JUDGMENT B.A. Khan, J.
1. Petitioner's writ petition seeking antedating his seniority with all consequential benefits was dismissed by Tribunal vide impugned order dated 17.8.1999. Hence this petition.
2. Petitioner was a Sepoy (Constable) in Border Security Force. He came on deputation to the Intelligence Bureau (IB) on 18.11.1975 on the post of Security Assistant and was later absorbed on this post from 1.1.1982. He was subsequently promoted to the post of Junior Intelligence Officer (JIO) Grade II from 30.4.1990 on completion of 8 years of service.
3. It appears that petitioner thereafter made representations for counting his service rendered in BSF as well as in IB on deputation for promotion to the post of JIO Grade II and for antedating his seniority and promotion as such. His request was, however, rejected by memorandum dated 8.9.1992. He, however, persisted with his representations on the issue and after eliciting no response, filed OA No. 610/1999 claiming that his service rendered in BSF and while on deputation in IB from 1967 to 1981 was liable to be reckoned for his seniority, promotion and other service benefits. He sought support for this from the case of one Ram Singh Rawat, a deputationist from ITBP who according to him was granted the benefit of service rendered by him in ITBP under the Supreme Court judgment. He accordingly claimed the equality of treatment and submitted that once Rawat was given this benefit, he was also entitled to it.
4. Petitioner's OA was but opposed by the respondents both on the plea of limitation as also on merit. His case was distinguished from that of Ram Singh Rawat who according to respondents was holding a higher post of Hawaldar in ITBP when he was appointed as a Security Assistant in the IB as against him holding a lower post of Constable in BSF when the post of Security Assistant was equivalent to Naik and two steps higher.
5. The Tribunal rejected petitioner's plea for condensation of delay in filing the OA in the facts and circumstances of the case and at the same time dismissed his claim on merit by holding :-
"In the present case, the applicant was holding the post of Sepoy (Constable) in the BSF at the time he came on deputation to the post of Security Assistant. It has been pointed out by the respondents that the post of Security Assistant is equal to the post of Naik in the BSF. The line of promotion for Constable is to the post of Lance Naik and then to Naik. The applicant was thus not holding an equivalent post to that of Security Assistant in the BSF and, therefore, the ratio of the case of Shri Rawat as well as Shri K. Madhavan did not apply in this case. In this situation, the seniority of the applicant can only be counted from the date of his regular appointment as Security Assistant in the I.B., i.e. with effect from 1.1.1982. There is, therefore, no merit in the contention that his past service before his absorption should be counted for the purpose of his seniority and promotion."
6. Petitioner assails the Tribunal order primarily on two grounds viz.:-
i) that Tribunal had fallen in error by holding that he was not holding an equivalent post in BSF and that the post of Security Assistant was not equivalent to the post of Naik in BSF.
ii) that respondent's own memorandum dated 20.1.1986 clarified that the post of Security Assistant in IB was equivalent to post of Constable in various police organizations and that Tribunal had failed to follow the the mandate of Supreme Court judgments in R.S. Rawat v. Union, SLP No. 1187/1995 and K. Madhavan v. Union 1988(1) SCR page 41 which according to him had directed reckoning of service rendered in parent organizations to the service in IB.
7. Respondents' have opposed petitioner's case on the plea of limitation and also on the ground that once he had agreed to loss of seniority upon absorption in the IB and that the service rendered by him in the BSF, he could not now ask for reversing the clock. It is also pointed out by them that they had issued Memorandum dated 20.11.1981 explaining the position about the seniority and consequential benefits to the deputationists including petitioner in response to which he had submitted his willingness to be absorbed as Security Assistant from 1.1.1982. It is also explained that they had directed the counting of service from the date of deputation in certain cases where the deputationists held a higher or equivalent post in their parent organizations and as the post of Constable held by petitioner was not equivalent to the post of Security Assistant which was otherwise equal to post of Naik in BSF because of identical pay scales of two posts (Rs.225-308 revised to Rs. 950-1400), petitioner could not invoke any analogy in the matter.
