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PETITIONER: K. MADHAVAN AND ANR. ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS. ETC.

DATE OF JUDGMENT09/10/1987

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) MISRA RANGNATH

CITATION:  1987 AIR 2291            1988 SCR  (1) 421  1987 SCC  (4) 566        JT 1987 (4)    43  1987 SCALE  (2)727

ACT:      Service matter-Dispute  about seniority-Notional/deemed date of  appointment-Effect of-Length  of service  prior  to transfer-Whether  to   be  considered   after  transfer  for purposes of seniority.

HEADNOTE:      (1) Writ  Petitions Nos. 9847 and 9848 of 1983 involved a  dispute  as  to  seniority  between  the  petitioners  K. Madhavan and  Santunu Sen on the one hand and respondent No. 5, O.P. Sharma, on the other.      The two  petitioners were  directly recruited as Deputy Superintendents of  Police (DSP) in the Delhi Special Police Establishment   (S.P.E.)    in   the   Central   Bureau   of Investigation   (C.B.I.)    on   6.7.1963   and   10.8.1963, respectively. The respondent No. 5, appointed to the post of D.S.P. On  13.7.1962 in  the Rajasthan State Police, came on deputation to  the  C.B.I.  as  D.S.P.  On  1.7.1967,  where majority  of   the  officers  are  deputationists.  The  two petitioners were  confirmed in  the post  of D.S.P.  in  the C.B.I. On  30.3.1967. The  respondent No. 5 was confirmed as D.S.P. in  the Rajasthan  State Police on 1.12.1964. The two petitioners were  promoted to  the rank of Superintendent of Police (S.P.) in the C.B.I. On 21.10.1971 and 25.1.1972. The respondent No.  5 was  appointed to  the post of S.P. On 28. 10.1972.      The Inspector  General of  Police, Delhi Special Police Establishment, and  Director  of  C.B.I.-Respondent  No.  2- published  a   seniority  list   of  departmental  S.Ps.  On 1.10.1978, in  which the  respondent No.  5 was  shown below both the  petitioners. The  respondent No.  2 also published another seniority  list on  17.10.1981, in which the date of appointment  of  the  respondent  No.  5  was  mentioned  as 21.10.1971 (notional)  instead of  28.10.1972,  and  on  the basis of  such notional  date of  appointment to the post of S.P. in  the C.B.I.,  the name  of the  respondent No. 5 was placed above  the names of the petitioners in that seniority list. The  two petitioners  felt  aggrieved  by  the  latter seniority list, showing them as junior to the respondent No. 5 on  the basis  of a  notional  date  of  appointment  with retrospective effect  from 21.10.1971.  The two  petitioners

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moved this  Court by  Writ Petitions,  challenging the  said seniority list. 422      2. In  the Writ Petition No. 1021 of 1986, filed by the petitioner A  Dwarka  Nath,  the  petitioner  was  regularly promoted on  14.6.1976 to  the post of the Deputy Commandant in the  BSF, which,  according to him, was equivalent to the grade of  S.P. in  the CBI. The respondent No. S in the Writ Petition was promoted on 4.8.1978 and the respondents Nos. 6 and 7  in the  petition were  promoted on  28.7.1978 to  the posts of  S.P. in  the CBI. The petitioner joined the CBI on deputation as  S.P. On  29.9.79 and was permanently absorbed in the CBI in the rank of SP on 28. 10.1983. The respondents 5 to  7 were  confirmed in  the post  of SP with effect from 4.8.1980. The  principal question  involved was  whether  in computing the  seniority of the petitioner in the CBI in the rank of  SP, his  length of  service from 14.6.1976, when he was the  Deputy Commandant  in the BSF, should be taken into account or  not, as  if his  service from 14.6.1976 is taken into consideration,  he would  be senior  to the respondents Nos. 5 to 7, who were appointed in 1978.      Allowing all the Writ Petitions, the Court, ^      HELD: (1)  In the  Writ Petitions Nos. 9847 and 9848 of 1987,  the  two  petitioners,  Madhavan  and  Sen,  and  the respondent No. S, o.P. Sharma, are all now holding the posts of D.I.G.  The real  question, therefore,  boils down to the seniority of the petitioner vis-a-vis the respondent No 5 in the post  of DIG,  and that will depend upon the decision of the  question  of  the  seniority  of  the  petitioners  and respondent No. S in the post of SP in the CBI. [431D-E]      The  most   significant  and   crucial  fact   is   the appointment of  the respondent  No. 5 to the post of SP with retrospective effect from a deemed date of appointment, that is, 21.10.1971.  The petitioners  strongly urged that such a deemed appointment with retrospective effect from 21.10.1971 was wholly  illegal and  should be  struck down. The plea of the respondent Nos. 1, 2 and 5 was that the respondent No. 5 became eligible for appointment to the post of SP in the CBI in July  1970, and,  indeed, the  meeting  of  the  DPC  was scheduled to  be held  in October, 1970, but was arbitrarily postponed. [432G-G]      There can be no doubt that if the meeting of the DPC is scheduled to  be  held  but  is  arbitrarily  or  mala  fide cancelled  without  any  reasonable  justification,  to  the prejudice of  an employee,  the Government can in a suitable case  do  justice  to  such  an  employee  by  granting  him promotion or appointing him to the higher post for which the DPC was  to be  held with retrospective effect so that he is not subjected to a lower position in the seniority list. But if the postponement or cancellation of 423 the meeting  of the DPC is not arbitrary and is supported by good reasons,  the employee  concerned can have no grievance and the  Government will  not be justified in appointing him to the  higher post  with retrospective  effect; an employee may become eligible for a certain post, but surely he cannot claim appointment  to such  a post  as a  matter  of  right. [433B-D]      It is  true that  the meeting of the DPC was to be held on 13.  10.1970 but  the Director of the CBI appears to have considered that as the vacancies that existed were meant for non-deputationist DSPs  and as two of such DSPs would become eligible for  promotion  in  January  and  March,  1971,  he postponed the  meeting of the DPC to be held on 13. 10.1970.

