SHRI GOVINDA CHANDRA TIRIA versus SIBAJI CHARAN PANDA & ORS. on 5 February 2020

1. On the recommendation of the Staff Selection Commission,the respondent No.1 before us was so offered an appointment to thepost of Lower Division Clerk (LDC) Group C in the Ministry ofBEnvironment & Forests, Government of India, New Delhi in the payscale of Rs.950-1500/- vide letter dated 24.05.1993. In terms of thisletter of appointment, the head quarter of the work was at New Delhi,but the appointment carried with it a liability to serve anywhere in India.On completion of the period of probation of two years, the respondentCNO.1 made an application dated 22.07.1994 in pursuance to Circulardated 24.11.1993, seeking options from the staff for the post of LDC on“transfer on deputationbasis” initially for a period of one year, whichwas likely to be extended to a further period of maximum three years.The application of respondent No.1 was accepted and he joined theoffice of Deputy Conservator of Forests as LDC at Bhubaneshwar onD10.5.1994 in pursuance to his selection vide letter dated 12.04.1994.

2. In terms of the Circular dated 24.11.1993, respondent NO.1was granted the maximum number of extensions, for a period of threeyears, periodically after obtaining the no objection certificate from theCentral office at Delhi.E

3. In the course of the tenure of deputation, respondent No.1made a request for transfer on a permanent basis to the regional officeat Bhubaneshwar and vide letter dated 21.11.1994, from theCentral officeto the Easter Regional Office, MoEF, Bhubaneshwar, it was informedthat no further extension could be given to respondent No.1 and callingFupon the Bhubaneshwar Office to make its own recruitments. RespondentNO.1, however, persisted with his request and then sent a letter on22.09.1995, seeking the consideration of his case sympathetically. Therelevant part of this letter is extracted as under:

“That I am the only earning member of my family. My familyGdepends upon me both financially and physically. During postingat Delhi I had to send a major portion of my salary to my family.When I was far away from my home I was unable to attend theneeds of my family members. So I had to work under great mentaltension.

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Therefore, I request you to kindly consider my casesympathetically and allow me No Objection Certificate for myposting in any Central Govt. office located in Orissa.

In this connection, I request you to refer to my applications dated30.01.95 and 17.05.95 and request you to take necessary actionat any early date.”

4. On 05.09.1996, once again respondent No.1 made arepresentation to the Bhubaneshwar office for absorption on“compassionate grounds” as LDC (Hindi Typist) on transfer basis.The endeavour of respondent No.1 finally succeeded when an officememorandum dated 13.11.1996 was issued intimating him about theapproval of the competent authority for absorption on a transfer basis inthe Eastern Regional Office and seeking his consent on the terms andconditions set out in the letter. The said conditions are are under:

“(i) He should sever fully his link or lien with the CSCS cadre.

(ii) He will be treated as fresh appointee in the Eastern RegionalOffice, Ministry of Environment & Forests, Bhubaneswar and hewill be ranked junior most in the cadre of LDC in ERO, MOEF,after his appointment in this office.

(iii) His present posting shall be at Bhubaneswar (Orissa) but heis liable to be posted anywhere of India in this Ministry.

(iv) The transfer is at his own request and as such, he is notentitled to TTA/Joining time etc.

In case he is willing to accept all the conditions stipulated above,in addition to all the rules and regulations applicable to his grade inGovt. of India, he may please got relieved of his duties fromMinistry of Environment & Forest, New Delhi after completingall the required formalities and thereafter report for duty in theMinistry of Environment & Forests, Eastern Regional office,Bhubaneswar.”

5. The crucial aspect is that respondent No.1 was to be treated asa ‘fresh appointee’ in the Regional Eastern Office and rank junior mostin the cadre after his appointment to that office. He was called upon togive his willingness to all the conditions, which were duly accepted byrespondent No.1. He gave his technical resignation thereafter (annexureP-9) and consequently the office order dated 02.01.1997 was issued, A

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Arelieving him. He also addressed a letter on 31.01.197 giving hiswillingness in writing to transfer, on permanent absorption basis, on theterms and conditions specified under O.M. No.2-56/FCE dated13.11.1996, and accordingly joined.

