Delhi High Court

Uoi & Anr. vs Kiran Pal Singh on 6 July, 2023

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: July 06, 2023
43
+ W.P.(C) 565/2003

UOI & ANR. ..... Petitioner
Through: Ms. Pratima N. Lakra, CGSC with
Ms. Vanya Bajaj, Advocates.
versus
KIRAN PAL SINGH ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
V. KAMESWAR RAO (Oral)
1. The challenge in this writ petition is to orders dated August 09, 2003
and April 16, 2002. The order dated April 16, 2002 is an order of the Full
Bench passed on a reference made because of the difference of opinion
between Two Benches with regard to the issue. The order dated August 09,
2003 is an order of the Division Bench passed pursuant to the judgment of
the Full Bench answering the reference whereby the Division Bench has
decided the O.A. in favour of the respondent herein.
2. The short issue which arises for consideration is whether a
government employee, who has come on deputation and absorbed in the
borrowing department shall be entitled to the counting of service of his
parent office for the purpose of seniority.

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3. The Full Bench of the Tribunal has decided the issue based on the
judgment of the Supreme Court in S.I.Roop Lal & Anr. vs. L.G. Delhi &
Ors. 2000 (1) SCC 644, in the following manner:-
"14. On behalf of respondents a plea of acquiescence on
applicant‟s part has been raised. It has been contended that once
applicant in his option exercised on 14.12.1992 had given his
acceptance for absorption as SA(G) in IB in accordance with
DoPT‟s OM dated 22.12.59 read with DoPT‟s OM dated 29.05.86.
he was bound by the same. Secondly respondents have raised the
plea of limitation stated that while he was absorbed as SA(G) in IP
on 27.03.93, the OA seeking counting of his past service in CRPF
for the purpose of determination of his seniority in IB has been
filed in the year 2000. Thirdly, respondents contend that as the pay
scale of SA(G) is higher than that of a Constable in CRPF,
applicant is not entitled to count the service rendered by him in his
parent department i.e. CRPF for determination of his seniority as
the two posts are not equivalent. Fourthly it has been contended
that the Hon‟ble Apex Court‟s decision in SI Roop Lal‟s case
(supra) would have only prospective effect as held by the Hon‟ble
Supreme Court in Babu Ram vs. C.C. Jacob & Ors. AIR 1999 SC
1845.

15. We have considered rival contentions carefully.

16. The short question which this Full Bench is required to answer
is to whether in the light of the Hon‟ble Supreme Court‟s judgment
in SI Roop Lal‟s case (Supra), notwithstanding the fact that
equivalence of two posts is established in terms of the criteria laid
down therein, a deputationist could be denied the benefit of service
rendered by him on an equivalent post in the previous department
if he was informed at the time of his permanent absorption that he
would not be granted that benefit and he had accepted this
position.

17. In our considered opinion, for the reasons already given by the
Division Bench in its order dated 16.10.2001 in cases where the
equivalence of two posts is established in terms of the criteria laid
down by the Hon‟ble Supreme Court in SI Roop Lal‟s case (Supra)
a deputationist cannot be denied the benefits of the service

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rendered by him on an equivalent post in his parent department
even if he had been informed at the time of his permanent
absorption that he would be not granted that benefit and he
accepted that position. The reference is answered accordingly.

18. We make it clear that while answering the aforesaid reference
as above we are not recording any finding as to whether the post of
Constable in CRPF is equivalent to that of SA (G) in IB or not.

19. Let this OAs be placed before the appropriate bench for
disposal on merits and in accordance with law."

4. Based on the judgment of the Full Bench, the Division Bench has
allowed the OA filed by the respondent herein. The respondent was
appointed as Constable in the Central Reserve Police Force (CRPF) on June
06, 1983 where he worked till June 01, 1986. On June 02, 1986 he came on
deputation with the petitioner organization/IB and ultimately was absorbed
in IB as Security Assistant (G), on March 26, 1993. The Tribunal has in
paragraph 5 of the order dated April 16, 2003 quoted the case of the
respondent in the following manner:-
"5. In OA No. 1515/2000 applicant‟s also impugned the aforesaid
order dated 25.05.2000 (Annexure-A of the OA).

