ORDER
1. Dr. Renuka Prasad, petitioner in this petition filed under Article 226 of the Constitution, who is now working as Deputy Director in the Institute of Animal Health and Veterinary biological, Hebbal, has sought for a writ to quash the seniority list of Deputy Directors prepared and published by the Institute in No. IAH/EST/JESTHA/97-98, dated 30-12-1997 as illegal and void. The consequential prayer made is to direct theInstitute to prepare and publish a final seniority list of Deputy Direc-tors/Scicntist-3 by treating respondents 3 to 9 as being juniors to the petitioner and lastly, for a direction to the Institute to grant promotion to the petitioner to the post of Joint Director/Scientist with effect from 1-3-1993, the date on which his immediate junior Dr. R. Lakshminarayana was promoted with all consequential service and monetary benefits.
2. First about the Institute:
The Mysore Serum Institute was part of department of Animal Husbandry and Veterinary Sciences of the State of Karnataka. It had a Board of Management consisting of representatives from Karnataka Dairy Development Corporation, Department of Animal Husbandry and Veterinary Services and University of Agricultural Sciences as members. The Commissioner and Secretary to Government, Agriculture and Animal Husbandry Department was its Chairman. Tbe primary object of the Institute was to develop programmes for giving appropriate animal health coverage to the entire livestock and poultry within the State. The Board of Management for proper and better administration of the Institute in its meeting held on 30th November, 1977 resolved to convert the Institute, which was functioning under the Administrative Control of Agriculture and Animal Husbandry Department of Government of Karnataka into a Society. The State of Karnataka by its order dated 7th April, 1978 was pleased to accord sanction for converting the Institute into a Society. Pursuant to the permission so granted, the Institute came to be registered under the provisions of Karnataka Societies Registration Act, 1960, with effect from 5-6-1978 and started functioning in the name and style of 'Institute of Animal Health and Veterinary biological, Hebbal, Bangalore'. The Institute/Society is fully funded by Government of Karnataka. All officers and Staff working in the former Institute of Government have been continued to work in the Society. Apart from others, the objects of the Society inter alia is to conduct epidemiological survey of various diseases of livestock and poultry and to engage in the production of veterinary biological and vaccines. Since the service conditions of the staff working in the Society had not been finalised, the Director of the Institute by his letter dated 27-3-1979 requested the State Government to treat the staff working in the Institute as on deputation to the Society with effect from 5-6-1978. Pursuant to the request so made, the State Government by its order dated 31-3-1979 was pleased to pass the following order:
'After considering all aspects and pending finalisation of their absorption or repatriation to the parent department, Governmenthereby direct that all the Government Officers/Officials working in the Institute of Animal Health and Veterinary biological, shall be deemed to have been treated as on deputation to the Society from the date of registration i.e., 5-6-1978 and they are entitled to all the benefits that are available to them in the Government service'.
3. About respondents:
Respondents 3 to 9 were working in the Institute of Animal Health and Veterinary biological, which was functioning under the Administrative control of the Agriculture and Animal Husbandry, Department of Government, having joined service between 1964 to 1967. After conversion of the Institute into a registered Society with effect from 5-6-1978, these respondents continued to work in the Society in the post earlier held by them. By virtue of the order dated 31-3-1979, pending finalization of their absorption or repatriation to the parent department, their services came to be transferred on deputation to the Society from the date of its registration. It is pertinent at this stage to mention two aspects. Firstly, on the date of transfer of their service from parent department to the Society, they were all working in the post of Assistant Director, which was a Class III post. Secondly, they were governed by Karnataka Animal Husbandry and Veterinary Services (Recruitment) Rules, 1959, and the post of Assistant Directors could be filled under the rules, 60 per cent by promotion from the cadre of Veterinary Inspectors and 40 per cent by direct recruitment. The minimum qualification required was only a degree in Veterinary Sciences of a recognised University or a recognised Diploma in Veterinary Sciences or equivalent qualification. It is not in dispute nor it can be disputed that the respondents 3 to 9 had this minimum qualification prescribed under the rules before they were selected and appointed to the post of Assistant Director.
