Full Judgment Text
$~R-22&23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: January 03, 2013
+ WP(C) 3308/2001
K.K.BHARDWAJ & ORS. ..... Petitioners
Represented by: Mr. R.K.Saini, Advocate.
versus
THE SECRETARY, MHA & ORS. ..... Respondents
Represented by: Mr.R.V.Sinha, Advocate for R-1&2.
None for R-3&4.
AND
WP(C) 6818/2001
L.L.SATYANARAYANA ..... Petitioner
Represented by: None.
versus
UNION OF INDIA & ORS. ..... Respondents
Represented by: Mr.R.V.Sinha, Advocate for R-1, 2 & 3.
Mr.R.K.Saini, Advocate for R-8.
None for other respondents.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE VEENA BIRBAL
PRADEEP NANDRAJOG, J. (Oral)
1. Whereas orders under challenge in WP(C) No.3308/2001 are dated
November 02, 2000 and December 22, 2000; the original order and the order
dismissing application seeking review. Orders under challenge in WP(C)
No.6818/2001 are dated December 14, 2000 and February 14, 2001 i.e. the
original order and the order dismissing the application seeking review.
2. The writ petitioners of WP(C) No.3308/2001 had filed OA
WP(C) 3308&6818/2001 Page 1 of 9
No.199/1999 challenging seniority assigned to Manoj Kumar Mittal and
S.K.Tanwar, impleaded as respondents No.3 and 4 before the Tribunal, on
the ground that the department could not have, while fixing the seniority of
DPA Grade „A‟ post holders reckon service rendered by said respondents in
the department prior to their regular absorption in the department.
3. The department is the National Crime Records Bureau.
4. Whereas the writ petitioners of WP(C) No.3308/2001 had joined as
direct recruits as DPA Grade „A‟ on various dates between February 1991 to
January 1992, Manoj Kumar Mittal and S.K.Tanwar had joined the
department on deputation on ad-hoc basis on November 01, 1988 and
August 02, 1989 respectively. They were absorbed permanently on
November 14, 1991 and March 31, 1993 respectively.
5. The department had accorded them seniority with reference to the
date they joined the department on ad-hoc basis.
6. Petitioners‟ challenge failed on account of the Tribunal relying upon
an office order dated October 03, 1989, by highlighting the last three words
of the office memorandum : ‘ whichever is later ’.
7. We may note at the outset that the OM dated October 03, 1989 is in
fact amending an earlier OM dated May 29, 1986 in which the aforesaid
three words are to be found as the last three words of the last sentence of the
OM.
8. The validity of the OM dated May 29, 1986 was questioned before the
Supreme Court and at the forefront of the challenge was the expression :
‘whichever is later’. In the decision reported as (2000) 1 SCC 644 SI
Rooplal v. Lt.Governor , Supreme Court quashed the expression „ whichever
is later ‟ holding that the effect thereof was to wipe out the entire service
rendered by a deputationist.
9. Thereafter, the Department of Personnel & Training issued OM dated
March 27, 2001 in which the expression ‘whichever is later’ was replaced
WP(C) 3308&6818/2001 Page 2 of 9
with the expression ‘whichever is earlier’ . The issue continued to vex the
Courts and the prior and subsequent judgments rendered by the Supreme
Court are as under:-
(i) (1987) 4 SCC 576 K. Madhavan v. Union of India .
(ii) (1988) 2 SCC 233 R. Prabha Devi v. Government of India .
(iii) 1994 Supp. (3) SCC 376 T.K. Ponnnuswamy v. Govt. of Tamil
Nadu .
(iv) (1998) 3 SCC 218 K. Chandraiah v. K. Anjaiah .
(v) (1998) 6 SCC 186 Union of India v. G.R.K. Sharma .
(vi) (2000) 1 SCC 644 Sub-Inspector Rooplal v. Lt. Governor .
(vii) (2006) 8 SCC 129 Indu Shekhar Singh v. State of UP .
