Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1485 OF 2003
The Director,
Central Bureau of Investigation & Anr. …Appellants
Versus
Shri D.P. Singh …Respondent
JUDGEMENT
R.M. Lodha, J.
This appeal by special leave is directed against the
judgment of the High Court of Delhi dated March 8, 2002
whereby writ petition preferred by the present respondent was
allowed and it was directed that his seniority to the post of
Deputy Superintendent of Police (Dy.S.P.) should be counted
from November 24, 1977 in place of June 29, 1987.
2. D. P. Singh-respondent-joined U. P. Police Service
on February 16, 1964 as Sub-Inspector. On May 11, 1966, he
was sent on deputation to the Central Bureau of Investigation
(CBI) as Sub-Inspector. While he was on deputation, he was
appointed to the post of Inspector on December 31, 1970
against deputation quota as per the then existing Special Police
Establishment (Executive Staff) Recruitment Rules, 1963 (for
short, ‘Rules, 1963’). He continued to be on deputation with CBI
and vide Order dated November 24, 1977, he was appointed to
the post of Dy. S.P. on ad-hoc basis. He appears to have
exercised his option for absorption to the post of Dy.S.P. in CBI
in 1980 and the request for absorption also seems to have
been accepted in 1983 but no formal order was issued and it
was only vide order dated May 15, 1995 that respondent was
absorbed in the service of CBI and appointed as Dy.S.P. on
transfer basis with effect from June 29, 1987 on the
recommendation of Union Public Service Commission (UPSC)
and as per the guidelines issued by Department of Personnel
and Training (DOPT) vide Office Memorandum dated May 29,
1986. The respondent, however, made representation and
claimed his seniority with effect from November 24, 1977 when
he was initially appointed to the post of Dy.S.P. in CBI. No
favorable response on his representation was received by the
respondent. He, then, approached Central Administrative
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Tribunal (CAT), Principal Bench, New Delhi by filing original
application praying therein that direction be issued to the
present appellants to fix his seniority in the grade of Dy.S.P.
with effect from November 24, 1977 in place of June 29, 1987.
3. On February 3, 1998, CAT dismissed original
application filed by the present respondent. The respondent
sought review of the order dated February 3, 1998 from the
CAT but the review application, too, was dismissed on
September 10, 1999.
4. The present respondent aggrieved by the aforesaid
orders of CAT, filed writ petition before the High Court which, as
indicated above, has been allowed by the impugned order.
5. We heard Mr. P.P. Malhotra, Additional Solicitor
General for the appellants and Mr. Rakesh K. Khanna, Senior
Counsel for the respondent at quite some length.
6. It is important to notice here that although
respondent joined CBI as Sub-Inspector on May 11, 1966 on
deputation from U.P. Police and he continued to be on
deputation for more than two decades and during this period he
was appointed by CBI on next higher posts, viz; Inspector and
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Dy.S.P. but until his absorption as Dy.S.P. in CBI with effect
from June 29, 1987, he continued his lien in the parent
department and was not promoted to the post of Dy.S.P. in U.P.
Police (i.e. his parent department).
7. In this backdrop, we deem it appropriate to
reproduce the order dated December 26, 1977 whereby the
respondent was appointed to officiate as Dy.S.P. with effect
from November 24, 1977.
“F.No.A-19036/11/77-Ad.V
Govt. of India
Ministry of Home Affairs,
Deptt. of Personnel & A.R.,
Central Bureau of Investigation
Kotah House Hutments,
New Delhi.
Dated 26 Dec 1977
NOTIFICATION
(TO BE PUBLISHED IN GAZETTE OF INDIA PART III
SEC.I)
The director, Central Bureau of Investigation and
Inspector General of Police, Special Police Establishment
hereby appoints Shri D.P. Singh, Inspector of Police, C.B.I.
CIU (II), Branch and an officer of Uttar Pradesh Police Deptt.
to officiate as Dy. Supdt. of Police in Central Bureau of
Investigation, Special Police Establishment with effect from
the forenoon of 24.11.77 in a temporary capacity until further
order.
(V.P……………)
Administrative Officer (E)
Central Bureau of Investigation.”