4. The State Government, it appears, by its letter No. AAH 243 VET 83, dated 24-10-1983 had directed the employees working in the Institute on deputation to exercise their option for absorption in the Institute or for repatriation to the parent department. It appears, most of the employees working on deputation had exercised their option for absorption in the Institute including respondents 3 to 9. The State Government basing on the correspondence dated 17-5-1984 and 28-3-1985 of the Director, Institute of Animal Health and Veterinary biological was pleased to accord sanction for absorption of the 95 employees noted in the Annexure to the order as permanent employees of the Institute of Animal Health and Veterinary biological, Hebbal, Bangalore, in the public interest with effect from 1-4-1987 subject to certain conditions by its Order No. AAH 20 AWF 85, dated 7-3-1987.
5. The governing council of the Institute in its 74th meeting held on 29-4-1994, in view of the sanction accorded by the State Government for absorption of the employees working in the Institute on deputation with effect from 1-4-1987 resolved to absorb the deputationist to its fold with effect from 5-6-1983 instead of 1-4-1987 subject to all the other conditions mentioned in the Government Order by their order in No. IAH/EST/Absorption/94-95/82, dated 22-6-1994. I will once again revert back to this order while discussing the legal issues canvassed by learned Counsel for petitioner. Having exhausted the facts which are relevant for the purpose of this case insofar as respondents 3 to 9 are concerned, let me now briefly notice the facts insofar as appointment of the petitioner in the Institute.
6. About petitioner:
Apart from deputationist, the respondent-Institute had also appointed its own employees. Petitioner was one among them. He was First Class Postgraduate (M.V.Sc.) and he was appointed by the respondent-Institute by its order dated 12-12-1979 in the cadre of Assistant Director with the pay scale of Rs. 750-1,525. He reported for duty in the Institute on 13-12-1979. The respondent-Institute by its order dated 2-4-1982 has declared that the petitioner has successfully completed his period of probation of two years with effect from 12-12-1981. He is promoted to next higher cadre of Deputy Director with effect from 1-3-1993.
7. The State Government by its order dated 4-4-1983, has approved the Draft Service Rules and Regulations for the Institute. These rules are known as 'Service Rules and Regulations for Employees of the Institute of Animal Health and Veterinary biological, 1983'. These rules are made applicable to every employee of the Institute, whether he was in service on the date the rules were promulgated or entered the service thereafter, except in the cases of employees on contract basis. The Appointing Authorities to a post under the Institute will be either the governing council or the Director of the Institute. Rule 2.5.3 provides for grades in service. The Grades in Technical Service is as under:
GradePay scale
I.
Assistant Director/ Scientists (S-1)
Rs. 1,050-1,950
II.
Senior Assistant Director/ Scientist (S-2)
Rs. 1,200-2,175
III.
Deputy Director/ Scientist(S-3)
Rs. 1,725-2,350
IV.
Joint Director/ Scientist(S-4)
Rs. 1,950-2,450
8. Rule 2.5.4 provides for inter se seniority. It says 'there will be inter se seniority among the members of the service for the purpose of promotion'. Rule 2.5.6 provides for 'eligibility'. It envisages that the existing employees of the Institute holding scientific and biological production and other posts of the Institute shall become employees of the Institute from the date of declaration of their option to serve in the Institute, such option being subject to the approval of the 'governing council'. Rule 2.5.7 provides for merit promotion and advance increments. It says that 'there shall be a system of merit promotion from the grade to the next higher grade, the same shall be resorted to in accordance with certain well laid down criteria. Granting of advance increments may be sanctioned in the time-scale of pay at the time of initial fixation of pay'.
9. The Institute has its own Cadre and Recruitment Rules and they are known as 'The Institute of Animal Health and Veterinary biological (Cadre and Recruitment) Rules, 1984. These rules are not made applicable apart from others to the deputationists.