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The Court does not find any arbitrariness in the decision of the Director  of the  CBI to postpone the meeting of the DPC till after  March, 1971.  There was  ample justification for the postponement  or cancellation of the meeting of the DPC. The respondent  No. S  might have  been eligible  for  being considered for  appointment to the post of SP in July, 1970, but he  had no  right to  claim such  consideration when the vacancies were  meant for non-deputationist DSPs. Therefore, the Government  had no  reasonable justification  to contend that the  postponement of  the DPC meeting was arbitrary and high-handed. As  the foundation  of the  appointment of  the respondent No. 5 to the post of SP with retrospective effect from 21.10.1971,  namely, postponement of the meeting of the DPC in  October, 1970  arbitrarily, is  shaken  to  a  great extent, there  was no  question of any injustice done to the respondent No. 5. The retrospective promotion or appointment to a  post should  be given  most  sparingly  and  on  sound reasoning  and  foundation.  In  this  case,  there  was  no justification for the appointment of the respondent No. 5 to the post  of SP  in the  CBI with  retrospective effect from 21.10.1971, so  as to make him senior to the petitioner. The impugned order  dated September  25,  1981,  appointing  the respondent No.  5, O.P.  Sharma, with  retrospective  effect from a  notional date,  viz. 21.10.1971,  and the  seniority list dated  17.10.1981, showing  the  respondent  No.  5  as senior to  the petitioners,  quashed. Writs in the nature of Certiorari, and  mandamus, directing  the respondents Nos. 1 and  2  to  publish  a  fresh  seniority  list  showing  the petitioners as  senior to  the  respondent  No.  5,  issued. [434E-H; 435A-B; 440B]      (2)  In  the  Writ  Petition  No.  1021  of  1986,  the principal question involved is whether the length of service of the  petitioner Dwarka  Nath in the Border Security Force (BSF) should  be taken  into  account  for  the  purpose  of deciding his seniority in the CBI in the rank of SP. [435C] 424      The period  from  14.6.1976  when  the  petitioner  was promoted to  A the post of Deputy Commandant in the BSF upto his joining  the CBI  on deputation  on 29.7.1979  should be taken into  consideration for  the purpose  of deciding  his seniority in  the CBI  in the rank of SP. Paragraph 3 of the office  memorandum  dated  22.12.1959  relied  upon  by  the respondents 3 to 5, which provides inter alia that permanent officers of each grade shall be ranked senior to persons who were officiating in that grade does not militate against the view taken  by the  Court  as  expressed  above  ’Grade’  in paragraph 3  undoubtedly refers  to the  grade in respect of which the  seniority is  to be decided. The petitioner was a permanent officer  on  14.6.1976  in  the  grade  of  Deputy Commandant which  is equivalent  to the  grade of  SP in the CBI. The  petitioner was  not in  the CBI  on that date, but that will  not make  . any difference. The office memorandum above-mentioned does  not stand  in the  way of counting the seniority of the petitioner from 14.6.1976. [435G-H;436A-C]      When a  deputationist is  permanently absorbed  in  the CBI, he is appointed on transfer under the rules. Deputation may be regarded as a transfer from one Government department to  another.  It  will  be  against  all  rules  of  service jurisprudence if,  when a  Government servant holding a post is transferred  to the same or an equivalent post in another Government Department, the period of his service in the post before transfer is not taken into consideration in computing his seniority  in the  post to which, he is transferred. The transfer cannot  wipe out  his length of service in the post from which he has been transferred. [436C-E]

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    The seniority  of the petitioner should be counted from 14.6.1976 on  which date  he was  regularly promoted  to the post of  Deputy Commandant in the BSC, and he should be held senior to  the respondents  5 to  7. Writ  in the  nature of certiorari issued, quashing the seniority list (Annexure P/1 to the  Writ Petition) and all subsequent seniority lists of SPs in  the CBI  in which the petitioner was shown junior to the respondents  5 to  7. Further,  writ in  the  nature  of mandamus issued, commanding the respondents 1 and 2 to allot to the  petitioner his  proper seniority  in the post of SP, CBI, by counting his service with effect from 14.6.1971, and to issue  a fresh  seniority list,  showing  the  petitioner senior to the respondents Nos. 5 to 7. [440D, B]      R.S. Mokashi and ors. v. I.M Menon and others, [1988] 1 SCC 379,  Wing Commander  J. Kumar  v. Union  of  India  and others, [1982] 3 SCR 453, referred to. 425

JUDGMENT:      ORIGINAL JURISDICIION: Writ Petitions Nos. 9847-48 of      (Under Article 32 of the Constitution of India).      M.K. Ramamurthy,  P.P.  Rao,  C.S.  Vaidianathan,  S.R. Bhatt, S.R.  Setia, K.V.  Mohan, R.  Venkataramani, R. Ayyam Perumal and S.M. Garg for the Petitioners.      Kuldeep Singh,  Additional Solicitor  General, B. Dutta Additional Solicitor General, T.S. Krishnamoorthy Iyer, A.K. Sen,  Kapil   Sibal,  O.P.  Sharma,  C.V.  Subba  Rao,  R.P. Srivastava, P.  Parmesawaran, R.C. Gubrele, K.R. Gupta, R.K. Sharma, Sanjay  Sareen, S.K.  Gambhir, M.S.  Ganesh and T.C. Sharma for the Respondents.      Girish  Chandra   and  Ashok   K.  Srivastava  for  the Interveners.      The Judgment of the Court was delivered by      DUTT, J. These two writ petitions, being Writ Petitions Nos. 9847-48  of 1983,  involve a  dispute as  to  seniority between the two petitioners, K. Madhavan and Santunu Sen, on the one  hand and  the respondent  No. S, o.P. Sharma on the other. It  may be  recorded at  the outset that although the petitioners have  also challenged  in the writ petitions the seniority of the respondent No. 4, P.C. Srivastava, over the petitioners, at  the  hearing  of  the  writ  petitions  the challenge to  the seniority  of the respondent No. 4 has not been pressed  on behalf  of the  petitioners inasmuch as the respondent No.  4 is to retire from service within about two years from  now. We  would, accordingly,  exclude  from  our consideration the  seniority of  the respondent  No. 4 which stands confirmed.      The two  petitioners, Madhavan  and Sen,  were directly recruited as  Deputy Superintendent  of Police  (DSP) in the Delhi Special  Police Establishment  (SPE)  in  the  Central Bureau of  Investigation (CBI)  on  6-7-1963  and  10-8-1963 respectively. The respondent No. S, who was appointed to the post of  DSP on 13-7-1962 in the Rajasthan State Police, was sent on  deputation to  CBI as  DSP on  1-7-1967. It  may be stated at  this stage  that majority  of the officers in the CBI are  deputationists. The  case of the respondent is that the CBI  organisation requires  very capable and experienced police officers  and, accordingly,  such police officers are brought to CBI on deputation from 426 different  states   and,  thereafter,   they  are  generally absorbed in  the A  CBI. We  shall presently  refer  to  the recruitment rules of police personnel in the CBI, but before