10. SI Rooplal ‟s case (supra), para 23, would bring out that the Supreme
Court was dealing with an executive instruction which had the effect of
taking away the service rendered by a deputationist in an equivalent cadre in
a parent department or ad-hoc service rendered as a deputationist. However,
with reference to the service rules governing absorption and appointment
including by way of deputation, the authoritative pronouncement came from
the Supreme Court in the decision reported as 2006 (8) SCC 129 Indu
Shekhar Singh v. State of Uttar Pradesh . In para 19, 20, 21, 22, 24, 25 and
26 of the said decision, the Supreme Court observed as under:-
“19. The terms and conditions of
recruitment/appointment to the post, seniority and other
terms and conditions of service are governed by statutory
rules. The statute provides that only those, who were in
the employment of different development authorities,
shall be borne to the cadre of the Central services. The
U.P. Jal Nigam was not a development authority. It was
constituted under a different statute. It was an
autonomous body. The employees working with the Jal
Nigam might have been deputed to the services of the
development authorities, but only by reason thereof they
did not derive any right to be absorbed in the services.
Ordinarily, an employee has no legal right to be deputed
to another organisation. He has also no right to be
permanently absorbed excepting in certain situation as
was held by this Court in Union of India v. V.
WP(C) 3308&6818/2001 Page 3 of 9
Ramakrishnan .
20. Respondents 2 to 4 were deputed to the Ghaziabad
Development Authority on their own. They were
presumed to be aware that they were not borne in the
cadre of centralised services. The Rules do not provide
for appointment by way of transfer. Appointment by way
of absorption of a deputed employee would amount to
fresh appointment which may be subject to the offer
given by the Authority. The Development Authority is a
statutory authority. So is the Jal Nigam. The Schedules
appended to the Rules provide for posts to be filled up by
promotion or by direct recruitment or by both. Schedule
IV provides for the posts which are outside the purview
of the Public Service Commission and are required to be
filled up by promotion only, whereas Schedule V
specifies those posts which are outside the purview of the
Public Service Commission, but are to be filled up
through direct recruitment only. It is not disputed that the
State of U.P. has since issued a notification on 9-12-2002
whereby and whereunder Rule 7(1) of the 1985 Rules
stood substituted, in terms whereof the past services of
only those officers and employees were to be counted
who would finally be absorbed in the services in terms of
Section 5-A(2) of the Act on the criterion of continuous
length of service, including the services rendered in a
Development Authority, Nagar Mahapalika, Nagar Palika
or Improvement Trust on similar posts. Respondents 2 to
4 were not and could not have been absorbed under
Section 5-A(2) of the Act and thus evidently Rule 7(1) is
not attracted. The only rule, which provides for seniority,
is Rule 28. Rules 7 and 28, as noticed hereinbefore, occur
in different chapters providing for different situations.
21. Respondents 2 to 4, therefore, were not entitled to the
benefits of Rule 7. In terms of the Rules, there is no
provision for appointment by way of transfer. There is
also no provision for appointment on permanent
absorption of the deputed employees. The only provision
which in the fact situation obtaining in the present case
would apply and that too in the event the State intended
to absorb the employees of the Jal Nigam, would be
Section 7(1) of the Act and sub-rule (2) of Rule 37 of the
WP(C) 3308&6818/2001 Page 4 of 9
1985 Rules.
22. Seniority, as is well settled, is not a fundamental
right. It is merely a civil right. (See Bimlesh Tanwar v.
State of Haryana (2003) 5 SCC 604 (para 49) and also
Prafulla Kumar Das v. State of Orissa (2003) 11 SCC
614.)
.....
24. The question which arises is as to whether the terms
and conditions imposed by the State in the matter of
absorption of Respondents 2 to 4 in the permanent
service of the Ghaziabad Development Authority is ultra
vires Article 14 of the Constitution of India.
25. The State was making an offer to the respondents not
in terms of any specific power under the Rules, but in
exercise of its residuary power (assuming that the same
was available). The State, therefore, was within its right
to impose conditions. The respondents exercised their
right of election. They could have accepted the said offer
or rejected the same. While making the said offer, the
State categorically stated that for the purpose of fixation
of seniority, they would not be obtaining the benefits of
services rendered in the U.P. Jal Nigam and would be
placed below in the cadre till the date of absorption. The
submission of Mr Verma that the period for which they
were with the Authority by way of deputation, should
have been considered towards seniority cannot be
accepted simply for the reason that till they were
absorbed, they continued to be in the employment of the
Jal Nigam. Furthermore, the said condition imposed is
backed by another condition that the deputed employee
who is seeking for absorption shall be placed below the
officers appointed in the cadre till the date of absorption.
