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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NOS. 9316-9320 OF 2013

Mrigank Johri & Ors.     ..Appellants Versus Union of India & Ors. …Respondents

           With  

Contempt Petition (C) Nos. 474-478 of 2014 in Civil Appeal Nos.9316-9320 of 2013

     With  

CIVIL APPEAL NOS. 8802-8806 OF 2017       (Arising out of SLP(C) Nos.35384-35388 of 2014)

  (With I.A.Nos.15-19/2015 for directions)

J U D G M E N T

SANJAY KISHAN KAUL, J.

Leave granted.

1. The appellants were appointed as Junior Engineers (Electrical) in

the All India Radio, New Delhi from time to time between 1987-1990.

On an option being invited for deputation as Junior Engineers to the

Electrical Wing of the Postal Department, the appellants opted for the

same and memorandums were issued for their deputation in 1996.

The initial period of deputation was two years but the appellants were

desirous  of  permanent  absorption  in  the  Department  of  Post

(hereinafter referred to as the ‘DOP’).

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2. The All India Radio had become an autonomous body, namely,

“Prasar Bharati” and it appears that some of the appellants thus did

not want to continue in the parent cadre. The option was, however,

available for the deputation to either go back to their parent cadre or

seek absorption, as they did, on terms and conditions to be specified

by  the  absorbing  department,  the  DOP.  The  request  made  by  the

appellant No.4 clearly state that they would abide by the terms and

conditions of absorption in the DOP. However, the other appellants in

their requests for absorption requested for their previous seniority and

service terms in the parent department to be preserved. It also appears

that  there  was  possibility  of  some  of  the  Junior  Engineers  to  be

declared  surplus  in  their  parent  department.  The  fact,  however,

remains that when ultimately the request for absorption by the DOP

was acceded to, it was on terms and conditions, specified and agreed

to by the appellants. The said terms and conditions are as under :-

(i) He/She will sever all connections with his/her parent  Ministry/Department.

(ii) He/She will not ask for repatriation to his/her parent  Ministry/ Department.

(iii) He/She will be deemed to be new recruits in the unit  to which he/she is ordered to be posted.

(iv) He/She will be given pay protection and his/her pay will  be regulated in accordance with the provisions in FR/SR,  and pay will be drawn as per CCA pay rules applicable to  DOP Civil Wing.

(v) His/Her will count for all purposes except his/her  seniority in the cadre.

(vi) He/She will move to the place of posting at his/her own

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cost. (vii) He/She will stand Junior to all JEs (C )/(E) who have  

already opted for DOP Civil Wing and those who have  joined the Postal Civil Wing before date of issue of  letter of his/her absorption in the Civil Wing of Deptt.  of Post.

(viii) He/She will count his/her seniority from the date of issue  of letter of permanent absorption in the Postal Civil Wing  unit to which he/she is ordered to be posted on  permanent absorption. However, the inter se seniority of  JEs absorbed from CCW, AIR, will be in accordance with  their seniority fixed by the AIR (Civil Construction Wing),  Ministry of I & B.

(ix) He/She will resign form his/her present post of JE (C)/(E)  from his/her parent department.  

(x) As a JE(C)(E) his/her transfer liability will be within the  jurisdiction of the Postal Civil/Elect. Circle in which  he/she is posted.”      

(emphasis supplied).   

The  aforesaid  terms  and  conditions,  so  far  as  the  present

controversy  is  concerned,  thus  clearly  set  out  that  the

appellants would be treated as “new recruits” and the service

will  be  counted  in  the  earlier  cadre  for  all  purposes  “except

his/her seniority in the cadre”. There was no murmur of protest

at the relevant time.  

