http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (civil)  4791 of 2007

PETITIONER: Attar Singh Kaushik

RESPONDENT: Secretary/Commr. Transport Department & Anr

DATE OF JUDGMENT: 11/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T (Arising out of SLP ) No.18135 of 2006)

S.B. Sinha, J.

1.      Leave Granted. 2.      Inter se seniority amongst the deputationists is in question in this  appeal which arises out of a judgment and order dated 13.9.2006 passed by a  Division Bench of the High Court of Delhi whereby and whereunder the writ  petition filed by the appellant herein assailing the order of the Tribunal dated  18.9.2003 allowing the original application filed by Visheshwar Dayal  Sharma was dismissed.  With a view to appreciate the fact of the matter  involved herein, we may notice the particulars of the requisite service  records amongst others of the Appellant vis-‘-vis Respondent No.2 herein : \023Seniority List      Date of promotion as A.S.I.    1.   Inder Pal Singh                 01.01.1987 2.      Mathura Prasad                  08.02.1988 3.      Vishveshwar Dayal Sharma        03.06.1988 (Respondent) 4.      Kartar Singh                            29.06.1988 5.      Ramesh Chander                  28.08.1989 6.      Tara Prasad                             28.08.1989 7.      Attar Singh Kaushik             08.02.1990 (Appellant) 8.      Joginder Singh                  30.01.1991\024

3.      Indisputably, Appellant was appointed as a Constable.  He was  promoted in the year 1980; whereas the respondent was appointed as a Head  Constable on or about 28.4.1982.  They both were promoted to the post of  Assistant Sub-Inspector, the respondent on 3.6.1988 and the appellant on  3.2.1990.  Both of them were deputed to the Vigilance Department of the  Transport Authority, National Capital Territory of Delhi on 12.8.1991.   4.      It is not in dispute that both groups of employees were absorbed  permanently in the Vigilance Department of the Transport Authority.   Seniority of the deputationists upon absorption in the said department is  governed by clause 3.1 of Establishment and Administration Rules (see  Swamy\022s Manual).  Indisputably, Respondent was deputed prior to the  appellant herein, although he was absorbed in the Department, a month prior  to him.   5.      The High Court while determining the disputes examined the record  of the Department.  It noticed that in doing so, the relevant Rules,  particularly Rule 10.2(ii), in terms whereof Administrative Ministry is  required to certify that there was no other deputationist in position appointed  earlier to the officer proposed for absorption, was not carried out.  In terms  of the said Rules, the borrowing department was further required to certify  that if there had been any such person and he had not been willing to be  considered for appointment on absorption basis.  Keeping in view the  aforementioned provision as also Clause 3.4.1 of the seniority of the  absorbees as contained in Establishment and Administration Rules

