IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved On:6th July, 2010

Judgment Delivered On:22nd July, 2010

+ W.P.(C) NO.3845/2010

UOI & ANR. ..... Petitioners

Through: Mr.A.K.Bhardwaj, Advocate

versus

PANKAJ AGNIHOTRI ..... Respondent

Through: Mr.S.K.Gupta, Advocate for the
Respondent with respondent in
person

W.P.(C) NO.3846/2010

UOI & ANR. ..... Petitioners

Through: Mr.A.K.Bhardwaj, Advocate

versus

SANDHYA RANJAN ..... Respondent

Through: Mr.S.K.Gupta, Advocate

W.P.(C) NO.3847/2010

UOI & ANR. ..... Petitioners

Through: Mr.A.K.Bhardwaj, Advocate

versus

SNEHAL BHAVE ..... Respondent

Through: Mr.S.K.Gupta, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MOOL CHAND GARG

1. Whether the Reporters of local papers may be allowed

to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 1 of 39

PRADEEP NANDRAJOG, J.

1. The above captioned petitions are directed against the

judgment and order dated 22.04.2009 passed by Central
Administrative Tribunal (hereinafter referred to as the CAT)
whereby the review petition(s) filed by the petitioner, Union of
India, against the earlier judgment and order dated 04.03.2008
passed by the CAT was dismissed. As a result the three
respondents who had filed three petitions before the CAT
succeeded in obtaining relief which they have prayed for which
has resulted in the petitioners being required to give due
weightage to the service rendered by the respondents as
senior medical officers in the parent department for purposes
of their eligibility for further promotion.

2. The factual backdrop leading to the filing of the present

petitions are that on 29.05.1986 Department of Personnel and
Training, Government of India, issued an Office Memorandum
No.200020/7/80-Esst.(D) pertaining to the fixation of seniority
of the deputationists who are absorbed in the cadre to which
they came on deputation. The relevant portion of the OM
reads as under:-

Subject: - Seniority of persons absorbed after being

on deputation.

1. ......

2. Even in the type of cases mentioned above,

that is, where an officer initially comes on deputation
and is subsequently absorbed, the normal principles
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

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 2 of 39

 date of absorption in the same or equivalent 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
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 to be ensured that the fixation of
seniority of a transferee 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 OM
dated 22-12-1959:

(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 the grade in which he is absorbed
will normally be counted from the date of
absorption. If he has so ever 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, subject to the condition that he will
be given seniority from

the date he has been holding the post on

deputation, or

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 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.

3. The validity of the aforesaid Office Memorandum was

assailed before the Supreme Court and it resulted in the
decision reported as Sub Inspector Rooplal vs. Lt. Governor
(2000) 1 SCC 644. After holding that the effect of expression
whichever is later occurring in the aforesaid Office
Memorandum is violative of Articles 14 and 16 of the
Constitution of India, as it had the effect of wiping out the
services rendered by a depuationist in an equivalent cadre in
his parent department while determining his seniority in the
deputed post, the Supreme Court quashed the said expression
from the text of the aforesaid memorandum.

4. Pursuant to the judgment of Supreme Court in SI

Rooplals case (supra), Department of Personnel and Training,
Government of India, issued Office Memorandum
No.20011/1/2000-Estt (D) dated 27.03.2001, the relevant
portion whereof reads as under:-

1. .

2. The Supreme Court has in its judgment dated

December 14, 1999 in the case of Shri S.I. Rooplal &
Others v Lt. Governor through Chief Secretary, Delhi
[JT 1999 (9) SC 597] has held that the words
whichever is later occurring in the Office
Memorandum, dated May 29, 1986 and mentioned
above are violative of Articles 14 and 16 of the
Constitution and, hence, those words have been

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 quashed from that Memorandum. The implications of
the above ruling of the Supreme Court have been
examined and it has been decided to substitute the
term whichever is later occurring in the Office
Memorandum, dated May 29, 1986 by the term
whichever is earlier.

3. .......

4. These instructions shall take effect from

December 14, 1999 which is the date of the judgment
of the Supreme Court referred above....

5. Respondents, Dr.Pankaj Agnihotri, Dr.Sandhya Ranjan

and Dr.Snehal Bhave, who were employed as Senior Medical
Officers in the Health Department of various State
Governments were appointed as Senior Medical Officers on
deputation basis in the Central Health Services (hereinafter
referred to as the CHS) for a period of three years with effect
from 15.07.1999, 17.05.2000 and 10.09.2001 respectively. On
29.09.2003, they were absorbed permanently in the Central
Health Scheme (CHS) as Senior Medical Officers in General
Duty Sub-Cadre. The next avenue of promotion from the post
of Senior Medical Officer is the post of Chief Medical Officer in
CHS.

6. At this juncture, it would be most apposite to note the

method of recruitment for promotion to the post of Senior
Medical Officer and Chief Medical Officer as prescribed under
Schedule III appended to Central Health Services Rules 1996,
the relevant portion whereof reads as under:-

SCHEDULE III

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 The method of recruitment, field of selection for promotion
and the minimum qualifying service in the immediate
lower grade or lower grades for appointment or promotion
to Group A duty posts in the Central Health Service.

S. No Name of post Method of Field of Selection and

Recruitment minimum qualifying

for promotion service

...........

General Duty Sub-cadre posts

.....

