IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.11.2009 CORAM : THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.12688 of 2007 1. The Union of India, By the Deputy Director (Administration) Central Bureau of Investigation, New Delhi, 2. The Superintendent of Police, CBI/ACB, Chennai, ... Petitioners Vs. 1. Central Administrative Tribunal, Madras Bench, 2. A.Lazaras, ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari, calling for the records relating to the order dated 07.02.2007 passed in Original Application No.913 of 2006 on the file of the first respondent herein and quash the same. For Petitioners : Mr.N.Chandrasekaran, Spl. P.P. for CBI, For Respondents : Mr.R.Yasodh Varadhan, Senior Counsel for M/s.Sivanandh Associates https://hcservices.ecourts.gov.in/hcservices/ O R D E R T.S.SIVAGNANAM, J. The Union of India, represented by the Deputy Director, CBI and another are the petitioners in the above writ petition. 2. The writ petition has been filed challenging an Order passed by the Central Administrative Tribunal in O.A.No.913 of 2006, dated 07.02.2007. The facts leading to the filing of the Original Application are stated as hereunder. 3. The applicant, who is the respondent herein, was appointed as an Assistant Sub-Inspector in the Border Security Force on 04.12.1989. On 01.07.1994, he was sent on deputation to the post of Assistant Sub-Inspector in CBI, worked in various branches of CBI and he was absorbed in CBI on 17.02.2000 in the rank of Assistant Sub-Inspector. The applicant's seniority was fixed by the CBI on 18.04.2001 and the seniority was fixed in the rank of Assistant Sub- Inspector with effect from 4.12.1989 giving the benefit of his service rendered in Border Security Force as Assistant Sub Inspector. Thereafter, CBI, by an order dated 21.05.2001 promoted the applicant as Sub-Inspector with effect from 07.10.1993 and further promoted as Inspector of Police with effect from 28.10.1999. 4. This promotion was occurred since, the applicant is junior to one Jyothi Prasad Dhobal, who was promoted to the rank of Sub Inspector of Police with effect from 07.10.1993 and further promoted as Inspector of Police with effect from 28.10.1999. The applicant took charge as Inspector of Police in the CBI Head Quarters on 21.05.2001 and was also drawing all the financial benefits attached to the post. According to the applicant he has served in various branches of CBI as Inspector of Police including in the Computerization Team and was also sent on deputation to the United Nations Mission in Kosovo for one year. After his return from the UN assignment, the applicant was posted as Inspector of Police in Anti-corruption branch of CBI at Chennai. 5. It is further submitted that the CBI Head Quarters by an order dated 15.11.2006 ordered that the recommendations of the Departmental Promotion Committees dated 18.05.2001 and 14.06.2000 have been reviewed by another Departmental Promotion Committee in its meeting held on 31.10.2006 and the recent Departmental Promotion Committee has recommended to cancel the earlier promotion order https://hcservices.ecourts.gov.in/hcservices/ dated 21.05.2001, by which the applicant was promoted as Sub Inspector of Police in CBI with effect from 07.10.1993 and to the grade of Inspector with effect from 28.10.1999. It was further stated that the DPC also considered the Annual Confidential Reports of the applicant and found him fit to have the post of Sub-inspector of Police with effect from 05.07.2000 by placing his name at 17th place of panel. 6. By placing reliance on the minutes of the DPC, respondent/the petitioners herein cancelled the promotion order issued to the applicant and reverted him to the post of Sub- inspector of Police in CBI with effect from 05.07.2000. This order was challenged by the applicant before the Tribunal by stating that the same has been passed without hearing the applicant and the order of reversion is in effect an order imposing a major penalty on the applicant . Therefore, he ought to have been heard prior to passing the same. 7. It is further submitted that the DPC has reviewed the promotions allegedly based on some representations but the applicant was not put on notice and as such the order was passed behind his back. Therefore, the petitioner contended that there is a total violation of principles of natural justice and the order is against the law. Further, it was contended that there cannot be any recovery since the applicant had worked in the post and drawn such emoluments. 