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

(Swamy\022s Manual), the High Court opined that seniority of the parties  hereto should be determined on the basis of their respective seniority in the  equivalent grade in the parent department which is the feeder grade being  the post of Assistant Sub Inspector of Police.   6.      Mr. Nagendra Rai, learned senior counsel appearing on behalf of the  appellant, in support of the appeal, inte ralia, would submit: (1)     Third respondent being belonging to ministerial cadre was not eligible  for appointment in the Vigilance Department under the Rules;  (2)     The inter se seniority between the parties having been determined by  the authorities as far back as on 28.5.1993, the original application  filed by the respondent was barred by limitation; and  (3)     Respondent No.3 could not have continued to remain on deputation  despite his repatriation as directed by the order dated 16.12.1991. (4)     In the light of the decision of this Court in Sub-Inspector Rooplal &  Anr. v. Lt. Governor Through Chief Secretary, Delhi & Ors. [(2000) 1  SCC 644], operates in the field, impugned judgment cannot be  sustained.  7.      Mr. P.P. Khurana, learned counsel appearing on behalf of the  respondent, on the other hand, contended : 1.      Respondent No.3 indisputably was senior to the Appellant as the entry  point of the Appellant and the other respondents was different;  2.      whereas the Appellant entered in the services as a Constable of the  Transport Department, Respondent No.3 entered in the services as a  Head Constable and, indisputably, he was promoted to the post of  Assistant Sub Inspector earlier than the appellant and, thus, for all  intent and purport he was senior; and   3.      Even Respondent No.3 was deputed to the Transport Department prior  to the Appellant, the same was of no consequence for the purpose of  determining inter se seniority. 8.      It has not been disputed before us that all the employees concerned  who were parties to the original application before the Tribunal as also the  writ petition before the High Court were working as Assistant Sub Inspector  of Police in the parent department.  It does not appear that any eligibility  criteria had been laid down for the purpose of absorption by the State in its  Transport Department.  There is moreover nothing on record to show that  the employees working in the Executive cadre alone were entitled to be  absorbed in the Transport Department.  From the Rules, as noticed  hereinbefore, it appears that the only condition laid down for deputation was  that employees concerned should be working in the cadre of Assistant Sub  Inspector of Police. 9.      It may be true that Respondent No.3 was directed to be repatriated to  his parent Department but for one reason or the other the same has not been  given effect to.  The said order of repatriation admittedly was not  implemented.  Appellant, in our opinion, at this juncture, cannot, therefore,  be permitted to question the very absorption of respondent No.3 on the  deputed post on that ground or otherwise.  Furthermore, the said question  viz. continuity of respondent No.3 by the Transport Department was not  even raised before the Tribunal or before the High Court and, thus, he cannot  be permitted to do so before us. 10.     The office order dated 28.5.1993 which is in the following terms : \023In pursuance of the issue of No Objection by the  Dy. Commr. Police Q(1) Delhi, vide letter  No.21610/CB-VI dated 20.5.93 and willingness  given by the Asstt. Sub Inspectors to their  absorption in the Transport Deptt. Govt. of NCT of  Delhi, the following Asstt. Sub-Inspectors are  hereby absorbed as Sub-Inspectors (Enf.) in the  pay scale of Rs.1200-1800 with immediate effect.   Since all the officials are absorbed in the Transport  Department from the days of the issue of the order,  their inter se seniority will be on the date  mentioned against their names :- S.No.   Names of the official   Date of Appointment 1.      Sh. Mathura Prasad              17.3.1969 2.      Sh. Kartar Singh                        23.9.1969

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

3.      Sh. Ramesh Chander              29.6.1974 4.      Sh. Tara Prasad                 29.6.1974 5.      Sh. Inder Pal Singh             1.9.1978 6.      Sh. Joginder Singh                      2.6.1980 7.      Sh. V.D. Sharma                 28.4.1982         The above mentioned Sub-Inspectors (Enf.)  have, however, option to revert back to their parent  office within two years from the date of their  absorption in the Transport Deptt., Govt. of NCT  of Delhi.\024

11.     It appears that only for the purpose of classification, they were  mentioned as being belonging to Ministerial or Executive cadre but the  qualifications laid down in the Recruitment Rules for the post of Assistant  Sub Inspector on deputation were as under :       

     Recruitment Rules for the post of Asst. Sub-Inspector, Sub-Inspector & Inspector        S. No. Name of the Post No. of  Posts Classification Scale of  the Post Whether selection  post or non- selection post Age limit for  direct  recruitment Educational and other  qualification required for direct  recruitment 2. Sub-Inspector 17 Group \021C\022 non  Gazetted Non-Ministerial 1200-1300 Non-selection 25-30 years 1.      Graduation from the  recognized University 2.      Sufficient knowledge of  Motor Vehicle Law 3.      3 yrs. (illegible) of all typed  of vehicle Whether age &  Educational  Qualifications  prescribed for direct  recruits will apply in  the case of  Promotees Period of       Method of rectt.        In case of rectt by     if a DCP        Circumstance s in which promotion       Whether by direct       promotion/categories/   exists, DPC\022s is to be co ssujted if any  rectt. or by position   transfer (illegible)    what is         in making rectt.         or by deputation/transfer       from which promotion/   composition

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

       and percentage of the   deputation/transfer         vacancies to be filled  to be made.         by various notices N.A.            2 Yrs.  33-1/3 promotion failing        (illegible)     Group \021C\022 N.A.                         which by transfer on    Asstt. Sub-Inspector of D.C.P.         deputation failing both by direct       Enf. Branch of the Dte         rectt,  of transport with 5 yrs         66-2/33 by transfer on  Transfer of deputation:         deputation failing which by     Persons holding the post of ASI         direct rectt.   In Delhi Police/CRPF/RPF                 and having educational                  and other qualifications                 prescribed for direct recruits.        

