IN THE SUPREME COURT OF INDIA  CIVIL  APPELLATE JURISDICTION

   CIVIL APPEAL  NO.4446 OF 2008 (Arising out of SLP(C) No.14099 of 2006)

STATE OF HARYANA & ANR. Appellant(s)

       Versus

DEEPAK SOOD & ORS.  Respondent(s)

          WITH

CIVIL APPEAL NO.4447 OF 2008            (Arising out of SLP(C) No.10857 of 2006)

STATE OF HARYANA & ORS.  Appellants

Versus

HARI PARKASH & ORS.  Respondents

CIVIL APPEAL NO.4448 OF 2008             (Arising out of SLP(C) No.3297 of 2007)

STATE OF HARYANA  Appellants

Versus

DHANI RAM                   Respondents

O R D E R

We have heard learned counsel for the parties.

Delay condoned.

Leave granted in all the matters.

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All  these  three  matters  involve  a  similar  question  of  law  and,

therefore, they are being disposed of by a common order.  For the convenient

disposal of these cases the facts given in Civil Appeal No.4447/2008 (arising out of

SLP(C) No. 10857/2006 - State of Haryana & Ors. versus Hari Prakash & Ors.)

are taken into consideration.

The  respondents  joined  the  service  in  the  Octroi  Branch  of  the

Municipal Committee, Panipat.  Subsequently due to closure of the Octroi Branch

of the Municipal Committee in the State of Haryana, they were absorbed in the

Education Department, Haryana. They applied for grant of the ACP Grade to the

Sub  Divisional  Education  Officer,  Panipat.   This  claim was  denied  to  them.

Therefore,  they filed  a writ petition and claimed that they are entitled to  the

aforesaid benefit on account of having put in more than 10/20 years of service.

The  State  Government  contested  the  matter  and  took  the  stand  that  the

respondents  have not  completed  10  years of  service in the  State  of  Haryana.

Therefore, they are not entitled to the benefit of ACP Grade.  It is alleged that

they were the employees of Municipal Committee and have been absorbed by the

State Government only in the year 2000.  Therefore,

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they are not entitled to ACP grade as they have not completed 10 years or 20

years of service in the State of Haryana.   

The  Division  Bench  after  considering  the  matter  came  to  the

conclusion that so far as surplus staff of Municipal Committees are concerned

who have been absorbed on transfer basis as per the decision of the Government

will get all benefits except the seniority due to them.  Accordingly, a declaration

was  given  that  the  persons  who  have  been  declared  surplus  in  Municipal

Committee, Panipat and who have been absorbed in the State of Haryana will not

get the seniority but all the other benefits will  be given to them.  As a result of

this,  the respondents' services rendered by them in Municipal Committee have

been counted for grant of ACP Grade.

Aggrieved against this order passed by the Division Bench,  the State

of Haryana has filed the present appeals by special leave.

We have heard learned counsel for the parties.

The admitted facts are that the respondents were employees of the

Municipal  Committee,  Panipat  and  they have been absorbed  in the  State  of

Haryana on terms and conditions which shall be reproduced hereafter.  Now, the

question is whether the service put in by them in the

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Municipal Committee should be counted or not for the benefit of ACP grade.

The condition on which they were appointed  in the State  of  Haryana clearly

stipulated that these officials shall be appointed on transfer basis and shall join as

junior most  employees  in  the  categories  on  the  date  of  appointment.   These

employees shall be eligible for pay and pensionary benefits of their past service.

However, no benefit of past service in seniority matters shall be given when being

adjusted in the department.   The Government has granted various relaxations

required  for  these  adjustments.   The  relevant portion  of  the  order  reads  as

under :-

“The Government has decided that the surplus employees of Group

'C' of the abolished municipalities will be absorbed in your Department against

the existing vacancies as per their bio  data at Annexure A.   It  has also been

decided to relax the provision of qualifications to absorb such employees if

necessary.

These officials have to be appointed on transfer basis and shall joint

as the junior most  employees  in their categories  on the date  of  appointment.

These employees shall be eligible for pay and pensionary benefits of their past

service.  However, no benefit of past service in seniority matters shall be given,

when

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being  adjusted  in  your  department.   The  Government  has  granted  various

relaxations required for these adjustments as per the following letters :-

(i) The posts against which these employees have to be adjusted have been taken

out  of  purview of  the  Staff  Selection  Commission  vide  Govt.  Notification

No.G.S.R. 19/Const/Art.309/2000 dated 7.4.2000.

