SHRI GOVINDA CHANDRA TIRIA Vs SIBAJI CHARAN PANDA
Bench: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, HON'BLE MR. JUSTICE K.M. JOSEPH
Judgment by: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
Case number: C.A. No.-003542-003543 / 2010
Diary number: 3145 / 2009
Advocates: SHIBASHISH MISRA Vs
MILIND KUMAR
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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]