer on 14.6.1976 in the grade of Deputy
Commandant which is equivalent to the grade of SP in the
CBI. The petitioner was not in the CBI on that date, but
that will not make . any difference. The office memorandum
above-mentioned does not stand in the way of counting the
seniority of the petitioner from 14.6.1976. [435G-H;436A-C]
When a deputationist is permanently absorbed in the
CBI, he is appointed on transfer under the rules. Deputation
may be regarded as a transfer from one Government department
to another. It will be against all rules of service
jurisprudence if, when a Government servant holding a post
is transferred to the same or an equivalent post in another
Government Department, the period of his service in the post
before transfer is not taken into consideration in computing
his seniority in the post to which, he is transferred. The
transfer cannot wipe out his length of service in the post
from which he has been transferred. [436C-E]
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The seniority of the petitioner should be counted from
14.6.1976 on which date he was regularly promoted to the
post of Deputy Commandant in the BSC, and he should be held
senior to the respondents 5 to 7. Writ in the nature of
certiorari issued, quashing the seniority list (Annexure P/1
to the Writ Petition) and all subsequent seniority lists of
SPs in the CBI in which the petitioner was shown junior to
the respondents 5 to 7. Further, writ in the nature of
mandamus issued, commanding the respondents 1 and 2 to allot
to the petitioner his proper seniority in the post of SP,
CBI, by counting his service with effect from 14.6.1971, and
to issue a fresh seniority list, showing the petitioner
senior to the respondents Nos. 5 to 7. [440D, B]
R.S. Mokashi and ors. v. I.M Menon and others, [1988] 1
SCC 379, Wing Commander J. Kumar v. Union of India and
others, [1982] 3 SCR 453, referred to.
425
JUDGMENT:
ORIGINAL JURISDICIION: Writ Petitions Nos. 9847-48 of
(Under Article 32 of the Constitution of India).
M.K. Ramamurthy, P.P. Rao, C.S. Vaidianathan, S.R.
Bhatt, S.R. Setia, K.V. Mohan, R. Venkataramani, R. Ayyam
Perumal and S.M. Garg for the Petitioners.
Kuldeep Singh, Additional Solicitor General, B. Dutta
Additional Solicitor General, T.S. Krishnamoorthy Iyer, A.K.
Sen, Kapil Sibal, O.P. Sharma, C.V. Subba Rao, R.P.
Srivastava, P. Parmesawaran, R.C. Gubrele, K.R. Gupta, R.K.
Sharma, Sanjay Sareen, S.K. Gambhir, M.S. Ganesh and T.C.
Sharma for the Respondents.
Girish Chandra and Ashok K. Srivastava for the
Interveners.
The Judgment of the Court was delivered by
DUTT, J. These two writ petitions, being Writ Petitions
Nos. 9847-48 of 1983, involve a dispute as to seniority
between the two petitioners, K. Madhavan and Santunu Sen, on
the one hand and the respondent No. S, o.P. Sharma on the
other. It may be recorded at the outset that although the
petitioners have also challenged in the writ petitions the
seniority of the respondent No. 4, P.C. Srivastava, over the
petitioners, at the hearing of the writ petitions the
challenge to the seniority of the respondent No. 4 has not
been pressed on behalf of the petitioners inasmuch as the
respondent No. 4 is to retire from service within about two
years from now. We would, accordingly, exclude from our
consideration the seniority of the respondent No. 4 which
stands confirmed.
The two petitioners, Madhavan and Sen, were directly
recruited as Deputy Superintendent of Police (DSP) in the
Delhi Special Police Establishment (SPE) in the Central
Bureau of Investigation (CBI) on 6-7-1963 and 10-8-1963
respectively. The respondent No. S, who was appointed to the
post of DSP on 13-7-1962 in the Rajasthan State Police, was
sent on deputation to CBI as DSP on 1-7-1967. It may be
stated at this stage that majority of the officers in the
CBI are deputationists. The case of the respondent is that
the CBI organisation requires very capable and experienced
police officers and, accordingly, such police officers are
brought to CBI on deputation from
426
different states and, thereafter, they are generally
absorbed in the A CBI. We shall presently refer to the
recruitment rules of police personnel in the CBI, but before
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that, we may indicate how the dispute between the parties
arose with regard to their respective seniority. While
Madhavan and Sen were both confirmed in the post of DSP in
the CBI on 30-3-1967, the respondent No. 5 was confirmed as
DSP in the Rajasthan State Police on 1-12-1964. The
petitioners, Madhavan and Sen, were promoted to the rank of
Superintendent of Police (SP) in the CBI with effect from
21-10-1971 (AN) and 25-1-1972 (AN) respectively. The
respondent No. 5 was appointed to the post of SP on 28-10-
1972. The respondent No. 2, the Inspector General of Police,
Delhi Special Police Establishment, and Director of CBI
published a seniority list of departmental SPs on 1-10-1978.