(ii)Relaxation  in  the  instructions  issued  by  the  Finance  Department  letter

No.5/6/92/B&C dated 2.4.1999 vide Finance Department's concurrence issued

vide their U.O. No.5/14/2000-I dated 7.3.2000.

(iii)Relaxation in the minimum qualifications as laid down in the Service Rules of

the  concerned  Departments/Boards/Corporations  for  the  Group  C  and  D

employees  for absorption of  employees  rendered surplus  issued  vide  Chief

Secretary's letter No.42/183/99-5GSI, dated 15.3.2000.”

A perusal of these terms and  conditions makes it clear that what is

being lost by these surplus staff is  their seniority.  They will have to get zero

seniority in the  new Department but  their past  service has  been counted for

fixation of pay as well as pensionary benefits.  The scheme of ACP Grade came

subsequently.  On that basis the respondents made a grievance that they were

being denied

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the benefit of ACP and the services rendered by them in the Municipal Committee

has not been counted for the purposes of calculating 10/20 years of service in the

Department. It is a misfortune that the respondents have been declared surplus in

the Municipal Committee, Panipat but the Government has been benevolent to

them and absorbed them in the State Government but denied them the benefit of

past service for the purpose of seniority.  However, at the same time they have

counted their past service for the purpose of pay and pensionary benefits.  Once

the  Government considered  them eligible  for  fixation of  pay and  pensionary

benefit and counted their past service then there is no reason why ACP grade

should be denied to them. Having lost,  at one hand their seniority in the new

department, it would be unfair to deny them the benefit of ACP grade.  When the

Government counts their past service for grant of the benefit of pay fixation and

pension, there is no reason why their past service should not be given the benefit

of ACP Grade.   

A similar question came up before  this  Court in the case  of  (1)

Dwijen Chandra Sarkar and another versus Union of India and another reported

in AIR 1999 SUPREME COURT 598. In almost identical situation a person was

transferred to another department on administrative

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grounds and his past service of 16 years was not counted.  He challenged the same

and matter ultimately reached before this Court and this Court after considering

the matter came to  the conclusion that granting them higher grade under the

Scheme  for  time  bound  promotion  does  not  therefore,  offend  the  condition

imposed in the transfer order.  It was observed by this Court, “We are, therefore,

of the view that the appellants are entitled to the higher grade from the date on

which they have completed 16 years and the said period is to be computed on the

basis of their total service both in the Rehabilitation Department and the P & T

Department.”   

Their Lordships referred to earlier judgments given by this court i.e.

in the case of Renu Mullick versus Union of India 1994 (1) SCC 373.  In this case

also in identical situation the benefit was given to incumbent  likewise in Raksha

Mantri versus V.M. Joseph reported in 1998(5) SCC 305 and in the case of A.P.

State Electricity Board versus  R.  Parthasarathi reported in 1998 (9) SCC 425.

The same principle was re-affirmed recently in the case of State of Maharashtra &

Ors. Vs. Uttam Vishnu Pawar (2008) 2 SCC, 646 to which one of us (A.K.Mathur,

J.) was a party, wherein in para 13 it was observed as under :-

“Therefore, in view of the consistent approach of this Court, it is no

more res integra that the incumbent

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on transfer to the new department may not get the seniority but his experience of

the past service rendered will be counted for the purpose of other benefits like

promotion or for the higher pay scale as per the Scheme of the Government.”  

Therefore, in the series of judgments given by this Court the view has

been taken that in case of a transfer/absorption from one department to another

or from public sector to State though the benefit of the seniority may be denied to

the incumbent but not for other benefits like pay fixation and for the pensionary

benefits.   Therefore,  when the  benefit  of  past  service rendered in the  parent

department was given for fixation of  pay and pensionary benefits,  there is  no

reason why the past  service should not  be  counted for grant of  ACP  Grade.

Consequently, we are of the view that the view taken by the Division Bench of the

High Court in the impugned judgment and order is correct and there is no ground

to interfere in this appeal. Consequently, this appeal is  dismissed but with no

order as to costs.

Civil Appeal No.4446 arising out of SL(C) No.14099 of 2006 and Civil Appeal No.4448/2008 arising out of SLP(C) No.3297 of 2007

Delay condoned.

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For the reasons stated above, these two appeals are also dismissed.

No order as to costs.

        ....................J.         (A.K.MATHUR)             

                  ....................J.     (DALVEER BHANDARI)

New Delhi, July 15, 2008