Respondents 2 to 4 accepted the said offer without any
demur on 3-9-1987, 28-11-1991 and 6-4-1987
respectively.
26. They, therefore, exercised their right of option. Once
they obtained entry on the basis of election, they cannot
be allowed to turn round and contend that the conditions
WP(C) 3308&6818/2001 Page 5 of 9
are illegal. (See R.N. Gosain v. Yashpal Dhir ,
Ramankutty Guptan v. Avara and Bank of India v. O.P.
Swarnakar .) Furthermore, there is no fundamental right
in regard to the counting of the services rendered in an
autonomous body. The past services can be taken into
consideration only when the Rules permit the same or
where a special situation exists, which would entitle the
employee to obtain such benefit of past service.....”
11. The Supreme Court, in Indu Shekhar Singh ‟s case (supra), clarified
the ratio in SI Rooplal ‟s case (supra) as also two other decisions of the
Supreme Court by observing in paragraphs 38 to 48 as under:-
“38. In K. Madhavan v. Union of India whereupon Mr
Verma placed strong reliance, this Court was considering
a case where deputation was made to CBI. The said
decision was rendered in a situation wherein the original
Rule 5 of the 1963 Rules providing for 85% of the
recruitment by way of transfer or deputation was altered
to 75%. In that case, the earlier services rendered by the
appellants therein were directed to be considered having
regard to the statutory rules governing the field. Therein
no question of a person joining the services after
resigning from his old post arose. It is only in that
situation, the Court opined that there was not much
difference between deputation and transfer.
39. A difference between transfer and deputation would
be immaterial where an appointment by transfer is
permissible, particularly in an organisation like CBI
where personnel are drawn from different sources by way
of deputation. It is one thing to say that a deputationist
may be regarded as having been appointed on transfer
when the deputation is from one department of the
Government to another department, but it would be
another thing to say that employees are recruited by
different statutory authorities in terms of different
statutory rules. In a given case, the source of recruitment,
the qualification, etc., may be different in different
organisations. The statutory authorities, it is trite, are not
and cannot be treated to be the departments of the
Government. Their employees are governed by the rules
applicable to them. Their services are not protected under
WP(C) 3308&6818/2001 Page 6 of 9
Article 311 of the Constitution.
40. The State can ( sic cannot) compel an employee to go
on deputation from its parent department to another
public sector undertaking unless a statutory rule exists in
this behalf. In absence of such a rule, no employer can
force an employee to join the services of another
employer. Thus, K. Madhavan , in our opinion, has no
application in the instant case.
41. K. Anjaiah v. K. Chandraiah was again a case where
this Court was concerned with multi-source
recruitment.....
42. Therein, thus, existed a provision for appointment by
way of absorption of the deputationist. The said
regulation was declared unconstitutional by the
Tribunal......
Such a finding was, thus, arrived at by way of reading
down the Rules so as to uphold the constitutionality of
the said provision and not by laying any law in that
behalf upon interpreting Rule 9(2).
43. Having noticed the aforementioned decisions of this
Court, we may now notice Sub-Inspector Rooplal which
is the sheet anchor of the judgment rendered by the High
Court.
.....
47. The 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.
48. The said decisions, in our considered view, have no
application in this case, having regard to the provisions
of Section 5-A of the Act, in terms whereof no provision
WP(C) 3308&6818/2001 Page 7 of 9
exists for recruitment of deputationists. Recruitment of
deputationists, in fact, is excluded therefrom.....”
(Emphasis Supplied)
12. A close perusal of the aforesaid decisions, particularly the portions
underlined by us in the paragraphs quoted from Indu Shekhar ‟s case (supra)
succinctly brings out that the decisions of Supreme Court in K. Madhavan ,
K. Chandraiah and SI Rooplal ‟s cases and Indu Shekhar ‟s cases (supra)
operate in different fields. Whereas K. Madhavan , K. Chandraiah and SI
Rooplal ‟s cases deal with a situation where one of the sources for
appointment to a cadre in the transferred department is deputation, Indu
Shekhar ‟s case deals with a situation where the deputation was not provided
as a source of appointment to a cadre under the Recruitment Rules of the
transferred department and the government had permanently appointed the
deputationist in the transferred department in exercise of its residuary
powers.