In that seniority list, the respondent No. 5 o.P. Sharma was
shown below both the petitioners. The respondent No. 2 also
published another seniority list on 17-10-1981. In that
seniority list, the date of appointment of the respondent
No. 5 was mentioned as 21-10-1971 (FN) (Notional) instead of
28-10-1972 and on the basis of such notional date of
appointment to the post of SP in CBI, the name of the
respondent No. 5 was placed above the petitioners’ names in
that seniority list. The petitioners felt highly aggrieved
by the said seniority list showing them as juniors to the
respondent No. 5 o.P. Sharma, on the basis of a notional
date of appointment with retrospective effect from 21-10-
1971 (FN), that is, just before the appointment of Madhavan
on 21-10-1971 (AN). The petitioners have challenged the said
seniority list.
The case of the petitioners is that the deemed or
notional date of appointment of the respondent No. 5 with
retrospective effect from 21-10-1971 (FN) has been done mala
fide with a view to making the petitioners juniors to the
respondent No. 5 without any reasonable justification
therefor. It is complained that before that deemed or
notional date of appointment was made with retrospective
effect, the petitioners were not given any opportunity of
being heard to their great prejudice and detriment. The
seniority of the respondent No. 5 has been challenged by the
petitioners on more than one ground including the ground
that the respondent No. 5 was not even eligible for
appointment as SP in the CBI. The grounds of challenge will
be considered by us presently. But, before that we may
indicate the stand taken by the respondents Nos. 1 and 2,
the Union of India and the CBI, and the respondent No. 5 in
regard to his appointment to the post of SP, CBI, with
retrospective effect from 21-10-1971 (FN).
It is not disputed that under the Special Police
Establishment
427
(Executive Staff) Recruitment Rules, 1963, hereinafter
referred to as ’ 1963 Rules’, for the appointment of a
deputationist to the post of SP, the minimum qualification
required was DSP in the Special Police Establishment with at
least eight years’ service in the grade, out of which two
years should. be probationary period in the CBI. It has been
stated already that the respondent No. 5 O.P. Sharma became
DSP in the Rajasthan State Police on 13-7-1962 and he joined
the CBI as DSP on 10-7-1967. According to him, therefore, he
was eligible for appointment to the post of SP after eight
years of his service as DSP on July 13, 1970. It is also not
disputed that under the 1963 Rules, the mode of recruitment
was that not exceeding 15% of the sanctioned strength would
be filled by promotion and the remaining by transfer on
deputation. It is the case of the respondents Nos. 1, 2 and
5 that the proposal for convening the meeting of the DPC was
approved on October 13, 1970, but as two departmental
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officers were to complete eight years of service and become
eligible for being considered for the post of SP in January
and March 1971, the meeting of the DPC was postponed on that
ground. It is the contention of the respondents Nos. 1, 2
and 5 that the meeting of the DPC was to be held in October,
1970, but was arbitrarily postponed without any
justification therefor and, accordingly, the case of the
respondent No. 5 for appointment to the post of the SP, CBI,
could not be considered, although he was fully eligible for
the same. The DPC finally met in July, 1971. But the
respondent No. 5 was graded only ’good’, which grading
debarred him from getting the appointment. It is the case of
the respondents Nos. 1, 2 and 5 that when the minutes of the
DPC went to the Department of Personnel for Presidential
approval, the Department of Personnel examined the matter in
depth and found that DPC had erroneously graded the
respondent No. 5 as ’good’. Consequently, the matter was
referred by the Department of Personnel to the Senior Board
which met in July, 1972 and graded the respondent No. 5 as
’very good’ and recommended him for appointment to the post
of SP. As noticed already, the respondent No. 5 was
appointed to the post of SP in CBI on 28-10-1972.
The further case of the respondents Nos. 1, 2 and 5 is
that for no fault of the respondent No. 5, the DPC was
unjustly postponed and as the Senior Board had subsequently
selected and recommended the respondent No. 5 for the post
of SP in CBI, the respondents Nos. 1 and 2 appointed the
respondent No. 5 as SP with retrospective effect from a
deemed date of appointment, that is, from 21-10-1971 (FN) so
as to mitigate his hardship and to do justice to him. An
explanation has also been given in the affidavit of the
respondents Nos. 1 and 2 as to why
428
the said date being 21-10-1971 (FN) was selected for the
deemed appointment of the respondent No. 5. The explanation
is that although his appointment as SP should have been from
October, 1970 when the meeting of the DPC was originally
scheduled to be held but postponed, and in that event, he
would have been approved earlier than the two petitioners,
yet basically the question for consideration before the
Government being only inter se seniority of the respondent
No. 5 vis-a-vis the petitioners, it was thought proper that
ends of justice would be met if the respondent No. 5 was
given a limited retrospective date of appointment as SP. The
Government took note that the delayed appointment of the
respondent No. S was on account of unjustifiable reasons,
and assigned him the seniority over the two . petitioners
with a deemed date of appointment as 21-10-1971 (FN). That
is how the dispute has arisen between the petitioners and
the respondent No. 5 over the question of their respective
seniority in the rank of SP in the CBI.
