D.P. Singh vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 347 Del

JUDGMENT

S.B. Sinha, C.J.

1. This writ petition is directed against an order and judgment dated 03.02.1998 passed by the Central Administrative Tribunal, Principal Bench (hereinafter referred to as 'the Tribunal') in O.A. No. 275 of 1998 whereby and whereunder an original application filed by the petitioner herein claiming seniority from the year 1977 was dismissed as also an order dated 10.09.1999 whereby and whereunder the review application filed by the petitioner herein was also dismissed.

2. The basic fact of the matter is not in dispute. The petitioner joined as a Sub-Inspector (Trainee) in U.P. Police on 16.02.1964. He joined the Central Bureau of Investigation (in short, 'CBI') on deputation on 11.05.1966. He expressed his option for his absorption on the post of Sub-Inspector in 1969.

3. On or about 31.12.1970, he was appointed in the deputation quota on the post of Inspector upon following the recruitment rules. He again was promoted and appointed in the post of Deputy Superintendent of Police (in short, 'DSP') in CBI in terms of deputation quota on 24.11.1977. On or about 14.04.1980, he again while exercising his option gave consent for his absorption on the post of DSP in CBI.

4. His request for absorption was accepted and it was proposed that he be absorbed w.e.f 01.02.1983. However, no formal communication was issued. He intended to leave CBI and through his parent Department, i.e., U.P., Police, he applied for deputation to Sikkim Government but he was not relieved by CBI.

5. CBI requested the Union Public Service Commission (in short, 'UPSC') to make an appointment in the post of DSP on transfer basis from amongst those who were working on deputation. Such a select list was prepared by UPSC on 29.06.1987 wherein the petitioner's name figured at Sl. No. 2.

6. On or about 17.10.1987, the Administration Division of CBI informed the Superintendent of Police, CBI (in short, 'SP') that the petitioner's name had been approved for absorption in CBI w.e.f. 29.06.1987 and a formal order in this behalf would be issued on concurrence of the State Government.

7. The petitioner submitted a representation to the second respondent requesting that he may be repatriated to his parent State on or about 16.12.1994. He was appointed as DSP in CBI on transfer basis w.e.f. 29.06.1987 by an order dated 15.05.1995.

8. The petitioner's representation to fix seniority w.e.f. 24.11.1977 having not been replied, he filed the said original application. By reason of the impugned order dated 03.02.1998, the said original application of the petitioner was dismissed by the Tribunal stating:-

"3. We are of the view so long as the applicant could claim no lien on the post of Dy. Superintendent of Police in C.B.I., he could not claim any seniority in C.B.I. After he was absorbed on 9.11.1994, he could claim lien on that post and the earlier lien with U.P. Police would cease to exist from that date. Accordingly, we find no merit in the claim of the applicant for his seniority from 1977 as Dy. Superintendent of Police in C.B.I. Further, the claim also appears to be barred by time. If the applicant considered himself entitled to seniority from 1977, he ought to have come immediately after the date he was denied seniority by the respondents."

9. Mr. Singhvi, the learned counsel appearing on behalf of the petitioner submitted that the learned Tribunal must be held to have committed serious error in passing the impugned order insofar as it dismissed the said application without going into merit of the matter.

10. The learned counsel would contend that the maximum period of deputation in terms of the extant rules was 5 years and having regard to the fact that he was promoted to the post of Inspector in 1970 in the deputation quota and thereafter in the post of DSP again in the said quota and furthermore such an appointment having been made on officiating basis upon obtaining concurrence of UPSC, he was entitled to his seniority from 1977. It was pointed out that the petitioner in terms of the order of promotion was not to get any benefit in his parent Department. It was submitted that the learned Tribunal did not consider the relevant rules as also the fact of the matter in their correct perspective.

11. Ms. Pinki Anand, the learned counsel appearing on behalf of the respondent, on the other hand, would submit that the petitioner's seniority has been given in terms of the rules. It was pointed out that the rules for appointment on deputation having come into being on 31.03.1987, there existed no rule in terms whereof the petitioner could be appointed in such capacity and as such he could not have been granted seniority w.e.f. 24.11.1977.

12. The case in hand shows that how an employee suffers for no fault on his part. The petitioner offered option for his absorption in the years 1969, 1980, 1983 and 1987, but no order thereupon was passed.

