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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

   CIVIL APPEAL NOS.3542-3543/2010

SHRI GOVINDA CHANDRA TIRIA                         Appellant(s)

                               VERSUS

SIBAJI CHARAN PANDA & ORS.                         Respondent(s)

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. On the recommendation of the Staff Selection Commission, the

respondent No.1 before us was so offered an appointment to the post

of  Lower  Division  Clerk  (LDC)  Group  C  in  the  Ministry  of

Environment & Forests, Government of India, New Delhi in the pay

scale of Rs.950-1500/- vide letter dated 24.05.1993.  In terms of

this letter 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 respondent NO.1 made an application dated 22.07.1994 in

pursuance to Circular dated 24.11.1993, seeking options from the

staff  for  the  post  of  LDC  on  “transfer  on  deputation basis”

initially for a period of one year, which was likely to be extended

to a further period of maximum three years.  The application of

respondent No.1 was accepted and he joined the office of Deputy

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Conservator  of  Forests  as  LDC  at  Bhubaneshwar  on  10.5.1994  in

pursuance to his selection vide letter dated 12.04.1994.

2. In terms of the Circular dated 24.11.1993, respondent NO.1 was

granted the maximum number of extensions, for a period of three

years, periodically after obtaining the no objection certificate

from the Central office at Delhi.   

3. In the course of the tenure of deputation, respondent No.1

made a request for transfer on a permanent basis to the regional

office at Bhubaneshwar and vide letter dated 21.11.1994, from the

Central office to the Easter Regional Office, MoEF, Bhubaneshwar,

it  was  informed  that  no  further  extension  could  be  given  to

respondent No.1  and calling upon the Bhubaneshwar Office to make

its own recruitments.  Respondent NO.1, however, persisted with his

request  and  then  sent  a  letter  on  22.09.1995,  seeking  the

consideration of his case sympathetically.  The relevant part of

this letter is extracted as under:

“That  I  am  the  only  earning  member  of  my  family.  My

family depends upon me both financially and physically.

During posting at 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 the needs of my family members. So

I had to work under great mental tension.

Therefore,  I  request  you  to  kindly  consider  my  case

sympathetically and allow me No Objection Certificate for

my posting in any Central Govt. office located in Orissa.

In  this  connection,  I  request  you  to  refer  to  my

applications dated 30.01.95 and 17.05.95 and request you

to take necessary action at any early date.”

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4. On  05.09.1996,  once  again  respondent  No.1  made  a

representation  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 office

memorandum dated 13.11.1996 was issued intimating him about the

approval of the competent authority for absorption on a transfer

basis in the Eastern Regional Office and seeking his consent on the

terms and conditions 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  Regional  Office,  Ministry  of  Environment  &

Forests, Bhubaneswar and he will 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 he is liable to be posted anywhere of India

in this Ministry.

(iv) The transfer is at his own request and as such,

he is not entitled 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 in Govt. of India, he

may please got relieved of his duties from Ministry of

Environment & Forest, New Delhi after completing all the

required formalities and thereafter report for duty in

the Ministry of Environment & Forests, Eastern Regional

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office, Bhubaneswar.”

5. The crucial aspect is that respondent No.1 was to be treated

as a ‘fresh appointee’ in the Regional Eastern Office and rank

junior most in the cadre after his appointment to that office.  He

was called upon to give his willingness to all the conditions,

which were duly accepted by respondent No.1.  He gave his technical

resignation thereafter (annexure P-9) and consequently the office

order  dated  02.01.1997  was  issued,  relieving  him.   He  also

addressed a letter on 31.01.197 giving his willingness in writing

to  transfer,  on  permanent  absorption  basis,  on  the  terms  and

conditions specified under O.M. No.2-56/FCE dated 13.11.1996, and

accordingly joined.

6. On 08.03.2001, the provisional seniority list was circulated

by an office order of the even date, in terms whereof respondent

NO.1 was shown at serial No.3, while the appellant was shown at

serial No.2. The respondent No.1 filed objections dated 12.03.2001

seeking to rely on O.M. No.AB-140171/89-Est(RR) dated 03.10.1989.

This was despite his consent as according to him the said O.M.

would govern the terms of absorption and not his consent.  The

representation was rejected on 22.06.2001. The rejection takes note

of  the  interim  developments  during  this  period  of  time,  i.e.

issuance of an office memorandum dated 27.03.2001 arising from a

judgment  of  this  Court  in  Sub-Inspector  Rooplal  &  Anr.  v.  Lt.