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that, we  may indicate  how the  dispute between the parties arose with  regard  to  their  respective  seniority.  While Madhavan and  Sen were  both confirmed in the post of DSP in the CBI  on 30-3-1967, the respondent No. 5 was confirmed as DSP  in   the  Rajasthan  State  Police  on  1-12-1964.  The petitioners, Madhavan  and Sen, were promoted to the rank of Superintendent of  Police (SP)  in the  CBI with effect from 21-10-1971  (AN)   and  25-1-1972   (AN)  respectively.  The respondent No.  5 was  appointed to the post of SP on 28-10- 1972. The respondent No. 2, the Inspector General of Police, Delhi Special  Police Establishment,  and  Director  of  CBI published a seniority list of departmental SPs on 1-10-1978. In that seniority list, the respondent No. 5 o.P. Sharma was shown below  both the petitioners. The respondent No. 2 also published another  seniority list  on  17-10-1981.  In  that seniority list,  the date  of appointment  of the respondent No. 5 was mentioned as 21-10-1971 (FN) (Notional) instead of 28-10-1972 and  on  the  basis  of  such  notional  date  of appointment to  the post  of SP  in CBI,  the  name  of  the respondent No.  5 was placed above the petitioners’ names in that seniority  list. The  petitioners felt highly aggrieved by the  said seniority  list showing  them as juniors to the respondent No.  5 o.P.  Sharma, on  the basis  of a notional date of  appointment with  retrospective effect  from 21-10- 1971 (FN),  that is, just before the appointment of Madhavan on 21-10-1971 (AN). The petitioners have challenged the said seniority list.      The case  of the  petitioners is  that  the  deemed  or notional date  of appointment  of the  respondent No. 5 with retrospective effect from 21-10-1971 (FN) has been done mala fide with  a view  to making  the petitioners juniors to the respondent  No.   5  without  any  reasonable  justification therefor. It  is  complained  that  before  that  deemed  or notional date  of appointment  was made  with  retrospective effect, the  petitioners were  not given  any opportunity of being heard  to their  great prejudice  and  detriment.  The seniority of the respondent No. 5 has been challenged by the petitioners on  more than  one ground  including the  ground that  the  respondent  No.  5  was  not  even  eligible  for appointment as  SP in the CBI. The grounds of challenge will be considered  by us  presently. But,  before  that  we  may indicate the  stand taken  by the  respondents Nos. 1 and 2, the Union  of India and the CBI, and the respondent No. 5 in regard to  his appointment  to the  post of  SP,  CBI,  with retrospective effect from 21-10-1971 (FN).      It is  not  disputed  that  under  the  Special  Police Establishment 427 (Executive  Staff)   Recruitment  Rules,  1963,  hereinafter referred to  as ’  1963 Rules’,  for the  appointment  of  a deputationist to  the post  of SP, the minimum qualification required was DSP in the Special Police Establishment with at least eight  years’ service  in the  grade, out of which two years should. be probationary period in the CBI. It has been stated already  that the respondent No. 5 O.P. Sharma became DSP in the Rajasthan State Police on 13-7-1962 and he joined the CBI as DSP on 10-7-1967. According to him, therefore, he was eligible  for appointment  to the post of SP after eight years of his service as DSP on July 13, 1970. It is also not disputed that  under the 1963 Rules, the mode of recruitment was that  not exceeding 15% of the sanctioned strength would be filled  by promotion  and the  remaining by  transfer  on deputation. It  is the case of the respondents Nos. 1, 2 and 5 that the proposal for convening the meeting of the DPC was approved on  October  13,  1970,  but  as  two  departmental

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officers were  to complete eight years of service and become eligible for  being considered for the post of SP in January and March 1971, the meeting of the DPC was postponed on that ground. It  is the  contention of  the respondents Nos. 1, 2 and 5 that the meeting of the DPC was to be held in October, 1970,   but    was   arbitrarily   postponed   without   any justification therefor  and, accordingly,  the case  of  the respondent No. 5 for appointment to the post of the SP, CBI, could not  be considered, although he was fully eligible for the same.  The DPC  finally  met  in  July,  1971.  But  the respondent No.  5 was  graded  only  ’good’,  which  grading debarred him from getting the appointment. It is the case of the respondents Nos. 1, 2 and 5 that when the minutes of the DPC went  to the  Department of  Personnel for  Presidential approval, the Department of Personnel examined the matter in depth  and   found  that  DPC  had  erroneously  graded  the respondent No.  5 as  ’good’. Consequently,  the matter  was referred by  the Department of Personnel to the Senior Board which met  in July,  1972 and graded the respondent No. 5 as ’very good’  and recommended him for appointment to the post of  SP.  As  noticed  already,  the  respondent  No.  5  was appointed to the post of SP in CBI on 28-10-1972.      The further  case of the respondents Nos. 1, 2 and 5 is that for  no fault  of the  respondent No.  5, the  DPC  was unjustly postponed  and as the Senior Board had subsequently selected and  recommended the  respondent No. 5 for the post of SP  in CBI,  the respondents  Nos. 1  and 2 appointed the respondent No.  5 as  SP with  retrospective effect  from  a deemed date of appointment, that is, from 21-10-1971 (FN) so as to  mitigate his  hardship and  to do  justice to him. An explanation has  also been  given in  the affidavit  of  the respondents Nos. 1 and 2 as to why 428 the said  date being  21-10-1971 (FN)  was selected  for the deemed appointment  of the respondent No. 5. The explanation is that although his appointment as SP should have been from October, 1970  when the  meeting of  the DPC  was originally scheduled to  be held  but postponed,  and in that event, he would have  been approved  earlier than the two petitioners, yet basically  the question  for  consideration  before  the Government being  only inter  se seniority of the respondent No. 5  vis-a-vis the petitioners, it was thought proper that ends of  justice would  be met  if the  respondent No. 5 was given a limited retrospective date of appointment as SP. The Government took  note that  the delayed  appointment of  the respondent No.  S was  on account  of unjustifiable reasons, and assigned  him the  seniority over  the two . petitioners with a  deemed date  of appointment as 21-10-1971 (FN). That is how  the dispute  has arisen  between the petitioners and the respondent  No. 5  over the question of their respective seniority in the rank of SP in the CBI.      The petitioners have, in the first instance, challenged that  the  respondent  No.  5  was  not  even  eligible  for appointment to the post of SP, CBI. The respondent No. 5 was a  deputationist   and  under   the  1963  Rules  that  were prevailing at  the material  time, he  was to complete eight years’ service in the grade. There has been much controversy over  the  expression  "in  the  grade".  According  to  the petitioners, the  expression should be understood as meaning in the  grade  of  SP  in  the  CBI.  In  other  words,  the contention of  the petitioners  is that the respondent No. 5 should have been for eight years in the CBI as DSP before he would be  eligible for  appointment to the post of SP in the CBI. As  the respondent  No. 5 joined the post of DSP in the CBI on  deputation on 1-7-1967, he could not be appointed to

