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PETITIONER: UNION OF INDIA AND ANOTHER

       Vs.

RESPONDENT: ONKAR CHAND AND OTHERS

DATE OF JUDGMENT:       02/02/1998

BENCH: K. VENKATASWAMI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. Venkataswami, J.      In  all   these  appeals  a  common  issue  arises  for consideration  and   decision.  Hence  they  are  heard  and disposed of by this common judgment.      By way  of sample, the facts in the case of Onkar Chand (Civil Appeal  No. 68/90)  are given.  The said  Onkar Chand originally belonged  to Himachal  Pradesh State  Police  and came on  deputation to  the Intelligence Bureau, Ministry of Home Affairs,  Govt. of  India on 17.8.1970 as JIO-I (Junior Intelligence Officer, Grade - I). He continued as such until he was  promoted against deputation quota to the next higher rank of  Assistant Central  Intelligence Officer,  Grad - II (for  short‘ACIO-II’)   by  an   order   dated   11.10.1977. Factually, he  took charge  of the said post on 2.1.1978. He was absorbed  permanently in  the Intelligence  Bureau by an order dated 10.12.1980 with effect from 31.12.1977 as JIO-I. His services  in the  grade of ACIO-II were regularised with effect from 1.1.1985 by an order of even date.      His grievance  was that  his seniority  in the grade of ACIO-II  was   reckoned   from   1.1.1985,   the   date   of regularisation in  that cadre,  and not from 11.10.1977, the date on  which he was promoted to that rank. It was his case that his services even as deputationist in the posts of JIO- I and ACIO-II should be taken for reckoning seniority.      The next  promotion from  ACIO-II was  to the  post  of ACIO-I. The minimum service required in the cadre of ACIO-II for promotion to the post of ACIO-I was complete five years. The appellants  promoted him  as ACIO-I  only on 2.1.1990 on the ground  that the said Onkar Chand was regularised in the cadre of ACIO-II with effect from 1.1.1985. According to the said Onkar Chand, he should have been considered with effect from the  date on  which he  joined the  post of  ACIO-II on 2.1.1978, if  not from  the date  of his  promotion, namely, 11.10.1977, by  counting his  seniority accordingly. All his claims to  that effect  before the authorities concerned did not yield  the desired  results which obliged the said Onkar Chand  to   move  the   Tribunal  for  a  direction  to  the authorities that  his seniority  in  the  cadre  of  ACIO-II should be  fixed after counting his service from 2.1.1978 in

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that grade  and consequently he should be eligible for being considered for future promotion on the said basis.      The appellants  opposed the  claim of  the  said  Onkar Chand by contending that according to the general principles of seniority, as per the Memo issued by the Ministry of Home Affairs, the  seniority of  transferees was  determined from the date  they were  appointed  on  transfer  basis  in  the Department.  When   so  appointed  on  transfer  basis,  the transferees will  be placed  below all departmental officers promoted earlier  than the  date of  the absorption  of  the transferees permanently  in the  Intelligence Bureau  in the grade  of  JIO-I.  In  the  case  of  Onkar  Chand,  he  was permanently absorbed  as JIO-I  only  on  10.12.1980  w.e.f. 31.12.1977. His services earlier to 31.12.1977, according to the appellants,  in the  Intelligence Bureau in the capacity of deputationist  will not  be taken  into account  for  the purpose  of   seniority  in  the  cadre  of  JIO-I.  On  the absorption of  Onkar Chand permanently w.e.f. 31.12.1977, he will be  placed junior-most  in that cadre and the seniority will be  counted accordingly.  Though, in  the meanwhile, he was  promoted  as  ACIO-II  on  ad  hoc  basis  against  the deputation quota,  his turn for regular promotion as ACIO-II will come  only in  the year 1984 as his junior departmental JIOs were promoted on the basis of 1984 DPC.      The   Tribunal was not impressed by the contentions put forward on  behalf of the appellants. Purporting to follow a decision of  this Court  in Narendar  Chadha and  Others vs. Union of  India and  Others [(1986)  2 SCC 157], it took the view that  when a  person has  been allowed to function in a higher post  for many  years on  ad hoc  basis, it  would be unjust to  hold that  he has  no sort of claim to such post. The Tribunal  has proceeded that such a view h as been taken in other  case and  purporting to  follow that decision, the Tribunal held  the at  the seniority of the said Onkar Chand in the  cadre of  ACIO-II will  be counted from 2.1.1978 and accordingly directed  the appellants  to fix  the  seniority from the said date.      Aggrieved b  y the  above  ratio  laid  down  b  y  the Tribunal, these appeals by special leave are filed.      We may  at the  outset point  out that  Mr.  TLV  Iyer, learned senior  counsel appearing  for the appellants fairly stated that  irrespective of  the decision in these appeals, the contesting  respondents will  not be  disturbed  as  the direction of  the Tribunal  has already been given effect to so far as the contesting respondents are particular to get a decision on  the point  in issue  for application  in  other cases.      We have  carefully perused  the order  of the  Tribunal under challenge and considered the rival submissions. We are of the  view that  the Tribunal  had mis-directed  itself in understanding and applying the ratio laid down by this Court in  Narendar   Chadha’a  case   (supra).  That  was  a  case concerning the seniority dispute between the direct recruits and promotees  belonging to the same Department. The case on hand is  not a  case of  that type.  On the  other hand, the present case  is a  dispute  concerning  the  seniority  and promotions   between   the   departmental   candidates   and deputationists,  who   had  subsequently   consented  to  be permanently  absorbed  in  the  Department  of  Intelligence Bureau.  The   Tribunal  by  extensively  quoting  from  the judgment of  this Court in Narender Chadha’s case, came to a wrong conclusion  by applying the same to the f acts of this case.      The indisputable facts, which we have given above, will show that  Onkar Chand  was a  deputationist.  When  he  was