Governor Through Chief Secretary, Delhi & Ors1.,  in terms whereof

1 (2000) 1 SCC 644

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the  terms  and  conditions  of  O.M.  No.20020/7/80-Esst(D),  dated

29.05.1986, were struck down to the extent it provided as under:-

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

or  

- the date from which he has been appointed on a regular

basis  in  the  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

was the date of the judgment of the Supreme Court (the latter part

is not an aspect which we are examining). The final seniority list

was published on 3.7.2001, maintaining the provisional seniority

list  and  thus  respondent  No.1  filed  an  Original  Application

NO.584/2001  before  the  Central  Administrative  Tribunal,  Cuttack

Bench  challenging  the  seniority  list  on  the  ground  that  his

seniority had been calculated in violation of Government of India

circulars and guidelines issued from time to time, and his name had

been  placed  below  two  persons  (including  the  appellant).  This

Original  Application  was,  however,  dismissed  by  order  dated

17.10.2003  based  on  the  counter  affidavit  filed  by  the  Central

Government  to  the  effect  that  the  latter  part  of  the  O.M.

No.22011/7/86-Est.(D)  would  govern  the  present  case  as  the

absorption  of  respondent  No.1  was  not  in  public  interest.  The

relevant clauses of O.A. No.20020/7/80-ESTT(D) dated 29.05.1986 are

being extracted hereunder:

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“ NO. 20020/7/80-ESTT(D)

GOVERNMENT OF INDIA/BHARAT SARKAR,

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE AND PENSIONS

DEPARTMENT OF PERSONNEL & TRAINING

 NEW DELHI, the 29th May, 1986

    OFFICE MEMORANDUM

Subject: Seniority  of  persons  absorbed  after  being  on

deputation.

The  undersigned  is  directed  to  say  that  the  existing

instructions  on  seniority  instructions  on  seniority  of

transferees contained in para -7 of the Annexure to this

Department’s O.M. No.9/11/-55-RPS dated the 22nd December,

1959 (copy enclosed) mainly deal with cases where persons

are straight way appointed on transfer. It is, however,

observed that most of the cases of permanent absorption

are  those  where  the  officers  were  taken  on  deputation

initially  under  the  method  of  transfer  on

deputation/transfer contained in the relevant recruitment

rules.  The  O.M.  is  intended  to  fill  this  gap  in  the

existing instructions.

2. Even in the type of cases mentioned above, that

is, where an officer initially comes on deputation and

is  subsequently  absorbed,  the  normal  principle  that

the seniority should be counted from the date of such

absorption, should mainly apply. Where, however, the

officer  has  already  been  holding  on  the  date  of

absorption  in  the  same  or  equivalent  on  grade  on

regular basis in his parent department, it would be

equitable and appropriate that such regular service in

the  grade  should  also  be  taken  into  account  in

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determining  his  seniority  subject  only  to  the

condition that at the most it would be only from the

date of deputation to the grade in which absorption is

being made, it has also be ensured chart the fixation

of  seniority  of  a  transfer  in  accordance  with  the

above principle will not effect any regular promotions

made prior to the date of absorption. Accordingly, it

has been decided to add the following sub-para (iv) to

para -7 of general principles communicated vide O.M.

dated 22nd December, 1959.

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

taken on deputation and absorbed later i.e. where

the relevant recruitment rules provide for transfer

on deputation/transfer, his seniority in this grade

in which he be absorbed will normally be counted

from the date of absorption. If he has, however,

been holding already from the date of absorption),

the same is equivalents grade on regular basis in

parent  department,  such  regular  services  in  the

grade shall also be taken into account in fixing 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 in the same or equivalent grade in

his parent department.

Whichever is later.

The fixation of seniority of transferee in accordance with

the above principle will not, however, affect any regular

promotions to the next higher grade, made prior to the

date  of  such  absorption.  In  other  words,  it  will  be

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operative only in filling up of vacancies in higher grade

taking places after such absorption.

In cases in which transfers are not strictly in public

interest, the transferred 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 as

appearing  in  the  Circular  stood  modified  in  pursuance  to  the

judgment of this Court in Sub-Inspector Rooplal (supra).

