WP(C) Nos.372-76/2006 Page 1 of 26 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP(C) Nos.372-76/2006 % Date of Decision: 06.07.2011 Rajender Guglani & Others …. Petitioners Through Ms. Jyoti Singh, Sr. Advocate with Mr. Amandeep Joshi Advocate Versus Union of India & Others. …. Respondents Through Mr. S.K.Gupta Advocate for respondent Nos. 4 to 8 and Sh.Mrigank Johri, Respondent No.8 in person. CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR. JUSTICE SUDERSHAN KUMAR MISRA 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported in the Digest? NO ANIL KUMAR, J. * 1. The petitioners have challenged the order dated 30th August, 2005 passed by the Central Administrative Tribunal, Principle Bench, New Delhi in OA No.1490 of 2004, titled as „V.S.Kundlass & Others v. Union of India & Others‟, allowing the original application of V.S.Kundlass & Others, junior engineers who had joined the Department of Post on deputation initially and absorbed in the regular service allowing their original applications and directing the WP(C) Nos.372-76/2006 Page 2 of 26 respondents to count their past services rendered in the analogous post in the All India Radio and to give them proper place in the seniority list of junior engineers. The petitioners in the present writ petition were the intervenors who were directly recruited as junior engineers in the Department of Post during the year 1998. 2. The brief facts to comprehend the controversies between the parties are that respondent Nos.4 to 8 were initially appointed as junior engineers (Electrical) in the All India Radio during 1990-91. They were sent on deputation to the Electrical Wing in the Postal Department as junior engineers pursuant to the Office Memorandum issued by S.E.(C) HQ, Postal Department dated 15.03.1999, 17.06.1996, 17.06.1996, 24.08.1998 & 09.01.1999 respectively. 3. Respondent Nos.4 to 8 joined the Department of Post on 07.04.1999, 01.07.1996, 08.07.1996, 09.07.1996 and 02.07.1996 respectively and they were relieved from Parent Department, All India Radio. 4. Respondent Nos.4 to 8 had contended that they were absorbed in the regular service on transfer basis as per the terms and conditions. According to them, since they had no option but to join the postal department, they agreed to accept the terms and conditions of absorption including the term of absorption that their past services will WP(C) Nos.372-76/2006 Page 3 of 26 count for all purpose except their seniority in the cadre. The terms and conditions for absorption of junior engineers on permanent transfer basis in the Postal Wing were as under:- TERMS AND CONDITIONS FOR ABSORPTION OF JE(C)/(E) ON PERMAIN IN TRANSFER BASIS IN THE POSTAL CIVIL WING (i) He will sever all connections with his parent Ministry/Department. (ii) He will not ask for repatriation to his parent Ministry/Department. (iii) He will be deemed to be new recruits in the unit to which he is ordered to be posted. (iv) He will be given pay protection and his pay will be regulated in accordance with the provisions in FR/SE, and pay will be down as for ICCS pa rules applicable to DOP Civil Wing. (v) His past services will count for all purposes except his seniority in the cadre. (vi) He will move to the place of posting at his own cost. (vii) He will stand Junior to all JEs/(E) who have already opted for DOP Civil Wing and those who have joined the postal civil wing before date of issue of letter of his absorption in the civil wing of Deptt. Of Post. 5. Though the term of the transfer and absorption of respondent Nos.4 to 8 in the Department of Post was that their past services will not be counted for their seniority in the cadre, however, later on they claimed that their past services rendered in All Indian Radio preceding the date of their regularization in the Department of Post should be counted for the purpose of their seniority which has not been counted illegally. The respondents, therefore, made a representation which was however, declined. According to them, while declining their WP(C) Nos.372-76/2006 Page 4 of 26 representation no reasons were given by respondents, and therefore, they filed an original application being OA No.1490 of 2004, titled as „V.S.Kundlass & Others v. Union of India & Others‟, and claimed their seniority by taking into consideration their services in the All India Radio also despite the term of absorption that their seniority in the cadre could not be counted on the ground that conditions which were agreed to by respondent Nos.4 to 8 were against the rules and could not be relied on to deny them their seniority in the parent department. Respondent Nos.4 to 8 categorically asserted that they were compelled to agree to the conditions only because the absorption otherwise could not be possible. 