13. The President of India in exercise of his powers conferred upon him under the proviso appended to Article 309 of the Constitution of India (in short, 'the Constitution') made rules, known as, Special Establishment (Executive Staff) Recruitment Rules, 1963. In the year 1972, the said rules were amended wherein it has been provided that the period of deputation ordinarily shall not exceed 5 years. Strong reason should, therefore, be ordinarily assigned for keeping a person on deputation for a long period. An employee in view of the said rule could not be kept on deputation for a long time in the same post which would be detriment to his career.

14. In Rameshwar Prasad v. Managing Director, U.P. Rajkiya Nirman Nigam Limited and Ors., , the Apex Court has laid down the law in the following terms:-

"14. We agree with the learned counsel for Respondent 1 and make it clear that an employee who is on deputation has no right to be absorbed in the service where he is working on deputation. However, in some cases it may depend upon statutory rules to the contrary. If the rules provide for absorption of employees on deputation then such employee has a right to be considered for absorption in accordance with the said rules. As quoted above, Rule 16(3) of the recruitment rules of the Nigam and Rule 5 of the U.P. Absorption of Government Servants in Public Undertakings Rules, 1984 provide for absorption of employees who are on deputation.

15. In the present case, considering the facts, it is apparent that inaction of Respondent 1 of not passing the order either for repatriation or absorption qua the appellant was unjustified and arbitrary. On the basis of Rule 16 of the recruitment rules, the appellant was appointed on deputation in May 1985. He was relieved from his parent department on 18-11-1985 and joined the Nigam on 19-11-1985. Under Rule 5 of the U.P. Absorption of Government Servants in Public Undertakings Rules, 1984, he was required to file an application for his absorption in employment of the Nigam. Thereafter on the basis of letter dated 22-12-1987 written by the GM (HQ) and the letter dated 30-12-1987 written by the GM (NEZ), he opted for continuation and absorption in the service of the Nigam by letter dated 31-12-1987. The General Manager (NEZ) by letter dated 17-9-1988 wrote to the GM (HQ) that the appellant's service record was excellent; he was useful in service and as he was about to complete 3 years on deputation, appropriate order of absorption be passed. Nothing was heard from the General Manager. Further on 19-11-1990, as soon as the appellant completed 5 years of deputation, his deputation allowance was stopped with effect from that date. The appellant continued in service without any break. Rule 4 of the U.P. Absorption of Government Servants in Public Undertakings Rules, 1984, which was admittedly applicable, provides that no government servant shall ordinarily be permitted to remain on deputation for a period exceeding 5 years. Nothing has been stated by the Nigam as to why he was not repatriated. If the appellant was not to be absorbed, he ought to have been repatriated in the year 1990 when he had completed 5 years of service on deputation. By not doing so, the appellant is seriously prejudiced. The delay or inadvertent inaction on the part of the officers of the Nigam in not passing appropriate order would not affect the appellant's right to be considered for absorption in the service of the Nigam as provided in Rule 16(3) of the recruitment rules."

15. In the instant case, no reason has been assigned as to why the petitioner, despite the fact that he had been asking for his absorption since 1969 upon completion of a period of 3 years, was not absorbed even after a period of 5 years. The respondent had also given a satisfactory explanation as to why it took 29 years to communicate absorption of the petitioner in CBI.

16. It has not been disputed that all those, who had joined after the petitioner, have been confirmed as SP and Sr. S.P. whereas the petitioner has been continuing in the post of DSP since 1977.

17. It has also not been contended that in the year 1977 when the petitioner was promoted to the post of DSP, he was not entitled therefore.

18. The order of promotion passed in favor of the petitioner dated 26.12.1977 is as follows:-

F. No. A-19036/11/77-Ad.V

Govt. of India

Ministry of Home Affairs,

Deptt. of Personnel & A.P.,

Central Bureau of Investigation

Kotah House Hutments,

New Delhi.

Dated: 26 Dec. 1977

NOTIFICATION

(TO BE PUBLISHED IN GAZETTE OF INDIA PART III SECTION I)

The Director, Central Bureau of Investigation and Inspector General of Police, Special Police Establishment hereby appoints Shri D.P. Singh, Inspector of Police, C.B.I., CIU (II), Branch and an officer of Uttar Pradesh Police Dept. to officiate as Dy. Supdt. of Police in Central Bureau of Investigation, Special Police Establishment with effect from the forenoon of 24.11.77 in a temporary capacity until further orders.

(V.P. .....)