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8. Rules, 1963 have been made by the President in
exercise of the powers conferred by the proviso to Article 309 of
the Constitution. These rules apply to the post of
Superintendent of Police and Deputy Superintendent of Police
in the Special Police Establishment. Inter alia, Schedule
appended thereto provides that post of Deputy Superintendent
of Police which is classified as General Central Service Group,
gazetted and non-ministerial post, shall be filled in by selection.
The schedule provides for quota for selection to the post of
Dy. S.P. for deputationists. There is a note appended to the
Schedule for the post of Superintendent of Police and Deputy
Superintendent of Police which provides that when these posts
are held by deputation by officers of the State or Central
Government Department, these posts will be treated as tenure
posts. The note further provides that deputationists will not be
eligible for promotion in the quota shown against the higher
posts but if they are otherwise suitable and if vacancies are
available, such deputationists may be appointed against
deputation quota.
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9. Rules, 1963 were amended in 1972 whereby in
columns 10 and 11 in Schedule the following provisions were
made :
“Column 10:
(a) Promotion – 30 per cent failing which by transfer on
deputation failing both by direct recruitment.
(b) Transfer/deputation-50 per cent failing which by direct
recruitment.
(c) Direct recruitment-20 per cent in consultation with the
Union Public Service Commission.”
Column 11:
Inspector of Police in the Central Bureau of Investigation
with 5 years service in the grade rendered after appointment
thereto on a regular basis.
Transfer/deputation:
Suitable officers of the State or Central Government
Department who are holding equivalent posts or who, though
holding posts in the next lower grade, are officer approved
for promotion to equivalent posts,
Deputation:
Deputationist Inspector in the Central Bureau of Investigation
who have put in at least 5 years service in the rank in the
State/Central Bureau of Investigation out of which at least 3
years is in the Central Bureau of Investigation.
(Period of deputation ordinarily not exceeding 5 years).”
10. Further amendment was brought in the Rules, 1963
as amended in 1972 by amendment Rules, 1987.
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11. On May 29, 1986, an Office Memorandum was
issued by Department of Personnel and Training (DOPT),
Government of India dealing with the subject of seniority of
persons absorbed after being on deputation whereby
sub-para (iv) to para 7 of earlier Office Memorandum dated
December 22, 1959 was added. Since the whole controversy
centres around this Office Memorandum, we deem it
appropriate to reproduce it as it is :
“No. 20020/7/80-Estt(D)
Government of India/Bharat Sarkar
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel & Training
th
New Delhi, the 29 May, 1986
OFFICE MEMORANDUM
Subject : Seniority of persons absorbed after being on
deputation.
The undersigned is directed to say that the existing
instructions on seniority of transferees contained in paras 7
of the Annexure to this Department’s O.M. No. 9/11/55-RPs
nd
dated the 22 December, 1959 (copy enclosed) mainly deal
with cases where persons are straight way appointed on
transfer. It is, however, observed that most of the cases of
permanent absorption are those where the officers were
taken on deputation initially under the method of ‘transfer on
deputation/transfer’ contained in the relevant recruitment
rules. This O.M. is intended to fill this gap in the existing
instructions.
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2. Even in the type of cases mentioned above, that is,
where an officer initially comes on deputation and is
subsequently absorbed, the normal principle that the
seniority should be counted from the date of such
absorption, should mainly apply. Where, however, the officer
has already been holding on the date of absorption in the
same or equivalent grade on regular basis in his parent
department, it would be equitable and appropriate that such
regular service in the grade should also be taken into
account in determining his seniority subject only to the
condition that at the most it would be only from the date of
deputation to the grade in which absorption is being made. It
has also to be ensured that the fixation of seniority of a
transferee in accordance with the above principle will not
affect any regular promotions made prior to the date of
absorption. Accordingly, it has been decided to add the
following sub-para (iv) to para 7 of general principles
nd
communicated vide O.M. dated 22 December, 1959:
“(iv) In the case of a person which is initially
taken on deputation and absorbed later (i.e. where
the relevant recruitment rules provide for transfer
on deputation/transfer”), his seniority in the grade
in which he is absorbed will normally be counted
from the date of absorption. –If he has, however,
been holding already (on the date of absorption)
the same or equivalent grade on regular basis in
his parent department, such regular service in the
grade shall also be taken into account in fixing his
seniority, subject to the condition that he will be
given seniority from.