10. A draft seniority list of Assistant Directors (Scientists-I) working in the Institute was published on 15-4-1986 (Annexure-A), wherein theofficers on deputation as well as those officers, who were directly recruited in the Institute had been included and the seniority of the deputationists had been fixed by taking into account their date of entry into service in the parent department as well as in the Institute. The seniority list so prepared was objected to by the petitioner by filing his objection/representation dated 23-4-1986, stating that the employees on deputation should not be included in the seniority list and that inclusion would affect the interest of the regular employees of the Institute. The said provisional seniority list was never finalised but the Institute, subject to the claims of the aggrieved persons effected promotions by operating provisional seniority list, thereby promoting the deputationists to the next higher cadre namely, Deputy Director/Scientist (S-2). As I have already noticed, the State Government by its order dated 7-3-1987 had accorded sanction to the Institute to absorb the deputationists as permanent employees of the Institute with effect from 1-4-1987 subject to certain conditions, even then the Governing council of the Institute had thought it fit to absorb the deputationist in the Institute as permanent employees with effect from 5-6-1983.
11. The respondent-Institute without finalising any one of the provisional seniority list prepared and published, had issued one more provisional seniority list of Deputy Directors dated 28-7-1984 and in that list, petitioner was assigned ranking at Sl. No. 10 by placing deputationists, who were all promoted much earlier to the petitioner above him. Even this provisional seniority list came to be objected by the petitioner by stating that since he was directly recruited and appointed in the Institute, he should be placed at Sl. No. 1 in the draft seniority list. The respondent-Institute after considering the representation of the petitioner and other employees, prepared and published one more provisional seniority list dated 30-6-1997, wherein, petitioner was assigned ranking at Sl. No. 4 and on top of all deputationists in the cadre of Deputy Directors. Petitioner had no grievance to this provisional seniority list. The respondent-Institute for the reasons best known to it, did not finalise this provisional seniority list also, but thought it fit to prepare and publish one more provisional seniority list of Deputy Directors dated 16-8-1997, wherein the petitioner was once again assigned ranking at Sl. No. 14, by placing all the deputationists, who had been absorbed into the services of the Institute as permanent employees above him in the seniority list. Ranking assigned to him in the draft seniority list was also opposed by the petitioner by filing his objections inter alia contending therein that the respondent-Institute while considering the seniority of deputationists, their past service in the parent department should not have been taken into consideration. The objection so filed did not yield any results. But definitely persuaded the Institute to finalise the seniority list of Deputy Directors at the earliest. In fact, for the first time, the respondent-Institute has prepared and published the final seniority list dated 30-12-1997 (Annexure-L), wherein petitioner has been assigned ranking at Sl. No. 14, below the respondents 3 to 9. It is the legality or otherwise of this final seniority list, which is questioned bythe petitioner in this petition filed under Article 226 of the Constitution inter alia seeking certain reliefs as indicated by me earlier.
12. Reiterating the contention that the ranking assigned to respondents 3 to 9 are all illegal on the ground that they are all deputationists and their past services in the parent department should not have been taken into consideration, the learned Senior Counsel for the petitioner has put forward a further plea that the impugned seniority list dated 30-12-1997 issued by respondent-Institute is in violation of the fundamental principles fixing seniority of deputationists and direct recruits and while fixing the seniority of deputationists, the respondent-Institute should not have taken into consideration the date of entry of the respondents into service in their parent department but should have considered their absorption into service in the Institute with effect from 1-4-1987 as fixed by State Government in its order dated 7-3-1987, which accorded approval for absorption of the deputationists as the permanent employees of the respondent-Institute. On this basis, it is contended that the supersession of the petitioner, who was directly recruited and appointed in the respondent-Institute on 13-12-1979 by the respondents 3 to 9, who are the deputationists and who have become permanent employees only on 1-4-1987 is illegal, invalid and wholly arbitrary.