6. Both OAs were heard together by a Division Bench, in which one
of us (S.R.Adige, VC(A) ), was a party.

7. The Division Bench noted that the short question before it for
adjudication was whether applicant was entitled to count his
services as Constable in CRPF towards seniority upon his
absorption in the IB. From the impugned order dated 25.05.2000
it was clear that respondents had taken the stand that as the pay
scale of SA (G) was higher than that of a Constable in CRPF,
applicant could be deemed to have been holding an equivalent post
in CRPF in terms of DoPT‟s OM dated 29.05.86 and his seniority
as SA(G) was reckonable only from the date of his absorption in

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IB. This stand had been elaborated upon the respondents in their
reply to Para 4.14 of OA No. 1515/2000 in which it had been stated
that at the time of applicant‟s absorption as SA(G) (Rs.950-1200)
he was hold the rank of Constable (Rs.825-1200) in CRPF. In
terms of pay, the post of SA(G) was equivalent to that of Naik in
CRPF (Rs.950-1200), and he would have to earn two promotions
i.e. of Lance Naik and Naik in CRPF to become equivalent to the
post of SA (G). The Bench however noted that in respondents own
Memo dated 20.01.86 (Annexure-5 to the OA) to which its attention
was drawn by applicant‟s counsel. It had been stated that the
equivalent post of SA(G) in IB was that of Constable in a Central
Police Organization and CRPF was admittedly a Central Police
Organization."

5. The case of the petitioner before the Tribunal was that the respondent
is entitled to seniority in the rank of SA(G) from the date of his permanent
absorption i.e. March 26, 1993 as per the instructions by the DoPT OM
dated May 29, 1986, as amended from time to time.
6. It was also their case that the pay-scale attached to the post of SA (G)
was higher than that of the post of Constable in CRPF i.e. his parent
department, so his seniority on absorption is reckonable only from the date
of his absorption.
7. It was their case that the respondent completes the eligibility condition
for promotion from March 26, 2001, and shall be considered for promotion
subject to the availability of vacancies and as such no injustice has been
done to him. The Tribunal in paragraph 16 to 22 of the order has held as
under:-
"16. At this stage it will not be out of place to mention that this
case was first heard by a Division Bench comprising Hon‟ble S.R.
Adige, Vice-Chairman and Dr. A Vedavalli, Member (J) but on the
point of the interpretation of the judgment in the case of Roop Lal,
the Bench found another Co-ordinate Bench‟s judgment earlier

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passed in the case of Sh.Mehar Singh v. UOI & Others wherein
while determining equivalence of post. It was suggested that if the
deputationists was informed before hand that he was not to be
given the benefits of service rendered on a post in his parent
department and he had given his willingness then notwithstanding
its equivalence with the post he was presently holding in terms of
the above criteria, he could not claim the benefit of service
rendered by him in the parent department. The Bench disagreed
with the said order and recorded a separate order on 16.10.2001.
The later Bench was of the view that the judgment of Roop Lal‟s
case prescribe certain tests for determining equivalence of posts
and if those tests are satisfied and the two posts are declared
equivalent, then the deputationist has to be given the benefit of
service rendered by him in his parent department notwithstanding
the fact that at the time of his absorption he was informed and he
had given his willingness not to claim those benefits. The Bench
relied on para 13 of the judgment in Roop Lal‟s case wherein the
Hon‟ble Supreme Court has observed as under:-
"That any rule, regulation of executive instruction
which has the effect of taking away the service
rendered by a deputationist is an equivalent cadre in
the parent department while counting his seniority in
the deputed post would be violative of Article 14 and 16
of the Constitution and what has been held
unconstitutional, does not become constitutional or
legal even if the parties gave their willingness to them."

17. Thus the earlier matter came up in reference to the Full Bench.
The Full Bench after hearing both the parties, came to the
conclusion:-
"In our considered opinion, for the reasons already
given by the Division Bench in its order dated 16.10.2001
in cases where the equivalence of two posts is established
in terms of the criteria laid down by the Hon‟ble Supreme
Court in SI Roop Lal‟s case (Supra) deputationist cannot
be denied the benefits of the service rendered by him on an
equivalent post in his parent department even if he had
been informed at the time of his permanent absorption that
he would not be granted that benefit and he accepted that
position. The reference is answered accordingly."

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18. So now the only question to be seen before this Court is
whether the post of Constable in CRPF is equivalent to the post of
SA(G) in IB or not. In this regard we may mention that the Full
Bench has also noted down that the Hon‟ble Supreme Court in
para 17 of their judgment that equivalency of two posts was not be
judged by the sole fact of equal pay. Facts

to determined equivalency were:-

(i) the nature of duties of the post;

(ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charges held or responsibilities discharged;

(iii) the minimum qualifications if any prescribed for recruitment to the post; and

(iv) the salary of the post.

19. In the light of these observations of the Full bench we have to consider whether the post of Constable in CRPF is equivalent to the post of SA (G) or not. The four points criteria, as mentioned in the Full Bench pertaining to the determination of equivalency is, as under:-

(i) the nature and duties of the post;

(ii) responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;

(iii) the minimum qualifications if any prescribed for recruitment to the post; and

(iv) the salary of the post.