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permanently  absorbed   as  JIO-I  w.e.f.  31.12.77  he  was factually working  as JIO-I.  Though,  he  was  promoted  to officiate in  the rank of ACIO-II in the deputation quota by an order  dated 11.10.77,  he joined  that post on 2.1.87. A perusal of  the promotion  list (vide  Ex.R-II at  page 124) will show that separate lists were prepared for departmental candidates,    permanently     absorbed    candidates    and deputationists. It  is also worthy to note that the inter se seniority among  the different categories were also fixed in the list.  It is not in dispute that the deputationists have got certain  percentage of  quota for  promotion.  The  said Onkar Chand was promoted to officiate in the rank of ACIO-II only against  the deputationist  quota is not in dispute. At this juncture,  it is necessary to quote the relevant clause in  the  office  Memorandum  dated  22.12.59  regarding  the fixation of  seniority of  persons appointed  by transfer in accordance with  the Recruitment  Rules. Clause 7(iii) reads as follows :-      "Where a  person  is  appointed  by      transfer   in    accordance    with      provision in  the recruitment rules      providing for  such transfer in the      event  of  non  availability  of  a      suitable   candidate    by   direct      recruitment   of   promotion   such      transferees shall  be grouped  with      direct recruits  or  promotees,  as      the case may be, for the purpose of      para 6  above. He  shall be  ranked      below  all   direct   recruits   or      promotees,  as   the  case  may  be      selected on the same occasion."      Therefore, when  the said  Onkar Chand  was permanently absorbed (by transfer) in the cadre of JIO-I W.E.F. 31.12.77 he  must  take  his  seniority  below  the  persons  in  the department already  in the  cadre of JIO-I on that date. One more relevant  factor will  be that a person in the cadre of JIO-I has  to put  in a  minimum  years  of  service  before aspiring for  promotion as   ACIO-II. The appellants, taking the date  of permanent absorption of the said Onkar Chand as JIO-I w.e.f. 31.12.77, fixed the seniority in that cadre and so considered his turn for regular promotion as ACIO-II came only in  the year  1984 as his junior departmental JIOs were promoted on the basis of 1984 D.P.C.      On these  factors,  one  cannot  find  fault  with  the fixation of  seniority  of  the  said  Onkar  Chand  by  the appellants, which  was challenged  before the  Tribunal. The Tribunal was  no right in holding that the services rendered by the  said Onkar  Chand as  a deputation  promotee in  the officiating cadre of ACIO-II from 2.1.78 has to be reckoned. The earlier  ad hoc  promotion as  ACIO-II being against the deputation  quota  that  service  cannot  be  claimed  by  a deputationist once  he opted for permanent absorption in the Department. If   he  wanted to continue the seniority in the deputation quota be running the risk of being repatriated to his parent  department, he  ought  not  to  have  opted  for permanent  absorption.   After  opting   for  the  permanent absorption, he  cannot claim  the benefits  of absorption as well as the service put in by him in the deputation quota as ACIO-II. On  the said  basis, the  appellants placed   their case before  the Tribunal  that the said Onkar Chand was not entitled to  seniority w.e.f.  2.1.1978 and  his application before the  Tribunal was, therefore, liable to be dismissed. As  noticed   earlier,  the  Tribunal  came  to  that  wrong conclusion by  wrongly applying  the ratio laid down by this

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Court in  Narender Chadha’s case to the facts of the present case.      Likewise, the  Tribunal also  was not right in assuming that an earlier order of the Tribunal was to be followed. It was pointed  out by  the learned  counsel for the appellants that  the  earlier  order  of  the  Tribunal  on  facts  was distinguishable. According  to the  learned counsel  for the appellants  that   in   that   case   when   the   concerned deputationist was  permanently  absorbed  he  was  factually working in  the higher cadre. Therefore, that case cannot be cited to  support the  case of  Onkar Chand.  We may at once point out  that  we  are  not  called  upon  to  decide  the correctness or  otherwise of the ratio of that decision and, therefore, we  are  not  expressing  any  opinion  on  that. Suffice it  to say  that  the  Tribunal  was  not  right  in directing the appellants to calculate the seniority of Onkar Chand w.e.f. 2.1.78 and granting other consequential relief.      What we have said about Onkar Chand applies also to two other connected appeals as the facts are similar.      In the  result, the  appeals are  allowed. We  make  it clear that  notwithstanding out  allowing these  appeals  by upsetting  the   order  of   the  Tribunal,  the  contesting respondents shall  not be  affected by  this judgment as the appellants are interested only to have a ruling on the point in issue for application in the other cases. No costs.