Union of India & Anr Vs. Onkar Chand
& Ors  INSC 46 (2 February 1998)
A.P. Misra K. Venkataswami, J.
these appeals a common issue arises for consideration and decision. Hence they
are heard and disposed of by this common judgment.
of sample, the facts in the case of Onkar Chand (Civil Appeal No. 68/90) are
given. The said Onkar Chand originally belonged to Himachal Pradesh State
Police and came on deputation to the Intelligence Bureau, Ministry of Home Affairs,
Govt. of India on 17.8.1970 as JIO-I (Junior Intelligence Officer, Grade - I).
He continued as such until he was promoted against deputation quota to the next
higher rank of Assistant Central Intelligence Officer, Grad - II (for short`ACIO-II')
by an order dated 11.10.1977.
he took charge of the said post on 2.1.1978. He was absorbed permanently in the
Intelligence Bureau by an order dated 10.12.1980 with effect from 31.12.1977 as
services in the grade of ACIO-II were regularised with effect from 1.1.1985 by
an order of even date.
grievance was that his seniority in the grade of ACIO-II was reckoned from
1.1.1985, the date of regularisation in that cadre, and not from 11.10.1977, the
date on which he was promoted to that rank. It was his case that his services
even as deputationist in the posts of JIO- I and ACIO-II should be taken for
next promotion from ACIO-II was to the post of ACIO-I. The minimum service
required in the cadre of ACIO-II for promotion to the post of ACIO-I was
complete five years.
appellants promoted him as ACIO-I only on 2.1.1990 on the ground that the said Onkar
Chand was regularised in the cadre of ACIO-II with effect from 1.1.1985.
According to the said Onkar Chand, he should have been considered with effect
from the date on which he joined the post of ACIO-II on 2.1.1978, if not from
the date of his promotion, namely, 11.10.1977, by counting his seniority
accordingly. All his claims to that effect before the authorities concerned did
not yield the desired results which obliged the said Onkar Chand to move the
Tribunal for a direction to the authorities that his seniority in the cadre of
ACIO-II should be fixed after counting his service from 2.1.1978 in that grade
and consequently he should be eligible for being considered for future
promotion on the said basis.
appellants opposed the claim of the said Onkar Chand by contending that
according to the general principles of seniority, as per the Memo issued by the
Ministry of Home Affairs, the seniority of transferees was determined from the
date they were appointed on transfer basis in the Department. When so appointed
on transfer basis, the transferees will be placed below all departmental
officers promoted earlier than the date of the absorption of the transferees
permanently in the Intelligence Bureau in the grade of JIO-I. In the case of Onkar
Chand, he was permanently absorbed as JIO-I only on 10.12.1980 w.e.f. 31.12.1977.
His services earlier to 31.12.1977, according to the appellants, in the
Intelligence Bureau in the capacity of deputationist will not be taken into
account for the purpose of seniority in the cadre of JIO-I. On the absorption
of Onkar Chand permanently w.e.f. 31.12.1977, he will be placed junior-most in
that cadre and the seniority will be counted accordingly. Though, in the
meanwhile, he was promoted as ACIO-II on ad hoc basis against the deputation
quota, his turn for regular promotion as ACIO-II will come only in the year
1984 as his junior departmental JIOs were promoted on the basis of 1984 DPC.
Tribunal was not impressed by the contentions put forward on behalf of the
appellants. Purporting to follow a decision of this Court in Narendar Chadha
and Others vs. Union of India and Others [(1986) 2 SCC 157], it took the view
that when a person has been allowed to function in a higher post for many years
on ad hoc basis, it would be unjust to hold that he has no sort of claim to
Tribunal has proceeded that such a view h as been taken in other case and
purporting to follow that decision, the Tribunal held the at the seniority of
the said Onkar Chand in the cadre of ACIO-II will be counted from 2.1.1978 and
accordingly directed the appellants to fix the seniority from the said date.
