Union Of India & Anr. vs Anil Kumar Choudhary & Ors.
2009 Latest Caselaw 5180 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+             W.P. (C.) No.13819/2009 & C.M. No.15639/2009

%                         Date of Decision: 14.12.2009


UNION OF INDIA & ANR.                                      .... Petitioners

                         Through: Mr. A.K. Bhardwaj, Advocate.

                                   Versus

ANIL KUMAR CHOUDHARY & ORS.                              .... Respondents

                         Through: Mr. Rajesh Banati, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.    Whether reporters of Local papers may be                   Yes
      allowed to see the judgment?

2.    To be referred to the reporter or not?                     No

3.    Whether the judgment should be reported in                 No
      the Digest?


VIPIN SANGHI, J.

*

1. The petitioner Union of India and Director, Intelligence

Bureau have assailed the order dated 11.08.2009 passed in O.A.

No.944/2006 by the Central Administrative Tribunal, Principal Bench,

New Delhi, whereby the aforesaid Original Application preferred by the

respondent Nos.1 & 2 has been allowed and the Tribunal has directed

that they should be assigned seniority after reckoning the entire period

that they have served in their parent cadre, namely, Central Industrial

Security Force (CISF), respondent No.3, in the equivalent grade of S.I.

on regular basis. The respondents were also granted all consequential

benefits including promotion and upgradation under the ACP Scheme,

if and when due.

2. The respondent Nos.1 & 2 were appointed as Sub-Inspector

(Executive) in the grade of Rs.1400-2300 in the CISF in October, 1988.

They were sent on deputation to the Intelligence Bureau (I.B)on the

equivalent post of ACIO-II(G) where they joined their service on

deputation in April, 1992 under the Director, Intelligence Bureau. Vide

office memorandum dated 23.09.1998 and 05.09.1997, respondent

Nos.1 & 2, were asked to give their option for absorption in the

Intelligence Bureau and they gave their consent for absorption on

09.10.1998 and 26.09.1997, respectively. The Intelligence Bureau

thereafter absorbed respondent Nos.1 & 2 in the post of ACIO-II(G)

w.e.f. 27.04.1997 by order dated 22.02.2002. The said respondents

were granted seniority in accordance with O.M. dated 03.10.1989

issued by DoP&T. In the absorption order, it was disclosed that the "No

Objection Certificate" from the parent department i.e. CISF for the

absorption of respondent Nos.1 & 2 in the Intelligence Bureau was

issued on 18.01.2000. However, we may notice that from the

documents filed on record, it appears that the NOC in respect of

respondent no.1 was issued on 25/27.01.1999 and the NOC in respect

of respondent no.2 was issued on 24.11.1999. Vide memorandum

dated 12.11.2002 and 01.08.2003, the Intelligence Bureau assigned

seniority to the respondent Nos.1 & 2 in the grade of ACIO-II(G) from

the date that they completed five years of service on deputation to the

Intelligence Bureau and not from the date from which they were

appointed in the equivalent grade of Sub Inspectors in the CISF.

Consequently, they have been assigned seniority w.e.f. 27.04.1997.

3. Respondent Nos.1 & 2 represented against the assignment of

seniority to them w.e.f. 27.04.1997 and placed reliance on O.M. dated

27.03.2001 of DoP&T in which it was stated that seniority would be

counted from the date from which a person is absorbed in another

department or had been appointed on a regular basis to an equivalent

grade in his parent department, whichever is earlier. The

representation of the respondent Nos.1 & 2 were rejected on the ground

that the instructions contained in DoP&T O.M. dated 27.03.2001 were

effective only from 14.12.1999, as mentioned in paragraph 4 of the said

O.M. and that the same would not apply to the said respondents, who

were absorbed w.e.f. 27.04.1997. In these circumstances, the

respondent Nos.1 & 2 approached the Tribunal by filing the aforesaid

Original Application.

4. It is pertinent to note that on 19.09.2001 the respondent No.1

was directed to report to respondent No.3 i.e. CISF, the parent

department for undergoing a training course for cadre promotion to the

post of Inspector (Executive). A similar communication was received by

respondent No.2 as well. Another aspect equally pertinent is that

another officer, namely, Deepak Barthwal was absorbed w.e.f.

19.08.2001, on the basis of NOC given by respondent No.3 on

12.03.2001, whereas respondent Nos.1 & 2 had been absorbed w.e.f.