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the post  of SP  even on  28-10-1972, far  less on 21-7-1971 (FN), for on either date, he did not complete eight years of service in  the CBI.  We are,  however, unable to accept the contention. "Eight  years’ service  in the grade" would mean "eight years’  service in  the grade of DSP". The 1963 Rules do not  provide that  the period  of eight  years should  be computed from  the date  of deputation to the CBI as DSP. In the absence  of any  such express provision, it must be held that the period during which one held the post of DSP in the State Police  Service should  also be taken into account for computing the  period of eight years. The 1963 Rules provide that two years must be spent on probation as DSP in the CBI. The position,  therefore, comes  to this  that of  the total period of  eight years, two years must be on probation basis in the  CBI. An officer may have been in the State Police as DSP for  a period  of six years and, thereafter, if he joins the CBI on deputation and spends 429 two  years   on  probation,   he  would   be  eligible   for consideration for  appointment to  the post  Of SP.  If this view is not taken, no officer would be available to join the CBI on  deputation. It has already been noticed that the CBI requires efficient  and experienced  police officers  and if the period  spent by  police officers  in the  State  Police Service is  not  taken  into  account  for  the  purpose  of computing the  period of  eight years,  it  would  be  doing injustice to  such police  officers  who  join  the  CBI  on deputation. In our view, therefore, there is no substance in the centention  of the  petitioners  that  in  order  to  be eligible for  appointment to  the post of SP in the CBI, one should be  in the  rank of  DSP in  the CBI  for a period of eight years  including a  period of  two years on probation. The respondent  No. 5  having held  the post of DSP for five years in  the Rajasthan  State Police  and more  than  three years in  the CBI,  that is to say, over eight years, he was quite eligible  for appointment  to the  post of SP. The two petitioners, Madhavan and Sen, and the respondent No. 5 O.P. Sharma are  all now  holding the  post of  DIG. By  an order dated October 6, 1983, this Court directed that no selection list would  be prepared  for the post of DIG in the CBI/SPE, but it  would be  open to  the respondents  to make  ad  hoc appointments which  would be  subject to  the result  of the writ petition. As a result of that order, the respondent No. 5 was  promoted to the post of DIG on October 13, 1983 on an ad hoc  basis subject  to the  result of the writ petitions. The petitioners  were also appointed DIGs on ad hoc basis by virtue of  an interim order of this Court on April 24, 1985. Thus the  petitioners and  the respondent No. 5 have been in the post of DIG on ad hoc basis. After the lapse of time and after the  appointment of the petitioners and the respondent No. S  to the  post of DIG, though on ad hoc basis, the real question is  the question of their inter se seniority in the post of DIG in the CBI.      It  has   been  strenuously  urged  on  behalf  of  the petitioners at the very outset that the respondent No. S was not eligible for being appointed to the post of DIG, CBI. In support of  this contention  our attention has been drawn to the  Central   Bureau  of  Investigation  (Deputy  Inspector General of  Police/Deputy Director) Recruitment Rules, 1975, hereinafter referred to as ’the 1975 Rules’, which prescribe the following  eligibility requirement  for being considered for the appointment to the post of DIG in the CBI:-           "Superintendent  of  Police  (including  Assistant           Inspector General of Police/Assistant Director) in           the Central  Bureau  of  Investigation-with  eight