3. However,  after  a  couple  of  years,  the  appellants  made

representations seeking to consider their deputation period for fixing

the  seniority  but  such  a  request  was  not  accepted.  It  is  on  the

occasion  of  finalization  of  the  seniority  list  that  the  appellants

approached the Central Administrative Tribunal, Principal Bench, New

Delhi  by  filing  OA  No.1490  of  2004  under  Section  19  of  the

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Administrative  Tribunal  Act,  1985  seeking  to  contend  that  the

appellants  were  compelled  to  accept  the  terms  and  conditions  of

absorption  on  a  permanent  transfer  basis  while  joining  the  Postal

Department and that such terms and conditions were totally arbitrary,

illegal and against the provisions of the Constitution of India, being

opposed to public policy. The ground of challenge, inter alia, raised the

plea of violation of Articles 14 and 16 of the Constitution of India and

sought  to  rely  on  the  guidelines  contained  in  OM No.9/II/55-RPS

dated 22.12.1959 which reads as under :-

“(iv)  In the case of a person who is initially taken on

deputation  and  absorbed  later,  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  also

should be taken into account in fixation of his seniority

subject to the condition that he will be given seniority

from  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.”

4. The plea of the appellants before the Tribunal was that the date

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of  seniority  would  be  from the  date  of  deputation  but  in  case  the

person was already holding the same or equivalent grade on a regular

basis  in  his  parent  department,  such  regular  service  in  the  grade

should also be counted. The stand of the appellants was that they

were  already  holding  the  post  of  Assistant  Engineer  in  the  parent

department on a regular  basis.  The expression “whichever  is  later”

was, however, struck down in  SI Rooplal & Anr. Vs. Lt. Governor

through  Chief  Secretary,  Delhi  &  Ors.1 and  thus  OM  dated

22.12.1959  was  modified  by  OM  No.20011/1/2000-Estt.(I)  dated

27.3.2001  by  replacing  it  with  “whichever  is  earlier”  and  these

instructions were to take effect from 14.12.1999. However, insofar as

the relief is concerned, the same was only for quashing the seniority

list  published  on  5.1.2004  with  a  declaration  that  the  appellants’

seniority should be reckoned in the Postal Electrical Department from

the date on which they joined the service in All India Radio, as well as

in  DOP,  on  regular  basis.  There  was  no  specific  prayer  made  for

quashing the terms and conditions contained in the absorption letter.  

5. The aforesaid aspect is of some significance, since, if the terms

and conditions of  the  absorption letter  were sought  to  be  quashed

(which is really the grievance as the seniority list was a sequitur to the

same), the bar of limitation of one year would stare in the face in view

1 (2000) 1 SCC 644

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of Section 21 of the Administrative Tribunals Act, 1985.

6. The  counter  affidavit  filed  by  the  DOP  opposed  the  petition

primarily on the ground that the deputationists were absorbed as per

the terms and conditions accepted by them given in the application

and the seniority had been fixed accordingly. The draft seniority list

was  issued  on  20.8.2002  and  the  final  seniority  list  was  only

published thereafter on 5.1.2004. The plea of any compulsion on the

appellants  by  the  respondent  Department  to  accept  the  terms and

conditions for absorption were denied.  

7. The  Tribunal  by  a  judgment  dated  30.8.2005  allowed  the

application with the direction to re-draft the seniority list counting the

regular  service  of  the  appellants  on  the  analogous  post  of  Junior

Engineer in the lending department of All India Radio preceding their

deputation as also the period spent on deputation till their permanent

absorption. The Tribunal took note of the fact that apparently there

was also a modified seniority list on 16.2.1974 but the position of the

appellants  had  not  changed.  Reliance  was  placed  on  the  OM

No.20020/7/80-Estt.(D)  dated  29.5.1986,  judgment  in  SI  Rooplal

case (supra) and the modified OM dated 27.3.2001 to come to the

conclusion that the fixation of seniority of the appellants was thus in

contravention of the ratio of the said judgment and was violative of

Articles 14 and 16 of the Constitution of India and was thus liable to

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be  quashed.  The  Tribunal  also  took  note  of  the  judgment  in

K.Madhavan vs. Union of India2 where it was opined that there was

not much of  a  difference between the deputation and transfer  and

thus  it  would  be  against  all  rules  of  service  jurisprudence,  if  a

Government Servant holding a particular post was transferred to the

same or equivalent post in another Government Department and the

period of his  service in the post before his transfer was not taken into

consideration in computing his seniority in the transferred post, thus

the transfer could not wipe out his length of service in the post from

which he had been transferred.