7. The respondent No.1, aggrieved by the order of the Central

Administrative Tribunal filed a Writ Petition before the Orissa

High Court under Articles 226 and 227 of the Constitution of India,

being Writ Petition No.1645/2004, which was allowed vide judgment

dated 22.08.2008, directing a fresh gradation list of LDC to be

drawn and to consider the case of respondent No.1 for promotion to

the post of UDC, if he is so entitled.  The judgment took note of

the  opinion  of  this  Court  in  Sub-Inspector Rooplal  (supra) and

simultaneously also took note of the conditions imposed at the time

of  absorption  of  respondent  No.1,  which  had  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

able to place any rule/circular/office memorandum to show

that if an employee is to be permanently absorbed in the

borrowing department he has to accept the bottom most

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seniority in the cadre. In absence of anything in support

of such condition, we are of the view that imposition of

such condition on contrary to the office memorandum dated

29th May  1986  and  27th March  2001  and,  therefore,  the

petitioner cannot be bound by that. Since we are of the

view that the seniority of the petitioner in the cadre of

LDC in the Eastern Regional Office is to be reckoned from

the  date  he  joined  on  deputation  in  the  office  of

opposite party No. 2, the gradation 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, approached

this Court, though the Union of India did not approach this Court.

Leave was 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  on

behalf  of  the  appellant  –  a)  the  terms  of  the  absorption  of

respondent No.1 itself stipulated that his seniority would rank

below the others, and having accepted the terms and conditions of

absorption, he cannot be permitted to resile from the same, and

consequently affect the seniority of the appellant, b) the High

Court fell into error while observing in para 11 that the office

memorandum dated 29.05.1986 and 27.03.2001 will prevail, and that

in  those  memorandums,  there  was  nothing  which  could  affect  the

seniority of respondent No.1 from his initial date of appointment

at Delhi.

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11. The second aspect is assailed on the basis that the crucial

aspect 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 fact that the department wanted respondent No.1 to

go back to his parent cadre, the communication substantiated the

same. It was the insistence of respondent No.1,  by way of repeated

representations,  which  resulted  in  the  office  order  for  his

absorption on the terms and conditions set out in the said office

order dated 13.11.1996.  Thus, such an observation can hardly be

stated to be “strictly in public interest”,  much less in public

interest.  This is also the stand of the Union of India taken in

the counter affidavit filed in the Court below.

12. Learned counsel for respondent No.1 endeavoured to persuade us

to the contrary by referring to the judgment of this Court in Sub-

Inspector Rooplal (supra).  We may note that all principles of law

arise in the given factual situation. If we consider the factual

situation  of  that  case,  which  had  quashed  a  part  of  OM

No.20020/7/80-ESTT (D) dated 29.5.1986 insofar as it provided for

‘whichever is later’, and replaced it with ‘whichever is earlier’,

we are faced with a scenario where the police authorities, with a

view to strengthen their existing security system in the capital,

had created 12 new police stations in Delhi, and the posts were

required to be filled in the shortest possible time so that there

was an immediate impact on the law and order situation in Delhi.

As the normal course of recruitment would take a longer period of

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time, in view of the urgent need of the hour, a decision was taken

for suitable persons to be deployed on deputation basis to the

ranks of Inspector, Sub-Inspector, Assistant Sub-Inspector, Head

Constable, Constable and Driver.  The request letter also stated

that  those  officials  taken  on  deputation  were  likely  to  be

considered  for  permanent  absorption  after  one  year,  if  found

suitable.

13. The opinion of this Court was that such deputationists were

permanently  absorbed  but  were  not  being  given  the  benefit  of

service  of  equivalent  post,  and  that  they  should  have  been  so

conveyed in order to make an informed choice of whether to seek or

not  to  seek  permanent  absorption  i.e.  there  had  to  be  full

disclosure and transparency in respect of the terms and conditions

of the absorption.  It was not a case of request for absorption,

but, the exigencies of service, and that too, without putting them

to notice of this fact.

14. The facts of the present case are completely to the contrary.

Despite departmental communications wanting  respondent No.1 to go

back to the parent cadre it is respondent No.1’s insistence and

persuasion  which  prevailed,  with  the  department  absorbing

respondent No.1 with the terms and conditions aforementioned.  One

of the terms and conditions was that seniority would be counted

from the date of absorption and respondent No.1 accepted the same.

That absorption was never challenged in any proceeding, nor the

terms thereof, when he was treated as a fresh appointee.  It is

only when the seniority list was circulated that the challenge was

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sought to be made to the seniority list, in an oblique manner, and

the  terms  and  conditions  of  the  absorption  were  sought  to  be

assailed. This is not permissible.

15. Learned counsel for the appellant has also drawn our attention

to the judgment of this Court in Mrigank Johri & Ors. v. Union of

India & Ors.2,  wherein it has been held that benefit of past

service rendered in a cadre is usually reckoned for the purpose of

seniority.  In  the  instant  case,  where  the  conditions  were

categorically stated that the absorption would be “deemed to be new

recruitment”  and  the  previous  service  would  be  counted  for  all

purposes  “except  his  or  her  seniority  in  the  cadre”,  appellant

having accepted it without any demur, the seniority list prepared

as a sequitur to the terms and conditions of the absorption could

not be faulted with.