The petitioners have, in the first instance, challenged
that the respondent No. 5 was not even eligible for
appointment to the post of SP, CBI. The respondent No. 5 was
a deputationist and under the 1963 Rules that were
prevailing at the material time, he was to complete eight
years’ service in the grade. There has been much controversy
over the expression "in the grade". According to the
petitioners, the expression should be understood as meaning
in the grade of SP in the CBI. In other words, the
contention of the petitioners is that the respondent No. 5
should have been for eight years in the CBI as DSP before he
would be eligible for appointment to the post of SP in the
CBI. As the respondent No. 5 joined the post of DSP in the
CBI on deputation on 1-7-1967, he could not be appointed to
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the post of SP even on 28-10-1972, far less on 21-7-1971
(FN), for on either date, he did not complete eight years of
service in the CBI. We are, however, unable to accept the
contention. "Eight years’ service in the grade" would mean
"eight years’ service in the grade of DSP". The 1963 Rules
do not provide that the period of eight years should be
computed from the date of deputation to the CBI as DSP. In
the absence of any such express provision, it must be held
that the period during which one held the post of DSP in the
State Police Service should also be taken into account for
computing the period of eight years. The 1963 Rules provide
that two years must be spent on probation as DSP in the CBI.
The position, therefore, comes to this that of the total
period of eight years, two years must be on probation basis
in the CBI. An officer may have been in the State Police as
DSP for a period of six years and, thereafter, if he joins
the CBI on deputation and spends
429
two years on probation, he would be eligible for
consideration for appointment to the post Of SP. If this
view is not taken, no officer would be available to join the
CBI on deputation. It has already been noticed that the CBI
requires efficient and experienced police officers and if
the period spent by police officers in the State Police
Service is not taken into account for the purpose of
computing the period of eight years, it would be doing
injustice to such police officers who join the CBI on
deputation. In our view, therefore, there is no substance in
the centention of the petitioners that in order to be
eligible for appointment to the post of SP in the CBI, one
should be in the rank of DSP in the CBI for a period of
eight years including a period of two years on probation.
The respondent No. 5 having held the post of DSP for five
years in the Rajasthan State Police and more than three
years in the CBI, that is to say, over eight years, he was
quite eligible for appointment to the post of SP. The two
petitioners, Madhavan and Sen, and the respondent No. 5 O.P.
Sharma are all now holding the post of DIG. By an order
dated October 6, 1983, this Court directed that no selection
list would be prepared for the post of DIG in the CBI/SPE,
but it would be open to the respondents to make ad hoc
appointments which would be subject to the result of the
writ petition. As a result of that order, the respondent No.
5 was promoted to the post of DIG on October 13, 1983 on an
ad hoc basis subject to the result of the writ petitions.
The petitioners were also appointed DIGs on ad hoc basis by
virtue of an interim order of this Court on April 24, 1985.
Thus the petitioners and the respondent No. 5 have been in
the post of DIG on ad hoc basis. After the lapse of time and
after the appointment of the petitioners and the respondent
No. S to the post of DIG, though on ad hoc basis, the real
question is the question of their inter se seniority in the
post of DIG in the CBI.
It has been strenuously urged on behalf of the
petitioners at the very outset that the respondent No. S was
not eligible for being appointed to the post of DIG, CBI. In
support of this contention our attention has been drawn to
the Central Bureau of Investigation (Deputy Inspector
General of Police/Deputy Director) Recruitment Rules, 1975,
hereinafter referred to as ’the 1975 Rules’, which prescribe
the following eligibility requirement for being considered
for the appointment to the post of DIG in the CBI:-
"Superintendent of Police (including Assistant
Inspector General of Police/Assistant Director) in
the Central Bureau of Investigation-with eight
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years’ service in the grade rendered after
appointment thereto on a regular basis. "
430
It is the contention of the petitioners that as the
respondent No. 5 had not rendered eight years of regular
service as SP in the CBI, he was not eligible for
appointment to the post of DIG. It is submitted that
eligibility requirement in the 1975 Rules is very specific
inasmuch as it provides eight years of service in the grade
after appointment thereto on a regular basis. The expression
’on a regular basis’, according to the petitioners, means
after absorption of the deputationist in the CBI as SP and,
as the respondent No. S was absorbed in the rank of SP in
the CBI on 1-7-1978, he was not eligible for appointment to
the post of DIG on 13-10-1983, that is to say, within less
than eight years of his service from the date of absorption.