6. Respondent Nos.4 to 8 for counting their services rendered in the All India Radio relied on OM No.20020/7/80-Estt (D) dated 25th September, 1986 stipulating as under. “In the case of a person who is initially taken on deputation and absorbed later (i.e. where the relevant Recruitment Rules provide for Deputation/Absorption) 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 equivalent grade on regular basis in his parent department, such regular service in the grade shall 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.” WP(C) Nos.372-76/2006 Page 5 of 26 Respondent Nos.4 to 8 also relied on a decision of the Supreme Court titled SI Roop Lal and Others v. Lt.Governor through Chief Secretary, Delhi (2000) 1 SCC 644. 7. The Department of Post contested the claim of respondent Nos.4 to 8 contending inter-alia that seniority list issued on 5th January, 2004 had been modified on 16th July, 2004 consequent upon reorganization of the office of the Postal Electrical Circle, New Delhi. In seniority list the names of respondent Nos.4 to 8 who had joined the Department of Post on deputation and they were finally absorbed after getting the NOC from the AIR, were shown below the junior engineers of Department who were recruited on the basis of their merit list prepared after appearing in the examination. The Department of Post, respondent Nos.1 to 3 contended that list was prepared as per existing rules and regulations. Reliance was placed on the recruitment rules contemplating that 83-1/3% persons are to be appointed by direct recruitment through open competitive examination conducted by Department of Post/Telecommunication and 16-2/3% persons are appointed by promotion on the basis of departmental competitive examination. Respondent Nos.1 to 3 also countered the allegation of respondent Nos.4 to 8 that they had to accept offer of absorption including that their services in the cadre in the All India Radio would not be counted as they had no option available with them. WP(C) Nos.372-76/2006 Page 6 of 26 8. The Tribunal considered the respective contentions of the parties and held that the provisions of OM dated 25th September, 1986 were not brought to the notice of respondent Nos.4 to 8 when they were given terms and conditions and in the circumstances, respondent Nos.4 to 8 could not be estopped from claiming their seniority by counting the services rendered prior to date of their absorption for the purpose of the seniority in the Department of Post. The Tribunal has also held that terms and conditions of the absorption which took away the benefit of past services of respondent Nos.4 to 8 were violative of Articles 14 and 16 of the Constitution of India and the principles of law laid down in SI Roop Lal‟s case. The Tribunal also held that the judgment in SI Roop Lal‟s case (Supra) has been followed in large number of cases and thus, directed respondent Nos.1 to 3 to redraw the seniority list and assign proper position in the seniority to respondent Nos.4 to 8 after counting their regular service on the analogous post of junior engineers in the lending department of AIR preceding their deputation followed by permanent absorption on the post of junior engineers in the Department of Post. 9. The order of the Tribunal dated 30th August, 2005 directing respondent Nos.1 to 3 to consider the seniority of respondent Nos.4 to 8 in their parent department, dated is being challenged by the petitioners in the present writ petition, the petitioners were directly appointed as Junior Engineers in the Department of Post, on the ground that the WP(C) Nos.372-76/2006 Page 7 of 26 deputation of respondent Nos.4 to 8 was with their consent and willingness and not on account of any compulsion by respondent Nos.1 to 3, or by their parent department. The petitioners asserted that once respondent Nos.4 to 8 were relieved from the Parent Department i.e. the All India Radio, they were permanently absorbed in the Department of Post on the terms and conditions which were agreed to by them and which have been reproduced hereinabove. The terms and conditions specifically specified that on absorption, the past service of the respondent nos. 4 to 8 would not be counted for the purpose of seniority in the cadre with respondent Nos.2 & 3 and respondent Nos.4 to 8 would be junior to all Junior Engineers who had already opted for Department of Post Civil Wing and those who had joined the Postal Civil Wing before the date of issue of the letter of absorption in the Civil Wing of Department of Post. The terms and conditions also categorically stipulated that seniority