8. The aforesaid judgment of the tribunal was assailed before the

Delhi  High  Court  by  some  of  the  affected  persons  who  were  the

interveners  and  were  directly  recruited  as  Junior  Engineers  in  the

Department of Post during the year 1998. In terms of the judgment

dated 6.7.2011 the Division Bench of the High Court allowed the writ

petition and set aside the direction of the Tribunal.    

9. The rationale of the view taken by the High Court is as under :-

(a) The recruitment to the post of Junior Engineer (Civil) in Civil  Wing in the DOP was as per the DOP Junior Engineer (Civil)  in the Civil Wing Rules, 1995 framed on 20.1.1995 and  published in the gazette on 2.12.1995 under the powers  conferred by the proviso to Article 309 of the Constitution of  India. The method of recruitment to the post of Junior  Engineer was by only two modes – 83.33% by direct  recruitment, through an All India Open Competitive  

2 (1987) 4 SCC 566

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Examination and 16.66% by promotion, through a  departmental competitive examination. This was apparent  from Column 11 of the said Rules. The appellants had not  been appointed by any of the two modes. There was,  however, a provision for relaxation of the Rules with the  Central Government.  

(b)The appellants herein could not be permitted to seek reliance on Column 12 which was for recruitment by promotion or  deputation or transfer and deputation was one of the  methods specified therein. This was so, as, if the mode of  recruitment by deputation is not prescribed in Column 11,  then, Column 12 could not be relied upon. No order has been produced under Rule 5 for relaxation by the Central  Government.  

(c) The office memorandum dated 29.5.1986, as modified, would have application only if the recruitment rules provide for  deputation to be observed as a mode of recruitment.

(d)The appellants have consciously given their consent for  absorption with the looming possibility of them being  rendered surplus in All India Radio and could not assail at a  subsequent date, the terms of absorption. The High Court  placed reliance of the judgment in Union of India & Ors.  Vs. Deo Narain & Ors.3  holding that employees who  voluntarily and unilaterally seek transfer forgoing their  seniority and join another cadre with open eyes and are  placed below the employees working in the transferred cadre, cannot make a grievance later on regarding their seniority.  

10. The appellants aggrieved by the said judgment preferred SLP (C)

Nos. 29634-29638 of 2011 which after grant of leave were registered

as the present appeals. In order to obviate the imminent possibility of

reversion of the appellants as they had earned the promotion in the

meantime,  interim  orders  were  passed  on  25.2.2013  staying  the

reversion of the appellants till final disposal.

11. Before dealing with the merits of the controversy before us, it is

3 2008) 10 SCC 84

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necessary to note that the respondent authority initially filed a counter

affidavit  before  this  Court  on  16.2.2012  seeking  to  support  the

appellants but subsequently that counter affidavit was sought to be

withdrawn  and  replaced  with  another  counter  affidavit  vide

I.A.Nos.21-25 of 2015. The new counter affidavit sought to be brought

on  record  was  more  or  less  inconformity  with  the  stand  of  the

respondent authorities before the Tribunal. It may also be noted that,

as informed, no counter affidavit was filed before the High Court by

the respondent authorities. It is in these circumstances that we are of

the view that the stand sought to be taken afresh by the respondent

authorities  is  liable  to be brought on record,  being consistent  with

their original stand and the applications are accordingly ordered. Of

course, it is not clear as to what was the reason for the earlier counter

affidavit which was in divergence with the stand before the Tribunal.

12.  Mr. K.Radhakrishnan, learned senior counsel appearing for the

appellants sought to support the judgment of the tribunal and assail

the judgment of the High Court by seeking to rely on the OM dated

29.5.1986 as modified by OM dated 27.3.2001, post the judgment in

SI Roop Lal & Anr. (supra). He sought to contend that the ratio of the

said judgment would squarely apply in the facts of the present case

and thus the tribunal had rightly quashed the seniority list.