6. On 08.03.2001, the provisional seniority list was circulated byBan office order of the even date, in terms whereof respondent No.1 wasshown at serial No.3, while the appellant was shown at serial No.2. Therespondent No.1 filed objections dated 12.03.2001 seeking to rely onO.M. No.AB-140171/89-Est(RR) dated 03.10.1989. This was despitehis consent as according to him the said O.M. would govern the termsof absorption and not his consent. The representation was rejected onC22.06.2001. The rejection takes note of the interim developments duringthis period of time, i.e. issuance of an office memorandum dated27.03.2001 arising from a judgment of this Court in Sub-InspectorRooplal & Anr. v. Lt. Governor Through Chief Secretary, Delhi &Ors[1]., in terms whereof the terms and conditions of O.M. No.20020/7/D80-Esst(D), dated 29.05.1986, were struck down to the extent it providedas under:- “- the date he has been holding the post on deputation or E- the date from which he has been appointed on a regular basis inthe same or equivalent grade in his parent department.

”whichever is later.

(emphasis supplied struck down)

The instructions were to take effect from 14.12.1999, which wasFthe date of the judgment of the Supreme Court (the latter part is not anaspect which we are examining). The final seniority list was publishedon 3.7.2001, maintaining the provisional seniority list and thus respondentNo.1 filed an Original Application NO.584/2001 before the CentralAdministrative Tribunal, Cuttack Bench challenging the seniority list onGthe ground that his seniority had been calculated in violation of Governmentof India circulars and guidelines issued from time to time, and his namehad been placed below two persons (including the appellant). This OriginalApplication was, however, dismissed by order dated 17.10.2003 basedon the counter affidavit filed by the Central Government to the effect H1 (2000) 1 SCC 644

that the latter part of the O.M. No.22011/7/86-Est.(D) would govern thepresent case as the absorption of respondent No.1 was not in publicinterest. The relevant clauses of O.A. No.20020/7/80-ESTT(D) dated29.05.1986 are being extracted hereunder:

“ NO. 20020/7/80-ESTT(D)

GOVERNMENT OF INDIA/BHARAT SARKAR,MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE ANDPENSIONS DEPARTMENT OF PERSONNEL & TRAINING

NEW DELHI, the 29[th] May, 1986

OFFICE MEMORANDUM

Subject:Seniority of persons absorbed after being on deputation.

The undersigned is directed to say that the existing instructions onseniority instructions on seniority of transferees contained in para -7 ofthe Annexure to this Department’s O.M. No.9/11/-55-RPS dated the22[nd] December, 1959 (copy enclosed) mainly deal with cases wherepersons are straight way appointed on transfer. It is, however, observedthat most of the cases of permanent absorption are those where theofficers were taken on deputation initially under the method of transferon deputation/transfer contained in the relevant recruitment rules. TheO.M. is intended to fill this gap in the existing instructions.

2. Even in the type of cases mentioned above, that is, where anofficer initially comes on deputation and is subsequently absorbed,the normal principle that the seniority should be counted from thedate of such absorption, should mainly apply. Where, however,the officer has already been holding on the date of absorption inthe same or equivalent on grade on regular basis in his parentdepartment, it would be equitable and appropriate that such regularservice in the grade should also be taken into account indetermining his seniority subject only to the condition that at themost it would be only from the date of deputation to the grade inwhich absorption is being made, it has also be ensured chart thefixationof seniority of a transfer in accordance with the aboveprinciple will not effect any regular promotions made prior to thedate of absorption. Accordingly, it has been decided to add the A

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following sub-para (iv) to para -7 of general principlescommunicated vide O.M. dated 22[nd] December, 1959.

“(iv) In the case of a person who is initially taken on deputationand absorbed later i.e. where the relevant recruitment rulesprovide for transfer on deputation/transfer, his seniority in thisgrade in which he be absorbed will normally be counted fromthe date of absorption. If he has, however, been holding alreadyfrom the date of absorption), the same is equivalents grade onregular basis in parent department, such regular services inthe grade shall also be taken into account in fixing his seniority,subject to the condition that he will be given seniority from B

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- the date he has been holding the post on deputation.

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- the date from which he has been appointed on a regular basisin the same or equivalent grade in his parent department.

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Whichever is later.

The fixation of seniority of transferee in accordance with the aboveprinciple will not, however, affect any regular promotions to the nexthigher 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 takingEplaces after such absorption.