of respondent Nos. 4 to 8 would be counted from the date of issue of the letter permanently absorbing them. 10. The petitioners asserted that respondent Nos.4 to 8 cannot be permitted to deny the terms and conditions on which they were absorbed, as deputation and absorption was not the method of recruitment in terms of the recruitment rules and the benefit of the past seniority had been undertaken to be forgone by them. The relevant recruitment rules for the post of Junior Engineer (Electrical) Civil Wing WP(C) Nos.372-76/2006 Page 8 of 26 especially the method of recruitment and the grade from which the promotion could be made are as under:- 11. “Method of recruitment whether by direct recruitment or by promotion or by deputation on or transfer and percentage of vacancies to be filled by various methods. (i) 83-1/3% by direct recruitment through All India Open Competitive Examination conducted by the Department of Post/Telecommunication and (ii) 16-2/3% by promotion through departmental competitive examination. 12. In case of recruitment by promotion or deputation or transfer, grades from which promotion or deputation or transfer to be made Promotion: 1. Departmental Candidates namely Draftsman (Electrical) Work Assistants (Electrical) of Civil Wing and Draughtsman of parent wing with 5 years regular service in one or more grades as on 1st July of the year of departmental examination shall be eligible to appear in the departmental examination for promotion and 2. All group „C‟ employees of Civil wing and Postal Wing of the Department including the cadres, indicated above at (1) possessing a diploma of 3 years duration from a recognized institution in Electrical Engineering and having put in a minimum of 3 years regular service in the department as on 1st July of the year of Departmental Examination shall also be eligible to appear in the departmental examination for promotion provided they are not above 40 years of age, as on the crucial date. Deputation: Official under Central Government- (i) Holding analogous posts on regular basis; or WP(C) Nos.372-76/2006 Page 9 of 26 (ii) with 5 years regular service in the pay scale of Rs.1400- 2300 as Junior Engineer (Electrical) Transfer: Officials under Central Government held analogous post (Period of deputation including period of deputation in another cadre post held immediately preceding the appointment in the same or some other Organisation/Department of the Central Government shall ordinarily not to exceed Three years. The maximum age limit for appointment by transfer on deputation shall be not exceeding fifty six years, as on the closing date of receipt of application)”. 11. The petitioners made a grievance that on account of the impugned order of the Tribunal, respondent Nos. 4 to 8 are getting the benefit twice, as had they not consented to the terms of absorption, they would not have been absorbed in the first place. Thus, the respondent Nos.4 to 8 first agreed to the terms and conditions in order to avail the benefit of absorption and now they are denying those very terms and conditions, to seek a benefit they are not entitled to after their absorption. 12. The petitioners also contended that the ratio of SI Roop Lal‟s case (Supra) does not apply to the present facts and circumstances. Distinguishing the case of SI Roop Lal (Supra), learned counsel for the petitioners asserted that in that case there was no undertaking by the employees who were absorbed, nor were any such terms and conditions agreed to at the time of absorption stipulating that the seniority in the WP(C) Nos.372-76/2006 Page 10 of 26 parent cadre would not be counted. Further distinguishing the case of SI Roop Lal (Supra), it was stated that in the case of SI Roop Lal, Delhi Police had called him for his absorption through a letter and deputation and absorption was a mode of recruitment in contradistinction to the case of respondent Nos.4 to 8 who had themselves requested in writing that since they were enjoying their work in the Department of Post during the period of deputation, they would be grateful if they could be absorbed in the Postal Department itself. Further distinguishing the case of SI Roop Lal (Supra), the learned counsel for the petitioners contended that Rule 5 (h) of the Delhi Police (Appointment & Recruitment) Rules, 1980 gave powers to the Commissioner to make appointment on deputation basis by drawing suitable persons from any other State, Union Territory or Central Police Organization or any other force. Further Rule 17 gave powers to the Commissioner to sanction permanent absorption of persons sent on deputation with the consent of the deputed officials. Thus, in the case