13. Be that as it may, we need not pen any further inasmuch as deciding
OA No.324/2006, the Tribunal has taken a view contrary to the view taken
by it when OA No.199/1999 filed by K.K.Bhardwaj and others was
dismissed by the Tribunal. The view taken by the Tribunal has since
compelled the respondents to re-fix the seniority and while so doing,
M.K.Mittal and S.K.Tanwar have been assigned seniority from the date they
were regularly absorbed in the National Crime Research Bureau and the
position is to the satisfaction of the writ petitioners.
14. Under the circumstances, noting as above, WP(C) No.3308/2001
stands disposed of setting aside the decision dated November 02, 2000 as
also the order dated December 22, 2000 dismissing OA No.199/1999 and
RA No.424/2000. No mandamus is issued to the respondents noting that the
respondents have since taken necessary corrective action and thus need not
perform any executive act or pass an order.
WP(C) 3308&6818/2001 Page 8 of 9
15. We record that aforesaid stand of the respondents No.1 to 3 in WP(C)
No.3308/2001 has been noted by us with reference to an additional affidavit
filed on behalf of respondents No.1 to 3 on November 24, 2010.
16. As regards WP(C) No.6818/2001 is concerned, we find that the
petitioner therein had filed OA No.344/1996 claiming that even his seniority
should be fixed on the same principles on which seniority of Manoj Kumar
Mittal and S.K.Tanwar was fixed. He failed.
17. Needless to state, in view of the corrective action now taken by the
department no relief can be granted to the writ petitioner of WP(C)
No.6818/2001 but we cannot restrain ourselves from noting that two
different benches of the Tribunal seized with a similar issue have
unfortunately reached two opposite directions. Unfortunately, while
deciding the OA filed by K.K.Bhardwaj and others the Tribunal lost sight of
the principle of how the ratio of a case has to be culled out. A little incisive
look into the circular which the Tribunal was dealing with could have
illuminated the Tribunal a little better.
18. We summarize. WP(C) No.6818/2001 is dismissed. WP(C)
No.3308/2001 stands disposed of in terms of paragraph 14 above.
19. We leave the parties to bear their own costs.
(PRADEEP NANDRAJOG)
JUDGE
(VEENA BIRBAL)
JUDGE
JANUARY 03, 2013//dk//
WP(C) 3308&6818/2001 Page 9 of 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: January 03, 2013
+ WP(C) 3308/2001
K.K.BHARDWAJ & ORS. ..... Petitioners
Represented by: Mr. R.K.Saini, Advocate.
versus
THE SECRETARY, MHA & ORS. ..... Respondents
Represented by: Mr.R.V.Sinha, Advocate for R-1&2.
None for R-3&4.
AND
WP(C) 6818/2001
L.L.SATYANARAYANA ..... Petitioner
Represented by: None.
versus
UNION OF INDIA & ORS. ..... Respondents
Represented by: Mr.R.V.Sinha, Advocate for R-1, 2 & 3.
Mr.R.K.Saini, Advocate for R-8.
None for other respondents.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE VEENA BIRBAL
PRADEEP NANDRAJOG, J. (Oral)
1. Whereas orders under challenge in WP(C) No.3308/2001 are dated
November 02, 2000 and December 22, 2000; the original order and the order
dismissing application seeking review. Orders under challenge in WP(C)
No.6818/2001 are dated December 14, 2000 and February 14, 2001 i.e. the
original order and the order dismissing the application seeking review.
2. The writ petitioners of WP(C) No.3308/2001 had filed OA
WP(C) 3308&6818/2001 Page 1 of 9
No.199/1999 challenging seniority assigned to Manoj Kumar Mittal and
S.K.Tanwar, impleaded as respondents No.3 and 4 before the Tribunal, on
the ground that the department could not have, while fixing the seniority of
DPA Grade „A‟ post holders reckon service rendered by said respondents in
the department prior to their regular absorption in the department.
3. The department is the National Crime Records Bureau.
4. Whereas the writ petitioners of WP(C) No.3308/2001 had joined as
direct recruits as DPA Grade „A‟ on various dates between February 1991 to
January 1992, Manoj Kumar Mittal and S.K.Tanwar had joined the
department on deputation on ad-hoc basis on November 01, 1988 and
August 02, 1989 respectively. They were absorbed permanently on
November 14, 1991 and March 31, 1993 respectively.
5. The department had accorded them seniority with reference to the
date they joined the department on ad-hoc basis.