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         years’  service   in  the   grade  rendered  after           appointment thereto on a regular basis. " 430      It is  the contention  of the  petitioners that  as the respondent No.  5 had  not rendered  eight years  of regular service  as   SP  in  the  CBI,  he  was  not  eligible  for appointment to  the  post  of  DIG.  It  is  submitted  that eligibility requirement  in the  1975 Rules is very specific inasmuch as  it provides eight years of service in the grade after appointment thereto on a regular basis. The expression ’on a  regular basis’,  according to  the petitioners, means after absorption  of the deputationist in the CBI as SP and, as the  respondent No.  S was  absorbed in the rank of SP in the CBI  on 1-7-1978, he was not eligible for appointment to the post  of DIG  on 13-10-1983, that is to say, within less than eight years of his service from the date of absorption. In support  of that  contention our attention has been drawn on behalf  of the  petitioners  to  the  Central  Bureau  of Investigation (Deputy  Inspector  General  of  Police/Deputy Director) Recruitment  Rules, 1966, hereinafter refer red to as ’the  1966 Rules’.  Under the 1966 Rules, the eligibility requirement for being considered for appointment to the post of DIG is as follows:-           "Superintendent  of  Police  (including  Assistant           Inspector General of Police/Assistant Director) in           the Central  Bureau of Investigation with not less           than eight years’ service in the grade."      It is submitted that on a comparison of the eligibility clauses in  the 1966 and the 1975 Rules, it will be apparent that while  under the  1966 Rules  it was  only eight years’ service in  the grade  which might mean eight years’ service in the  rank of  SP in the CBI whether the deputationist was permanently absorbed  or not,  under the  1975 Rules  it  is "eight  years’   service  in   the  grade   rendered   after appointment .  thereto on  a regular basis". Accordingly, it is urged  that the  expression ’on a regular basis’ can have only one meaning, that is to say, after permanent absorption of the  deputationist in  the CBI.  Otherwise, there  was no necessity for insertion of the words ’on a regular basis’ in the eligibility clause of the 1975 Rules for the post of DIG in CBI.  Under the  1984 Rules,  it is  only  "eight  years’ regular service  in the  grade". So the entire contention of the petitioners  centres round  the expression ’on a regular basis.’      The 1975  Rules which  are relevant  for the purpose do not explain  what is  meant by  the expression ’on a regular basis’. The  expression has  created some  ambiguity in  the eligibility clause  giving rise  to this  controversy. There can be  no doubt  that when  a person is appointed to a post against a permanent vacancy on probation, his appointment is 431 on a regular basis, but when a person is appointed to a post on a purely temporary or on an ad hoc basis, the appointment is not  on a  regular basis.  The expression  ’on a  regular basis’  in  the  1975  Rules  cannot,  in  our  opinion,  be interpreted to  mean as  on absorption in the CBI as SP. The general principle  is that  in the  absence of  any specific provision to  the contrary,  the length  of service from the date  of   appointment  to  a  post  should  be  taken  into consideration for  the purpose  of either  seniority in that post or  eligibility for  the higher post. As no explanation has been  given in the 1975 Rules of the said expression, we do not  think it  desirable to deviate ffrom the established principle of computing the length of service for the purpose of seniority  or eligibility  for the  higher post  from the

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date of  appointment. In our view, therefore, the expression ’on a  regular basis’ would mean the appointment to the post on a regular basis in contradiction to appointment on ad hoc or stop-gap or purely temporary basis. The respondent No. S, in our  opinion, satisfied  the eligibility test of the 1975 Rules for  consideration for the post of DIG. But, it is not disputed  by  the  parties  that  the  petitioners  and  the respondent No.  S have,  by the  lapse of  time  during  the pendency of this litigation, become eligible for appointment to the  posts of  DIG. Indeed, they are holding the posts of DIG, may  be on  ad hoc  basis, under  the interim orders of this Court and there is no chance of their being reverted to the next  lower post  of SP.  The question, therefore, boils down to  the seniority  of  the  petitioners  vis-a-vis  the respondent No.  5 in the post of DIG. That again will depend upon the decision on the question as to the seniority of the petitioners and the respondent No. S in the post of SP.      We, therefore,  focus our  attention to the question of the seniority of the petitioners and the respondent No. S in the post  of SP  in the  CBI. It  is urged  on behalf of the petitioners that  the appointment of the respondent No. 5 to the post  of SP  was in violation of the quota rule. We have already noticed  that under  the 1963  Rules, the  method of recruitment was provided as follows:-      (a) Not  exceeding 15%  of the  sanctioned strength  by promotion.      (b) The remaining by transfer on deputation.      There was  an amendment  with effect from 15-1-1971 and the method of recruitment was prescribed as follows:-      1.  25%-by  promotion  failing  which  by  transfer  on deputation.      2. 75%-by transfer/deputation. 432      The eligibility  requirement was DSP in SPE/CBI with at least eight  years’ service  in the  grade. A chart has been prepared and  filed by  the petitioners  and annexed  to the writ petitions  as Annexure-XVI.  It appears  from the chart that on  28-10-1972 on  which date  the respondent No. 5 was actually appointed  on deputation  to the post of SP/AD, the total sanctioned  posts of  SP/AD/AIG  were  47.25%  of  the sanctioned posts  was twelve,  out of  which only seven were filled by  direct recruitment and five remained outstanding. 75% of  the sanctioned strength was thirtyfive, to be filled by   the    appointment   of   deputationists,   but   forty deputationists were appointed to the posts of SPs, including the five  posts out  of the quota for direct recruitment. It is alleged  by the petitioners that the respondent No. 5 was appointed to  the post  of SP  in the CBI in one of the said five  posts  meant  to  be  filled  by  direct  recruits  in violation of  the quota  rule. The  chart  also  contains  a submission     that      the     appointment     of     five deputationists/transferees,  including  the  appointment  of respondent No.  5, as SP on 28-10-1972 was illegal. In other words, it is alleged that the respondent No. 5 was appointed in one  of the  said five  posts meant  for direct recruits. There  is   no  material  whatsoever  to  suggest  that  the respondent No.  5 was  appointed in  one of  the S  posts in excess  of   the  quota   for  the  deputationists.  In  the circumstances, we are not inclined to accept such contention without any foundation therefor.      The  most   significant  and   crucial  fact   is   the appointment of  the respondent  No. 5 to the post of SP with retrospective effect from a deemed date of appointment, that is, 21-10-1971  (FN). It  is strenuously  urged on behalf of the  petitioners   that   such   deemed   appointment   with

