Case: SHRI GOVINDA CHANDRA TIRIA Vs. SIBAJI CHARAN PANDA &amp; ORS

is later, and replaced it with whichever is earlier, we are faced with a scenario where the police authorities, with a view to strengthen their existing security system in the capital, had created 12 new police stations in Delhi, and the posts were required to be filled in the shortest possible time so that there was an immediate impact on the law and order situation in Delhi. As the normal course of recruitment would take a longer period of time, in view of the urgent need of the hour, a decision was taken for suitable persons to be deployed on deputation basis to the ranks of Inspector, Sub-Inspector, Assistant Sub-Inspector, Head Constable, Constable and Driver. The request letter also stated that those officials taken on deputation were likely to be considered for permanent absorption after one year, if found suitable. 13. The opinion of this Court was that such deputationists were permanently absorbed but were not being given the benefit of service of equivalent post, and that they should have been so conveyed in order to make an informed choice of whether to seek or not to seek permanent absorption i.e. there had to be full disclosure and transparency in respect of the terms and conditions of the absorption. It was not a case of request for absorption, but, the exigencies of service, and that too, without putting them to notice of this fact. 14. The facts of the present case are completely to the contrary. Despite departmental communications wanting respondent No.1 to go back to the parent cadre it is respondent No.1s insistence and persuasion which prevailed, with the department absorbing respondent No.1 with the terms and conditions aforementioned. One of the terms and conditions was 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. This is not permissible. 15. Learned counsel for the appellant has also drawn our attention to the judgment of this Court in Mrigank Johri & Ors. v. Union of India & Ors.2, wherein it has been held that benefit of past service rendered in a cadre is usually reckoned for the purpose of seniority. In the instant case, where the conditions were categorically stated that the absorption would be deemed to be new recruitment and the previous service would be counted for all purposes except his or her seniority in the cadre, appellant having accepted it without any demur, the seniority list prepared as a sequitur to the terms and conditions of the absorption could not be faulted with. 16. This principle applies on all fores to the facts of the present case. Learned counsel for the appellant has also rightly contended that the plea based on the fact that the appointment of respondent No.1 was with a provision for transfer would not assist the said respondent as the present case is not one of transfer but of deputation, in pursuance to an O.M. and thus, the principle of a person moving to another cadre would squarely apply. Such depute would also, thus, have to be governed by the terms and conditions of such absorption. 17. In this behalf we may note 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. 18. 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 will apply as this was not a case strictly in public interest. 19. We are thus, of the view that the impugned judgment cannot be sustained and has to be set aside. 20. We must note 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 we are of the view that a closer scrutiny is necessary by the Department as to how such a counter affidavit was placed before us. 21. We are, however, faced with a situation that in the meantime, respondent No.1 has earned promotions, and is now deployed to the post of Assistant. The long pendency of litigation has resulted in a scenario where the effect of the aforesaid order would be possibly to demote him.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We may note that all principles of law arise in the given factual situation. If we consider the factual situation of that case, which had quashed a part of OM No.20020/7/80-ESTT (D) dated 29.5.1986 insofar as it provided for whichever is later, and replaced it with whichever is earlier, we are faced with a scenario where the police authorities, with a view to strengthen their existing security system in the capital, had created 12 new police stations in Delhi, and the posts were required to be filled in the shortest possible time so that there was an immediate impact on the law and order situation in Delhi. As the normal course of recruitment would take a longer period of time, in view of the urgent need of the hour, a decision was taken for suitable persons to be deployed on deputation basis to the ranks of Inspector, Sub-Inspector, Assistant Sub-Inspector, Head Constable, Constable and Driver. The request letter also stated that those officials taken on deputation were likely to be considered for permanent absorption after one year, if found suitable13. The opinion of this Court was that such deputationists were permanently absorbed but were not being given the benefit of service of equivalent post, and that they should have been so conveyed in order to make an informed choice of whether to seek or not to seek permanent absorption i.e. there had to be full disclosure and transparency in respect of the terms and conditions of the absorption. It was not a case of request for absorption, but, the exigencies of service, and that too, without putting them to notice of this fact14. The facts of the present case are completely to the contrary. Despite departmental communications wanting respondent No.1 to go back to the parent cadre it is respondent No.1s insistence and persuasion which prevailed, with the department absorbing respondent No.1 with the terms and conditions aforementioned. One of the terms and conditions was 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. This is not permissibleIn the instant case, where the conditions were categorically stated that the absorption would be deemed to be new recruitment and the previous service would be counted for all purposes except his or her seniority in the cadre, appellant having accepted it without any demur, the seniority list prepared as a sequitur to the terms and conditions of the absorption could not be faulted with16. This principle applies on all fores to the facts of the present case. Learned counsel for the appellant has also rightly contended that the plea based on the fact that the appointment of respondent No.1 was with a provision for transfer would not assist the said respondent as the present case is not one of transfer but of deputation, in pursuance to an O.M. and thus, the principle of a person moving to another cadre would squarely apply. Such depute would also, thus, have to be governed by the terms and conditions of such absorption17. In this behalf we may note 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 earlier18. 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 will apply as this was not a case strictly in public interest19. We are thus, of the view that the impugned judgment cannot be sustained and has to be set aside21. We are, however, faced with a situation that in the meantime, respondent No.1 has earned promotions, and is now deployed to the post of Assistant. The long pendency of litigation has resulted in a scenario where the effect of the aforesaid order would be possibly to demote him.