13. Another argument advanced by the petitioner's learned Counsel is that Rule 6 of the Seniority Rules cannot be pressed into service by the respondent-Institute since it only provides for counting the previous service of an officer transferred from one department to another department either in the public interest or at the request of the public servant and the expression 'transfer' found in the rule should be understood and assigned the same meaning as defined under Rule 8(49) of Karnataka Civil Services Rules and since the respondents 3 to 9 were only deputed from one department to another department, the benefit of their previous service in the parent department cannot be counted for the purpose of seniority in the deputed department. Secondly, it is contended that assuming respondent-Institute has adopted Rule 6 of the seniority list, such an adoption is not notified by the respondent-Institute by any mode known to law. Therefore, respondent-Institute cannot take shelter under the Seniority Rules to sustain its arbitrary action in counting previous service of the deputationists in the parent department while preparing the impugned seniority list. The learned Counsel also alleges that in fixing seniority of personnel in the impugned gradation list dated 30-12-1997, even the service rendered by the deputationists is non-comparable since respondents 3 to 9 are not qualified to be appointed to the post of Assistant Director in the Institute since the minimum qualification prescribed under C and R Rules of the Institute for the appointment to the post of Assistant Director by direct recruitment is a degree in Veterinary Sciences and I and II Class Master Degree in specified areas for each post. Therefore, it is stated that the action of the respondent-Institute is wholly arbitrary. The learned Senior Counsel also tells me that the deputationist have been treated on par with regular departmentalpersonnel while preparing the seniority list and therefore, the same is in violation of Articles 14 and 16 of the Constitution.
14. Lastly, it is contended that the order made by the State Government dated 17-3-1987 was in exercise of its powers under Article 166 of the Constitution clearly demarcating that the deputationist would become regular employees of the respondent-Institute with effect from 1-4-1987 and the governing council for the respondent-Institute could not have altered or modified the same by giving the cut off date as 5-6-1983 relying upon the letter of the Secretary of the department of Animal Husbandry dated 22-3-1994, since the same is not the decision of the State Government. Therefore, it is stated that the order made by the governing council of the Institute dated 22-6-1994 absorbing the deputationists as permanent employees of the Institute of Animal Health and Veterinary biological, Hebbal, in the interest of public service with effect from 5-6-1983 is highly illegal and wholly arbitrary. But curiously, petitioner does not seek any writ against this order.
15. Lastly, it is contended, it is well-settled legal position that the deputationist, deputed from other department to the services of the Institute should be ranked below all the direct recruits functioning in the Institute. The learned Senior Counsel submits that since the impugned seniority list dated 30-12-1997 has been drawn in contravention of this well-settled legal principles, the same should be declared as illegal and unconstitutional.
16. Respondents 3 to 9 have filed their objections resisting the reliefs sought for by the petitioner. In the objections, they contend that the seniority list prepared and published by the respondent-Institute is in accordance with law and does not suffer from any infirmity whatsoever. They further contend that they were working as Assistant Directors in the parent department as early as in the year 1973 and the petitioner, who was appointed as Assistant Director on 13-12-1979 cannot claim seniority above them. Lastly, it is stated that once the employee, who is on deputation is permanently absorbed in public interest, such employee will be entitled to have his service counted from the date of his entry into service. In support of this claim, they entirely rely on Rule 6 of the Seniority Rules.
17. The respondent-Institute has also filed its objections resisting the prayer of the petitioner and also justifying its action in issuing the impugned seniority list of Deputy Directors of the Institute dated 30-12-1997. The Institute asserts that the services of the respondents 3 to 9 along with other employees, who were on deputation in the Institute came to be absorbed keeping in view the opinion expressed by the Government in its letter No. AHFF 2 AWF 93, dated 22-3-1994 with effect from 5-6-1983. They also contend that while computing the services of the respondents 3 to 9 for the purpose of seniority, the provisions contained in Rule 6 of the Seniority Rules have been applied since the said rules have been adopted by the Board by its resolution dated 22-6-1994. On the basis of the aforesaid averments contained in their statement ofobjections, the respondent-Institute asserts that the petitioner is not entitled to any relief and that the petition deserves to be dismissed.
