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CASE NO.: Appeal (civil)  2702 of 1997

PETITIONER: Union of India                                                   

RESPONDENT: Vs. Kuldip Singh Permer & Ors.                               

DATE OF JUDGMENT: 18/08/2003

BENCH: BRIJESH KUMAR & ARUN KUMAR.

JUDGMENT: J U D G M E N T

WITH

CIVIL APPEAL NO.â\200¦â\200¦â\200¦/2003 (Arising out of S.L.P.©  No. 5674/1997

ARUN KUMAR, J.

C.A.No.2702/1997 :

       This appeal is directed against the judgment dated 15th March,  1996 of the Central Administrative Tribunal, Chandigarh Bench.  The  original application was filed by respondent No.1 before the tribunal  challenging seniority list issued by the Department wherein his  seniority had been fixed from the date of absorption in the  Department.  Respondent No.1 was claiming seniority from the date  he initially  joined the Department on deputation.  To appreciate the  issue involved in the appeal, it is necessary to give some facts.   Respondent No.1  had joined the service in the Himachal Education  Department, a department of the State Government, as a trained  graduate teacher.  He was appointed as a Science Master with effect  from 26.9.1970 in the pay scale of Rs.220 - 500.  This scale was  subsequently revised to Rs.620 â\200\223 1200 with effect from 1.1.1978.      

After the Chinese aggression, the Government of India had  started a department called Special Services Bureau under the  Directorate General of Security (DGS).  To govern the service  conditions in the Special Services Bureau, rules called the Special  Services Bureau (Junior Executive) Service Rules, 1976 were  promulgated  with effect from 30th June, 1976.  Respondent No.1  joined the said Bureau on deputation with effect from 8th February,  1977 as Circle Organizer.  On his exercising option in this behalf, he  was absorbed in the said post of Circle Organizer with effect from 8th  August, 1984.   

The Department issued a tentative seniority list of Circle  Organizers on 24th October, 1986.  The respondent was aggrieved of  the said list as his seniority was determined from the date of his  absorption in the Department as Circle Organizer.  Respondent was  claiming seniority with effect from the date he joined the Department  on deputation.  He made representation against the tentative seniority  list.  However, on 6.12.1987 and thereafter on 30.6.1988 seniority  lists were issued in which respondent No.1 was assigned seniority on  the basis of the date of his absorption in the Department.   The  respondent made some representations  against the same which  were, however, rejected.  Ultimately, he filed the Original Application  before the Central Administrative Tribunal, Chandigarh Bench, in the

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year 1989. This was allowed by the tribunal by its judgment dated  15th March, 1996, which is under challenge in this appeal.

       The stand of the appellant is that respondent No.1 is entitled to  seniority only from the date of his absorption in the Department and  not prior thereto.  To examine this stand of the appellant, reference  has to be made to the Service Rules, that is, Special Services Bureau  (Junior Executive) Service Rules, 1976 and the relevant Government  of India instructions.  

       Rule 6 refers to initial constitution.  Sub-rule(1) only is relevant  for the present purpose which runs as under :

"(1)  All persons holding, as on the appointed day,  any one of the categories of posts specified in rule 4,  whether in a permanent or temporary or officiating  capacity or on deputation basis, shall be eligible for  appointment to the service at the initial constitution  thereof."    

It is seen from the said Rule that deputation is envisaged as  one of the modes of appointment to the service.  Respondent No.1, it  will be recalled had come on deputation and therefore he was eligible  to join the service.  Rule 7 refers to seniority of those appointed at the  time of initial constitution.  "SENIORITY OF THOSE APPOINTED AT THE  TIME OF INITIAL CONSTITUTION :

Seniority of persons appointed on a permanent  basis in each grade at the initial constitution of the  service shall be in the order in which they are shown  in the relevant lists prepared in accordance with  provisions of rule 6."    

The respondent in the present appeal had joined  subsequently, therefore, Rule 7 is not relevant.         Rule 10 refers to fixation of seniority at the maintenance stage.   We need not refer to the said Rule because it stood deleted vide  Notification dated 10th June, 1982 and therefore at the time when the  exercise for fixation of seniority took place in the present case, that is,  which was much after 1982, the said Rule was not in existence.  It is  not disputed that in the absence of specific rules, the general  principles and guidelines issued by the Government of India from  time to time are applicable.  The Government of India vide OM No.     9-11/55, RPS, dated  22nd December, 1959 issued certain  instructions regarding fixation of seniority of Government employees.   Respondent No.1 was an absorbee  in the Department and therefore  clause (7) of the said instructions got attracted.  The same is  reproduced as under :

"7.    Absorbees  -- (i)  The relative seniority of  persons appointed by absorption to a Central Service  from the subordinate offices of the Central  Government or other departments of the Central or  state Governments shall be determined in  accordance with the order of their selection for such  absorption.