6. Petitioners‟ challenge failed on account of the Tribunal relying upon
an office order dated October 03, 1989, by highlighting the last three words
of the office memorandum : ‘ whichever is later ’.
7. We may note at the outset that the OM dated October 03, 1989 is in
fact amending an earlier OM dated May 29, 1986 in which the aforesaid
three words are to be found as the last three words of the last sentence of the
OM.
8. The validity of the OM dated May 29, 1986 was questioned before the
Supreme Court and at the forefront of the challenge was the expression :
‘whichever is later’. In the decision reported as (2000) 1 SCC 644 SI
Rooplal v. Lt.Governor , Supreme Court quashed the expression „ whichever
is later ‟ holding that the effect thereof was to wipe out the entire service
rendered by a deputationist.
9. Thereafter, the Department of Personnel & Training issued OM dated
March 27, 2001 in which the expression ‘whichever is later’ was replaced
WP(C) 3308&6818/2001 Page 2 of 9
with the expression ‘whichever is earlier’ . The issue continued to vex the
Courts and the prior and subsequent judgments rendered by the Supreme
Court are as under:-
(i) (1987) 4 SCC 576 K. Madhavan v. Union of India .
(ii) (1988) 2 SCC 233 R. Prabha Devi v. Government of India .
(iii) 1994 Supp. (3) SCC 376 T.K. Ponnnuswamy v. Govt. of Tamil
Nadu .
(iv) (1998) 3 SCC 218 K. Chandraiah v. K. Anjaiah .
(v) (1998) 6 SCC 186 Union of India v. G.R.K. Sharma .
(vi) (2000) 1 SCC 644 Sub-Inspector Rooplal v. Lt. Governor .
(vii) (2006) 8 SCC 129 Indu Shekhar Singh v. State of UP .
10. SI Rooplal ‟s case (supra), para 23, would bring out that the Supreme
Court was dealing with an executive instruction which had the effect of
taking away the service rendered by a deputationist in an equivalent cadre in
a parent department or ad-hoc service rendered as a deputationist. However,
with reference to the service rules governing absorption and appointment
including by way of deputation, the authoritative pronouncement came from
the Supreme Court in the decision reported as 2006 (8) SCC 129 Indu
Shekhar Singh v. State of Uttar Pradesh . In para 19, 20, 21, 22, 24, 25 and
26 of the said decision, the Supreme Court observed as under:-
“19. The terms and conditions of
recruitment/appointment to the post, seniority and other
terms and conditions of service are governed by statutory
rules. The statute provides that only those, who were in
the employment of different development authorities,
shall be borne to the cadre of the Central services. The
U.P. Jal Nigam was not a development authority. It was
constituted under a different statute. It was an
autonomous body. The employees working with the Jal
Nigam might have been deputed to the services of the
development authorities, but only by reason thereof they
did not derive any right to be absorbed in the services.
Ordinarily, an employee has no legal right to be deputed
to another organisation. He has also no right to be
permanently absorbed excepting in certain situation as
was held by this Court in Union of India v. V.
WP(C) 3308&6818/2001 Page 3 of 9
Ramakrishnan .
20. Respondents 2 to 4 were deputed to the Ghaziabad
Development Authority on their own. They were
presumed to be aware that they were not borne in the
cadre of centralised services. The Rules do not provide
for appointment by way of transfer. Appointment by way
of absorption of a deputed employee would amount to
fresh appointment which may be subject to the offer
given by the Authority. The Development Authority is a
statutory authority. So is the Jal Nigam. The Schedules
appended to the Rules provide for posts to be filled up by
promotion or by direct recruitment or by both. Schedule
IV provides for the posts which are outside the purview
of the Public Service Commission and are required to be
filled up by promotion only, whereas Schedule V
specifies those posts which are outside the purview of the
Public Service Commission, but are to be filled up
through direct recruitment only. It is not disputed that the
State of U.P. has since issued a notification on 9-12-2002
whereby and whereunder Rule 7(1) of the 1985 Rules
stood substituted, in terms whereof the past services of
only those officers and employees were to be counted
who would finally be absorbed in the services in terms of
Section 5-A(2) of the Act on the criterion of continuous
length of service, including the services rendered in a
Development Authority, Nagar Mahapalika, Nagar Palika
or Improvement Trust on similar posts. Respondents 2 to
4 were not and could not have been absorbed under
Section 5-A(2) of the Act and thus evidently Rule 7(1) is
not attracted. The only rule, which provides for seniority,
is Rule 28. Rules 7 and 28, as noticed hereinbefore, occur
in different chapters providing for different situations.
