Service Law: Absorption – Counting of seniority – On facts, respondent No 1 who was on deputation, instead of going back to the parent cadre seeking absorption with the department on the terms and conditions stated therein that seniority to be counted from the date of absorption – Respondent No.1 accepted the same and was treated as a fresh appointee – Thereafter, circulation of seniority list wherein respondent placed below the appellant – Challenge to – Held: It was not permissible to challenge the seniority list in an oblique manner, and assail the terms and conditions of the absorption – Normally the deputation period would be counted, but this was subject to the caveat that in case the transfers are not strictly in public interest, the transferred officers would be placed below all appointed regularly to the grade on the date of absorption – The said clause would apply as this was not a case “strictly in public interest” – Order passed by the High Court directing fresh gradation list to be drawn set aside – However, since, in the meanwhile, respondent No.1 has earned promotions, while the seniority list would be maintained, respondent No.1 may not be demoted, and an ex-cadre/supernumerary post to be created to keep him in the same post without affecting the seniority list.
Allowing the appeals, the Court
HELD: 1.1 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 mentioned 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 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, which is not permissible. [Para 14][718-G-H; 719-A-B]
1.2 OM NO. 20020/7/80-ESTT(D), which, in para 2 sets out that when an officer initially comes on deputation, 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”. 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 would apply as this was not a case “strictly in public interest”. Thus, the impugned judgment cannot be sustained and has to be set aside. [Paras 17-19][719-F-G; 720A-B]
1.3 It is noted 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 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 a closer scrutiny is necessary by the Department as to how such a counter affidavit was placed before this Court. [Para 20][720-C-D]
1.4 In the meantime, respondent No.1 has earned promotions, and is now deployed to the post of Assistant. In view of long pendency of litigation, the effect of the said order would be possibly to demote him. 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, 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. [Para 21][720-E-F]
Sub-Inspector Rooplal & Anr. v. Lt. Governor Through Chief Secretary, Delhi & Ors. (2000) 1 SCC 644 – distinguished.
Mrigank Johri & Ors. v. Union of India & Ors. (2017)
8 SCC 256 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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