Shri Govinda Chandra Tiria vs Sibaji Charan Panda

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.3542-3543/2010

SHRI GOVINDA CHANDRA TIRIA Appellant(s)

VERSUS

SIBAJI CHARAN PANDA & ORS. Respondent(s)

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. On the recommendation of the Staff Selection Commission, the

respondent No.1 before us was so offered an appointment to the post

of Lower Division Clerk (LDC) Group C in the Ministry of

Environment & Forests, Government of India, New Delhi in the pay

scale of Rs.950-1500/- vide letter dated 24.05.1993. In terms of

this letter of appointment, the head quarter of the work was at New

Delhi, but the appointment carried with it a liability to serve

anywhere in India. On completion of the period of probation of two

years, the respondent NO.1 made an application dated 22.07.1994 in

pursuance to Circular dated 24.11.1993, seeking options from the

staff for the post of LDC on “transfer on deputation basis” Signature Not Verified

initially for a period of one year, which was likely to be extended Digitally signed by ASHA SUNDRIYAL Date: 2020.02.18 16:47:16 IST Reason: to a further period of maximum three years. The application of

respondent No.1 was accepted and he joined the office of Deputy 2

Conservator of Forests as LDC at Bhubaneshwar on 10.5.1994 in

pursuance to his selection vide letter dated 12.04.1994.

2. In terms of the Circular dated 24.11.1993, respondent NO.1 was

granted the maximum number of extensions, for a period of three

years, periodically after obtaining the no objection certificate

from the Central office at Delhi.

3. In the course of the tenure of deputation, respondent No.1

made a request for transfer on a permanent basis to the regional

office at Bhubaneshwar and vide letter dated 21.11.1994, from the

Central office to the Easter Regional Office, MoEF, Bhubaneshwar,

it was informed that no further extension could be given to

respondent No.1 and calling upon the Bhubaneshwar Office to make

its own recruitments. Respondent NO.1, however, persisted with his

request and then sent a letter on 22.09.1995, seeking the

consideration of his case sympathetically. The relevant part of

this letter is extracted as under:

“That I am the only earning member of my family. My family depends upon me both financially and physically. During posting at Delhi I had to send a major portion of my salary to my family. When I was far away from my home I was unable to attend the needs of my family members. So I had to work under great mental tension.

Therefore, I request you to kindly consider my case sympathetically and allow me No Objection Certificate for my posting in any Central Govt. office located in Orissa.

In this connection, I request you to refer to my applications dated 30.01.95 and 17.05.95 and request you to take necessary action at any early date.” 3

4. On 05.09.1996, once again respondent No.1 made a

representation to the Bhubaneshwar office for absorption on

“compassionate grounds” as LDC (Hindi Typist) on transfer basis.

The endeavour of respondent No.1 finally succeeded when an office

memorandum dated 13.11.1996 was issued intimating him about the

approval of the competent authority for absorption on a transfer

basis in the Eastern Regional Office and seeking his consent on the

terms and conditions set out in the letter. The said conditions

are are under:

“(i) He should sever fully his link or lien with the

CSCS cadre.

(ii) He will be treated as fresh appointee in the Eastern Regional Office, Ministry of Environment & Forests, Bhubaneswar and he will be ranked junior most in the cadre of LDC in ERO, MOEF, after his appointment in this office.

(iii) His present posting shall be at Bhubaneswar (Orissa) but he is liable to be posted anywhere of India in this Ministry.

(iv) The transfer is at his own request and as such, he is not entitled to TTA/Joining time etc.

In case he is willing to accept all the conditions stipulated above, in addition to all the rules and regulations applicable to his grade in Govt. of India, he may please got relieved of his duties from Ministry of Environment & Forest, New Delhi after completing all the required formalities and thereafter report for duty in the Ministry of Environment & Forests, Eastern Regional 4

office, Bhubaneswar.”

5. The crucial aspect is that respondent No.1 was to be treated

as a ‘fresh appointee’ in the Regional Eastern Office and rank

junior most in the cadre after his appointment to that office. He

was called upon to give his willingness to all the conditions,

which were duly accepted by respondent No.1. He gave his technical

resignation thereafter (annexure P-9) and consequently the office

order dated 02.01.1997 was issued, relieving him. He also

addressed a letter on 31.01.197 giving his willingness in writing

to transfer, on permanent absorption basis, on the terms and

conditions specified under O.M. No.2-56/FCE dated 13.11.1996, and

accordingly joined.