8. The CBI filed an Interim Reply before the Tribunal by stating that the service conditions relating to a person initially taken on deputation and subsequently absorbed, is primarily governed by the Office Memorandum of Department of Personnel and Training (DOPT) dated 29.05.1986 and the same contains the following conditions: (a) If a Person on deputation, holding equivalent grade in his parent Department, is absorbed, then his seniority will be given from the date he has been holding the post on deputation or from the date from which he was appointed on regular basis to the same or equivalent grade in his parent Department, whichever is later. (Emphasis supplied) (b) The fixation of seniority of a transferee, in accordance with the above principle will not, however, affect any regular promotion to the next higher grade made prior to the date of such absorption. In other https://hcservices.ecourts.gov.in/hcservices/ words, it will be operative only in filling up of vacancies in higher grade taking place after such absorption. 9. It was further contended that the Hon'ble Supreme Court of India, vide its Judgment in Shri SI Rooplal and Others Vs. Lt.Governor, Delhi, 2000 (1) SCC 644, held that the words 'whichever is later' occurring in the DOPT OM dated 29.05.1986 (referred supra) are violative of Articles 14 and 16 of the Constitution. Therefore, the DOPT, vide OM dated 27.03.2001 substituted the term 'whichever is later' in the OM dated 29.05.1986 with the term 'whichever is earlier'. According to the subsequent OA dated 27.03.2001, the judgment of the Hon'ble Supreme Court did not, in any way, alter the instructions relating to the promotion of such absorbees as contained in the earlier OM dated 29.05.1986. It was further stated by the CBI that the applicant on his absorption in CBI on 17.02.2000, was given correctly the seniority with effect from 04.12.1989 in the rank of ASI, which is in conformity with the decision of the Hon'ble Supreme Court and in terms of OM dated 27.03.2001. It is further stated that the OM dated 27.03.2001 is applicable only to fixation of seniority at the time of absorption and the applicant was wrongly promoted, as Sub-Inspector with effect from 07.10.1993 and Inspector with effect from 28.10.1999 and the benefits were given notionally. These promotions, according to the Department, are in contravention of the instructions contained in OM dated 29.05.1986, which was not set aside by the Hon'ble Supreme Court and according to the Department, they were intimated that the OM dated 29.05.1986 was not set aside by the Hon'ble Supreme Court as communicated by OM dated 27.03.2001. It is further stated that the applicant was eligible for promotion to a vacancy arising after his absorption (date of absorption 17.02.2000), but, he was wrongly promoted as Sub Inspector of Police with effect from 07.10.1993, and Inspector from 28.10.1999, even though on the said date ie. 07.10.1993 he was not in CBI and as on 28.10.1999 he was not absorbed in CBI and was a deputationist only. It is further submitted that on a representation made by the applicant, the CBI referred the matter to DOPT and clarification has been give on 17.07.2006 that the promotion given to the applicant is irregular. 10. The applicant filed an interim rejoinder to the interim reply of the CBI, reiterating the contentions raised and denying the allegations made in the interim reply. Based on the above pleadings and after considering the facts and circumstances of the case, the Tribunal, by an order dated 07.02.2007, allowed the Original Application and directed the respondents to provide promotion to the applicant based on the revised seniority given to him with effect https://hcservices.ecourts.gov.in/hcservices/ from 04.12.1989 by counting his service in the parent Department, from the date on which he has joined the respondents on deputation on a notional basis. The Tribunal further directed that any actual benefits of promotion extended earlier from 01.07.1994 by the respondents themselves by their earlier orders, would accrue to him only after the date of his absorption in the respondents Department. The Tribunal also held that the applicant cannot be asked to repay the financial benefits paid to him because of notional fixation of his promotion prior to absorption. The order passed by the Tribunal is impugned in the present writ petition. 11. Heard Mr.N.Chandrasekaran, Special Public Prosecutor for CBI on behalf of the petitioner and Mr.R.Yasod Varadhan, the learned senior counsel for T.Sivanandh Associates, learned counsel for the second respondent. 12. We have heard the learned counsel and perused the materials carefully. The correctness of the order passed by the Tribunal is challenged by the CBI on the ground that the Tribunal ignored the rationale contained in the DP&T OM dated 29.05.1986 relating to the provision that the seniority of the applicant, though given from the retrospective date, promotions given based on such seniority would be operative only by filling up of vacancies in the higher grade, after such absorption. It was further contented that the Hon'ble Supreme Court in the case of Rooplal, as referred above, did not strike down the entire office memorandum dated 29.05.1986 and interfered only with the portion of it relating to fixation of seniority and in fact has upheld the other provisions including the one relating to promotion of