- the date he has been holding the post on
deputation,
or
- the date from which he has been appointed
on a regular basis to the same or equivalent
grade in his parent department, whichever
is later.
The fixation of seniority of a transferee in
accordance with the above principle will not,
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however, affect any regular promotions to the next
higher grade made prior to the date of such
absorption. In other words, it will be operative only
in filling up of vacancies in higher grade taking
place after such absorption.
In cases in which transfers are not strictly in
public interest, the transferred officers will be
placed below all officers appointed regularly to the
grade on the date of absorption.”
3. All the Ministries/Departments are requested
kindly to bring these instructions to the notice of all
concerned in the Ministries/Departments and Attached
and Subordinate Offices under them for their guidance
and to ensure their compliance.
4. These orders will not be applicable to transfers
within the Indian Audit and Accounts Department which
are governed by orders issued by the C & A.G. from time
to time.
5. Hindi version is attached.
Sd/-
(K.S.R. Krishna Roa)
Deputy Secretary to the
Government of India.”
12. Mr. P.P. Malhotra, Additional Solicitor General
urged that since the respondent was not Dy.S.P. in his parent
department in 1977 nor was he holding equivalent grade of
Dy.S.P. on regular basis in his parent department (U.P.
Service), his seniority in the grade of Dy.S.P. has to be counted
from June 29,1987 when he was absorbed. He, thus, submitted
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that the judgment of the High Court is unsustainable in the light
of sub-para (iv) as mentioned in O.M. dated May 29, 1986.
13. On the other hand, Mr. Rakesh K. Khanna, learned
Senior Counsel for the respondent submitted that since the
respondent has been holding the post of Dy.S.P. in CBI since
November 24, 1977, as per sub-para (iv), his seniority from the
date he has been holding such post must be counted. He relied
upon decisions of this court in the case of K. Madhavan and
1
Another v. Union of India and Others , Direct Recruit Class II
Engineering Officers’ Association v. State of Maharashtra and
2
Others , Union of India and Another v. Harish Chander Bhatia
3
and Others and Rameshwar Prasad v. Managing Director,
4
U.P. Rajkiya Nirman Nigam Limited and Others . He also
submitted that part of the Office Memorandum dated May 29,
1986 has been declared unconstitutional by this Court in Sub-
Inspector Rooplal and Another v. Lt. Governor through Chief
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Secretary, Delhi and Others .
1
(1987) 4 SCC 566
2
(1990) 2 SCC 715
3
(1995) 2 SCC 48
4
(1999) 8 SCC 381
5
(2000) 1 SCC 644
10
14. The question involved in the case of sub-Inspector
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Rooplal was whether a Sub-Inspector, who was appointed as
such in the Border Security Force when transferred on
deputation to the Delhi Police in the cadre of Sub-inspector
(Executive) on being permanently absorbed with the transferred
post, was entitled to count his substantive service as Sub-
Inspector in BSF for the purpose of seniority in the cadre of
Sub-Inspector (Executive) in the Delhi Police or not. While
dealing with the aforesaid question, this Court referred to long
line of cases and, particularly, relying upon the decisions of this
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Court in R.S. Makashi v. I.M. Menon . and Wing Commander
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J. Kumar v. Union of India held that right of deputationist to
count his service for the purpose of seniority in the transferred
department was well settled and, therefore, when a
deputationist is absorbed in a department, he would certainly
have expected that his seniority in the parent department would
be counted. The court, however, clarified that if the previous
service of a transferred official is to be counted for seniority in
the transferred post, then two posts should be equivalent. This
6
(1982) 1 SCC 379
7
(1982) 2 SCC 116
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Court, however, declared the expression “whichever is later”
unconstitutional. The judgment of this Court in Sub-Inspector
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Rooplal is of no help to the respondent as he did not hold the
post of Dy. S.P. or equivalent post in his parent department at
the time of transfer or absorption.