18. Sri N.B. Bhat, learned Counsel for contesting respondents and Sri V.S. Prasad, learned Counsel for the respondent-Institute sought to justify the impugned seniority list on the lines pleaded by them in their respective counter affidavits filed before this Court.
19. The primary grievance of the petitioner is, the ranking assigned to him in the final seniority list of Deputy Directors prepared and published by the respondent-Institute dated 30-12-1997 treating him as Junior to respondents 3 to 9.20.
20. Seniority is an important condition of service, for, on seniority depends promotion. Promotion to non-selection posts is earned on the basis of seniority-cum-merit and promotion to selection posts depends on merit-cum-seniority. An employee may not have a right to promotion but definitely has a right to be considered for promotion and such right has intimate connection with his right of seniority. This is one of the reasons why a Government servant feels agitated to the core, when a person, who is not eligible is assigned a higher ranking in the seniority list.
21. To me, it appears, after carefully considering the pleadings and arguments canvassed by learned Counsel for the parties to the lis, the only question that requires to be considered and decided is the question relating to the inter se seniority of direct recruits namely, petitioner and others and respondents 3 to 9, who were brought on deputation and who were ultimately absorbed into its service by the respondent-Society on permanent basis.
22. I think, to answer the only question raised, the meaning of the expression 'deputation' and 'deputationist' requires to be noticed. In my opinion, these expression have now well-explained by Apex Court in its several decisions. Instead of burdening the order with several case laws, let me just notice the latest view expressed by Apex Court on the meaning of these expressions. The Apex Court in the case of State of Punjab v Inder Singh, was pleased to observe:
'18. The concept of 'deputation' is well-understood in service law and has a recognised meaning. 'Deputation' has a different connotation in service law and the dictionary meaning of the word 'deputation' is of no help. In simple words 'deputation' means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the recruitment rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be'.
23. The entitlement and the service benefits that the deputationist can claim in the transferred department is now well-settled by the Supreme Court. Let me just advert to the decision of the Apex Court in S.S. Moghe v Union of India. In the said decision, the Court was pleased to observe that when a new service is proposed to be constituted by the Government, it is fully within its competence to decide as a matter of policy from which personnel required for manning the service to be drawn. In that decision, it was also laid down that the deputationists, who had already put in number of years of service in their parent department were to be given seniority over direct recruits for purpose of promotion.
24. The Supreme Court in K. Madhavan v Union of India, was pleased to declare:
'21. We may examine the question from the different point of view. There is not much difference between deputation and transfer. Indeed, when a deputationist is permanently absorbed in the CBI, he is under the rules appointed on transfer. In other words, deputation may be regarded as a transfer from one Government department to another. It will be against all rules of service jurisprudence, if a Government servant holding a particular post is transferred to the same or an equivalent post in another Government department, the period of his service in the post before his transfer is not taken into consideration in computing his seniority in the transferred post. The transfer cannot wipe out his length of service in the post from which he has been transferred. It has been observed by this Court that it is a just and wholesome principle commonly applied where persons from different sources are drafted to serve in a new service that their pre-existing total length of service in the parent department should be respected and presented by taking the same into account in determining their ranking in the new service cadre'.