27.04.1997 on the basis of NOC issued by respondent No.3 on

18.01.2000. (as mentioned in petitioner's order dated 22.02.2002,

though from the documents the dates of NOC appear to be

25/27.01.1999 and 24.11.1999 respectively). As the date of issuance of

the NOC by CISF, even according to the petitioners is 18.01.2000, we

shall firstly proceed on the basis that the date of issuance of NOC by

CISF indeed was 18.01.2000. We shall, however, also consider the

effect of the dates of issuance of the NOC being 25/27.01.1999 and

24.11.1999 a little later.

5. The Tribunal in these circumstances observed, and in our

view rightly so, that the issue to be determined is whether the lien of

respondent Nos.1 & 2 in the parent department i.e. CISF stood

terminated before the issuance of the NOC by the CISF for their

absorption in the I.B. The Tribunal relied on its earlier order in O.A.

280/1988 "V.N. Ahuja v. Union of India & Ors." wherein a similar

issue had arisen. The applicants in that O.A. were absorbed in a public

sector undertaking, namely, India Railway Construction Company

Limited (IRCON) where they were sent on deputation from the Indian

Railways. The Tribunal held that it was well settled that the lien of the

applicant in the parent department could not be treated as terminated

from a date prior to the date the railway authorities issued their

approval to the acceptance of resignation or retirement of the applicant.

The Tribunal relied on its earlier decision in the case of J. Sharan,

which has not been disturbed by the Supreme Court and the appeal

has been dismissed. This, we gather from RBE No:108/1997 issued by

the Railway Board which reads as follows:

"R.B.E. No. 108/97

Subject: Permanent absorption of Railway servants in Central Public Enterprises and Central Autonomous Bodies while on deputation in such organisations.

[No. F(E)III/97/PM1/9, dated 08.08.1997]

As per existing policy of the Government Railway servants can, as a general rule, join posts in Central Public Enterprises/Autonomous Bodies only on "immediate absorption" basis. Deputation is permissible only in respect of certain specified exemptions. Further, the Railway servants on deputations to Public Enterprises are required to exercise an option within the deputation period either for reversion to the parent cadre or for permanent cadre absorption in the Public Enterprises/Autonomous Bodies concerned. Such a Railway servant, who has been permitted to be absorbed in Public Enterprises/ Autonomous Bodies shall, if such absorption is declared by the Government to be in Public Interest, be deemed to have retired from service from the date his resignation is accepted and shall be eligible to receive retirement benefits from such a date.

Despite these instructions, instances have come to notice where resignations rendered by the Railway servants on deputation to above mentioned bodies

have been accepted retrospectively after considerable delay, at the time of issue of the Presidential orders indicating the terms & conditions of their permanent absorption in the Public Sector Undertaking/Autonomous Body concerned in Public Interest. Such retrospective orders have been challenged in the various Central Administrative Tribunals (CATs) by the concerned officers/employees. For instance in the case of Shri J. Sharan, who was absorbed in RITES, Hon'ble CAT/Principal Bench observed that such orders should be operative from the date on which these were issued and not from a retrospective date. It was held by that Hon'ble CAT that the lien of the applicant from his cadre post in the parent Department stood terminated only with effect from the date of issue of Presidential orders and that he was entitled to all consequential benefits in respect of salary, etc. Based on this judgment, various CATs have given identical orders in respect of similarly placed officers/employees. SLPs filed by the Railways, against all such cases have also been dismissed by the Hon'ble Supreme Court.

In the above background, it is reiterated that resignations tendered by Railways employees while on deputation to Public Sector Undertakings etc. in order to get absorbed in such organisations, should be processed and orders accepting the same issue before the expiry of the sanctioned deputation term and not at a later date with retrospective effect. This should be followed immediately by the Presidential sanction indicating the terms and conditions of permanent absorption of the concerned employee in the concerned Public Sector Undertaking/Autonomous Body.

These orders may be followed strictly on the Railways."

6. We also find no reason to take a different view and endorse

the same. Reliance can also be placed on K. Phani Ramesh vs. Dy.

Director, Navodaya Vidhalaya (2002) 9 SCC 506; Gauhati High

Court vs. Kuladhar Phukan (2002) 4 SCC 524; S.O. Rajasthan vs.

S.N. Tiwari (2009) 4 SCC 700.

7. The submission of the petitioners herein, to justify the

retrospective absorption of respondent Nos.1 & 2 from the year 1997,

was that the said respondents had come on deputation to I.B. in the

year 1992. Under the recruitment rules on completion of five years on

deputation, the said respondents could be absorbed in the I.B.

Consequently, on the date on which the said respondents completed

five years of deputation period, i.e.27.04.1997 they were treated as

absorbed though the No Objection Certificate from the parent

department i.e. CISF was received only on 18.01.2000.