21. Respondents 2 to 4, therefore, were not entitled to the
benefits of Rule 7. In terms of the Rules, there is no
provision for appointment by way of transfer. There is
also no provision for appointment on permanent
absorption of the deputed employees. The only provision
which in the fact situation obtaining in the present case
would apply and that too in the event the State intended
to absorb the employees of the Jal Nigam, would be
Section 7(1) of the Act and sub-rule (2) of Rule 37 of the
WP(C) 3308&6818/2001 Page 4 of 9
1985 Rules.
22. Seniority, as is well settled, is not a fundamental
right. It is merely a civil right. (See Bimlesh Tanwar v.
State of Haryana (2003) 5 SCC 604 (para 49) and also
Prafulla Kumar Das v. State of Orissa (2003) 11 SCC
614.)
.....
24. The question which arises is as to whether the terms
and conditions imposed by the State in the matter of
absorption of Respondents 2 to 4 in the permanent
service of the Ghaziabad Development Authority is ultra
vires Article 14 of the Constitution of India.
25. The State was making an offer to the respondents not
in terms of any specific power under the Rules, but in
exercise of its residuary power (assuming that the same
was available). The State, therefore, was within its right
to impose conditions. The respondents exercised their
right of election. They could have accepted the said offer
or rejected the same. While making the said offer, the
State categorically stated that for the purpose of fixation
of seniority, they would not be obtaining the benefits of
services rendered in the U.P. Jal Nigam and would be
placed below in the cadre till the date of absorption. The
submission of Mr Verma that the period for which they
were with the Authority by way of deputation, should
have been considered towards seniority cannot be
accepted simply for the reason that till they were
absorbed, they continued to be in the employment of the
Jal Nigam. Furthermore, the said condition imposed is
backed by another condition that the deputed employee
who is seeking for absorption shall be placed below the
officers appointed in the cadre till the date of absorption.
Respondents 2 to 4 accepted the said offer without any
demur on 3-9-1987, 28-11-1991 and 6-4-1987
respectively.
26. They, therefore, exercised their right of option. Once
they obtained entry on the basis of election, they cannot
be allowed to turn round and contend that the conditions
WP(C) 3308&6818/2001 Page 5 of 9
are illegal. (See R.N. Gosain v. Yashpal Dhir ,
Ramankutty Guptan v. Avara and Bank of India v. O.P.
Swarnakar .) Furthermore, there is no fundamental right
in regard to the counting of the services rendered in an
autonomous body. The past services can be taken into
consideration only when the Rules permit the same or
where a special situation exists, which would entitle the
employee to obtain such benefit of past service.....”
11. The Supreme Court, in Indu Shekhar Singh ‟s case (supra), clarified
the ratio in SI Rooplal ‟s case (supra) as also two other decisions of the
Supreme Court by observing in paragraphs 38 to 48 as under:-
“38. In K. Madhavan v. Union of India whereupon Mr
Verma placed strong reliance, this Court was considering
a case where deputation was made to CBI. The said
decision was rendered in a situation wherein the original
Rule 5 of the 1963 Rules providing for 85% of the
recruitment by way of transfer or deputation was altered
to 75%. In that case, the earlier services rendered by the
appellants therein were directed to be considered having
regard to the statutory rules governing the field. Therein
no question of a person joining the services after
resigning from his old post arose. It is only in that
situation, the Court opined that there was not much
difference between deputation and transfer.
39. A difference between transfer and deputation would
be immaterial where an appointment by transfer is
permissible, particularly in an organisation like CBI
where personnel are drawn from different sources by way
of deputation. It is one thing to say that a deputationist
may be regarded as having been appointed on transfer
when the deputation is from one department of the
Government to another department, but it would be
another thing to say that employees are recruited by
different statutory authorities in terms of different
statutory rules. In a given case, the source of recruitment,
the qualification, etc., may be different in different
organisations. The statutory authorities, it is trite, are not
and cannot be treated to be the departments of the
Government. Their employees are governed by the rules
applicable to them. Their services are not protected under
WP(C) 3308&6818/2001 Page 6 of 9
Article 311 of the Constitution.