6. On 08.03.2001, the provisional seniority list was circulated

by an office order of the even date, in terms whereof respondent

NO.1 was shown at serial No.3, while the appellant was shown at

serial No.2. The respondent No.1 filed objections dated 12.03.2001

seeking to rely on O.M. No.AB-140171/89-Est(RR) dated 03.10.1989.

This was despite his consent as according to him the said O.M.

would govern the terms of absorption and not his consent. The

representation was rejected on 22.06.2001. The rejection takes note

of the interim developments during this period of time, i.e.

issuance of an office memorandum dated 27.03.2001 arising from a

judgment of this Court in Sub-Inspector Rooplal & Anr. v. Lt.

Governor Through Chief Secretary, Delhi & Ors1., in terms whereof

1 (2000) 1 SCC 644 5

the terms and conditions of O.M. No.20020/7/80-Esst(D), dated

29.05.1986, were struck down to the extent it provided as under:-

“- the date he has been holding the post on deputation

or

- the date from which he has been appointed on a regular basis in the same or equivalent grade in his parent department.

whichever is later.”

(emphasis supplied struck down)

The instructions were to take effect from 14.12.1999, which

was the date of the judgment of the Supreme Court (the latter part

is not an aspect which we are examining). The final seniority list

was published on 3.7.2001, maintaining the provisional seniority

list and thus respondent No.1 filed an Original Application

NO.584/2001 before the Central Administrative Tribunal, Cuttack

Bench challenging the seniority list on the ground that his

seniority had been calculated in violation of Government of India

circulars and guidelines issued from time to time, and his name had

been placed below two persons (including the appellant). This

Original Application was, however, dismissed by order dated

17.10.2003 based on the counter affidavit filed by the Central

Government to the effect that the latter part of the O.M.

No.22011/7/86-Est.(D) would govern the present case as the

absorption of respondent No.1 was not in public interest. The

relevant clauses of O.A. No.20020/7/80-ESTT(D) dated 29.05.1986 are

being extracted hereunder:

6 “ NO. 20020/7/80-ESTT(D) GOVERNMENT OF INDIA/BHARAT SARKAR, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE AND PENSIONS DEPARTMENT OF PERSONNEL & TRAINING

NEW DELHI, the 29th May, 1986

OFFICE MEMORANDUM

Subject: Seniority of persons absorbed after being on deputation.

The undersigned is directed to say that the existing instructions on seniority instructions on seniority of transferees contained in para -7 of the Annexure to this Department’s O.M. No.9/11/-55-RPS dated the 22nd December, 1959 (copy enclosed) mainly deal with cases where persons are straight way appointed on transfer. It is, however, observed that most of the cases of permanent absorption are those where the officers were taken on deputation initially under the method of transfer on deputation/transfer contained in the relevant recruitment rules. The O.M. is intended to fill this gap in the existing instructions.

2. Even in the type of cases mentioned above, that is, where an officer initially comes on deputation and is subsequently absorbed, the normal principle that the seniority should be counted from the date of such absorption, should mainly apply. Where, however, the officer has already been holding on the date of absorption in the same or equivalent on grade on regular basis in his parent department, it would be equitable and appropriate that such regular service in the grade should also be taken into account in 7

determining his seniority subject only to the condition that at the most it would be only from the date of deputation to the grade in which absorption is being made, it has also be ensured chart the fixation of seniority of a transfer in accordance with the above principle will not effect any regular promotions made prior to the date of absorption. Accordingly, it has been decided to add the following sub-para (iv) to para -7 of general principles communicated vide O.M. dated 22nd December, 1959.

“(iv) In the case of a person who is initially taken on deputation and absorbed later i.e. where the relevant recruitment rules provide for transfer on deputation/transfer, his seniority in this grade in which he be absorbed will normally be counted from the date of absorption. If he has, however, been holding already from the date of absorption), the same is equivalents grade on regular basis in parent department, such regular services in the grade shall also 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 in the same or equivalent grade in his parent department.

Whichever is later.

The fixation of seniority of transferee in accordance with the above principle will not, however, affect any regular promotions to the next higher grade, made prior to the date of such absorption. In other words, it will be 8

operative only in filling up of vacancies in higher grade taking places after such absorption.

In cases in which transfers are not strictly in public interest, the transferred officers will be placed below all officers appointed regularly to the grade on the date of absorption.”

(emphasis supplied)

We may repeat here that the expression whichever is later as

appearing in the Circular stood modified in pursuance to the

judgment of this Court in Sub-Inspector Rooplal (supra).