of SI Roop Lal (Supra), the method of recruitment was deputation and absorption whereas in case of respondent Nos.2 & 3 the method of recruitment was not deputation and absorption and therefore, respondent Nos.4 to 8 could not rely on the ratio of SI Roop Lal (Supra), and the Tribunal has committed a grave illegality in relying on SI Roop Lal‟s case (Supra), to allow the original application of respondent Nos.4 to 8 and holding that they are entitled for their seniority in the parent cadre, All India Radio. WP(C) Nos.372-76/2006 Page 11 of 26 13. Refuting the reasoning and the inferences of the Tribunal that the provisions of amended OM dated 25th September, 1986 were not brought to the notice of respondent Nos.4 to 8, it was contended that the said OM was amended in March 2001 and the terms and conditions were accepted by the respondent Nos. 4-8 subsequent to that. In any case there is nothing to show that the respondent Nos.4 to 8 were not aware of them. The learned counsel for the petitioners contended that in any case, the alleged ignorance of law and rules does not give any vested right to respondent Nos.4 to 8. It was contended that respondent Nos.4 to 8 after giving an undertaking to forgo a particular benefit could not turn back and claim the same, as they are estopped from doing so. It was also asserted that when an employee comes on his own request on transfer from one cadre to the other, he is normally to be kept at the lowest in the transferred cadre unless there exists any rule which confers the benefit of counting his previous service in the previous cadre. According to the petitioners, there was no rule in existence when respondent Nos.4 to 8 joined the Department of Post conferring them the benefit of counting their past services in the previous cadre. Referring to OM dated 25th September, 1986 as amended it was also emphasized by the learned counsel, Ms.Jyoti Singh, Sr.Advocate, that the said OM clearly stipulates that it was to be applied to those cases where relevant recruitment rules provide for absorption and deputation. However, in the case of respondent Nos.4 to 8 there is no recruitment WP(C) Nos.372-76/2006 Page 12 of 26 rule for deputation and absorption, therefore, respondent Nos.4 to 8 were not entitled for benefit of seniority in view of the OM dated 25th September, 1986. 14. Learned counsel for the petitioners also relied on Union of India & Others v. Deo Narain & Others, JT 2008 (10) SC 294 in support of their pleas that if an employee voluntarily and unilaterally gets transferred forgoing his seniority and joins another cadre with open eyes and is placed below, the employees of the cadre where he is transferred, it would not be open to such an employee to claim seniority on the basis of his service in the previous cadre. Reliance was also placed by the learned counsel for the petitioners on Arun Kumar & Others v. Union of India & Others, JT 2007 (5) SC 181 holding that direct appointment as a source of recruitment is not synonymous and equivalent to recruitment by deputation/transfer. The learned counsel also referred to SI Rooplal & Anr. v. Lt. Governor, through Chief Secretary, Delhi & Others, AIR 2000 SC 594 to contend that the ratio of the said case is distinguishable from the facts of respondent Nos.4 to 8. Hence the benefit granted by the Tribunal to respondent Nos.4 to 8 on the basis of the ratio of the said judgment could not be granted to them. 15. The writ petition is opposed by respondent Nos.4 to 8 who filed a counter affidavit dated 21st August, 2006 contending that the terms and WP(C) Nos.372-76/2006 Page 13 of 26 conditions of absorption of respondent Nos.4 to 8 were in contravention of the statutory rule and law declared by the Supreme Court and, therefore, the terms and conditions are not binding upon respondent Nos.4 to 8. According to Mr.Gupta, learned counsel for respondent Nos.4 to 8, condition Nos.5 & 7 as reproduced hereinabove are not binding on respondent Nos.4 to 8 i.e. that their seniority in the previous cadre will not be counted and that they will stand junior to all Junior Engineers (Electrical) who had already opted DOP&T (Civil Wing) thus, who had joined the Postal (Civil Wing) before the date of issue of letter of absorption of respondent Nos.4 to 8. 16. The learned counsel for respondent Nos.4 to 8 relying on Department of Post, (Junior Engineer, Electrical) Civil Wing Rules, 1995 contended that the rules contemplate that the mode of recruitment is deputation/transfer especially in view of column 12 which stipulate the grades from which promotion or deputation or transfer can be made. According to learned counsel, Mr.Gupta, the absorption of respondent Nos.4 to 8 was done in accordance with Rules of 1995, wherein absorption is a mode of recruitment. 