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retrospective effect from 21-10-1971 (FN) was wholly illegal and mala  fide and  should be  struck down.  The plea of the respondents Nos.  1, 2  and 5  is that  the respondent No. 5 became eligible for appointment to the post of SP in the CBI in July,  1970 after he had completed eight years of service in the  grade of DSP with two years probation in the CBI. He was, accordingly, eligible for appointment to the post of SP and, indeed, the meeting of the DPC was scheduled to be held in October,  1970, but  that was  arbitrarily postponed. The DPC again met in July, 1971, but they had erroneously graded the respondent  No. S  as ’good’  and not  ’very good’, as a result of  which he  could not be appointed in 1971. He was, however, found  to be  ’very good’ on a review by the Senior Board which  recommended the  appointment of  the respondent No. 5  to the post of SP and he was appointed to the post on 28-10-1972. The complaint of the respondents Nos. 1, 2 and 5 is that  if the DPC had not been arbitrarily and without any reason whatsoever postponed and held its meeting in October, 1970, the 433 respondent No.  5 would have got the appointment to the post of SP  in 1970  and would  in normal course be senior to the petitioners. Thus,  the sum  and substance of the contention of the  respondents  Nos.  1,  2  and  5  is  the  arbitrary cancellation of the meeting of the DPC in October, 1970.      There can  be no  doubt that  if the meeting of the DPC scheduled to  be held  is arbitrarily or mala fide cancelled without  any   reasonable  justification   therefor  to  the prejudice of  an employee  and  he  is  not  considered  for promotion to  a higher  post, the  Government in  a suitable case can  do justice  to such  an employee  by granting  him promotion or appointing him to the higher post for which the DPC was  to be held, with retrospective effect so that he is not subjected  to a  lower position  in the  seniority list. But, if  the cancellation  or postponement of the meeting of the DPC  is not  arbitrary and is supported by good reasons, the  employee  concerned  can  have  no  grievance  and  the Government will  not be justified in appointing the employee to the  higher post  with retrospective  effect. An employee may become eligible for a certain post, but surely he cannot claim appointment to such post as a matter of right.      Let us  now consider  whether the  DPC, scheduled to be held in  October, 1970 was arbitrarily cancelled or not. The learned Additional  Solicitor General  has handed over to us the photocopy  of the  notings from  the  departmental  file relating to the postponement of DPC. Paragraph 9 of the note of one O.P. Bansal is as follows:-           "In so  far as  the representation  of  Shri  O.P.           Sharma is  concerned, it  has been  found from the           records that  in October, 1970 a proposal was made           by the  Administrative officer, CBl, for convening           a  meeting   of  the   Selection  Board   for  the           consideration of  suitability or  otherwise  of  6           non-IPS deputationist  Dy. SPs who had completed 8           years’ service  in the  grade of  Dy. SP  and Shri           O.P. Sharma was No. 3 among them. It was stated in           that note  that there  were 42  posts  of  SP  and           equivalent rank  in CBI  and  that  there  were  3           vacancies in the grade. It was further stated that           none of  the non-deputationist Dy. SPs. had put in           8 years’  service at  that time and, as such, they           were not eligible for consideration for promotion.           As a  result of  this, all  the 3 posts were to be           filled by  deputationists. It  was not  stated  in           that note  whether any  of the 3 posts fell in the

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         promotion quota,  which at that time comprised not           exceed- 434           ing  15%  of  the  strength,  i.e.  6  posts.  The           proposal for  convening a meeting of the Selection           Board was  approved on  13-10-1970, but  on 15-10-           1970 the  Director, CBI,  ordered that the meeting           might be  held after S/Shri Ramender Singh and Jot           Ram, Dy. SPs became eligible for pro motion. These           two officers  were to complete 8 years’ service as           Dy. SP in January and March, 1971 respectively. It           is, thus,  correct that the meeting of the DPC was           postponed to  allow some non-deputationist Dy. SPs           to become ripe for promotion to the grade of SP."      Thus, it appears from paragraph 9 of the note extracted above that  three  vacancies  were  to  be  filled  by  non- deputationist  DSPs,   otherwise  the   question   of   non- availability of  non-deputationist DSPs  with the  requisite period of  service would  not have  been mentioned.  In  the counter-affidavit of  the respondents  Nos. 1  and 2,  it is also stated  that at  the relevant  time no departmental DSP had eight  years’ service  in that grade and, therefore, all the three  vacancies then  available  were  required  to  be filled by  deputation of  suitable State Police officers. It is, therefore,  apparent that the three vacancies were meant to  be   filled  by   non-deputationists  DSPs  and  not  by deputationists,  but  as  non-deputationist  DSPs  with  the requisite  period   of  service   were  not  available,  the vacancies were  proposed to  be filled  by the deputationist DSPs. It  is true that the meeting of the DPC was to be held on 13-10-1970  but the  Director  of  CBI  appears  to  have considered that  as the  vacancies were  meant for  the non- deputationist DSPs  and as  two of  such DSPs  would  become eligible for  promotion  in  January  and  March,  1971,  he postponed the  meeting of  the DPC  scheduled to  be held on 13-10-1970. We do not find any arbitrariness in the decision of the  Director of  CBI postponing  the meeting  of the DPC till after  March, 197  1 when  two  non-deputationist  DSPs would become  eligible for  promotion. There was, therefore, ample justification  for the postponement or cancellation of the meeting of the DPC. The respondent No. 5 might have been eligible for being considered for appointment to the post of SP in  July, 1970,  but  he  had  no  right  to  claim  such consideration  when   the  vacancies  were  meant  for  non- deputationist  DSPs.   In  our   opinion,   therefore,   the Government had  no reasonable  justification to contend that the postponement  of the  DPC was arbitrary and high-handed. In July,  1971 also  the respondent  No.  S  was  not  found suitable by the DPC. It was only when the Senior Board found him  suitable   in  July,   1972  and  recommended  him  for appointment to  the post of SP that the respondent No. S was appointed on October 28, 1972 to the post of SP, CBI. As the foundation of the appointment of 435      the  respondent   No.  5   to  the   post  of  SP  with retrospective  effect   from  21-10-1971(FN),   namely,  the postponement of  the meeting  of the  DPC in  october,  1970 arbitrarily, is  shaken to  a great  extent,  there  was  no question of  any injustice done to the respondent No. S. The retrospective appointment  or promotion  to a post should be given most  sparingly and on sound reasoning and foundation. In the  instant case,  we do  not find  that there  was  any justification for the appointment of the respondent No. S to the post  of SP  in the CBI with retrospective effect from 2 1-10-1971 (FN) so as to make him senior to the petitioners.