In support of that contention our attention has been drawn
on behalf of the petitioners to the Central Bureau of
Investigation (Deputy Inspector General of Police/Deputy
Director) Recruitment Rules, 1966, hereinafter refer red to
as ’the 1966 Rules’. Under the 1966 Rules, the eligibility
requirement for being considered for appointment to the post
of DIG is as follows:-
"Superintendent of Police (including Assistant
Inspector General of Police/Assistant Director) in
the Central Bureau of Investigation with not less
than eight years’ service in the grade."
It is submitted that on a comparison of the eligibility
clauses in the 1966 and the 1975 Rules, it will be apparent
that while under the 1966 Rules it was only eight years’
service in the grade which might mean eight years’ service
in the rank of SP in the CBI whether the deputationist was
permanently absorbed or not, under the 1975 Rules it is
"eight years’ service in the grade rendered after
appointment . thereto on a regular basis". Accordingly, it
is urged that the expression ’on a regular basis’ can have
only one meaning, that is to say, after permanent absorption
of the deputationist in the CBI. Otherwise, there was no
necessity for insertion of the words ’on a regular basis’ in
the eligibility clause of the 1975 Rules for the post of DIG
in CBI. Under the 1984 Rules, it is only "eight years’
regular service in the grade". So the entire contention of
the petitioners centres round the expression ’on a regular
basis.’
The 1975 Rules which are relevant for the purpose do
not explain what is meant by the expression ’on a regular
basis’. The expression has created some ambiguity in the
eligibility clause giving rise to this controversy. There
can be no doubt that when a person is appointed to a post
against a permanent vacancy on probation, his appointment is
431
on a regular basis, but when a person is appointed to a post
on a purely temporary or on an ad hoc basis, the appointment
is not on a regular basis. The expression ’on a regular
basis’ in the 1975 Rules cannot, in our opinion, be
interpreted to mean as on absorption in the CBI as SP. The
general principle is that in the absence of any specific
provision to the contrary, the length of service from the
date of appointment to a post should be taken into
consideration for the purpose of either seniority in that
post or eligibility for the higher post. As no explanation
has been given in the 1975 Rules of the said expression, we
do not think it desirable to deviate ffrom the established
principle of computing the length of service for the purpose
of seniority or eligibility for the higher post from the
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date of appointment. In our view, therefore, the expression
’on a regular basis’ would mean the appointment to the post
on a regular basis in contradiction to appointment on ad hoc
or stop-gap or purely temporary basis. The respondent No. S,
in our opinion, satisfied the eligibility test of the 1975
Rules for consideration for the post of DIG. But, it is not
disputed by the parties that the petitioners and the
respondent No. S have, by the lapse of time during the
pendency of this litigation, become eligible for appointment
to the posts of DIG. Indeed, they are holding the posts of
DIG, may be on ad hoc basis, under the interim orders of
this Court and there is no chance of their being reverted to
the next lower post of SP. The question, therefore, boils
down to the seniority of the petitioners vis-a-vis the
respondent No. 5 in the post of DIG. That again will depend
upon the decision on the question as to the seniority of the
petitioners and the respondent No. S in the post of SP.
We, therefore, focus our attention to the question of
the seniority of the petitioners and the respondent No. S in
the post of SP in the CBI. It is urged on behalf of the
petitioners that the appointment of the respondent No. 5 to
the post of SP was in violation of the quota rule. We have
already noticed that under the 1963 Rules, the method of
recruitment was provided as follows:-
(a) Not exceeding 15% of the sanctioned strength by
promotion.
(b) The remaining by transfer on deputation.
There was an amendment with effect from 15-1-1971 and
the method of recruitment was prescribed as follows:-
1. 25%-by promotion failing which by transfer on
deputation.
2. 75%-by transfer/deputation.
432
The eligibility requirement was DSP in SPE/CBI with at
least eight years’ service in the grade. A chart has been
prepared and filed by the petitioners and annexed to the
writ petitions as Annexure-XVI. It appears from the chart
that on 28-10-1972 on which date the respondent No. 5 was
actually appointed on deputation to the post of SP/AD, the
total sanctioned posts of SP/AD/AIG were 47.25% of the
sanctioned posts was twelve, out of which only seven were
filled by direct recruitment and five remained outstanding.