17. An application under Order 1 Rule 10 of the Code of Civil Procedure for impleadment was also filed by certain applicants, Nawab Singh & Others, contending that the Chief Engineer (Civil, North Zone), WP(C) Nos.372-76/2006 Page 14 of 26 Department of Post pursuant to order of the Tribunal dated 30th August, 2005 has considered the regularization and promotion of respondent Nos.4 to 8 as well as the applicants. The applicants alleged that they are working in the same department and the seniority on promotion is to be considered by respondent No.2 for the Electrical and Civil Department, by a common order. In the circumstances, it was contended that they are necessary parties, and therefore, are required to be impleaded in the present matter. On the application of these applicants, Nawab Singh & Others, CM No.1130 of 2010, by order dated 14th September, 2010 it was held that the applicants would be entitled for intervention, however, they would not file any pleading and would rely upon the pleadings of the petitioners as that they have been supporting them. 18. Though by order dated 14th September, 2010 the application of intervenors, Nabab Singh, L.K.Sharma, R.K.Sharma, Mohan Lal, Karan Singh, Raj Kishore, Brijesh Kumar, Mukhtiar Singh, D.K.Goel and H.K.Agarwal was allowed and they were permitted to rely upon the pleadings of the petitioners, however, no one appeared on their behalf and argued the matter in support of their pleas and contentions regarding their seniority. WP(C) Nos.372-76/2006 Page 15 of 26 19. This Court has heard the learned counsel for the parties in detail and has also perused the pleadings and documents filed by the parties and the precedents relied on. Perusal of the Recruitment Rules, Column-11 it is amply demonstrable that the mode of recruitment is only by direct recruitment and or by promotion. Column 11 of the said rules prescribes the method of recruitment which states that recruitment to the post of Junior Engineer (Electrical) Civil Wing will be 83-1/3% by direct recruitment through All India Open Competitive Examination to be conducted by the Department of Post/Telecommunication and 16-2/3% by promotion through Departmental Competitive Examination 20. This cannot be disputed by respondent Nos.4 to 8 that they had not been appointed in the Department of Post through direct recruitment, on the basis of any All India Open Competitive Examination conducted by Department of Post/Telecommunication. This is also not the case of respondent Nos.4 to 8 that they have been appointed by promotion on the basis of the Departmental Competitive Examination. 21. The Supreme Court in Arun Kumar & Others (Supra), relied on by the petitioners had held that direct appointment as a source of recruitment is different from deputation/transfer in the methods of WP(C) Nos.372-76/2006 Page 16 of 26 recruitment. In the said case relied on by the petitioners, an IPS Officer who was in the Punjab Police, was killed by a terrorist and consequently, his sister, Ms. Amrit Brar was appointed as an Assistant Commandant in CRPF on probation for two years. The appointment of the sister of the deceased IPS Officer was not on compassionate grounds, but as a result of an exception as governed by CRPF Rules. On completion of her probation, she was appointed on deputation to the post of Superintendent of Police in Punjab Police, however, she retained her lien as Assistant Commandant in CRPF till 11th September, 1998 when she was absorbed as DSP in Punjab Police. She was also allowed all benefits including pay and seniority from 9th June, 1989. In between, she was promoted to the post of Deputy Commandant in CRPF in March, 1995. The deputation and absorption of Ms.Amrit Brar in Punjab Police was challenged by some of the highly decorated senior officers in the Punjab Police Service on the ground that the Punjab Police Service Rules did not contemplate absorption of a deputationist from CRPF. The High Court construing the rules which stipulated the mode of recruitment as being direct recruitment and promotion, held that “direct appointment” would also include appointment by deputation and thus, held that Rule 14 detailing the method of recruitment would be applicable in the said case. In the appeal, the Supreme Court struck down the order of the High Court holding that direct appointment as a source of recruitment is different from deputation/transfer as the method of recruitment. Construing the WP(C) Nos.372-76/2006 Page 17 of 26 Punjab Police Service Rules, 1959 it was held that deputation was not the source of recruitment under the