Administrative Officer (E)

Central Bureau of Investigation.

To

The Manager,

Govt. of India Press,

Faridabad (With Hindi Version)

Copy forwarded to:-

1. DIG/CBI/DIG--Zone-I

2. SP/CBI/CIU (II), New Delhi.

3. The IGP/UP/Lucknow.

4. The Secy. UPSC, New Delhi. The concurrence of UPSC has already been obtained vide their letter No. F.3/25(10)/77-AU-IV dated 23.9.77.

5. The Accounts Officer, Pay and Accounts Office, C.B.I., New Delhi.

6. The DIG(S), C.B.I., Head Office.

7. Shri. D.P. Singh, Dy. S.P./CIU(II)/New Delhi. He has no right to claim any post of Dy. S.P. or Seniority in his state on repatriations from C.B.I. on the basis of his appointment as Dy. S.P. in C.B.I.

(A.P......)

Administrative Officer (E), C.B.I.

19. There cannot, thus, be any doubt whatsoever that the concurrence of UPSC had been obtained in terms of the said letter dated 23.09.1977.

20. The submission of the respondent to the effect that the said concurrence was obtained for the petitioner's posting of DSP in CBI on deputation and not for absorbing him or taking him on transfer basis cannot be accepted inasmuch as neither any order to that effect has been produced nor a copy thereof was served upon the petitioner.

21. The plea of the respondent to the effect that the said letter is not traceable being more than 25 years old cannot also be accepted, particularly having regard to the fact that no material has been placed on record to show as to on what basis such a statement has been made. A copy of the said letter could have been obtained from the officer of UPSC.

22. A bare perusal of the aforementioned order of promotion dated 26.12.1977 would show that he was promotion on officiating basis. Once he was appointed on officiating basis ordinarily his seniority should be counted from that date.

23. Once a concurrence had been given by UPSC, the petitioner must be held to be eligible for promotion to the said post. Furthermore having completed the requisite 5 years of service in CBI, there was no reason as to why he could not be absorbed in CBI.

24. The relevant provisions of the Recruitment Rules made by the President of India in the year 1963 are as under:-

"The Gazette of India: March 2, 1963/PHALGUNA 11, 1884

[No. 14/4162 AVP]

G.S.R. 331--In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the President hereby makes the following rules relating to recruitment to the posts of Superintendent of Police and Deputy Superintendent of Police in the Special Police Establishment, namely:

1. Short title--These rules may be called the Special Police Establishment (Executive Staff) Recruitment Rules, 1963.

2. Application--These rules shall apply to the posts of Superintendent of Police and Deputy Superintendent of Police in the Special Police Establishment.

3. Classification, scale of pay etc.--The classification of the said posts, the scales of pay attached thereto, age limit, qualification and other matters relating to the said posts shall be in accordance with the provisions contained in the Schedule hereto annexed.

4. Disqualification--No person who has more than one wife living or who having a spouse living, marries in any case in which such marriage is void by reason of its taking place during the life time of such spouse and no woman whose marriage is void by reason of the husband having a wife living at the time of such marriage or who has married a person who has a wife living at the time of such marriage, shall be eligible for appointment to any of the said posts:

Provided that the Central Government may, if satisfied that there are special grounds for so ordering, exempt any person from the operation of this rule.

Fay Commission

Asstt, Project Officer

Welfare Officer

1st CPC

There was no post as the post was created in 1976.

(1)225-10-275-15-350 (2)290-15-440

2nd CPC

There was no post as the post was created in 1976

325-15-475-EB-20-475 from 01.11.1969the pay scale of Rs.

300-650 was gran ted by the CSWB.

3rd CPC

650-30-740-35-810-EB -35-880-40-1000-EU-40-1200

550-25-75-EB-30-900 (given effect from 1-4-1974)

4th CPC

2000-60-2300-EB-75-3200-100-3500

1640-60-2600-EB-75-2900

5th CPC

6500-200-10500

5500-175-9000

Note: (1) These posts will be treated as "tenure" posts, when held by deputation by officers of the State or Central Govt. Department.

(2) Deputationists will not be eligible for promotion in the quota shown against to higher posts, if they are otherwise suitable, and if vacancies are available in entry (a) in column to; such deputationists may, however, be appointed the deputation quota shown entry (b) in column 10.

(No. 14/15/60-AVD)

T.C.A., Ramanujachari, Dy. Secy.