75% of the sanctioned strength was thirtyfive, to be filled
by the appointment of deputationists, but forty
deputationists were appointed to the posts of SPs, including
the five posts out of the quota for direct recruitment. It
is alleged by the petitioners that the respondent No. 5 was
appointed to the post of SP in the CBI in one of the said
five posts meant to be filled by direct recruits in
violation of the quota rule. The chart also contains a
submission that the appointment of five
deputationists/transferees, including the appointment of
respondent No. 5, as SP on 28-10-1972 was illegal. In other
words, it is alleged that the respondent No. 5 was appointed
in one of the said five posts meant for direct recruits.
There is no material whatsoever to suggest that the
respondent No. 5 was appointed in one of the S posts in
excess of the quota for the deputationists. In the
circumstances, we are not inclined to accept such contention
without any foundation therefor.
The most significant and crucial fact is the
appointment of the respondent No. 5 to the post of SP with
retrospective effect from a deemed date of appointment, that
is, 21-10-1971 (FN). It is strenuously urged on behalf of
the petitioners that such deemed appointment with
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retrospective effect from 21-10-1971 (FN) was wholly illegal
and mala fide and should be struck down. The plea of the
respondents Nos. 1, 2 and 5 is that the respondent No. 5
became eligible for appointment to the post of SP in the CBI
in July, 1970 after he had completed eight years of service
in the grade of DSP with two years probation in the CBI. He
was, accordingly, eligible for appointment to the post of SP
and, indeed, the meeting of the DPC was scheduled to be held
in October, 1970, but that was arbitrarily postponed. The
DPC again met in July, 1971, but they had erroneously graded
the respondent No. S as ’good’ and not ’very good’, as a
result of which he could not be appointed in 1971. He was,
however, found to be ’very good’ on a review by the Senior
Board which recommended the appointment of the respondent
No. 5 to the post of SP and he was appointed to the post on
28-10-1972. The complaint of the respondents Nos. 1, 2 and 5
is that if the DPC had not been arbitrarily and without any
reason whatsoever postponed and held its meeting in October,
1970, the
433
respondent No. 5 would have got the appointment to the post
of SP in 1970 and would in normal course be senior to the
petitioners. Thus, the sum and substance of the contention
of the respondents Nos. 1, 2 and 5 is the arbitrary
cancellation of the meeting of the DPC in October, 1970.
There can be no doubt that if the meeting of the DPC
scheduled to be held is arbitrarily or mala fide cancelled
without any reasonable justification therefor to the
prejudice of an employee and he is not considered for
promotion to a higher post, the Government in a suitable
case can do justice to such an employee by granting him
promotion or appointing him to the higher post for which the
DPC was to be held, with retrospective effect so that he is
not subjected to a lower position in the seniority list.
But, if the cancellation or postponement of the meeting of
the DPC is not arbitrary and is supported by good reasons,
the employee concerned can have no grievance and the
Government will not be justified in appointing the employee
to the higher post with retrospective effect. An employee
may become eligible for a certain post, but surely he cannot
claim appointment to such post as a matter of right.
Let us now consider whether the DPC, scheduled to be
held in October, 1970 was arbitrarily cancelled or not. The
learned Additional Solicitor General has handed over to us
the photocopy of the notings from the departmental file
relating to the postponement of DPC. Paragraph 9 of the note
of one O.P. Bansal is as follows:-
"In so far as the representation of Shri O.P.
Sharma is concerned, it has been found from the
records that in October, 1970 a proposal was made
by the Administrative officer, CBl, for convening
a meeting of the Selection Board for the
consideration of suitability or otherwise of 6
non-IPS deputationist Dy. SPs who had completed 8
years’ service in the grade of Dy. SP and Shri
O.P. Sharma was No. 3 among them. It was stated in
that note that there were 42 posts of SP and
equivalent rank in CBI and that there were 3
vacancies in the grade. It was further stated that
none of the non-deputationist Dy. SPs. had put in
8 years’ service at that time and, as such, they
were not eligible for consideration for promotion.
As a result of this, all the 3 posts were to be
filled by deputationists. It was not stated in
that note whether any of the 3 posts fell in the
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promotion quota, which at that time comprised not
exceed-
434
ing 15% of the strength, i.e. 6 posts. The
proposal for convening a meeting of the Selection
Board was approved on 13-10-1970, but on 15-10-
1970 the Director, CBI, ordered that the meeting
might be held after S/Shri Ramender Singh and Jot
Ram, Dy. SPs became eligible for pro motion. These
two officers were to complete 8 years’ service as
Dy. SP in January and March, 1971 respectively. It
is, thus, correct that the meeting of the DPC was
postponed to allow some non-deputationist Dy. SPs
to become ripe for promotion to the grade of SP."