40. The State can ( sic cannot) compel an employee to go
on deputation from its parent department to another
public sector undertaking unless a statutory rule exists in
this behalf. In absence of such a rule, no employer can
force an employee to join the services of another
employer. Thus, K. Madhavan , in our opinion, has no
application in the instant case.
41. K. Anjaiah v. K. Chandraiah was again a case where
this Court was concerned with multi-source
recruitment.....
42. Therein, thus, existed a provision for appointment by
way of absorption of the deputationist. The said
regulation was declared unconstitutional by the
Tribunal......
Such a finding was, thus, arrived at by way of reading
down the Rules so as to uphold the constitutionality of
the said provision and not by laying any law in that
behalf upon interpreting Rule 9(2).
43. Having noticed the aforementioned decisions of this
Court, we may now notice Sub-Inspector Rooplal which
is the sheet anchor of the judgment rendered by the High
Court.
.....
47. The 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.
48. The said decisions, in our considered view, have no
application in this case, having regard to the provisions
of Section 5-A of the Act, in terms whereof no provision
WP(C) 3308&6818/2001 Page 7 of 9
exists for recruitment of deputationists. Recruitment of
deputationists, in fact, is excluded therefrom.....”
(Emphasis Supplied)
12. A close perusal of the aforesaid decisions, particularly the portions
underlined by us in the paragraphs quoted from Indu Shekhar ‟s case (supra)
succinctly brings out that the decisions of Supreme Court in K. Madhavan ,
K. Chandraiah and SI Rooplal ‟s cases and Indu Shekhar ‟s cases (supra)
operate in different fields. Whereas K. Madhavan , K. Chandraiah and SI
Rooplal ‟s cases deal with a situation where one of the sources for
appointment to a cadre in the transferred department is deputation, Indu
Shekhar ‟s case deals with a situation where the deputation was not provided
as a source of appointment to a cadre under the Recruitment Rules of the
transferred department and the government had permanently appointed the
deputationist in the transferred department in exercise of its residuary
powers.
13. Be that as it may, we need not pen any further inasmuch as deciding
OA No.324/2006, the Tribunal has taken a view contrary to the view taken
by it when OA No.199/1999 filed by K.K.Bhardwaj and others was
dismissed by the Tribunal. The view taken by the Tribunal has since
compelled the respondents to re-fix the seniority and while so doing,
M.K.Mittal and S.K.Tanwar have been assigned seniority from the date they
were regularly absorbed in the National Crime Research Bureau and the
position is to the satisfaction of the writ petitioners.
14. Under the circumstances, noting as above, WP(C) No.3308/2001
stands disposed of setting aside the decision dated November 02, 2000 as
also the order dated December 22, 2000 dismissing OA No.199/1999 and
RA No.424/2000. No mandamus is issued to the respondents noting that the
respondents have since taken necessary corrective action and thus need not
perform any executive act or pass an order.
WP(C) 3308&6818/2001 Page 8 of 9
15. We record that aforesaid stand of the respondents No.1 to 3 in WP(C)
No.3308/2001 has been noted by us with reference to an additional affidavit
filed on behalf of respondents No.1 to 3 on November 24, 2010.
16. As regards WP(C) No.6818/2001 is concerned, we find that the
petitioner therein had filed OA No.344/1996 claiming that even his seniority
should be fixed on the same principles on which seniority of Manoj Kumar
Mittal and S.K.Tanwar was fixed. He failed.
17. Needless to state, in view of the corrective action now taken by the
department no relief can be granted to the writ petitioner of WP(C)
No.6818/2001 but we cannot restrain ourselves from noting that two
different benches of the Tribunal seized with a similar issue have
unfortunately reached two opposite directions. Unfortunately, while
deciding the OA filed by K.K.Bhardwaj and others the Tribunal lost sight of
the principle of how the ratio of a case has to be culled out. A little incisive
look into the circular which the Tribunal was dealing with could have
illuminated the Tribunal a little better.
18. We summarize. WP(C) No.6818/2001 is dismissed. WP(C)
No.3308/2001 stands disposed of in terms of paragraph 14 above.
19. We leave the parties to bear their own costs.
(PRADEEP NANDRAJOG)
JUDGE
(VEENA BIRBAL)
JUDGE
JANUARY 03, 2013//dk//
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