In cases in which transfers are not strictly in public interest, thetransferred officers will be placed below all officers appointed regularly”to the grade on the date of absorption. (emphasis supplied)

We may repeat here that the expression whichever is later asappearing in the Circular stood modified in pursuance to the judgment ofthis Court in Sub-Inspector Rooplal (supra).

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7. The respondent No.1, aggrieved by the order of the CentralAdministrative Tribunal filed a Writ Petition before the Orissa High CourtGunder Articles 226 and 227 of the Constitution of India, being Writ PetitionNo.1645/2004, which was allowed vide judgment dated 22.08.2008,directing a fresh gradation list of LDC to be drawn and to consider thecase of respondent No.1 for promotion to the post of UDC, if he is soentitled. The judgment took note of the opinion of this Court in Sub-Inspector Rooplal (supra) and simultaneously also took note of the H

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conditions imposed at the time of absorption of respondent No.1, whichhad been accepted by respondent No.1 as “the only hurdle”. Thereafter,it proceeded to record its reasons in para 11:

“The learned Assistant Solicitor General has not been ableto place any rule/circular/office memorandum to show that if anemployee is to be permanently absorbed in the borrowingdepartment he has to accept the bottom most seniority in the cadre.In absence of anything in support of such condition, we are of theview that imposition of such condition on contrary to the officememorandum dated 29[th] May 1986 and 27[th] March 2001 and,therefore, the petitioner cannot be bound by that. Since we are ofthe view that the seniority of the petitioner in the cadre of LDC inthe Eastern Regional Office is to be reckoned from the date hejoined on deputation in the office of opposite party No. 2, thegradation list prepared for LDC is liable to be set aside and,therefore, a fresh gradation list is required to be drawn.”

8. The appellant, his seniority being disturbed thus, approachedthis Court, though the Union of India did not approach this Court. Leavewas granted on 16.04.2010, and the matter is listed before us,unfortunately, after almost a decade.

9. We have heard learned counsel for parties.

10. In sum and substance, there are really two submissions onbehalf of the appellant – a) the terms of the absorption of respondentNo.1 itself stipulated that his seniority would rank below the others, andhaving accepted the terms and conditions of absorption, he cannot bepermitted to resile from the same, and consequently affect the seniorityof the appellant, b) the High Court fell into error while observing in para11 that the office memorandum dated 29.05.1986 and 27.03.2001 willprevail, and that in those memorandums, there was nothing which couldaffect the seniority of respondent No.1 from his initial date of appointmentat Delhi.

11. The second aspect is assailed on the basis that the crucialaspect of extracted O.M. dated 29.5.1986 has not been considered i.e.that such seniority would not be available in cases in which transfers are“not strictly in public interest”. This was a pre-condition. The factthat the department wanted respondent No.1 to go back to his parentcadre, the communication substantiated the same. It was the insistence A

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Aof respondent No.1, by way of repeated representations, which resultedin the office order for his absorption on the terms and conditions set outin the said office order dated 13.11.1996. Thus, such an observation canhardly be stated to be “strictly in public interest”, much less in publicinterest. This is also the stand of the Union of India taken in the counteraffidavit filed in the Court below.B

12. Learned counsel for respondent No.1 endeavoured to persuadeus to the contrary by referring to the judgment of this Court in Sub-Inspector Rooplal (supra). We may note that all principles of law arisein the given factual situation. If we consider the factual situation of thatcase, which had quashed a part of OM No.20020/7/80-ESTT (D) datedC29.5.1986 insofar as it provided for ‘whichever is later’, and replacedit with ‘whichever is earlier’, we are faced with a scenario where thepolice authorities, with a view to strengthen their existing security systemin the capital, had created 12 new police stations in Delhi, and the postswere required to be filled in the shortest possible time so that there wasDan immediate impact on the law and order situation in Delhi. As the normal course of recruitment would take a longer period of time, in viewof the urgent need of the hour, a decision was taken for suitable personsto be deployed on deputation basis to the ranks of Inspector, Sub-Inspector, Assistant Sub-Inspector, Head Constable, Constable andDriver. The request letter also stated that those officials taken onEdeputation were likely to be considered for permanent absorption afterone year, if found suitable.