8. As regards memorandum dated 21.1.1986, it is submitted that this was issued to field units to clarify the position emerging after a classification of the post of Security Assistant (G) in the IB from Group 'D' to Group 'C' and the seniority spirit behind this clarification that while in IB the lowest post is Security Assistant (G), in other police organizations it is the Constable. It is explained that in the case of Ram Singh Rawat, Supreme Court had upheld his absorption in JIO Grade II which was equivalent to the post of Hawaldar held by him in his parent organization - ITBP and since his case was already under examination and it was found that he was holding the equivalent rank of Hawaldar in his parent organization, he was allowed seniority from the date of his deputation to IB in the rank of JIO Grade II. The Supreme Court had directed the IB to protect his seniority and past service because an assurance was given to the court to that effect by respondents. On this analogy, other deputationists were also absorbed in the IB in the lower rank of Security Assistant while they were holding a higher rank in their parent organizations. The judgment in K. Madhavan's case was also not attracted to petitioner's case because he was not holding an equivalent post in his parent department.
9. The core issue that arises for consideration is whether petitioner was holding the equivalent post to that of Security Assistant in IB in his parent organization and whether he was entitled to the antedating of his seniority by reckoning his service in the BSF and while on deputation in IB till absorption on the analogy of Ram Singh Rawat or under the mandate of Supreme Court judgment in Madhavan's case.
10. The equivalence of the two posts is determinable on consideration of several factors like nature and duties of these posts, the responsibilities and powers attached to these, the minimum qualifications prescribed for recruitment to the posts and salary attached to these posts. Nowhere has petitioner set up any case that the post of Constable in BSF equivalent to that of Security Assistant in BSF with or without these factors. His whole case revolves round the benefit given to Ram Singh Rawat and the clarificatory memorandum issued by respondents dated 21.1.1986.
11. In our view, neither the Supreme Court judgment in Rawat's case nor the memorandum (supra) advances the petitioner's case. Because the Supreme Court was not dealing with equivalence of two posts in Rawat's case. The Court in this had asked respondents to produce a letter addressed to Rawat assuring him that his case for reckoning for his service was being examined and because of their default in this had directed them to protect his seniority.
12. This is not a binding precedent on the equivalence of two posts which could be applied to petitioner's case. The clarificatory memorandum dated 20.1.1986 also does not provide that the post of Constable in the BSF was equivalent to the post of Security Assistant in the IB. This, on the contrary, clarifies the position on the classification of the post of Security Assistant in the pay scale of Rs. 225-308 from Group 'D' to Group 'C' and makes reference in this regard to the position in Central Police Organizations and Police Force of various states.
13. The judgment of Supreme Court in Madhavan's case is also not attracted. In this, the Court was dealing with transfer of a Government servant to the same or equivalent post in another Government department and in that context it was held :-
"It will be against all rules of service jurisprudence if, when a Government servant holding a post is transferred to the same or an equivalent post in another Government department, the period of his service in the post before transfer is not taken into consideration in computing his seniority in the post to which, he is transferred and his transfer wipe out his length of service in the post from which he has been transferred."
14. The basis of this was that the Government servant transferred to the same or equivalent post in another department, which basis was not available in the petitioner's case, as it was not stated by him that the post of Constable in BSF was equivalent to that of Security Assistant in the IB. As against this, respondents have furnished details to show that the post of Security Assistant was equivalent to that of Naik in BSF because of the identical pay scales attached to the two posts and that under the hierarchy of posts in the BSF, the line of promotion for Constable was to the post of Lance Naik first and then to Naik.
15. Apart from this, it is noticed that respondents had also issued memorandum dated 20.11.1981 providing that the deputationists officiating in higher rank will be diverted to their substantive rank in their parent organizations and the service rendered by them in their parent organizations will not count towards seniority in the rank they are taking in IB and that they would rank junior to all personnel appointed prior to their dates of deputation. This memorandum is undisputably in force and has not been called in question.
16. Therefore, all things considered, we find no infirmity in the Tribunal order which is affirmed and the writ petition dismissed.