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13. The second limb of his submission was based on Column 12 of

the said Rules. In order to appreciate this controversy, it is necessary

to reproduce the extracts of the said Rules – “New Delhi, the 21st November, 1995.  G.S.R.522- In exercise of the powers conferred by  

the provision to article 309 of the Constitution,  

the President hereby makes the following Rules  

regulating the method of recruitment to the post  

of Junior Engineer (civil) in Civil Wing of the  

Department of Post, namely :- 1.  Short title and Commencement – (1) These  

Rules may be called the Department of Post  

Junior Engineer (Civil) in Civil Wing] Rules, 1995. (2) They shall come into force on the date of their  

publication in the Official Gazette.  

3. Method of Recruitment, Age limit and  

Qualifications etc. – The method of recruitment,  

age limit, qualification and other matters relating  

thereto, shall be as specified in the columns 5 to  

14 of the Schedule aforesaid.  5. Power to relax – Where the Central Government  

is of opinion that it is necessary or expedient so to

do it may, by order for reasons to be recorded in  

writing, relax any of the provisions of these rules  

with respect to any class or category of persons.”  

Method of Recruitment whether by direct  recruitment or by promotion or by deputation  or transfer and percentage of the vacancies to  be filled by various methods :  

Col.11 – (i) 83 1/3% by direct recruitment through

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All India Open Competitive Examination  

conducted by the Department of Post/Telecom  

and  

(ii) 16.2/3% by promotion through departmental  

competitive Examination.  

In case of recruitment by promotion or  deputation or transfer, grade from which  promotion or deputation or transfer to be  made.  

Col.12 – Promotion : …….…            …………………            Deputation :  Official under Central Government : (i) Holding analogous posts on regular basis ; or (ii) With 5 years regular service in the pay scale  

of Rs.1400-2300 as Junior Engineer (Civil).  

Transfer : Officials under Central Government  holding analogous post. ….

14. The rationale of the view adopted by the High Court was thus

assailed  on  the  ground  that  Column  12  provided  for  employment

through the mode of deputation for officials holding an analogous post

on regular basis.

15. The third limb of his submission was that the Ernakulum Bench

of  Central  Administrative  Tribunal  in  T.Vijaykumar  &  Anr.  Vs.

Union of India & Ors.4 had dealt with some issues qua absorption of

Junior  Engineers  in  the  DOP  who  were  identically   absorbed  on

28.8.2000. A similar plea raised before the Tribunal found favour with

4  O.A.No.734 of 2002 -  Decided on 15.4.2005

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the Tribunal. The stand the department made before the tribunal, that

the  terms  and  conditions  of  absorption  having  been  consciously

agreed upon, could not be violated, was repelled. It was also noted in

the said judgment that the order of absorption did not mention that it

was in public interest or not and thus any absorption, unless contrary

is mentioned, would be in public interest. The absorption was against

the unfilled vacancy and thus no other senior or junior appointed by

the Department would be sacrificing his legitimate seniority to make

way  for  the  absorbee,  as  those  aggrieved,  had  not  joined  the  Post

Department by that time. It appears that against this judgment, no

appeal was filed.

16. The fourth limb of the submission connected with the same is in

case of  Shri  B.K.Singh, a Junior Engineer,  wherein an order dated

2.11.2006  was  issued  giving  him  seniority  and  thus  it  would  be

discriminatory not to give the same benefit to the appellants. It may,

however, be noted that at this stage itself that the said order was a

sequitur to the judgment of the tribunal (Ernakulum Bench) and it is

stated that the authorities were facing contempt proceedings.