     12.     Relevant portion of the circular letter dated 10.5.1991 on the basis  whereof the parties hereto, amongst others, volunteered for being deputed in  the Transport Departments reads as under :  \023The service of Assistant Sub Inspector are  required to fill up the post of Sub-Inspector in  Transport Authority on deputation basis in the pay  scale of Rs.1200-1800 and having the following  qualification/experience are eligible for the above  posts:- 1)      Graduate from recognized University. 2)      Sufficient knowledge on Motor Vehicle  Law. 3)      3 years driving experiences of all types of  vehicle. 2.      Volunteers amongst ASI having above  qualification/experience may please be called and  names of willing officers may please be sent to this  Hdqrs. on the enclosed pro forma by 20.5.91  positively.  The officers so recommended for  deputation under no circumstances may be  permitted to withdraw their nomination either  before or after the selection.\024

13.     Clauses 3.1 and 3.4.1 of the Rules relating to seniority of the  absorbees from Swamy\022s Manual on Establishment and Administration read  as under : \023Seniority of Absorbees 3.1     The relative seniority of persons appointed  by absorption to a Central service from the  Subordinate Officers of the Central Government or  other departments of the Central or a State  Government shall be determined in accordance  with the order of their selection for such absorption 3.4.1   In the case of a person who is initially taken  on deputation and absorbed later (i.e., where the  relevant Recruitment Rules provide for  \023deputation/absorption\024), his seniority in the grade  in which he is absorbed will normally be counted  from the date of absorption.  If he has, however,  been holding already (on the date of absorption)  the same or equivalent grade on regular basis in his  parent department, such regular service in the  grade shall also be taken into account in fixing his  seniority, subject to the condition that he will be  given seniority from \026         - the date he has been holding the post on  deputation. (or)         - the date from which he has been appointed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

on a regular basis to the same or equivalent grade  in his parent department, whichever is earlier.\024

14.     The tentative seniority list was circulated only on 19.6.1998.  Only  when the tentative seniority list was circulated, the original application was  filed although the appellant was impleaded as a party in the said original  application at a later date.  We may, furthermore, notice that the said  question is now wholly academic as the seniority list was published only in  2002.  The Tribunal, as also the High Court, having laid down the principles  for determining seniority list on the basis whereof now a fresh seniority list  is to be published, the question of limitation loses all significance.  15.     A bare perusal of the said provisions would furthermore clearly go to  show that the position of the employees concerned in the same or equivalent  cadre on regular basis in parent department is a relevant factor for  determining the inter se seniority.  The date from which the employee had  been holding the post on deputation is another relevant factor.  However, it  has also been provided that date from which he has been appointed on  regular post to the same or equivalent grade in his parent department,  whichever is earlier would be considered for determining the inter se  seniority.  The Rules have rightly been interpreted by the High Court  keeping in view its purport and tenor.  The Rules are required to be  interpreted harmoniously so as to give effect to all the relevant provisions.   Makers of the Rules furthermore must be presumed to have in mind, while  laying down the same, to give justice to all concerned.  It is axiomatic that  those who were senior in the parent department in the equivalent post should  continue to be senior in the deputed post unless there exists a statutory rule  to the contrary.   16.     In Rooplal (supra) itself, whereupon Mr. Rai placed strong reliance,  this Court opined : \023Therefore, it is reasonable to expect that a  deputationist when his service is sought to be  absorbed in the transferred department would  certainly have expected that his seniority in the  parent department would be counted. In such a  situation, it was really the duty of the respondents,  if at all the conditions stipulated in the impugned  Memorandum were applicable to such person, to  have made the conditions in the Memorandum  known to the deputationist before absorbing his  services, in all fairness, so that such a deputationist  would have had the option of accepting the  permanent absorption in Delhi Police or not.\024

17.     The question as regards determination of inter se seniority has been  considered by this Court  in Indu Shekhar Singh & Ors. V. State of U.P. &  Ors. [(2006) 8 SCC 129], relied upon by Mr. Rai, wherein it was stated : \023The decisions referred to hereinbefore, therefore,  lay down a law that past services would only be  directed to be counted towards seniority in two  situations: (1) when there exists a rule directing  consideration of seniority; and (2) where  recruitments are made from various sources, it  would be reasonable to frame a rule considering  the past services of the employees concerned.\024

    The said case has no application in the instant case. 18.     We, therefore, do not find any merit in this appeal.  It is dismissed  accordingly with costs.  Counsel\022s fee assessed at Rs.25,000/- (Rupees  twenty five thousands only).