Thus, it appears from paragraph 9 of the note extracted
above that three vacancies were to be filled by non-
deputationist DSPs, otherwise the question of non-
availability of non-deputationist DSPs with the requisite
period of service would not have been mentioned. In the
counter-affidavit of the respondents Nos. 1 and 2, it is
also stated that at the relevant time no departmental DSP
had eight years’ service in that grade and, therefore, all
the three vacancies then available were required to be
filled by deputation of suitable State Police officers. It
is, therefore, apparent that the three vacancies were meant
to be filled by non-deputationists DSPs and not by
deputationists, but as non-deputationist DSPs with the
requisite period of service were not available, the
vacancies were proposed to be filled by the deputationist
DSPs. It is true that the meeting of the DPC was to be held
on 13-10-1970 but the Director of CBI appears to have
considered that as the vacancies were meant for the non-
deputationist DSPs and as two of such DSPs would become
eligible for promotion in January and March, 1971, he
postponed the meeting of the DPC scheduled to be held on
13-10-1970. We do not find any arbitrariness in the decision
of the Director of CBI postponing the meeting of the DPC
till after March, 197 1 when two non-deputationist DSPs
would become eligible for promotion. There was, therefore,
ample justification for the postponement or cancellation of
the meeting of the DPC. The respondent No. 5 might have been
eligible for being considered for appointment to the post of
SP in July, 1970, but he had no right to claim such
consideration when the vacancies were meant for non-
deputationist DSPs. In our opinion, therefore, the
Government had no reasonable justification to contend that
the postponement of the DPC was arbitrary and high-handed.
In July, 1971 also the respondent No. S was not found
suitable by the DPC. It was only when the Senior Board found
him suitable in July, 1972 and recommended him for
appointment to the post of SP that the respondent No. S was
appointed on October 28, 1972 to the post of SP, CBI. As the
foundation of the appointment of
435
the respondent No. 5 to the post of SP with
retrospective effect from 21-10-1971(FN), namely, the
postponement of the meeting of the DPC in october, 1970
arbitrarily, is shaken to a great extent, there was no
question of any injustice done to the respondent No. S. The
retrospective appointment or promotion to a post should be
given most sparingly and on sound reasoning and foundation.
In the instant case, we do not find that there was any
justification for the appointment of the respondent No. S to
the post of SP in the CBI with retrospective effect from 2
1-10-1971 (FN) so as to make him senior to the petitioners.
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We may now deal with the Writ Petition No. 1021 of
1986. The principal question that is involved in this writ
petition is whether the length of service of the petitioner
Dwarka Nath in the Border Security Force (BSF) should be
taken into account for the purpose of deciding his seniority
in the CBI in the rank of SP. On 14-6-1976 the petitioner
was regularly promoted to the post of Deputy Commandant in
the BSF which, according to him, was equivalent to the grade
of SP in the CBI. The respondent No. S was promoted on 4-8-
1978 and the respondents Nos. 6 and 7 were promoted on the
same date, that is, on 28-7-1978 to the post of SP in the
CBI. The petitioner came to join the CBI on deputation as SP
on 29-9-1979 and was permanently absorbed in the CBI in the
rank of SP on 28-10-1983. The respondents Nos. 5 to 7 were
confirmed in the post of SP with effect from 4-8-1980. The
question that arises is whether in computing the seniority
of the petitioner his length of service from 14-6-1976, when
he was the Deputy Commandant in the BSF, should be taken
into consideration or not. If his service from 14-6-1976 is
taken into consideration, he would undoubtedly be senior to
the respondents Nos. S to 7, who were appointed in 1978.
We have already considered the question in the Writ
Petitions Nos.9847-48 of 1983 in respect of the appointment
of respondent No. S O.P. Sharma to the post of SP in the
CBI. In that connection, it has been decided by us that in
computing the requisite period of eight years, the period
during which the respondent No. S held the post of DSP in
the Rajasthan State Police Service should be taken into
consideration. In our opinion, the period from 14-6-1976
when the petitioner was promoted to the post of Deputy
Commandant in the BSF up to his joining the CBI on
deputation on 29-7-1979, should be taken into consideration
for the purpose of deciding his seniority in the CBI in the
rank of SP.
Paragraph 3 of the office Memorandum dated 22-12-1959
relied upon by the learned Counsel for the respondents Nos.
3 to 5 does not,
436
in our opinion, at all militate against the view which we
have taken. Paragraph 3 provides, inter alia, that permanent
officers of each grade shall be ranked senior to persons who
are officiating in that grade. ’Grade’ in paragraph 3
undoubtedly refers to the grade in respect of which the
seniority is to be decided. The petitioner was a permanent
officer on 14-6-1976 in the grade of Deputy Commandant which
is equivalent to the grade of SP in the CBI. It may be that
he was not in the CBI on that date. But, in our view, that
will not make any difference. We do not think that the
office Memorandum dated 22-12-1959 stands in the way of
counting the seniority of the petitioner with effect from
14-6-1976.