25. The aforesaid Recruitment Rules were amended in the year 1972 in the following terms:-

"The Gazette of India: January 6, 1973/PAUSA 16, 1894

(Part III)

New Delhi, the 27th December, 1972

G.S.R. 2--In exercise of the powers conferred by the proviso to Article 309 of the constitution, the President hereby makes the following rules further to amend the Special Police Establishment (Executive Staff) Recruitment Rules, 1963, namely:--

1.(i) These rules may be called the Special Police Establishment (Executive Staff), (Amendment) Rules, 1972.

(ii) They shall come into force on the date of their publication in the official Gazette.

2. In the Schedule to the Special Police Establishment (Executive Staff) Recruitment Rules, 1963, for the existing entries in columns 10 and 11 relating to the post of Deputy Superintendent of Police, the following shall respectively be substituted, namely:--

Column 10:

(a) Promotion-30 per cent failing which by transfer on deputation failing both by direct recruitment.

(b) Transfer/deputation-50 per cent failing which by direct recruitment.

(c) Direct recruitment-20 per cent in consultation with the Union Public Service Commission."

Column 11:

Promotion:

Inspector of Police in the Central Bureau of Investigation with 5 years service in the grade rendered after appointment thereto on a regular basis.

Transfer/deputation:

Suitable officers of the State or Central Government Department who are holding equivalent posts or who, though holding posts in the next lower grade, are officer approved for promotion to equivalent posts,

Deputation:

Deputationist Inspector in the Central Bureau of Investigation who have put in at least 5 years service in the rank in the State/Central Bureau of Investigation out of which at least 3 years is in the Central Bureau of Investigation.

(Period of deputation ordinarily not exceeding 5 years).

(No. 213/4/70-AVD, III)

B.C. Vanjani, Under Secy."

26. The aforesaid Recruitment Rules were again amended in the year 1987 in the following terms:-

"TO BE PUBLISHED IN THE PART II SECTION 3

SUB-SECTION (i) OF THE GAZETTE OF INDIA

No. 213/2/34-AVD-II (Vol-II)

Government of India/Bharat Sarkar

Ministry of Personnel, Public Grievances & Pensions

Department of Personnel & Training

.....

New Delhi, the 31st March, 1987

NOTIFICATION

G.S.R......In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the President hereby makes the following rules further to amend the Special Police, Establishment (Executive Staff) Recruitment Rules, 1963, namely:--

1. (1) these rules may be called the Special Police Establishment (Executive Staff) Recruitment (Amendment) Rules, 1987.

(2) they shall come into force on the date of their publication in the official Gazette.

2. In the Schedule to the Special Police Establishment (Executive Staff) Recruitment Rules, 1963, for the entries relating to the post of Deputy Superintendent of Police, the following entries shall be substituted, namely:-

"(As per statement attached)"

(G. SITARAMAN)

UNDER SECRETARY TO THE GOVT. OF INDIA.

Name of post

No. of posts

Classification

Scale ofpay

Whether selection or non-

selection post-

Age, limit for direct recruits.

Whether benefit of added years of service admissible under Rule 30 of the Central        Civil Services (Pension)  Rules, 1972.

Educational and other qualifications required for direct recruits.

1.

2.

4.

5.

6.

6(a).

Dy. Suptd. of Police

157* (1987)

General Central Service Group 'B' gazetted, non-ministerial

Rs.

650-30-40-35-810-EB-35-

880-40-1000-EB-40-1200 (pre-Revised)

Selection

The age limit shall be such as may be provided by the Govt. from time to time in the Rules Civil Services Examination.

No.

The educational qualifications, plan of exam., etc. shall be such as may be provided by the Government from time to time in the Rules of Civil Services Examination.

27. Strong reliance has been placed by the respondent in the aforesaid Rules, i.e., called Special Police Establishment (Executive Staff) Recruitment (Amendment) Rules, 1987, which came into force w.e.f. 31.03.1987 whereby and whereunder 50% of the posts were to be filled up by way of transfer on deputation. As noticed hereinbefore, such a provision also existed in 1963 Rules.

28. Assuming that the petitioner had been given a substantive appointment in 1987 pursuant to the recommendations of UPSC, the period during which he was working on officiating basis cannot be said to the totally wiped off. Once the petitioner was promoted to the post of DSP on officiating basis, there was no need to again appoint him on transfer basis on 29.06.1987, pursuant to or in furtherance of amended rules.