17. Learned senior counsel for the appellants while relying upon the

judgment in SI Rooplal (supra) drew our attention to Para 19 of the

observations which reads as under  :-

“19.…………….It is to be noted that the law in

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regard to the right of a deputationist to count his

service  for  the  purpose  of  seniority  in  the

transferred department was settled as far back as

in  the  year  1982  itself  in  the  cases  of

R.S.Makashi and Wing Commander J. Kumar (if

not earlier). Therefore, it is reasonable to expect

that a deputationist, when his service is sought

to  be  absorbed  in  the  transferred  department

would certainly have expected that his seniority

in the parent department would be counted. In

such a  situation,  it  was  really  the  duty  of  the

respondents, if at all the conditions stipulated in

the  impugned memorandum were  applicable  to

such persons, to have made the conditions in the

memorandum known to the deputationist before

absorbing  his  services,  in  all  fairness,  so  that

such a deputationist would have had the option

of  accepting  the  permanent  absorption  in  the

Delhi Police or not. The very fact that such steps

were  not  taken  shows  that  this  memorandum

was,  in fact,  never  acted upon.  Apart  from the

above  question  of  equity,  the  appellants  have

challenged the constitutional validity of the above

memorandum  on  the  ground  that  the  same

violates Articles 14 and 16 of the Constitution.”    

A reference was also made to Paras 22 and 23 which reads as under:-

“22. However, in that case this Court instead of striking down the said Regulation, upholding the

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contention that a deputationist is entitled to count

his seniority when absorbed in the deputed post,

observed thus: “When  the  Commission  finally  takes  a

decision  to  permanently  absorb  these

deputationists  after  obtaining  their  option  the

question  of  their  inter  se  seniority  in  the

Commission crops up and Regulation 9(2) deals

with the said situation. In the case of R.S.Makashi

vs. I.M.Menon this Court had indicated that it is a

just  and wholesome principle  commonly applied

to  persons  coming  from  different  sources  and

drafted  to  serve  a  new  service  to  count  their

pre-existing length of service for determining their

ranking  in  the  new  service  cadre.  The  said

principle  was  reiterated  by  this  Court  in

K.Madhavan case. A three-Judge Bench judgment

of this Court in the case of Wing Commander J.

Kumar  also  reiterated  the  aforesaid  well-known

principle in the service jurisprudence,…..……..”    23. It  is  clear  from the  ratio  laid  down in  the above case that any rule, regulation or executive

instruction which has  the  effect  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.

Since the impugned memorandum in its entirety

does  not  take  away  the  above  right  of  the

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deputationists and by striking down the offending

part of the memorandum, as has been prayed in

the writ petition, the rights of the appellants could

be  preserved,  we  agree  with  the  prayer  of  the

appellant-petitioners and the offending words in

the memorandum “whichever is later” are held to

be  violative  of  Article  14  and  16  of  the

Constitution,  hence,  those  words  are  quashed

from  the  text  of  the  impugned  memorandum.

Consequently,  the  right  of  the

appellant-petitioners  to  count  their  service  from

the date of their regular appointment in the post

of  Sub-Inspector  in  BSF,  while  computing  their

seniority in the cadre of Sub-Inspector (Executive)

in the Delhi Police, is restored.”    

18. The  sole  purpose  of  referring  to  Union  of  India  vs.  Kuldip

Singh Permer & Ors.5 was to bring to our notice that the same issue

has been discussed also in this case.

19. Learned senior counsel also refers to the observations in Central

Inland Water Transport Corporation Ltd. & Anr. vs. Brojo Nath

Ganguly & Anr.6 on the  issue  of  consent  of  the  agreement  being

obtained by coercion, fraud and misrepresentation. We may, however,

clarify at this stage that really speaking, no factual matrix has been

laid for this proposition and no details of any coercion have been really

5 2003 (9) SCC 472 6  (1986) 3 SCC 156

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brought forth.

20. On  the  other  hand,  learned  counsel  appearing  for  the

private respondents sought to support the impugned judgment of the

High Court and referred to the observations where the High Court had

noticed the terms and conditions accepted by the appellants for their

permanent absorption in the DOP. In such a situation, it could not be

said that such terms and conditions were violative of Articles 14 and

16 of the Constitution of India and the consent so obtained was not

tainted by any compulsion and the option to go back to the parent

cadre remained. It is in furtherance of their career prospects that the

appellants,  it  was contended,  preferred to be  absorbed in the  DOP

forgoing the seniority rather than go back to their parent department.