20. As regards the nature and duties of the post, the responsibilities and powers discharged and qualifications are concerned, the counsel for the applicant submitted that there is no dispute with regard to point Nos. 1,2 and 3. The respondents have rejected the claim of seniority on the ground that the salary of the applicant as a Constable in CRPF is less that the salary of SA(G). That could not have been taken into consideration when there is no dispute about the first three points. Besides that the applicant has also referred to a memo dated 20.01.1986 issued by the Department of IB, Ministry of Home Affairs, Government of India where it is stated that equivalent post of SA in the IB Headquarters is that of Constable. This memo in the last says as under:-

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13:17:04 "In this regard to deputationist SA(G) from Central Police Organizations, if the persons concerned draw salary in the scale of 225-308, he may be declared as Group „C‟, while those drawing salary in the pay scale of Rs.210-270 may be treated as Group „D‟."

21. The reading of the entire memorandum would go to show that the IB recruits SA on deputation basis but the fact that equivalent post of SA in the IB in the police organization is Constable. But as regards their classification whether they belong to Group „C‟ or Group „D‟ is concerned, depending upon their salary they could be treated as Group „C‟ or Group „D‟. Thus it is to be seen whether they are Group „C‟or Group „D‟ but there is no denial to the fact that the equivalent to the post of SA in these organization is constable. There is no dispute about the basis qualifications for entering into the service and about the nature of duties and responsibilities. So the only question is of salary. To that extent we may mention that the observations of the Hon‟ble Supreme Court in Roop Lal‟s case is quite relevant. In that case the petitioner an employees working with BSF was absorbed in the Delhi Police and while fixing his seniority in Delhi Police, service rendered by him was not taken into consideration on the ground that the pay scale of SI in Delhi Police was not equivalent to that of BSF so he was not entitled to count his seniority. This plea of the department was repelled and the view taken by the Tribunal based on the respondents plea also did not find favour with the Hon‟ble Supreme Court and since in this case also the department had taken the plea that because of the pay scales the post of Constable in CRPF is not equivalent to SA(G) he is not entitled to count seniority, which cannot be accepted and Full Bench had given a clear direction to the extent that if equivalence of post is established then the deputationists cannot be deprived of the seniority on equivalent post even at the time of his permanent absorption.

22. Shri Sinha appearing for the respondents submitted that since the option of the applicant was taken before being absorbed and he was informed that he would not be given the benefit of past service so he cannot claim. But in our view this contention of this learned counsel for the respondents has already been repelled by the Full Bench as they had held that if the equivalence of post is held then a

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13:17:04 deputationist cannot be denied the benefit on a equivalent post in his parent department if he had been informed at the time of permanent absorption that he was not eligible and he accepted that position. So the plea urged by Shri Singh is contrary to the law laid down by the Full Bench in this particular case and as such the same cannot be sustained."

8. The Tribunal in terms of the judgment of the Supreme Court in the case of SI Roop Lal (Supra) concluded that for the purpose of seniority in the borrowing department on absorption, it is necessary that the following aspects need to be met before the seniority of the parent office is granted to a government servant.

(i) The nature of duties of the post;

(ii) Responsibilities and powers exercised by the officer holding a post the extent of territorial or other charge held or responsibilities discharged;

(iii) The minimum qualifications if any prescribed for recruitment to the post;

(iv) The salary of the post.

9. The Tribunal has noted that as regard the nature of duties of the post; the responsibilities and powers discharged and qualifications are concerned, the same are pari materia. In fact the petitioner herein has rejected the claim of the seniority of the respondent only on the ground that the salary of the respondent in CRPF is less than the salary of the SA(G). In this regard it was stated that the salary of the deputationist as SA(G) from Central Police Organizations, if the Constable draw salary in the scale of 225-308, he is placed in Group „C‟, while a Constable from CPO, who is drawing salary in

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13:17:04 the pay scale of Rs.210-270 he is treated to be in Group „D‟. On this basis it was contended that the salary is not the same.

10. We find that the Tribunal has relied upon a memo dated January 20, 1986 issued by the Department wherein it is stated that equivalent post of SA in the IB Headquarters is that of Constable. In so far as the pay-scale is concerned as noted in paragraph 21 of the order dated August 9, 2003, the Tribunal held that the case on which reliance has been placed by the petitioner is relevant only for the purpose of classification whether the Constable belongs to Group „C‟ and Group „D‟ and nothing more.

11. This matter was listed yesterday when we had called upon the counsel for the respondent to place before the Court the memo dated January 20, 1986 wherein it is stated that the equivalent post of SA in the IB Headquarters is that of Constable.