b y the above ratio laid down b y the Tribunal, these appeals by special leave
at the outset point out that Mr. TLV Iyer, learned senior counsel appearing for
the appellants fairly stated that irrespective of the decision in these appeals,
the contesting respondents will not be disturbed as the direction of the
Tribunal has already been given effect to so far as the contesting respondents
are particular to get a decision on the point in issue for application in other
have carefully perused the order of the Tribunal under challenge and considered
the rival submissions. We are of the view that the Tribunal had mis-directed
itself in understanding and applying the ratio laid down by this Court in Narendar
Chadha'a case (supra). That was a case concerning the seniority dispute between
the direct recruits and promotees belonging to the same Department. The case on
hand is not a case of that type. On the other hand, the present case is a
dispute concerning the seniority and promotions between the departmental
candidates and deputationists, who had subsequently consented to be permanently
absorbed in the Department of Intelligence Bureau. The Tribunal by extensively
quoting from the judgment of this Court in Narender Chadha's case, came to a
wrong conclusion by applying the same to the f acts of this case.
indisputable facts, which we have given above, will show that Onkar Chand was a
deputationist. When he was permanently absorbed as JIO-I w.e.f. 31.12.77 he was
factually working as JIO-I. Though, he was promoted to officiate in the rank of
ACIO-II in the deputation quota by an order dated 11.10.77, he joined that post
on 2.1.87. A perusal of the promotion list (vide Ex.R-II at page 124) will show
that separate lists were prepared for departmental candidates, permanently
absorbed candidates and deputationists. It is also worthy to note that the
inter se seniority among the different categories were also fixed in the list.
It is not in dispute that the deputationists have got certain percentage of
quota for promotion. The said Onkar Chand was promoted to officiate in the rank
of ACIO-II only against the deputationist quota is not in dispute. At this
juncture, it is necessary to quote the relevant clause in the office Memorandum
dated 22.12.59 regarding the fixation of seniority of persons appointed by
transfer in accordance with the Recruitment Rules. Clause 7(iii) reads as follows
:- "Where a person is appointed by transfer in accordance with provision
in the recruitment rules providing for such transfer in the event of non
availability of a suitable candidate by direct recruitment of promotion such
transferees 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."
Therefore, when the said Onkar Chand was permanently absorbed (by transfer) in
the cadre of JIO-I W.E.F. 31.12.77 he must take his seniority below the persons
in the department already in the cadre of JIO-I on that date. One more relevant
factor will be that a person in the cadre of JIO-I has to put in a minimum
years of service before aspiring for promotion as ACIO-II. The appellants,
taking the date of permanent absorption of the said Onkar Chand as JIO-I w.e.f.
31.12.77, fixed the seniority in that cadre and so considered his turn for
regular promotion as ACIO-II came only in the year 1984 as his junior
departmental JIOs were promoted on the basis of 1984 D.P.C.
these factors, one cannot find fault with the fixation of seniority of the said
Onkar Chand by the appellants, which was challenged before the Tribunal. The
Tribunal was no right in holding that the services rendered by the said Onkar Chand
as a deputation promotee in the officiating cadre of ACIO-II from 2.1.78 has to
earlier ad hoc promotion as ACIO-II being against the deputation quota that
service cannot be claimed by a deputationist once he opted for permanent
absorption in the Department. If he wanted to continue the seniority in the
deputation quota be running the risk of being repatriated to his parent
department, he ought not to have opted for permanent absorption. After opting
for the permanent absorption, he cannot claim the benefits of absorption as
well as the service put in by him in the deputation quota as ACIO-II. On the
said basis, the appellants placed their case before the Tribunal that the said Onkar
Chand was not entitled to seniority w.e.f. 2.1.1978 and his application before
the Tribunal was, therefore, liable to be dismissed.
noticed earlier, the Tribunal came to that wrong conclusion by wrongly applying
the ratio laid down by this Court in Narender Chadha's case to the facts of the
the Tribunal also was not right in assuming that an earlier order of the
Tribunal was to be followed. It was pointed out by the learned counsel for the
appellants that the earlier order of the Tribunal on facts was distinguishable.
According to the learned counsel for the appellants that in that case when the
concerned deputationist was permanently absorbed he was factually working in
the higher cadre. Therefore, that case cannot be cited to support the case of Onkar
Chand. We may at once point out that we are not called upon to decide the
correctness or otherwise of the ratio of that decision and, therefore, we are
not expressing any opinion on that.
it to say that the Tribunal was not right in directing the appellants to
calculate the seniority of Onkar Chand w.e.f. 2.1.78 and granting other
we have said about Onkar Chand applies also to two other connected appeals as
the facts are similar.
result, the appeals are allowed. We make it clear that notwithstanding out
allowing these appeals by upsetting the order of the Tribunal, the contesting
respondents shall not be affected by this judgment as the appellants are
interested only to have a ruling on the point in issue for application in the
other cases. No costs.