25. The Apex Court in the case of S.I. Rooplal and Another v Lt. Governor through Chief Secretary, Delhi and Others, was pleased to reiterate the principles enunciated in K. Madhavan's case, supra and was further pleased to observe:
'15. We will now take up the question whether the appellants are entitled to count their service rendered by them as Sub-Inspector in the BSP for the purpose of their seniority after absorption as Sub-Inspector (Executive) in Delhi Police or not. We have already noticed the fact that it is pursuant to the needs of Delhi Police that these officials were deputed to Delhi Police from the BSF following the procedure laid down in Rule 5(h) of the rules and subsequently absorbed as contemplated under the said rules. It is also not in dispute that at some point of time in the BSF, the appellants' services were regularised in the post of Sub-Inspector and they were transferred as regularly appointed Sub-Inspectors to Delhi Police Force. Therefore, on being absorbed in an equivalent cadre in the transferred post, we find no reason why these transferred officials should riot be permitted to count their service in the parent department. At any rate, this question is not res integra and is squarely covered by the ratio of judgments of this Court in more than one case. Since the earlier Bench of the Tribunal relied upon Madhavan's case, supra, to give relief to the deputationists, we will first consider the law laid down by this Court in Madhavan's case, supra. This Court in that case while considering a similar question, came to the following conclusion (para 21 of AIR and Lab. IC):
'We may examine the question from a different point of view. There is not much difference between deputation and transfer. Indeed, when a deputationist is permanently absorbed in the CBI, he is under the rules appointed on transfer. In other words, deputation may be regarded as a transfer from one Government department to another. It will be against all rules of service jurisprudence, if a Government servant holding a particular post is transferred to the same or an equivalent post in another Government department, the period of his service in the post before his transfer is not taken into consideration in computing his seniority in the transferred post. The transfer cannot wipe out his length of service in the post from which he has been transferred. It has been observed by this Court that it is a just and wholesome principle commonly applied where persons from different sources are drafted to service in a new service that their pre-existing total length of service in the parent department should be respected and presented by taking the same into account in determining their ranking in the new service cadre. See R.S. Makashi v I.M. Menon and Wing Commander, J. Kumar v Union of India.'
(emphasis supplied)
16. Similar is the view taken by this Court in the cases of R.S. Makashi and Wing Commander, J. Kumar, supra, which judgments have been followed by this Court in Madhavan's case, supra. Hence, we do not think it is necessary for us to deal in detail as to the view taken by this Court in those judgments. Applying the principles laid down in the above referred cases, we hold the appellants re-entitled to count the substantive service rendered by them in the post of Sub-Inspector in the BSF while counting their service in the post of Sub-Inspector (Executive) in Delhi Police Force'.
26. In all these cases, the significant factor was that an employee working in one department or Organisation was deputed to work in another department or Organisation, which was under the control of the same employer. For instance, in the case of Rooplal and Another, an employee-officer was working as Sub-Inspector of Police in Border Security Force, which organisation is under the control of Union Government, was deputed to work in Delhi Police and after such deputation, was absorbed in the Delhi Police, which organisation is under the control of the Union Government. Taking into consideration that since the deputation was from one organisation to another organisation under the same employer, the Court was pleased to observe 'on being absorbed in an equivalent cadre in the transferred post, there could be no reason why transferred officials should not be permitted to count their service in the parent department'.
27. Keeping in view the law declared by the Supreme Court, let me now advert to the fact situation in the present cases. Respondents 3 to 9 were working in the Institute of Animal Health and Veterinary biological, which was functioning under the Administrative control of the Agriculture and Animal Husbandry, Department of Government. It is not in dispute that during the year 1973, they were all working as Assistant Directors in the parent department. The Institute was permitted to be converted into a Society by the State Government by its order dated 7-4-1978. All officers and staff working in the Institute were allowed to continue to work in the Society till appropriate Service Rules are framed prescribing the procedure for appointment in the newly formed Society/Institute. By yet another order dated 31-3-1979, the State Government, pending finalisation of their absorption or repatriation to the parent department was pleased to order that the officers and staff working in the Institute are deemed to be on deputation to the Society from the date of registration. The services of these deputationists came to be absorbed in the Institute subsequently. Much earlier to the date of absorption of these deputationists, petitioner was appointed in the respondent-Society as Assistant Director by direct recruitment. Now the only question that requires to be considered is whether the past services rendered by the deputationists in the State Government should be reckoned for the purpose of computation of their seniority and promotion in the respondent-Society. The answer is quite obvious. However, learned Counsels relying on the observations made by Apex Court inMadhavan's case, supra and Rooplal's case, supra, submits that, if a Government servant holding a particular post is either deputed or transferred to the same post or an equivalent post in another Government department, the period of his service in the post requires to be taken into consideration for computing his seniority in the transferred or deputed post otherwise it will be against all rules of service jurisprudence, since deputation cannot wipe out his length of service in the post from which he has been deputed. The learned Counsel for the University raises yet another plea in justification of the impugned seniority list and submits that since the policy decision to the proposed Society is laid down and controlled by the State Government, the service rendered by the deputationists in the State Government requires to be taken into consideration by the Society and accordingly, it was considered and deputationists were placed above petitioner and others.
