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

New Delhi, the 29th 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  dated the 22nd 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  communicated vide O.M. dated 22nd 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  

Another  v. Union of India and Others1,  Direct Recruit Class II   

Engineering Officers’ Association v.  State of Maharashtra and  

Others2, Union of India and Another  v. Harish Chander Bhatia  

and  Others3 and  Rameshwar  Prasad  v.  Managing  Director,   

U.P.  Rajkiya  Nirman  Nigam  Limited  and  Others4. 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  

Secretary, Delhi and Others5.

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

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14. The question involved in the case of  sub-Inspector  

Rooplal5 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  

Court in R.S. Makashi v.  I.M. Menon .6 and Wing Commander  

J. Kumar v.  Union of India7 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  

Rooplal5 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  

Kumar Ghose v.  Arabinda Bose8, 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.

16. In  K.  Madhavan1,  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.  

Madhavan1 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   

Engineering Officers’ Association2 and Harish Chander Bhatia3   

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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