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    We may  now deal  with the  Writ Petition  No. 1021  of 1986. The  principal question  that is involved in this writ petition is  whether the length of service of the petitioner Dwarka Nath  in the  Border Security  Force (BSF)  should be taken into account for the purpose of deciding his seniority in the  CBI in  the rank  of SP. On 14-6-1976 the petitioner was regularly  promoted to  the post of Deputy Commandant in the BSF which, according to him, was equivalent to the grade of SP  in the CBI. The respondent No. S was promoted on 4-8- 1978 and  the respondents  Nos. 6 and 7 were promoted on the same date,  that is,  on 28-7-1978  to the post of SP in the CBI. The petitioner came to join the CBI on deputation as SP on 29-9-1979  and was permanently absorbed in the CBI in the rank of  SP on  28-10-1983. The respondents Nos. 5 to 7 were confirmed in  the post  of SP with effect from 4-8-1980. The question that  arises is  whether in computing the seniority of the petitioner his length of service from 14-6-1976, when he was  the Deputy  Commandant in  the BSF,  should be taken into consideration  or not. If his service from 14-6-1976 is taken into  consideration, he would undoubtedly be senior to the respondents Nos. S to 7, who were appointed in 1978.      We have  already considered  the question  in the  Writ Petitions Nos.9847-48  of 1983 in respect of the appointment of respondent  No. S  O.P. Sharma  to the  post of SP in the CBI. In  that connection,  it has been decided by us that in computing the  requisite period  of eight  years, the period during which  the respondent  No. S  held the post of DSP in the Rajasthan  State Police  Service should  be  taken  into consideration. In  our opinion,  the period  from  14-6-1976 when the  petitioner was  promoted to  the  post  of  Deputy Commandant  in  the  BSF  up  to  his  joining  the  CBI  on deputation on  29-7-1979, should be taken into consideration for the  purpose of deciding his seniority in the CBI in the rank of SP.      Paragraph 3  of the  office Memorandum dated 22-12-1959 relied upon  by the learned Counsel for the respondents Nos. 3 to 5 does not, 436 in our  opinion, at  all militate  against the view which we have taken. Paragraph 3 provides, inter alia, that permanent officers of each grade shall be ranked senior to persons who are officiating  in  that  grade.  ’Grade’  in  paragraph  3 undoubtedly refers  to the  grade in  respect of  which  the seniority is  to be  decided. The petitioner was a permanent officer on 14-6-1976 in the grade of Deputy Commandant which is equivalent  to the grade of SP in the CBI. It may be that he was  not in  the CBI on that date. But, in our view, that will not  make any  difference. We  do not  think  that  the office Memorandum  dated 22-12-1959  stands in  the  way  of counting the  seniority of  the petitioner  with effect from 14-6-1976.      We may  examine the  question from a different point of view. There  is not  much difference  between deputation and transfer.  Indeed,   when  a  deputationist  is  permanently absorbed in  the CBI,  he is  under the  rules appointed  on transfer. In  other words.  deputation may  be regarded as a transfer from  one government department to another. It will be  against   all  rules  of  service  jurisprudence,  if  a government servant  holding a particular post is transferred to the  same or  an equivalent  post in  another  government department, the period of his service in the post before his transfer is  not taken  into consideration  in computing his seniority in  the transferred post. The transfer cannot wipe out his length of service in the post from which he has been transferred. It has been observed by this Court that it is a

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just and  wholesome principle commonly applied where persons from different sources are drafted to serve in a new service that their  pre-existing total  length  of  service  in  the parent department  should  be  respected  and  presented  by taking the same into account in determining their ranking in the new service cadre. See R.S. Mokashi & Ors. v. I.M. Menon & Ors. [1982] 1 SCC 379; Wing Commander J. Kumar v. Union of India & Ors.. [1982]3 SCR 453.      In this  connection, we may notice one significant fact that although  in the  counter-affidavit the  Union of India has opposed  the claim  of the petitioner that his seniority should be  counted from 14-61976, at the hearing of the writ petition the  learned Additional  Solicitor General concedes that the  petitioner’s seniority should be counted from that date and  that the  said office  Memorandum does  not at all support the contention of the respondents Nos. 3 and 5.      The learned  Counsel for  the respondent  Nos. 3  and 5 has, however,  placed much reliance upon certain facts which will be  stated presently.  After  the  petitioner  went  on deputation to the CBI and 437 appointed to  the post  of SP,  on 5-4-1980  the CBI invited options from  the non-lPS deputationists for their permanent absorption in  the CBI.  The petitioner  had sent  a  letter expressing his  willingness to  be absorbed  in the  CBI. On April 16,  1980, the  Administrative officer,  CBI,  sent  a wireless message  to all concerned stating that seniority on permanent absorption  in a  rank would  be counted  from the date of  permanent absorption  and that  those who had opted thinking otherwise,  would be  at liberty  to  revise  their option  by   13-4-1980.  Again,  on  11-9-1980  (10-9-1980?) another circular  was issued  in which  it was re-emphasised that a  deputationist who  was willing to be absorbed in the CBI, would first be appointed on a regular basis in the CBI. He would  be confirmed  as and  when  permanent  posts  were available. Further,  it was  stated in the circular that his seniority in  the CBI  would begin  from  the  date  of  his regular appointment.  In other  words, the  service rendered from the  date of  regular appointment  only would count for the purpose  of seniority  and promotion  in the CBI. In the explanatory  note   regarding  determination   of  inter  se seniority, annexed  to the said circular, it has been stated that a  deputationist officer  has no place in the seniority list as  long as he is not absorbed (regularly appointed) in the  CBI.   Relying  upon   the  said   circulars  and   the petitioner’s consent  to be  absorbed  in  the  CBI,  it  is submitted on behalf of the respondents Nos. 3 and S that the petitioner’s seniority  should be  counted from  the date he was permanently  absorbed or regularly appointed in the CBI, that is,  with effect  from 4-10-1983. On the other hand, it is submitted  on behalf  of the  petitioner that as the said circulars dated 16-4-1980 and 10-9-1980 were found to be not workable, the  CBI suspended the same for a further decision by its  circular dated  6.10.1981, the  relevant portion  of which is extracted below:-           "In  response  to  this  office  circular  No.  A.           31016/14/80-AD. I (DPC) dated 10-9-80, some of the           branches have sent options of some of the officers           for  absorption  in  the  CBI.  Some  options  are           conditional   and    some   have    sought    some           clarification with reference to seniority.           2. The  matter is under correspondence with the DP           & AR.  The branches  will be informed as soon as a           decision is  arrived at.  Decision on  the options           received will be taken after the clarification has