28. Insofar as the first contention canvassed by learned Counsel for petitioner is concerned, there cannot be any dispute. If the respondents had been deputed to any department or organisation under the administrative control of the same employer and absorbed thereafter except if the rules or regulations otherwise provide, their past services are bound to be taken into consideration for computing their seniority in the transferred department but if the employer is different as in the present case, it is difficult to accept the proposition. If a person working in Government service is deputed to work in a Corporation, autonomous bodies or Societies with an option to him to come back to the parent department, but if he chooses for absorption of his service in the deputed post, then he should necessarily forego his services in the Government department. In the present case, respondents were in the Government service, when the first respondent-Society was formed. Their services were deputed to the Society. They were given notice to exercise their option either to come back to the parent department or for absorption in the deputed post and place. They consciously opted for absorption of their services in the respondent-Society. In my considered opinion, their past services in the State Government cannot be taken into consideration for the purpose of computing their seniority in the deputed place which is under the administrative control of a different employer altogether.
29. Secondly, it is no doubt true from the perusal of Memorandum of Association, Rules and Bye-laws of the Society and it is abundantly clear that the respondent-Society is fully controlled by the State Government and this only makes the Society to be the instrumentality of the State Government but it cannot be said that the employee-officer of the Society are the employees of the State Government. Therefore, the Universities learned Counsel is not correct when he makes a statement that since the respondent-Society is bound by policy decision laid down by the State Government, the persons deputed from State Government to the respondent-Society and absorbed thereafter, can claim the past services in the State Government for the purpose of computation of their seniority in the respondent-Society. The Supreme Court in S.K. Mathur's case has declared that 'where recruitment is made from two different sourcesand an integrated seniority list is prepared of the persons so recruited, the benefit of service already rendered on a similar post in a similar organisation under the same employer will have to be given to the person appointed in the new post'. In my opinion, the aforesaid dicta of the Apex Court will not apply to the fact situation since respondents were deputed from the State Government to work in a Society under the administrative control over the different employer.
30. In my opinion, in view of the conclusion reached by me on the first issue canvassed by learned Counsel for petitioner, the other legal issues raised by him pales into insignificance but since it was argued at length, I am considering those issues also.
31. The learned Counsel contends that deputation is not a transfer and therefore, the respondent-Institute could not have taken the assistance of Rule 6 of the Seniority Rules in computing the seniority of deputationist. This submission has no merit in view of the observations made by Apex Court in K. Madhavan's case, supra. Secondly, Rule 6 of the Seniority Rules came up for interpretation by this Court in the case of K. Shivappa v State of Mysore and Others. In the said decision, the Court was pleased to observe:
'Once the power of the Government to transfer a person from one department or service to another in public interest, is accepted, it is difficult to conceive any rational basis other than the one embodied in Rule 6, for determining the seniority of an officer who has been transferred from one department or service to another. Should it be provided that an officer who is so transferred, shall be placed in the seniority list of the new department or service (to which he is transferred) below all officers borne on that class or grade of service on or before the date of his transfer, then, such officer will lose, for no fault of his, the benefit of his previous service in the equivalent grade or class, for the purpose of seniority in the new department of service and it would work a great injustice to him. When the transfer of such officer is not out of his volition, but at the instance of the Government and in public interest, it is but reasonable that the previous service of such officer in the equivalent grade or class should be taken into account for reckoning his seniority in the department or service to which he has been transferred. Far from being arbitrary or unreasonable, the provision of Rule 6 of the seniority rules, is just and fair'.