21. Learned  counsel  contended  that  the  aforesaid  issue  was  no

longer res integra in view of the subsequent judgment of this Court in

Indu Shekhar Singh & Ors. vs. State of U.P. &Ors.7. The question

examined was whether the terms and conditions imposed by the State

in the matter of absorption could be said to be ultra vires Article 14 of

the Constitution of India. The offer had been made by the State not in

terms of any specific powers under the Rules, but in exercise of its

residuary power and thus the State was right to impose conditions, as

the absorbees had exercised their right of election. We may usefully

7 (2006) 8 SCC 129

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referred to Paras 25, 26, 31, 47, 48 and 55 which are as under :  

“25.  The  State  was  making  an  offer  to  the respondents  not  in  terms  of  any  specific  power

under  the  Rules,  but  in  exercise  of  its  residuary

power (assuming that the same was available). The

State,  therefore,  was  within  its  right  to  impose

conditions. The respondents exercised their right of

election. They could have accepted the said offer or

rejected the same. While making the said offer, the

State  categorically  stated  that  for  the  purpose  of

fixation of seniority, they would not be obtaining the

benefits of services rendered in the U.P. Jal Nigam

and would be placed below in the cadre till the date

of absorption. The submission of Mr Verma that the

period for  which they  were  with the  Authority  by

way  of  deputation,  should  have  been  considered

towards seniority cannot be accepted simply for the

reason that till they were absorbed, they continued

to  be  in  the  employment  of  the  Jal  Nigam.

Furthermore, the said condition imposed is backed

by  another  condition  that  the  deputed  employee

who is seeking for absorption shall be placed below

the officers appointed in the cadre till  the date of

absorption. Respondents 2 to 4 accepted the said

offer without any demur on 3-9-1987, 28-11-1991

and 6-4-1987 respectively.

26. They,  therefore,  exercised their  right  of  option. Once they obtained entry on the basis of  election,

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they cannot be allowed to turn round and contend

that  the  conditions  are  illegal.  (See R.N.

Gosain v. YashpalDhir [(1992)  4  SCC  683]

RamankuttyGuptan v. Avara [(1994)  2  SCC  642]

and Bank of  India v. O.P.  Swarnakar [(2003)  2  SCC

721 : 2003 SCC (L&S) 200] .) Furthermore, there is

no fundamental right in regard to the counting of the

services rendered in an autonomous body. The past

services can be taken into consideration only when

the  Rules  permit  the  same  or  where  a  special

situation exists, which would entitle the employee to

obtain such benefit of past service.

31. Absorption  of  the  deputationists,  on  the  other hand,  would depend upon an arrangement,  which

may be made by the State being not a part of the

statutory  rule.  They  would,  thus,  be  borne  in  the

cadre  in  terms  of  the  directions  of  the  State  in

exercise of its residuary power.

47. The decisions referred to hereinbefore, therefore, lay  down  a  law  that  past  services  would  only  be

directed  to  be  counted  towards  seniority  in  two

situations:  (1)  when  there  exists  a  rule  directing

consideration  of  seniority;  and  (2)  where

recruitments  are  made  from  various  sources,  it

would be reasonable to frame a rule considering the

past services of the employees concerned.

48. The said decisions, in our considered view, have no  application  in  this  case,  having  regard  to  the

provisions of Section 5-A of the Act, in terms whereof

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no provision exists for recruitment of deputationists.

Recruitment  of  deputationists,  in  fact,  is  excluded

therefrom.

55. It was thus, open to the respondents herein not to agree to in spite of the said conditions as they had

already  been  working  with  a  statutory  authority;

they,  however,  expressly  consented to  do so.  They

must have exercised their option, having regard to

benefits to which they were entitled to in the new

post.  Once  such  option  is  exercised,  the

consequences  attached  thereto  would  ensue.

(See HEC  Voluntary  Retd.  Employees  Welfare

Society v. Heavy Engg. Corpn. Ltd. [(2006) 3 SCC 708

: 2006 SCC (L&S) 602 : JT (2006) 3 SC 102] )”

22. It was emphasized that Column 11 of the said Rules providing for

recruitment does not provide for the option of deputation and thus

also the aforesaid observations would squarely apply.