We may examine the question from a different point of
view. There is not much difference between deputation and
transfer. Indeed, when a deputationist is permanently
absorbed in the CBI, he is under the rules appointed on
transfer. In other words. deputation may be regarded as a
transfer from one government department to another. 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
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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. See R.S. Mokashi & Ors. v. I.M. Menon
& Ors. [1982] 1 SCC 379; Wing Commander J. Kumar v. Union of
India & Ors.. [1982]3 SCR 453.
In this connection, we may notice one significant fact
that although in the counter-affidavit the Union of India
has opposed the claim of the petitioner that his seniority
should be counted from 14-61976, at the hearing of the writ
petition the learned Additional Solicitor General concedes
that the petitioner’s seniority should be counted from that
date and that the said office Memorandum does not at all
support the contention of the respondents Nos. 3 and 5.
The learned Counsel for the respondent Nos. 3 and 5
has, however, placed much reliance upon certain facts which
will be stated presently. After the petitioner went on
deputation to the CBI and
437
appointed to the post of SP, on 5-4-1980 the CBI invited
options from the non-lPS deputationists for their permanent
absorption in the CBI. The petitioner had sent a letter
expressing his willingness to be absorbed in the CBI. On
April 16, 1980, the Administrative officer, CBI, sent a
wireless message to all concerned stating that seniority on
permanent absorption in a rank would be counted from the
date of permanent absorption and that those who had opted
thinking otherwise, would be at liberty to revise their
option by 13-4-1980. Again, on 11-9-1980 (10-9-1980?)
another circular was issued in which it was re-emphasised
that a deputationist who was willing to be absorbed in the
CBI, would first be appointed on a regular basis in the CBI.
He would be confirmed as and when permanent posts were
available. Further, it was stated in the circular that his
seniority in the CBI would begin from the date of his
regular appointment. In other words, the service rendered
from the date of regular appointment only would count for
the purpose of seniority and promotion in the CBI. In the
explanatory note regarding determination of inter se
seniority, annexed to the said circular, it has been stated
that a deputationist officer has no place in the seniority
list as long as he is not absorbed (regularly appointed) in
the CBI. Relying upon the said circulars and the
petitioner’s consent to be absorbed in the CBI, it is
submitted on behalf of the respondents Nos. 3 and S that the
petitioner’s seniority should be counted from the date he
was permanently absorbed or regularly appointed in the CBI,
that is, with effect from 4-10-1983. On the other hand, it
is submitted on behalf of the petitioner that as the said
circulars dated 16-4-1980 and 10-9-1980 were found to be not
workable, the CBI suspended the same for a further decision
by its circular dated 6.10.1981, the relevant portion of
which is extracted below:-
"In response to this office circular No. A.
31016/14/80-AD. I (DPC) dated 10-9-80, some of the
branches have sent options of some of the officers
for absorption in the CBI. Some options are
conditional and some have sought some
clarification with reference to seniority.
2. The matter is under correspondence with the DP
& AR. The branches will be informed as soon as a
decision is arrived at. Decision on the options
received will be taken after the clarification has
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been received from the DP & AR. "
No decision has yet been taken by the Government. Mr.
P.P. Rao, learned Counsel appearing on behalf of the
petitioner, has drawn
438
our attention to the counter-affidavit to the rejoinder in
CMP Nos. A 5429 and 5430 of 1984 filed in the above writ
petitions Nos. 9847 and 9848 of 1983, wherein it has been
categorically admitted by the Union of India that after the
issue of the circular dated 11-9-1980, the matter was re-
examined by the Director of CBI and found to be unworkable.
Thereafter, it was decided to take up the matter with the
Government and no action was taken to implement the said
circular. Further, it has been reiterated in the said
counter-affidavit that the circular did not lay down the
correct interpretation of recruitment rules, found
unworkable and has not been acted upon even in a single
case. The learned Additional Solicitor General has admitted
the position that even now the Government has not come to
any decision as to whether the seniority should be counted
from the date of the regular appointment of the
deputationists in the CBI, as stated in the circular. In the
circumstances, we do not think that there is any merit in
the contention of the respondent Nos. 3 and 5 that in view
of the said circular dated 11-09-1980 and also the earlier
circular dated 16-4-1980, the petitioner’s seniority cannot
be counted from 14-6-1976 when he was appointed to the post
of Deputy Commandant in the BSF.