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         been received from the DP & AR. "      No decision  has yet  been taken by the Government. Mr. P.P.  Rao,  learned  Counsel  appearing  on  behalf  of  the petitioner, has drawn 438 our attention  to the  counter-affidavit to the rejoinder in CMP Nos.  A 5429  and 5430  of 1984  filed in the above writ petitions Nos.  9847 and  9848 of  1983, wherein it has been categorically admitted  by the Union of India that after the issue of  the circular  dated 11-9-1980,  the matter was re- examined by  the Director of CBI and found to be unworkable. Thereafter, it  was decided  to take  up the matter with the Government and  no action  was taken  to implement  the said circular. Further,  it  has  been  reiterated  in  the  said counter-affidavit that  the circular  did not  lay down  the correct   interpretation   of   recruitment   rules,   found unworkable and  has not  been acted  upon even  in a  single case. The  learned Additional Solicitor General has admitted the position  that even  now the  Government has not come to any decision  as to  whether the seniority should be counted from  the   date  of   the  regular   appointment   of   the deputationists in the CBI, as stated in the circular. In the circumstances, we  do not  think that  there is any merit in the contention  of the  respondent Nos. 3 and 5 that in view of the  said circular  dated 11-09-1980 and also the earlier circular dated  16-4-1980, the petitioner’s seniority cannot be counted  from 14-6-1976 when he was appointed to the post of Deputy Commandant in the BSF.      It is next contended on behalf of the respondent Nos. 3 and 5 that the petitioner’s appointment from BSF to the rank of SP  in the  CBI on  deputation was  illegal. Reliance has been placed  on the  relevant provision  in the  recruitment rules relating  to appointment  on deputation which reads as follows:           " Transfer/Deputation:           Suitable officers  of the  State Police  Forces or           officers of  the IPS  or officers  of  the  Indian           Revenue Service or officers holding analogous post           in the  Central  Government  Department  like  the           Directorate of  Enforcement, Department of Customs           etc."      It is  submitted  that  the  other  Central  Government Departments, two  of which  illustratively mentioned  in the provision extracted  above, are  only those  Departments  in which statutory  inquiries and  investigations are conducted by the officers by arrest, search, examination of witnesses, prosecution of  accused,  etc.  It  is  contended  that  the intention  of  the  rule  is  that  only  officers  of  such Departments who  have such experience would only function in the CBI  as Investigation officers. As the petitioner had no such experience  in the  BSF, he  was not eligible for being appointed to the CBI on deputation. 439      We are unable to accept the contention. It is true that in the  rule two Government Departments have been mentioned, but  that   does  not   mean  that   only  those  Government Departments in  which inquiries  and investigations are made are contemplated  by the rule. Nor does the rule contemplate that  only   those   officers,   who   had   experience   of investigation would  be appointed  to the  post in  the CBI. Under the rule, such an officer should be a suitable officer and  should   be  holding  analogous  post  in  the  Central Government Department concerned. The petitioner was found to be a  suitable officer  and at the time of his deputation he was holding  the post  of Deputy Commandant which, according

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to the  petitioner, is  equivalent to  the post of SP in the CBI.  We   are  unable  to  accept  the  contention  of  the respondents Nos.  3 and 5 that the post of Deputy Commandant in the  BSF is  not equivalent to the post of SP in the CBI. The letter of the Under Secretary to the Government of India dated November  25, 1983  shows on  the face  of it that the post of  Deputy Commandant  in the BSF is equivalent to that of SP  in the  CBI. It  has been  expressly conceded  by the learned Additional  Solicitor General  that  the  Government accepts the  post of  the Deputy  Commandant in  the BSF  as equivalent to  the post  of SP in the CBI. At this stage, we may refer to the letter dated January 24, 1984 of the CBI to the Government  of India  wherein it  has been categorically stated  inter  alia  that  the  petitioner  was  holding  an analogous post in the BSF and was, therefore, eligible to be taken on deputation. Further, it has been stated that he had considerable experience  of investigation of criminal cases, and that  the Government  and the UPSC had duly approved the substantive  absorption   of  the  petitioner  on  merit  in accordance with  the recruitment  rules,  as  in  force,  in larger public interest. The said letter of the CBI resolve’s all controversy  as to  whether the  petitioner was  holding equivalent post  in the  CBI or whether he had experience of investigation or  whether he  was absorbed  in  the  CBI  in public interest.  There is,  therefore, no  substance in the contention made  on behalf  of the  respondents Nos. 3 and 5 that the petitioner’s appointment in the CBI was illegal. In view of  our decision that the petitioner’s seniority should be counted  from 14-6-1976  on which  date he  was regularly promoted to  the post  of Deputy  Commandant in the BSF, the petitioner should  be held  to be  senior to the respondents Nos. S to 7.      No other point has been urged on behalf of the parties.      In the  result, so  far as Writ Petitions Nos. 9847 and 9848  of  1983  are  concerned,  the  impugned  order  dated September 25,  1981, appointing  the respondent  No. S  O.P. Sharma with retrospective 440 effect from  a notional  date viz., 21-10-1971 (FN), and the seniority list  dated 17-10-1981, showing the respondent No. S as  senior to  the petitioners, are quashed. Let a writ in the nature of certiorari issue in that regard. Further let a writ  in   the  nature   of  mandamus  issue  directing  the respondents Nos.  l and  2 to publish a fresh seniority list showing the  petitioners as seniors to the respondent No. 5. The writ  petitions are  allowed  and  the  rules  are  made absolute to the extent indicated above.      With regard  to Writ  Petition No.  1021 of 1986, let a writ  in   the  nature  of  certiorari  issue  quashing  the seniority list,  Annexure-P/1 to  the writ petition, and all subsequent seniority  lists of  SPs in  the CBI in which the petitioner has  been shown  junior to the respondents Nos. S to 7.  Further, let  a writ  in the nature of mandamus issue commanding the  respondents Nos.  1 and  2 to  allot to  the petitioner his  proper seniority  in the post of SP, CBI, by counting his  service with  effect from  14-6-1976, that is, the date  on which  he was regularly promoted to the post of Deputy Commandant  in the BSF and to issue a fresh seniority list showing  him senior to the respondents Nos. 5 to 7. The writ petition  is allowed  and the  rule is made absolute to the extent indicated above.      We, however,  make it  clear that  in Writ Petition No. 1021 of  1986 the  issue as  to the  date of  birth  of  the petitioner is  left open  and the  petitioner  would  be  at liberty to  challenge any  order, if adverse to him, on that

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issue.      There will,  however, be no order as to costs in any of the writ petitions. S. L.                                      Petitions allowed 441