Judgment:
Mrs. Promilla Issar, Member (A)
The applicant has filed the present OA praying for the following relief:-
“This Hon’ble Tribunal may kindly set aside/quash the impugned order dated 21.10.2009 passed by the respondents and the services rendered by the applicant may kindly be counted and he may be placed at an appropriate place in the seniority list.”
2. The applicant had earlier filed OA no. 649/JK/2007 which was disposed of with the following directions:-
“11.Under these circumstances, we feel that the ends of justice would be met if the applicant submits a representation to the respondents regarding counting of his service as S.I. in the Delhi Police towards fixing his seniority as S.I. in the C.B.I. within one month of the receipt of a copy of this order. This representation will be disposed of by the respondents within a period of 3 months thereafter. While taking a decision on this representation, the respondents may follow the principle laid down in Rooplal’s case (supra) and keep in mind the instructions dated 27.3.2001 issued by DOPT, inasmuch as it relates to counting of service rendered on a post in the parent department while fixing the seniority on the same post in the organisation where he is on deputation.”
3. Thereafter, the applicant submitted a representation and the respondents issued the order dated 21.10.2009, vide which they rejected the request of the applicant for grant of benefit of service rendered by him in the Delhi Police. The applicant has challenged this order in the present OA.
4. The facts as projected by the applicant are that he was selected through the Combined Competitive Examination, 1990 for Sub Inspectors (Delhi Police/Central Bureau of Investigation/Central Police Organisations etc.). He topped the list of successful candidates and joined as Sub Inspector (Executive) in Delhi Police on 13.12.1991. He applied for going on deputation to the post of Sub Inspector in the Central Bureau of Investigation (for short CBI) and joined that organization on 7.7.1995. He was promoted as Inspector vide order dated 28.1.98. In response to a circular issued by the CBI, he submitted his willingness for absorption in the CBI as Sub Inspector. However, he was absorbed as Inspector w.e.f. 31.8.2000. In the seniority list of Inspectors of Police in the CBI, circulated on 12.9.2003, the applicant’s position was shown by not taking into account the previous service rendered by him in the Delhi Police. His request for grant of benefit of the same was rejected and an appeal against the said rejection was also rejected. In 2007, the applicant filed the aforementioned OA no. 649/JK/2007, which was decided in 2009 as stated in the previous paras. Thereafter, his request was again rejected vide order dated 21.10.2009. Hence this OA.
5. The respondents have stated in their reply that the present OA is hit by the principle of res judicata since the applicant had earlier also filed an OA on the same subject and has also not impleaded other persons who would be affected by this. They have argued that the benefit of past service is to be given only when the person is absorbed on the same post in the Organisation where he had earlier come on deputation and later on absorbed. They have also argued that since he has been absorbed as Inspector, therefore, he is estopped from his own act and conduct from challenging such action. They have also stated that the ratio of judgment in Roop Lal’s case does not apply in the present case as it is distinguishable. They have stated that it is a well settled principle that the benefit of past service is to be given only when a new department is opened and it is not a strait-jacket formula that benefit of past service is to be given in each and every case. According to the respondents, since the CBI is a well established department since 1962 and is not a new entity, the applicant is not entitled to the benefit of any past service as it will have the effect of encroaching upon the vested rights of other persons who are already working in the department.
6. The respondents have further stated that the applicant joined Delhi Police as Sub Inspector on 13.12.1991 and he joined CBI as Sub Inspector on deputation basis w.e.f. 7.7.1995. They have stated that as per the provision of recruitment rules for the post of Inspector in the CBI, a Sub Inspector of State Police or CPO, who is either holding an analogous post or has at least 5 years regular service in the grade of Sub Inspector, can be inducted in the CBI as Inspector on deputation. The applicant was appointed as Inspector of Police in the CBI on deputation basis w.e.f. 9.2.1998. They have also stated that pursuant to the circular dated 24.11.1999, he opted for absorption in the CBI and accordingly, after his suitability was assessed by a Board, he was absorbed as Inspector in the CBI in substantive capacity w.e.f. 31.8.2000. They have further stated that on permanent absorption, his seniority in the rank of Inspector was fixed w.e.f. 31.8.2000 i.e. the date on which he was absorbed and this was done as per guidelines issued by DOPT vide OM dated 27.3.2001. They have stated that his appointment as Inspector of Police in the CBI on deputation basis w.e.f. 9.2.1998 will not confer upon him any right of seniority as the post of Sub Inspector in Delhi Police is not equivalent to the post of Inspector in the CBI. They have therefore, stated that the benefit of his past service in the grade of Sub Inspector in Delhi Police cannot be given to him for fixation of seniority in the rank of Inspector in the CBI after his absorption in the CBI w.e.f. 31.8.2000.
7. The applicant has filed a rejoinder generally reiterating the averments made in the OA.
8. We have heard the learned counsel for the parties and perused the records of the case.
9. The applicant had come on deputation to the Respondent Organisation as Sub-Inspector in 1995. On 28.1.1998, the respondents had issued the following order:-
“Shri Ashok Kalra, a deputationist from Delhi Police presently working as Sub Inspector of Police in CBI/ACB/Jammu Branch is appointed and posted to CBI/ACB/Jammu Branch itself as Inspector of Police on deputation basis w.e.f. the dates he takes over and until further orders subject to the concurrence of his parent State.