It is next contended on behalf of the respondent Nos. 3
and 5 that the petitioner’s appointment from BSF to the rank
of SP in the CBI on deputation was illegal. Reliance has
been placed on the relevant provision in the recruitment
rules relating to appointment on deputation which reads as
follows:
" Transfer/Deputation:
Suitable officers of the State Police Forces or
officers of the IPS or officers of the Indian
Revenue Service or officers holding analogous post
in the Central Government Department like the
Directorate of Enforcement, Department of Customs
etc."
It is submitted that the other Central Government
Departments, two of which illustratively mentioned in the
provision extracted above, are only those Departments in
which statutory inquiries and investigations are conducted
by the officers by arrest, search, examination of witnesses,
prosecution of accused, etc. It is contended that the
intention of the rule is that only officers of such
Departments who have such experience would only function in
the CBI as Investigation officers. As the petitioner had no
such experience in the BSF, he was not eligible for being
appointed to the CBI on deputation.
439
We are unable to accept the contention. It is true that
in the rule two Government Departments have been mentioned,
but that does not mean that only those Government
Departments in which inquiries and investigations are made
are contemplated by the rule. Nor does the rule contemplate
that only those officers, who had experience of
investigation would be appointed to the post in the CBI.
Under the rule, such an officer should be a suitable officer
and should be holding analogous post in the Central
Government Department concerned. The petitioner was found to
be a suitable officer and at the time of his deputation he
was holding the post of Deputy Commandant which, according
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to the petitioner, is equivalent to the post of SP in the
CBI. We are unable to accept the contention of the
respondents Nos. 3 and 5 that the post of Deputy Commandant
in the BSF is not equivalent to the post of SP in the CBI.
The letter of the Under Secretary to the Government of India
dated November 25, 1983 shows on the face of it that the
post of Deputy Commandant in the BSF is equivalent to that
of SP in the CBI. It has been expressly conceded by the
learned Additional Solicitor General that the Government
accepts the post of the Deputy Commandant in the BSF as
equivalent to the post of SP in the CBI. At this stage, we
may refer to the letter dated January 24, 1984 of the CBI to
the Government of India wherein it has been categorically
stated inter alia that the petitioner was holding an
analogous post in the BSF and was, therefore, eligible to be
taken on deputation. Further, it has been stated that he had
considerable experience of investigation of criminal cases,
and that the Government and the UPSC had duly approved the
substantive absorption of the petitioner on merit in
accordance with the recruitment rules, as in force, in
larger public interest. The said letter of the CBI resolve’s
all controversy as to whether the petitioner was holding
equivalent post in the CBI or whether he had experience of
investigation or whether he was absorbed in the CBI in
public interest. There is, therefore, no substance in the
contention made on behalf of the respondents Nos. 3 and 5
that the petitioner’s appointment in the CBI was illegal. In
view of our decision that the petitioner’s seniority should
be counted from 14-6-1976 on which date he was regularly
promoted to the post of Deputy Commandant in the BSF, the
petitioner should be held to be senior to the respondents
Nos. S to 7.
No other point has been urged on behalf of the parties.
In the result, so far as Writ Petitions Nos. 9847 and
9848 of 1983 are concerned, the impugned order dated
September 25, 1981, appointing the respondent No. S O.P.
Sharma with retrospective
440
effect from a notional date viz., 21-10-1971 (FN), and the
seniority list dated 17-10-1981, showing the respondent No.
S as senior to the petitioners, are quashed. Let a writ in
the nature of certiorari issue in that regard. Further let a
writ in the nature of mandamus issue directing the
respondents Nos. l and 2 to publish a fresh seniority list
showing the petitioners as seniors to the respondent No. 5.
The writ petitions are allowed and the rules are made
absolute to the extent indicated above.
With regard to Writ Petition No. 1021 of 1986, let a
writ in the nature of certiorari issue quashing the
seniority list, Annexure-P/1 to the writ petition, and all
subsequent seniority lists of SPs in the CBI in which the
petitioner has been shown junior to the respondents Nos. S
to 7. Further, let a writ in the nature of mandamus issue
commanding the respondents Nos. 1 and 2 to allot to the
petitioner his proper seniority in the post of SP, CBI, by
counting his service with effect from 14-6-1976, that is,
the date on which he was regularly promoted to the post of
Deputy Commandant in the BSF and to issue a fresh seniority
list showing him senior to the respondents Nos. 5 to 7. The
writ petition is allowed and the rule is made absolute to
the extent indicated above.
We, however, make it clear that in Writ Petition No.
1021 of 1986 the issue as to the date of birth of the
petitioner is left open and the petitioner would be at
liberty to challenge any order, if adverse to him, on that
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issue.
There will, however, be no order as to costs in any of
the writ petitions.
S. L. Petitions allowed
441