12. Today, the learned counsel for the petitioner has placed before us the memorandum dated January 20, 1986. The same reads as under:-

Memorandum 20 Jan. 1986 "1. Attention is invited to the orders issued vide MHA No. 2/Est. (C)/71 (2)-EPV dated 26.8.85 circulated vide our Memo of even number dated 30.08.85 re-classified the post of Security Assistants in the pay scale of Rs.225-308 from Group „D‟ to Group „C‟.

2. The classifications have been sought by the outstation unites whether the deputationist Security Assistants in the Intelligence Bureau are to be treated as Group „C‟ or Group „D‟.

The post of Security Assistant in the I.B. is filled on deputation partly from the Central Police Organisations and partly from the State/Union Territories police force. The equivalent post of SA in

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13:17:04 the IB in these organizations is Constable. In certain states Constables have been classified as Group „C‟ whereas in many states they are Group „D‟

3. The question has been examined in detail and it is clarified that the classification as Group „C‟ and Group „D‟ of the deputationist SAs should be dependent on whether Constables in their parent States are Group „C‟ or Group „D‟. In other words if the deputationist SAs from States/Administrations as have been classified as Group „C‟ in the IB also and the deputationist SAs from other states may continue to be classified as Group „D‟. In regard to deputationist SAs from Central Police Organisations, if the person concerned draw salary in the scale of Rs.225-308, he may be declared as Group „C‟, while those drawing salary in the pay scale of Rs.210-270 may be treated as Group „D‟.

Sd/-

(H.B.Saxena) Assistant Director"

13. From the perusal of paragraph 2 of the memorandum, it is clear that the post of SA in IB is filled partly from Central Police Organisation (CPO) and partly from the State/Union Territories Police Force. The equivalent post of SA in the IB in these organistation is Constable. It is only with regard to classification of post, the memo states that if in a CPO the Constable is drawing the salary in the pay scale of Rs.225-308, he is classified as Group „C‟ while the Constable drawing salary in the pay scale of Rs. 210-270 he is classified as Group „D‟. In fact the Tribunal has in paragraph 21 clarified that for the purpose of equivalence, the post of Constable is equivalent to the post of SA in IB Headquarters and the same has no concern in so far as the classification of post as Group „C‟ or as Group „D‟.

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14. We agree with the said conclusion because both the posts have been treated as equivalent, though in given case, a Constable may be drawing a lower scale, but the same shall have a bearing on the classification of post as Group „D‟ but not on equivalence. In this regard we may also note that the Supreme Court in the case of SI Roop Lal (Supra) has in paragraph 17 held as under. It also held that if the earlier three criteria mentioned above are fulfilled then the fact that the salary of the two posts is different would not in any way make the posts not equivalent.

"17. In law, it is necessary that if the previous service of a transferred official is to be counted for seniority in the transferred post then the two posts should be equivalent. One of the objections raised by the Respondents in this case as well as in the earlier case of Antony Mathew is that the post of Sub-Inspector in BSF is not equivalent to the post of Sub-Inspector (Executive) in the Delhi Police. This argument is solely based on the fact that the pay scales of the two posts are not equal. Though the original Bench of the Tribunal rejected this argument of the Respondent, which was confirmed at the stage of SLP by this Court, this argument found favour with the subsequent Bench of the same Tribunal whose order is in appeal before us in these cases. Hence, we will proceed to deal with this argument now. Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than "pay" will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India v. P.K. Roy [MANU/SC/0049/1967 : AIR 1968 SC 850 : (1968) 2 SCR 186. In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganisation Act, 1956. These four factors are : (i) the nature and duties of a post, (ii) the responsibilities and powers exercised by the officer holding a post; the extent Of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and

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(iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criterion. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different, would not in any way make the post `not equivalent'. In the instant case, it is not the case of the respondents that the first three criteria mentioned hereinabove are in any manner different between the two posts concerned. Therefore, it should be held that the view taken by the tribunal in the impugned order that the two posts of Sub-Inspector in the BSF and the Sub-Inspector (Executive) in Delhi Police are not equivalent merely on the ground that the two posts did not carry the same pay-scale, is necessarily to be rejected. "

15. We may state, the learned counsel for the petitioner has contested the conclusion of the Tribunal only on the ground that the pay scale of Constable (CRPF) and SA(G) (IB) are different and as such the posts are not equivalent. It follows the first three requirements have not been contested. This Court is of the view in view of the conclusion in paragraph 17 in SI Roop Lal (Supra) even if the pay-scales are different the respondent is entitled to seniority as has been granted by the Tribunal.

16. In view of the above discussion, we see no reason to interfere with the order passed by the Central Administrative Tribunal and dismiss the writ petition. No costs.

V. KAMESWAR RAO, J.

ANOOP KUMAR MENDIRATTA, J.

JULY 06, 2023/mr

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