32. The Apex Court in K. Madhavan's, case, supra, has observed that there is not much difference between deputation and transfer and the deputation may be regarded as a transfer from one department to another in the public interest. Rule 6 of the Seniority Rules cannot be pressed into service to determine the seniority of direct recruits and the deputationists. If an employee-officer working in the same department is transferred to or deputed to another unit or department, under the samedepartment at his request or in the public interest, the provisions of the said rule will apply to determine the ranking that requires to be assigned to such an officer-employee. Therefore, the contention canvassed by learned Counsel for petitioner cannot be accepted.
33. Nextly, it is submitted that since the adoption of Rule 6 of the Seniority Rules by the Institute is not made known to the employees in the manner known to law, the Institute cannot take assistance of the said rule. In support of this contention, the learned Counsel relies on the observations made by Apex Court in the case of B.K. Srinivasan and Others v State of Karnataka and Others. In my view, the said contention has no merit for the reason, firstly, the Institute when it prepared and published the provisional seniority list of Deputy Directors had clearly brought to the notice of all the employees working in the Institute that the draft seniority list is prepared after adopting and following the principles envisaged under Rule 6 of the Seniority Rules. No one objected to this, including petitioner. Secondly, the Service Regulations of the Institute does not provide the manner and method that such adoption should be made known to its employees. In absence of such prescription, one of the method could be by informing them while preparing the draft seniority list and calling for objections from the aggrieved persons to the ranking assigned to them in the said list and lastly, the adoption of the Seniority Rules by the Institute has not caused any prejudice to anyone of its employees, therefore, the irregularity if any in adopting the rules does not effect the merits of the case.
34. The learned Senior Counsel nextly submits that the deputationists should not have been treated on par with the officers appointed on direct recruitment, while preparing the seniority list of Deputy Directors and therefore, the impugned seniority list is in violation of Article 14 of the Constitution. In support of this contention, the learned Counsel invites my attention to the observations made by Apex Court in the case of Jai Ram Sharma v Jammu Development Authority . That was a case where the appellant before the Supreme Court was working as Office Superintendent even before 5th respondent therein came to be deputed to the post of Office Superintendent in the transferred department, but the appellant's case had not been considered for promotion to the post of public relation officer when 5th respondent, who had been posted on deputation was promoted to the post of Public Relation Officer ignoring the case and claim of the appellant. Keeping in view the factual situation in the instant case, the Court was pleased to observe:
'The impugned action was illegal and arm twist to nepotism. When the appellant was a regular candidate as Office Superintendent, he was entitled to be considered in preference to the deputationist, who was not a member of the service on that date'.
35. In my opinion, the observations made by Apex Court in the aforesaid decision may not assist the petitioner in any manner whatsoever for deciding the issues in the present case, since the fact situation in the instant case is entirely different.
36. Lastly, since I have come to the conclusion that the past service of the deputationist should not have been taken into consideration by the Institute, while assigning their ranking in the seniority list of Assistant Directors and Deputy Directors in the Institute, the contention of the learned Counsel that the Institute could not have altered the order made by the State Government dated 7-3-1987, while absorbing the deputationist in the Institute from a particular date pales into insignificance and in my opinion, to decide the prime issue in the present case, the contention of the learned Counsel need not be decided in this case.
37. In the result, writ petition deserves to be allowed. Accordingly, it is allowed. Rule made absolute. The impugned seniority list dated 30-12-1997 is set aside. A direction is issued to the respondent-Society to prepare fresh seniority list of Deputy Directors keeping in view the observations made by this Court in the course of this order within six months from the date of receipt of a copy of this Court's order. Till such time, the respondents are directed not to disturb any promotions granted basing on the seniority lists prepared earlier. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.