7. The respondent No.1, aggrieved by the order of the Central

Administrative Tribunal filed a Writ Petition before the Orissa

High Court under Articles 226 and 227 of the Constitution of India,

being Writ Petition No.1645/2004, which was allowed vide judgment

dated 22.08.2008, directing a fresh gradation list of LDC to be

drawn and to consider the case of respondent No.1 for promotion to

the post of UDC, if he is so entitled. The judgment took note of

the opinion of this Court in Sub-Inspector Rooplal (supra) and

simultaneously also took note of the conditions imposed at the time

of absorption of respondent No.1, which had been accepted by

respondent No.1 as “the only hurdle”. Thereafter, it proceeded to

record its reasons in para 11:

“The learned Assistant Solicitor General has not been able to place any rule/circular/office memorandum to show that if an employee is to be permanently absorbed in the borrowing department he has to accept the bottom most 9

seniority in the cadre. In absence of anything in support of such condition, we are of the view that imposition of such condition on contrary to the office memorandum dated 29th May 1986 and 27th March 2001 and, therefore, the petitioner cannot be bound by that. Since we are of the view that the seniority of the petitioner in the cadre of LDC in the Eastern Regional Office is to be reckoned from the date he joined on deputation in the office of opposite party No. 2, the gradation list prepared for LDC is liable to be set aside and, therefore, a fresh gradation list is required to be drawn.”

8. The appellant, his seniority being disturbed thus, approached

this Court, though the Union of India did not approach this Court.

Leave was granted on 16.04.2010, and the matter is listed before

us, unfortunately, after almost a decade.

9. We have heard learned counsel for parties.

10. In sum and substance, there are really two submissions on

behalf of the appellant – a) the terms of the absorption of

respondent No.1 itself stipulated that his seniority would rank

below the others, and having accepted the terms and conditions of

absorption, he cannot be permitted to resile from the same, and

consequently affect the seniority of the appellant, b) the High

Court fell into error while observing in para 11 that the office

memorandum dated 29.05.1986 and 27.03.2001 will prevail, and that

in those memorandums, there was nothing which could affect the

seniority of respondent No.1 from his initial date of appointment

at Delhi.

10

11. The second aspect is assailed on the basis that the crucial

aspect of extracted O.M. dated 29.5.1986 has not been considered

i.e. that such seniority would not be available in cases in which

transfers are “not strictly in public interest”. This was a pre-

condition. The fact that the department wanted respondent No.1 to

go back to his parent cadre, the communication substantiated the

same. It was the insistence of respondent No.1, by way of repeated

representations, which resulted in the office order for his

absorption on the terms and conditions set out in the said office

order dated 13.11.1996. Thus, such an observation can hardly be

stated to be “strictly in public interest”, much less in public

interest. This is also the stand of the Union of India taken in

the counter affidavit filed in the Court below.

12. Learned counsel for respondent No.1 endeavoured to persuade us

to the contrary by referring to the judgment of this Court in Sub-

Inspector Rooplal (supra). 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 11

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.1’s 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 12

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,

2 (2017) 8 SCC 256 13

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 14

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. We are conscious that 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, we are of the view that

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.

22. The appeals are accordingly allowed leaving the parties to

bear their own costs.

……………………………………...J. [SANJAY KISHAN KAUL]

……………………………………...J. [K.M. JOSEPH] NEW DELHI;

FEBRUARY 05, 2020.

15

ITEM NO.101 COURT NO.12 SECTION XI-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal Nos.3542-3543/2010

SHRI GOVINDA CHANDRA TIRIA Appellant(s)

VERSUS

SIBAJI CHARAN PANDA & ORS. Respondent(s)

([ PART-HEARD BY HON'BLE SANJAY KISHAN KAUL AND HON'BLE K.M. JOSEPH ,JJ. ] )

Date : 05-02-2020 These appeals were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE K.M. JOSEPH

For Appellant(s) Mr. Shibashish Misra, AOR Mr. S. Debabrata Reddy, Adv.

Mr. Chandan Kumar Mandal, Adv.

For Respondent(s) Mr. Arunav Patnaik, Adv.

Ms. Anandini Kumar, Adv.

Mr. Dhananjay Bhaskar Ray, Adv.

Mr. Milind Kumar, AOR

Mr. Abhijit Sengupta, AOR

Ms. Seema Bengani, Adv.

Mr. Manan Pohli, Adv.

Mr. Prem Prakash, Adv.

Mr. Anas Zaid, Adv.

Mr. G.S. Makker, AOR

UPON hearing the counsel the Court made the following O R D E R

The appeals are allowed in terms of the signed reportable judgment.

Pending application, if any, stands disposed of.

(ANITA RANI AHUJA) (ASHA SUNDRIYAL) COURT MASTER AR CUM PS

[Signed reportable judgment is placed on the file]