23. Learned counsel submitted that there were different sources of

recruitment  for  different  posts.  For  example,  in  case  of  senior

draughtsman (electrical), 100% recruitment was by promotion failing

which  it  would  be  by  deputation/transfer.  It  was  specifically

mentioned  that  the  benefit  of  added  years  of  service  would  be

available.  Thus,  wherever  the  recruitment  was  by  way

deputation/transfer, it was so mentioned, which was not the case for

recruitment as Junior Engineer (Electrical).

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24. Learned counsel referred to Union of India & Ors. vs. Deo

Narain (supra) to buttress the submission that while taking length of

service/qualifying service  in  case of  transfer  from one cadre  to the

other of his own request, there could be loss of seniority. Eligibility

and  seniority  are  two  different  concepts  and  thus  completion  of

combined qualifying service in previous and new cadres might render

an  employee  eligible  to  the  considered  for  promotion but  does  not

entitle such an employee to be promoted by jumping over his seniors

in new cadre.

25. Learned senior counsel appearing for the UOI/Department also

sought to support the impugned judgment and submitted that their

revised counter affidavit which sought to replace the original counter

affidavit was consistent with their stand before the Tribunal.

26.   Learned counsel drew our attention to Annexure P-7, which is a

note of the Civil Engineer Wing, Department of Postal Services. The

note records that there are only two sources of recruitment i.e. direct

recruitment  and  departmental  examination.  The  open  competitive

examination had not been held and a one-time relaxation to conduct

the examination by the SE (Co-ordination) could also not be obtained.

The work was thus being carried out by Junior Engineers who were on

deputation from the D.O.T. A few were optees to the Postal Civil Wing

and a few were on deputation from the Civil Construction Wing, AIR.

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The Member (P) of the D.O.T. had taken up the matter of repatriation

with Member (D), DOP and it was committed that all Junior Engineers

(Civil/Elect.)  on  deputation  from  DOT  would  be  repatriated  by

31.3.1999, which would create a void. Simultaneously,  applications

for permanent absorption were being received from Junior Engineers

(Civil/Elect.) on deputation from CCW, AIR and thus this matter was

taken  up  with  their  parent  department.  Since  the  permanent

absorption  of  these  Junior  Engineers  would  give  the  DOP a  slight

respite from the dismal position, it was proposed to give its consent in

principle for absorption on permanent basis. It is thereafter that the

DOP  issued  the  above  memorandum  dated  9.11.1999  annexed  at

Annexure P-8 towards the objective on the terms and conditions given

in the annexure which were thus made applicable.

27. The  whole  process,  it  was  thus  contended,  was  with  a  clear

understanding of the terms and conditions on which such absorption

was  to  take  place.  In  fact  one  of  the  Junior  Engineers,  P.David

Adaikala Raj opted for repatriation to his parent department with the

All India Radio on completion of deputation.

28. We  have  given  our  careful  consideration  to  the  rival

contentions made elaborately on both sides.

29. The contentions may be elaborate but the crux of the issue

is whether the OMs referred to aforesaid which generally provide for

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the benefit of service rendered in the previous cadre in an equivalent

post on being absorbed in another department would apply to a case

where the absorption is on specified terms and conditions with the

benefit of such past service in the previous cadre as well as the period

of service rendered on deputation being denied ?

30. Our answer to this query is in the negative for which we proceed

to pen down reasons.

31. It is no doubt true that the OM dated 29.5.1986 as modified

by OM dated 27.3.2001 did provide  for  the  benefit  of  the  previous

service rendered in the cadre. This is in effect also the ratio of the

judgment in SI Rooplal case (supra). This would also be inconformity

with the normal service jurisprudential view. However, it would be a

different  position  if  the  absorbing  department  clearly  stipulates  a

condition  of  giving  willingness  to  sacrifice  the  seniority  while

preserving  all  other  benefits  for  the  absorbee  (which  are  accepted)

failing which the option was available to the absorbee to get himself

repatriated to the parent department. The terms and conditions are

categorical in their wording that the absorbees would be “deemed to be

new  recruits”  and  the  previous  service  would  be  counted  for  all

purposes  “except  his/her  seniority  in  the  cadre”.  The  appellant

accepted this  with open eyes and never even challenged the same.