2.His appointment as Inspector of Police in CBI will not confer upon him any right for seniority, promotion, pay etc., in his parent cadre and for that purpose he will continue to hold the same post/rank as in his parent cadre.”
However, vide letter dated 23.12.1999, the respondents had asked the applicant as follows:-
“With reference to his representation regarding the subject cited above, he is hereby directed to intimate whether he is willing to be absorbed as S.I. and he is not yet entitled for absorption as Inspr.”
It appears that the above mentioned option was offered to the applicant because of the condition imposed in the order dated 28.1.1998 that his appointment as Inspector will not confer upon him any right for seniority, promotion, pay etc. in his parent cadre and for that purpose he will continue to hold the same post/rank as in his parent cadre. Therefore, it is clear that the applicant continued to substantially hold the post of Sub-Inspector and therefore, the respondents asked him vide letter dated 23.12.1999 for his willingness to be absorbed as Sub-Inspector as he was not yet entitled for promotion as Inspector. In reply to the same, the applicant had given his option to be absorbed in the CBI as Sub Inspector on 27.12.1999. However, the respondents issued Office Order no. 157/2001 on 1.2.2001 in which it was stated as follows:-
“I, Dy. Director (Admn.)/DIG Central Bureau of Investigation HQ/New Delhi hereby appoint Sh. Ashok Kalra, Sub-Inspr. of Police as Inspr. Of Police in SPE/CBI in the substantive capacity on permanent absorption w.e.f. 31.8.2000. His particulars are given below:-
“Table”
10. From the above it is clear that when the respondents asked the applicant about his willingness to be absorbed as Sub Inspector on 23.12.1999 he had already been working as Inspector of Police w.e.f. 9.2.1998 and despite that, the respondents asked his willingness to be absorbed as Sub-Inspector. The respondents have not produced any documents relating to his promotion as Inspector and the conditions thereof. The applicant was appointed as Sub-Inspector on deputation with the Respondent Organisation and had already given his willingness to be absorbed as such. The respondents, on their own, without taking his willingness and in contradiction of their own query made to the applicant vide letter dated 23.12.1999, absorbed him as Inspector w.e.f. 31.8.2000. We do not find this position to be tenable in view of the settled position of law. The relevant instructions dated 27.3.2001 in this regard are as follows:-
“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 or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority to the condition that he will be given seniority from:
the date he has been holding the post of 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 earlier.”
11. From the above it is clear that the applicant, after absorption on the post on which he had come on deputation, would be entitled to the benefit of the earlier service. The respondents have also themselves admitted that he would continue to hold the same post/rank. From this it is clear that the applicant continued to be in the rank of Sub Inspector till the date of his sudden absorption as Inspector, ordered by the respondents, without taking his option and in fact in contradiction of their own order dated 28.1.98 and the query dated 23.12.99.
12. The learned counsel for the respondents argued that since the applicant had accepted his absorption as Inspector and did not join under protest, he is now estopped from raising this issue. However, we do not find any force in this argument since the applicant had no option but to accept the orders as issued and he had been agitating after that for the grant of benefit of his earlier service as Sub-Inspector in the Delhi Police.
13. The learned counsel for the respondents has relied on the judgment of the Hon’ble Supreme Court in the case of P.U. Joshi and others Vs. Accountant General, Ahmedabad and others, 2003(2) RSJ 245, which is as follows:-
“10.We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State.”
However, we find that this is distinguishable on facts since the policy is not being challenged in the present case and it is only a matter of interpretation of policy and also how it applies to the disputed facts of the case.
14. The learned counsel for the applicant has relied on the judgment of the Hon’ble Supreme Court in the case of S.I. Rooplal and another Vs. Lt. Governor through Chief Secretary, Delhi and others, 2000(1) RSJ 336, which is as follows:-
“23.It is clear from the ratio laid down in the above case that any Rule, Regulation or Executive Instruction which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in his deputed post would be violative of Articles 14 and 16 of the Constitution of India.”
15. For the reasons mentioned above, we find that the applicant is entitled to the benefit of earlier service rendered as Sub Inspector in the Delhi Police as well as in the Respondent Organisation from the date of his first appointment as Sub Inspector in the Delhi Police. His seniority as Sub Inspector may be re-fixed accordingly and thereafter his seniority as Inspector may also be re-fixed, if so required. In this process, the persons likely to be affected by a revision of the applicant’s seniority may also be given an opportunity of being heard and their objections may be considered and appropriately decided as per rules and law, since the persons likely to be affected by this have not been impleaded as party in the present OA. Consequently, the persons likely to be affected by this may be given an opportunity of being heard and appropriate orders passed thereon as per rules and law. This process may be completed within a period of 6 months from the date of receipt of a copy of this order.
16. Therefore, in the facts and circumstances of this case, this OA stands allowed with no order as to costs.