29. In the event, the plea of the respondent is accepted to be correct that the concurrence of UPSC dated 23.09.1977 was obtained for the purpose of taking him on deputation basis, no such rule has been produced before us to show that even a deputationist would require the sanction of UPSC to be promoted on deputation basis.

30. We may notice that recently in Suraj Prakash Gupta and Ors. v. State of J&K and Ors. 2000 SCC (L&S) 977, the law has been stated in the following terms:-

"67. Apart from the cases arising from Andhra Pradesh the position appears to be the same as per the cases arising from other States, so far as the promotees' ad hoc service is concerned. In

Baleshwar Dass v. State of U.P. that officiating promotees are to be given dates by the Service Commission for counting seniority. In

B.S. Yadav v. State of Haryana it was said that the promotees have to be confirmed in their quota if found fit and qualified and when vacancies arose in their quotas. In

A. Janardhana v. Union of India it was observed that the seniority of the promotees was to count from the date of occurrence of vacancy in their quota.

In G.P. Doval v. Chief Secy., Govt. of U.P. ;

1984 SCC (L & S) 76 it was held that subsequent approval by the Public Service Commission to the temporary appointments will relate back to the initial dates of appoint for the purpose of seniority on the basis of the rule of continuous officiation and the seniority could not be reckoned only from the date of approval or selection by the Commission. In

Narender Chadha v. Union of India it was held that the promotees were first to be regularized from the dates of occurrence of vacancies/eligibility. The initial appointment though not according to rules, the said service could not be ignored. In.

A.N. Pathak v. Secy. of the Govt. (1987 Supp SCC 763 : 1988 SCC (L & S) 370: (1988) 6 ATC 626 it was held that the promotees had to be inserted at places reserved for them as per quota. In

Delhi Water Supply & Sewage Disposal Committee v. R.K. Kashyap (1989 Supp (1) SCC 194: 1989 SCC (L & S) 253: (1989) 9 ATC 784 it was held that once regularization was made by PSC/DPC, the said service could not be ignored.

As to when post of ad hoc/stopgap service of promotees cannot be regularized--if outside quota or not eligible or suitable."

31. In this view of the matter, we are of the opinion that there was no reason as to why the petitioner's seniority should not be counted from the date wherein he was promoted on officiating basis.

32. In view of the aforesaid Rules, there was no necessity to issue the order dated 29.06.1987 to re-appoint the petitioner on transfer basis. In any event, the same should have been considered to be a follow up of the initial appointment in the year 1977, as the said order has not been superceded. By reason of 1987 Rules, appointment could be made in a different capacity, but thereby past services of about 10 years should not be wiped out.

33. Having regard to the facts and circumstances of this case and in particular having regard to the decision of the Apex Court in Rameshwar Prasad (Supra), the petitioner's seniority should be deemed to have been approved at least from the year 1977 when he was promoted to the said post.

34. We may, however, notice that in K. Madhavan and Anr. v. Union of India and Ors. and Dwarka Nath v. Union of India and Ors., the Apex Court has clearly held that CBI take Officers on deputation basis and their continuous officiation on any post in CBI cannot be wiped out for the purpose of seniority.

35. We may further note that as far back as on 29.09.1983, the petitioner's request to absorb him w.e.f. 01.02.1983 had been accepted, but for the reasons best known to the respondent, the concurrent of his absorption had not been communicated. The petitioner, who might have been in long and continuous service, cannot suffer for no fault on his part. The petitioner, as noticed hereinbefore, sought for his repatriation more than once but the same had not been considered for reasons best known to the respondents.

36. We may further note that in this case the respondents have taken different stands at different times.

37. From the facts, as noticed hereinbefore, it is evident that the claim of the petitioner as regards his seniority has been considered at different phases, but no positive stand has been taken by the respondent.

38. The very fact that now the petitioner's seniority has been directed to be counted from the year 1987, we do not find any reason as to why his seniority should not be counted from the year 1977. The leaned Tribunal committed a serious error in holding that the petitioner's application was barred by limitation inasmuch as the cause of action for filing the application arose when that decision as regards his seniority was communicated by the letter dated 16.08.2001.

39. We, therefore, are of the opinion that it is a fit case where the petitioner's seniority should be directed to be counted from the year 1977 to the post of DSP in place of 29.06.1987 as was communicated to him by the respondent in terms of the letter dated 16.08.2001.

40. This writ petition is accordingly disposed of. No order as to costs.