13. The opinion of this Court was that such deputationists werepermanently absorbed but were not being given the benefit of service ofequivalent post, and that they should have been so conveyed in order toFmake an informed choice of whether to seek or not to seek permanentabsorption i.e. there had to be full disclosure and transparency in respectof the terms and conditions of the absorption. It was not a case of requestfor absorption, but, the exigencies of service, and that too, without puttingthem to notice of this fact.G

14. The facts of the present case are completely to the contrary.Despite departmental communications wanting respondent No.1 to goback to the parent cadre it is respondent No.1’s insistence and persuasionwhich prevailed, with the department absorbing respondent No.1 withthe terms and conditions aforementioned. One of the terms and conditionsHwas that seniority would be counted from the date of absorption and respondent No.1 accepted the same. That absorption was neverchallenged in any proceeding, nor the terms thereof, when he was treatedas a fresh appointee. It is only when the seniority list was circulated thatthe challenge was sought to be made to the seniority list, in an obliquemanner, and the terms and conditions of the absorption were sought tobe assailed. This is not permissible.

15. Learned counsel for the appellant has also drawn our attentionto the judgment of this Court in Mrigank Johri & Ors. v. Union ofIndia & Ors.[2], wherein it has been held that benefit of past servicerendered in a cadre is usually reckoned for the purpose of seniority. Inthe instant case, where the conditions were categorically stated that theabsorption would be “deemed to be new recruitment” and the previousservice would be counted for all purposes “except his or her seniorityin the cadre”, appellant having accepted it without any demur, theseniority list prepared as a sequitur to the terms and conditions of theabsorption could not be faulted with.

16. This principle applies on all fores to the facts of the presentcase. Learned counsel for the appellant has also rightly contended thatthe plea based on the fact that the appointment of respondent No.1 waswith a provision for transfer would not assist the said respondent as thepresent case is not one of transfer but of deputation, in pursuance to anO.M. and thus, the principle of a person moving to another cadre wouldsquarely apply. Such depute would also, thus, have to be governed bythe terms and conditions of such absorption.

17. In this behalf we may note OM NO. 20020/7/80-ESTT(D),which,in para 2 sets out that when an officer initially comes on deputation,and is subsequently absorbed, the normal principle that seniority shouldbe counted from the date of such absorption, should mainly apply. Thiswas, however, subject to the caveat of the O.M. dated 22[nd] December,1959, which states that if such a person is absorbed in an equivalentgrade on a regular basis in the parent department, such regular servicesin the grade should also be taken into account in fixing his senioritysubject to the condition that it would be from the date he had been holdingthe post on deputation or from the date he had been appointed on regularbasis in the same or equivalent grade in his parent department “whicheveris later”, which was amended to make it “whichever is earlier”.

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18. Thus, normally the deputation would be counted, but this wasfurther made subject to the caveat that in case the transfers are notstrictly in public interest, the transferred officers will be placed below allappointed regularly to the grade on the date of absorption. It is the latterclause which will apply as this was not a case “strictly in public interest”.

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B19. We are thus, of the view that the impugned judgment cannotbe sustained and has to be set aside.

20. We must note with some regret that the Union of India, havingtaken a categorical stand before the Central Administrative Tribunal,endeavoured to possibly help respondent No.1 by filing a counter affidavitCbefore this Court, endeavouring to take a slightly different position byobserving “however, it is true that the MoEF objected to hiscontinuance in the office of the Res-3 many times but extension wasgranted base on the request from office of the Res-3”. To say theleast, the Union of India should be conscious while preferring affidavits,and if they want to change the stand, they must give reasons for theDsame. The manner of wording the affidavit seems to be an obliqueattempt and we are of the view that a closer scrutiny is necessary by theDepartment as to how such a counter affidavit was placed before us.

21. We are, however, faced with a situation that in the meantime,respondent No.1 has earned promotions, and is now deployed to theEpost of Assistant. The long pendency of litigation has resulted in a scenariowhere the effect of the aforesaid order would be possibly to demotehim. We are conscious that the promotions given to him were subject tothe result of the proceedings, as intimated to him by the department.This would be rather harsh. Thus, while the seniority list would bemaintained, we are of the view that respondent No.1 may not be demoted,Fand an ex-cadre/supernumerary post should be created to keep him inthe same post without affecting the seniority list.

22. The appeals are accordingly allowed leaving the parties tobear their own costs.

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Nidhi Jain

Appeals allowed.

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