Their representations to give them the benefit of their past seniority

23

was also  turned down and thereafter  also  they  did  not  agitate  the

matter in any judicial forum. The controversy was thus not alive and it

was not open for them to challenge the same after a long lapse of

period of time. In fact on the day of filing of the OM, any prayer to set

aside the terms and conditions of absorption would have been clearly

barred by time under Section 21 of the Administrative Tribunals Act,

1985.

32. The  appellants  sought  to  rake  up  the  issue  only  when  the

seniority list was finalized. This was preceded by the draft seniority

list.  Whatever  may  be  the  dispute  of  seniority  qua other  persons,

insofar as the appellants were concerned, their seniority was based on

the  terms  and  conditions  of  their  absorption.  The  position  of  the

appellants in the seniority list was thus a sequitur to the terms and

conditions of their absorption. We are of the view that it is precisely for

this reason, anticipating that their claim would be time barred, that a

challenge was laid only to the seniority list without challenging the

terms and conditions of absorption though in the grounds, a plea was

raised  against  the  terms  and  conditions  of  absorption.  Unless  the

terms and conditions of absorption were to be set aside, the seniority

list prepared was inconformity with the same.

33. Even otherwise, as noted above,  since the appellants accepted

the  terms  and  conditions  of  absorption,  they  could  not  plead

24

otherwise.

34.  We are in agreement with the submission of the respondents that

this  issue has been squarely  dealt  with in  Indu Shekhar Singh’s

case (supra) where almost identical issues have been dealt with by

holding that the State was within its right to impose conditions where

the employees had the option to exercise their right of election. The

entitlement was not under any rules but under what was called the

residuary power.

35.     The High Court,  in our view, rightly interpreted the Rules

extracted aforesaid. The method of recruitment as per Rule 3, has to

be specified in Column 5 to 15 of the Schedule, while Rule 5 provides

for  power  of  relaxation.  Column  11  provides  for  the  method  of

recruitment - whether by direct recruitment, or by promotion, or by

deputation or transfer, and the percentage of the vacancies to be filled

by various methods. This may vary from post to post. For the Junior

Engineer (Electrical) post, the ratio is mentioned as 83.33 % by direct

recruitment  and  16.66%  by  promotion  through  a  departmental

competitive  examination.  The  office  note  regarding  the  absorption

dated 2.11.1998 also refers to the open competitive examination not

being held and the consequences thereof, with absorption of persons

like the appellants being envisaged to deal with the given situation,

but subject to the terms and conditions which were then set out in

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OM dated 9.11.1999.

36. It  was further rightly pointed out that whenever the post

could be filled by deputation as a method of recruitment it  was so

specifically provided, illustratively in the case of a senior draughtsman

(electrical). Column 12 deals with the scenario where the recruitment

method  provides  for  appointment  by  promotion,  on  deputation  or

transfer. Thus Column 12 would apply only if the mode of recruitment

was prescribed as per Column 11 which is not applicable in this case.

37.   It  is  true  that  the  failure  of  the  Government  to  assail  the

judgment  of  the  Ernakulum  Bench  did  create  a  situation  of

implementation of the OM as in the case of Shri Hari Singh but in view

of  the  judicial  pronouncement  by the  impugned order  which arose

from the Delhi Bench of the Tribunal, the legal position was settled at

the level of the High Court. We are thus of the view that the impugned

judgment cannot be faulted in its conclusion and for these reasons the

appeals stand dismissed.

38.     The  applications  for  direction  and  contempt  petition

accordingly stands closed.     

                                            …….….…………………….J.     [Abhay Manohar Sapre]

                    ..……………………………J.       [Sanjay Kishan Kaul]

New Delhi; July 10, 2017.