16. This  principle  applies  on  all  fores  to  the  facts  of  the

present case.  Learned counsel for the appellant has also rightly

contended that the plea based on the fact that the appointment of

respondent No.1 was with a provision for transfer would not assist

the said respondent as the present case is not one of transfer but

of deputation, in pursuance to an O.M. and thus, the principle of a

person moving to another cadre would squarely apply. Such depute

would also, thus, have to be governed by the 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,

2 (2017) 8 SCC 256

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and is subsequently absorbed, the normal principle that seniority

should be counted from the date of such absorption, should mainly

apply.  This was, however, subject to the caveat of the O.M. dated

22nd December, 1959, which states that if such a person is absorbed

in an equivalent grade on a regular basis in the parent department,

such  regular  services  in  the  grade  should  also  be  taken  into

account in fixing his seniority subject to the condition that it

would be from the date he had been holding the post on deputation

or from the date he had been appointed on regular basis  in the

same or equivalent grade in his parent department “whichever is

later”, which was amended to make it “whichever is earlier”.

18. Thus, normally the deputation would be counted, but this was

further made subject to the caveat that in case the transfers are

not strictly in public interest, the transferred officers will be

placed below all appointed regularly to the grade on the date of

absorption.  It is the latter clause which will apply as this was

not a case “strictly in public interest”.

19. We are thus, of the view that the impugned judgment cannot be

sustained and has to be set aside.

20. We must note with some regret that the Union of India, having

taken  a  categorical  stand  before  the  Central  Administrative

Tribunal, endeavoured to possibly help respondent No.1 by filing a

counter  affidavit  before  this  Court,  endeavouring  to  take  a

slightly different position by observing “however, it is true that

the MoEF objected to his continuance in the office of the Res-3

many  times  but  extension  was  granted  base  on  the  request  from

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office of the Res-3”. To say the least, the Union of India should

be  conscious  while  preferring  affidavits,  and  if  they  want  to

change the stand, they must give reasons for the same.  The manner

of wording the affidavit seems to be an oblique attempt and we are

of the view that a closer scrutiny is necessary by the Department

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 the

post of Assistant.  The long pendency of litigation has resulted in

a  scenario  where  the  effect  of  the  aforesaid  order  would  be

possibly to demote him.  We are conscious that the promotions given

to him were subject to the result of the proceedings, as intimated

to him by the department.  This would be rather harsh.  Thus, while

the seniority list would be maintained, we are of the view that

respondent No.1 may not be demoted, and an ex-cadre/supernumerary

post  should  be  created  to  keep  him  in  the  same  post  without

affecting the seniority list.   

22. The appeals are accordingly allowed leaving the parties to

bear their own costs.

……………………………………...J.

[SANJAY KISHAN KAUL]

……………………………………...J.

[K.M. JOSEPH]

NEW DELHI;

FEBRUARY 05, 2020.

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ITEM NO.101               COURT NO.12               SECTION XI-A

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Civil Appeal  Nos.3542-3543/2010

SHRI GOVINDA CHANDRA TIRIA                         Appellant(s)

                               VERSUS

SIBAJI CHARAN PANDA & ORS.                         Respondent(s)

([ PART-HEARD BY HON'BLE SANJAY KISHAN KAUL AND HON'BLE K.M. JOSEPH ,JJ. ] )   Date : 05-02-2020 These appeals were called on for hearing today.

CORAM :           HON'BLE MR. JUSTICE SANJAY KISHAN KAUL          HON'BLE MR. JUSTICE K.M. JOSEPH

For Appellant(s) Mr. Shibashish Misra, AOR Mr. S. Debabrata Reddy, Adv. Mr. Chandan Kumar Mandal, Adv.

                   For Respondent(s) Mr. Arunav Patnaik, Adv.

Ms. Anandini Kumar, Adv. Mr. Dhananjay Bhaskar Ray, Adv. Mr. Milind Kumar, AOR

     Mr. Abhijit Sengupta, AOR

Ms. Seema Bengani, Adv. Mr. Manan Pohli, Adv. Mr. Prem Prakash, Adv. Mr. Anas Zaid, Adv. Mr. G.S. Makker, AOR                     

        UPON hearing the counsel the Court made the following                              O R D E R

The  appeals  are  allowed  in  terms  of  the  signed  reportable judgment.

Pending application, if any, stands disposed of.

(ANITA RANI AHUJA)                             (ASHA SUNDRIYAL)    COURT MASTER   AR CUM PS    

[Signed reportable judgment is placed on the file]