8. This submission of the petitioners was rejected by the

Tribunal and, in our view, rightly so. The parent department i.e. CISF

continued to exercise control over respondent Nos.1 & 2, and they

continued to hold lien in the parent department. This is also evident

from the fact that CISF directed respondent Nos.1 & 2 to report for

undergoing a training course for promotion to the post of Inspector

(Executive). Without the No Objection from the parent department,

respondent Nos.1 & 2 could possibly not have been absorbed. Since the

No Objection Certificate came only on 18.01.2000, the absorption of

respondent Nos.1 & 2 in the I.B. could not have been made effective

from 27.04.1997, or from any date prior to 18.01.2000.

9. Learned counsel for the petitioner has shown the relevant

recruitment rule contained in O.M dated 13.01.1992, which states that

deputationists, who have rendered not less than five years service on

deputation in I.B, could be absorbed. This shows that there is no

automatic absorption immediately on completion of five years of service

by a deputationist in I.B. The five years service as a deputationist in

I.B. is an essential requirement for absorption. It does not mean that

any one who has completed five years service on deputation gets

absorbed from the date of completion of the said period. Consequently,

in our view, the reasoning adopted by the petitioners to deny the

application of DoP&T O.M. dated 27.03.2001 in the case of respondent

Nos.1 & 2, on the ground that the said O.M. was effective only from

14.12.1999 is untenable and has rightly been rejected by the Tribunal,

as the absorption of respondent Nos.1 & 2 could not have taken place

prior to 18.01.2000.

10. We now consider the impact of date of issuance of NOC by

the CISF as 25/27.01.1999 and 24.11.1999. Firstly, the process of

absorption is not complete namely, on the issuance of NOC by the

parent department. The absorption/transfer in the foreign service would

be complete only when the foreign department passes an order

absorbing the deputationist. In this case, the order of absorption was

passed on 22.02.2002 i.e. well after 14.12.1999. Therefore, O.M dated

27.03.2001 would apply to the respondent's case.

11. There is another aspect to this matter. The O.M. of DoP&T

dated 29.05.1986 laid down the policy for grant of seniority to persons

absorbed after being on deputation with another department.

Paragraph 7(iv) of the General Principles communicated by this O.M.

read as follows:

"(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 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 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 to the same or equivalent grade in his parent department,

whichever is later."

12. The validity of the said O.M. was challenged before the

Supreme Court in "S.I. Roop Lal & Anr. v. Lt. Governor, Delhi &

Ors." JT 1999 (9) SC 597. The Supreme Court upheld the challenge

and held as follows:

"23. ............... 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 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 petitioners/appellants and the offending words in Memorandum "whichever is later" are held to be violative of Articles 14 and 16 of the Constitution, hence, those words are quashed from the text of the impugned Memorandum. Consequently, the right of the petitioners/appellants to count their service from the date of their regular appointment in post of Sub-Inspector in BSF, while computing their seniority in the cadre of Sub-Inspector (Executive) in the Delhi Police, is resorted.

Following the judgment of the Supreme Court, the DoP&T

issued an OM dated 27.03.2001 in which the phrase "whichever is

later" was replaced by the phrase "whichever is earlier". This OM also

mentioned in paragraph 4 that the instructions would take effect from

14.12.1999, which was the date of judgment of the Supreme Court in

S.I. Roop Lal (supra).

13. These aspects have been taken note of by the Tribunal in the

impugned order.

14. The declaration of the law by the Supreme Court in S.I. Roop

Lal (supra) could not have been restricted in its application only w.e.f.

14.12.1999. When the Supreme Court declares the law, it declares the

law as it has always been. Unless the Supreme Court decides to restrict

the effect of its declaration prospectively, the said declaration cannot be

given only prospective effect. Therefore, the O.M. dated 29.05.1986

would have to be read with the substituted words "whichever is earlier"

and given effect to even in respect of cases of absorption which took

place prior to the judgment of the Supreme Court being rendered. The

ratio of the said decision in S.I. Roop Lal (supra) would have

application to the case of the respondent Nos.1 & 2, even if it were to be

assumed that they were validly absorbed in the year 1997 as contended

by the petitioners or in 1999, when the NOC were issued by CISF. For

this reason as well, we are of the opinion that the action of the

respondents in denying seniority to respondent Nos.1 & 2 by not

counting their service rendered in the grade of S.I. (Executive) in CISF

was erroneous.

15. For the aforesaid reasons, we find no merit in this petition

and dismiss the same.

ANIL KUMAR, J.

DECEMBER 14, 2009                                      VIPIN SANGHI, J.
rsk