(ii)    Where such absorptions are effected against  specific quotas prescribed in the Recruitments  Rules therefor, the relative seniority of such  absorbees, vis-Ã -vis direct recruits and  promotees shall be determined according to

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the rotation of vacancies which shall be based  on the quotas reserved for absorption, direct  recruitment and promotion respectively in the  Recruitment Rules.

(iii)   Where a person is appointed by absorption in  accordance with a provision in the Recruitment  Rules providing for such an absorption in the  event of non-availability of a suitable candidate  by direct recruitment or promotion, such  absorbee shall be grouped with direct recruits  or promotees, as the case may be, for the  purpose of Para 6 above.  He shall be ranked  below all direct recruits or promotees, as the  case may be, selected on the same occasion.

Iiv)     In the case of a person who is initially taken on  deputation and absorbed later (i.e. where the  relevant Recruitment Rules provide for  ’Deputation/Absorption), 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 â\200\223  

--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 an absorbee in  accordance with the above principle will not,  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. "    

       It may be noted here that sub-clause (iv) was added on 29th  May, 1986.  We may also note here that the said O.M. along with its  amendments from time to time is admittedly applicable for the  purpose of determination of seniority in the present case.  According  to sub-clause (iv) of the said O.M., for purpose of determining  seniority of an absorbee, if he was already holding on the date of  absorption  the same or equivalent grade on regular basis in his  parent department, his regular service in the grade is to be counted.   In the present case, respondent No.1 was holding a post of Science  Master on regular basis in an equivalent grade with effect from  1.1.1978.   The grade of the said post was revised to Rs. 620 â\200\223 1200  with effect from 1.1.1978.  Thus, respondent No.1 was holding a post  in a rather higher grade than the grade of post of Circle Organizer in  his parent  department  on regular basis with effect from the date the  scale of that post stood revised which was 1.1.1978.  Thus, it is clear  from the Government’s own instructions that the respondent No.1  is  entitled to be assigned seniority with effect from 1.1.1978.

The learned counsel for the appellant made a vain attempt to

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contend that the word ’equivalent’ in sub-clause (iv) of clause 7 of  O.M. dated 22nd December, 1959  should be read as ’equivalent post’   and since respondent  No.1 was not holding an equivalent post, he  cannot be given benefit of the said O.M.   With reference to  equivalent post the argument further proceeded that it should have  similar duties etc.  This argument, in our view, is totally untenable.   The relevant word used in the Government’s instructions is ’grade’.  It  is not disputed that with effect from 1.1.1978, respondent No.1 was  holding a post in the parent department  on regular basis in a grade  higher than the grade of the post of Circle Organizer which he held in  the department where he was absorbed.

In the present case, the relevant Government instructions had   come into force on 29th May, 1986 while the tentative seniority list  was issued  on 24th October, 1986.  The revised seniority list was  issued much later.  It was held by this court in Sub-inspector  Rooplal and another vs. Lt. Governor through Chief Secretary,  Delhi and others [ 2000 (1) SCC 644 ] that a person should get  benefit of length of service rendered on regular basis in equivalent  grade for the purpose of fixation of his seniority.  The following  observation needs to be quoted:

"â\200¦..any rule, regulation or executive instruction  which has the effect of of taking away the service  rendered by a deputationist in an equivalent cadre  in the parent department while counting his  seniority in the deputed post would be violative of  Articles 14 and 16 of the Constitution.  Hence,  liable to be struck down."

       This leads to the inevitable conclusion that respondent No.1 is  entitled to benefit of service rendered by him on regular basis with  effect from 1.1.1978.  In other words his seniority in the post of Circle  Organizer is to be fixed after counting his service in his parent  department from 1.1.78 onwards.  The appeal is accordingly without  any merit.

The same is hereby dismissed.

C.A.Noâ\200¦â\200¦../2003 @ SLP© 5674/1997 :

       Leave granted.

       For the reasons stated in the judgment pronounced today in  C.A. 2702/1997, this appeal is dismissed subject however to the  modification that the Tribunal had granted benefit of seniority to  respondent No.1 with effect from 28th September, 1973 when he  joined the Special Services Bureau on deputation.  As held by us in   C.A.No.2702 of 1997,  the benefit of length of service will be available  to  respondent No.1. only from the date when he came in the  equivalent grade on regular basis, that is, grade equivalent to the  post of Circle Organizer in the Bureau.  This happened with effect  from 1.1.978 when the grade of the post held by him on regular basis  in the Himachal Education Department was revised.  Therefore,  respondent No.1 in this appeal is entitled to seniority only with effect  from 1.1.1978 and not from an earlier date as held by the tribunal.  To  this extent, the judgment of the tribunal stands modified.  The appeal  is dismissed accordingly.

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