such absorbees. It is further contended that the Tribunal ought to have seen that mere seniority alone does not entitle an official for promotion and that he must fulfill the eligibility conditions prescribed in the Recruitment Rules. Further it is stated that the the Tribunal completely ignored the provisions of OM dated 29.05.1986. It is further stated that the applicant was entitled to promotional prospects in his parent Department (on a proforma basis when he was on deputation to CBI) and that the applicant did not become eligible for promotion till the date of his absorption in his parent Department and that by directing that the applicant be given promotional benefits in CBI on notional basis, counting his past services in his parent Department, promotional opportunities are being given to the applicant in two Departments for the same period, simultaneously. 13. Per contra, the learned senior counsel appearing for the applicant would contend that before the applicant joining CBI on https://hcservices.ecourts.gov.in/hcservices/ deputation on 01.07.1994 as Assistant Sub Inspector (ASI), his junior one Jyothi Prasad Dhobal was promoted as S.I. Further it was submitted that the promotion originally granted to the applicant with retrospective effect is correct, since his juniors were already promoted and the applicant completed the five years of total service as ASI on 04.12.1989 and he should have been appointed as SI on deputation basis on the combined service. 14. The point for consideration is whether the applicant could be denied promotion to the rank of SI in CBI with effect from 07.10.1993 and to the rank of Inspector with effect from 28.10.1999. The contention of the Department is that after the judgment of the Hon'ble Supreme Court in Rooplal case, as referred above, the words 'whichever is later' in the office memorandum dated 29.05.1986 were removed and the words 'whichever is earlier' were substituted and the seniority of the applicant should be determined only with reference to his date of joining the parent Department. It has to be seen as to whether the applicant has been denied the consequential benefit of promotion which was in fact given to him and subsequently cancelled by the impugned order before the Tribunal. 14. Sheet-anchor of the arguments of the CBI is that they are bound by the instructions issued in OM dated 29.05.1986 and the office note dated 26.07.2006. It is to be noted that the CBI has taken a stand that the applicant can be given only seniority from the date of joining in his parent Department, but, no weightage could be availed by him while considering his case for promotion. It is to be noted that seniority is based on length of service and on account of the right accrued in favour of the applicant he would also become eligible for future promotions. Even in cases relating to transfer on request, which is often resorted to by the Railway employees, the concerned incumbent might lose seniority on account of such transfer but he could not be denied his past services on account of such unilateral transfers. By applying the above said principle to the case on hand, when CBI admitted the services of the applicant for the purpose of seniority as it would take effect from the date of his joining in the parent Department, there is absolutely no justification on the part of CBI to deny the applicant consequential benefits which accrued to him based on such seniority. If the interpretation given by the CBI has to be extended, then the effect of the past services rendered by the applicant becomes redundant. 15. The Tribunal after considering the factual aspects and the earlier decision rendered by the Jaipur Bench of the Tribunal, in https://hcservices.ecourts.gov.in/hcservices/ our view, has correctly directed to grant promotion to the applicant based on the revised seniority given to him with effect from 04.12.1989, by counting his service in the parent department, from the time he joined the CBI on deputation on a notional basis, since it would ensure that the applicant is not denied the weightage of seniority which he is entitled to in the absorbed Department based on his actual seniority and also he does not interfere with those who were promoted earlier than him but junior to him based on the date of joining until the date of absorption. 16. It is further to be noted that the applicant's claim is not only based on the revised seniority, which is pursuant to the direction to the Hon'ble Apex Court, but also on the merits. For all the above reasons, we find that the order passed by the Tribunal does not call for any interference in the present writ petition. 17. Accordingly the writ petition is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To 1. Central Administrative Tribunal, Madras Bench, +1cc to Mr.Sivanandh and Associates Sr 59442 +1cc to Mr.N.Chandrasekaran, Advocate Sr 59302 AKR(CO) km/19.11. W.P.No.12688 of 2007 https://hcservices.ecourts.gov.in/hcservices/