K.
Madhavan & ANR Vs. Union of India & Ors [1987] INSC 278 (9 October
1987)
DUTT,
M.M. (J) 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 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.
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]
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
Original
Jurisdiction:
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 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 there for. 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 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 there for 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 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 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 there to
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 centers 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 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 thirty five, 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 deputation/ 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 there for.
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 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 there for
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 noting 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 promotion quota,
which at that time comprised not exceeding 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-deputation 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.
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 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 deputations
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 deputations
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 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 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 issue.
There
will, however, be no order as to costs in any of the writ petitions.
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