15. As a matter of fact, the plain reading of sub-para (iv)
which has been added to earlier O.M. dated December 22,
1959 vide O.M. dated May 29, 1986 would show that it provides
that a deputationist whose services are absorbed later would
get his seniority in the grade in which he is absorbed normally
from the date of his absorption. However, in a case of person
who has already been holding the same or equivalent grade in
his parent department on regular basis, his seniority shall be
counted from the date he was holding same or equivalent grade
in his parent department. Insofar as the present case is
concerned, admittedly, respondent did not hold the rank of
Dy.S.P. or the equivalent post in his parent department on the
date of his appointment as Dy.S.P. on ad-hoc basis in 1977 or
at the time of his absorption in 1987 and, therefore, his seniority
in Dy.S.P. can only be counted from the date of his absorption,
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i.e., June 29, 1987. If the construction put by the learned Senior
Counsel for the respondent to sub-para (iv) is accepted, it
would render the first part of sub-para (iv), viz., “In the case of a
person which is initially taken on deputation and absorbed later
(i.e. where the relevant recruitment rules provide for transfer on
deputation/transfer), his seniority in the grade in which he is
absorbed will normally be counted from the date of absorption,”
redundant and surplussage. Such construction would be
against the basic rule of construction that language of the
statute should be read as it is and a construction which results
in rejection of words as redundant must be avoided. In Aswini
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Kumar Ghose v. Arabinda Bose , this Court observed that it is
not a sound principle of construction to brush aside words in a
statute as being inapposite surplussage, if they can have
appropriate application in circumstances conceivably within the
contemplation of the statute.
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16. In K. Madhavan , this Court, while holding that
‘deputation’ may be regarded as a ‘transfer’ from one
government department to another, reiterated that transfer
cannot wipe out length of service in the post from which an
8
AIR 1952 SC 369
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employee has been transferred and if a government servant
holding a particular post is transferred to the same or equivalent
post in another government department, the period of his
service in the post before his transfer ought to be taken into
consideration. This legal position admits of no doubt but the
respondent herein did not hold the post of Dy.S.P. or equivalent
grade on regular basis in his parent department prior to his
absorption and, therefore, the principle laid down in K.
1
Madhavan has no application.
17. It is true that respondent was appointed as Dy.S.P.
on officiating basis by CBI in 1977 and he continued as such
until his absorption in 1987, the question is, should the said
period be taken into account for considering his seniority. The
answer, in our opinion, has to be in the negative. It is so
because sub-para (iv) of Office Memorandum as quoted above
plainly provides that date of absorption, ordinarily, would be the
date from which seniority in the grade is to be reckoned. In the
present case, no departure from the aforesaid position is
possible as the respondent was not holding the post of Dy.S.P.
or equivalent post in his parent department anytime prior to his
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absorption. The two decisions in Direct Recruit Class II
2 3
Engineering Officers’ Association and Harish Chander Bhatia
heavily relied upon by the Senior Counsel for the respondent, in
our view, are not of much help to the respondent because his
initial appointment as Dy.S.P. was purely on ad-hoc basis and
there is nothing to indicate that his selection was according to
Rules. As a matter of fact, the respondent could have been
absorbed only after receipt of recommendation from UPSC.
Thus, the period during which the respondent worked as
Dy.S.P. in CBI on officiating basis prior to his absorption, in our
considered view, cannot be counted. The Tribunal in this regard
held thus :
“3. We are of the view so long as the applicant could
claim no lien on the post of Dy. Superintendent of Police in
C.B.I., he could not claim any seniority in C.B.I. After he was
absorbed on 9.11.1994, he could claim lien on that post and
the earlier lien with U.P. Police would cease to exist from
that date. Accordingly, we find no merit in the claim of the
applicant for his seniority from 1977 as Dy. Superintendent
of Police in C.B.I. Further, the claim also appears to be
barred by time. If the applicant considered himself entitled to
seniority from 1977, he ought to have come immediately
after the date he was denied seniority by the respondents.”
We find no infirmity in the aforesaid view of the Tribunal.
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18. For the foregoing reasons, appeal deserves to be
allowed and is allowed. The judgment dated March 8, 2002
impugned in the present appeal is set aside. Parties shall bear
their own costs.
……………………J
(Markandey Katju)
…….……………..J
(R. M. Lodha)
New Delhi
December 16, 2009.
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