(b) Medical Officer Grade

....
(2) Chief By promotion Senior Medical
Medical on the basis of Officer in the
Officer Seniority-cum General Duty
fitness without sub-cadre with
linkage to six years
vacancies regular service
failing which by in the grade or
direct on completion
recruitment of 10 years
combined
regular service
as Medical
Officer and
Senior Medical
Officer of which

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 at least 2 years
shall be as
Senior Medical
Officer

(3) Senior By promotion Medical Officer

Medical on the basis of in the General
Officer Seniority-cum Duty Sub-cadre
fitness without with four years
linkage to regular grade
vacancies
failing which by
direct
recruitment

7. Relevant also would it be to note Rule 8 of Central Health

Services Rules 1996, which reads as under:-
8. Filling of Duty Posts by Transfer on
Deputation (including short term contract):

(1) Notwithstanding anything contained in rule 7,

where the Government is of the opinion that it is
necessary or expedient so to do, it may for reasons to
be recorded in writing and in consultation with the
Commission, fill not more than twenty duty posts in
all, in the grades of Medical Officer/Senior Medical
Officer in General Duty Sub-Cadre and Specialist
Grade II (Junior Scale) in the Non-Teaching Specialist
Sub-Cadre and Public Health Sub-Cadre by transfer on
deputation of suitable officers holding analogous posts
under the Central Government (including Ministries of

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 Railway and Defence)/State Governments/Union
Territories and by Short Term Contract of suitable
officers holding analogous posts under the statutory
bodies, autonomous bodies, semi-government
organisations, universities or recognised Research
Institutions.

(2) The period of deputation/contract shall be for a

period not exceeding three years, which may, in
special circumstances be extended upto 5 years, as
the Government may think fit.

8. Vide notification dated 30.07.2001, Government of India

amended Rule 8 of Central Health Services Rules, 1996 in
following terms:-
8. Filling of Duty Posts by Transfer on
Deputation (including short term contract):

(1) Notwithstanding anything contained in rule 7,

where the Government is of the opinion that it is
necessary or expedient so to do, it may for reasons to
be recorded in writing and in consultation with the
Commission, fill not more than one hundred duty
posts in all, in the grades of Medical Officer/Senior
Medical Officer in General Duty Sub-Cadre and
Specialist Grade II (Junior and Senior Scale) or
Specialist Grade I in the Non-Teaching and Public
Health Sub-Cadre and Assistant Professor or Associate
Professor or Professor in the Teaching Sub-Cadre by
transfer on deputation of suitable officers holding
analogous posts under the Central Government
(including Ministries of Railway and Defence)/State

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 Governments/Union Territories and by Short Term
Contract of suitable officers holding analogous posts
under the statutory bodies, autonomous bodies, semi-
government organisations, universities or recognised
Research Institutions.

Provided that one hundred posts earmarked for

deputation (including short term contract) in all the
four sub-cadres mentioned above, it may be open to
the Central Government, in consultation with the
Commission, to consider absorption against fifty posts
and only officers of Central Government or State
Government or Union Territories shall be eligible for
being considered for appointment on absorption basis.

(2) The period of deputation/contract shall be for a

period not exceeding three years, which may, in
special circumstances be extended upto 5 years, as
the Government may think fit.

(3) For appointment to duty posts on absorption basis,

the officers shall fulfil minimum educational and other
qualifications prescribed for the posts in Schedule V to
these Rules.

9. We regretfully note that the aforesaid amendment, which

is very material for the purposes of adjudication of the present
case was neither brought to the notice of CAT nor was it
pointed out to us by the counsel appearing for the parties. CHS
Rules 1996 have been annexed along with the present
petition(s) but the same are unamended. We expect the

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counsel to be more vigilant in future regarding the
amendments made in the Recruitment Rules.
10. On 29.08.2006, the Ministry of Health and Family
Welfare, Government of India, issued Office Order
No.A23024/01/04-CHS.II wherein seniority of the respondents
in CHS was fixed after taking into consideration the services
rendered by the respondents on the post of Senior Medical
Officers in their respective parent departments. The said
Officer Order further provided that the minimum qualifying
service required by the respondents for being eligible to be
considered for the promotion to the post of Chief Medical
Officer shall be reckoned from the date of their absorption in
CHS i.e. 29.09.2003. In sum and substance, the effect of the
said Office Order was that the service rendered by the
respondents as Senior Medical Officer in their respective
parent departments was taken into consideration while fixing
their seniority but the same i.e. the past service was not
considered as service rendered to acquire the requisite
qualifying service.
11. Since the aforesaid Office Order dated 29.08.2006
adversely affected the promotional prospects of the
respondents, they filed application(s) under Section 19 of
Administrative Tribunals Act 1985 challenging the direction
contained in the said order that the minimum qualifying
service required by the respondents for being eligible to be
considered for promotion to the post of Chief Medical Officer
shall be reckoned from the date of their absorption in CHS,
primarily on the ground that the said condition violates the
dictum of law laid down by Supreme Court in SI Rooplals case
(Supra) as also the instructions contained in the Office
Memorandum dated 27.03.2001 issued by Government of
India.

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12. After noting that there is a difference of opinion between
various Benches of CAT in regard to determination of seniority
and period of service spent by the deputationist in the
transferred department and the interpretation of the decisions
of Supreme Court reported as Sub-Inspector Rooplal vs. Lt.
Governor (2000) 1 SCC 644 and Indu Shekhar Singh v State of
UP (2006) 8 SCC 129, a Division Bench of CAT referred the
application(s) filed by the respondents to the Full Bench.
Following questions were referred for the consideration of the
Full Bench:-
(1) Is it a universal rule that deputationists are to be
given seniority taking into full account the equivalent
service rendered by them in the parent department?

(2) Whether such recognition will infringe upon the

settled rights of existing personnel, including their
career prospects?

(3) In the light of later decisions what could be the

nature and extent of rights available to deputationists
who ultimately come to be regularized in the new
department?

(4) Is it mandatory that the special rules as applicable

also are to be taken notice of?

13. After placing reliance upon the decision of Supreme

Court in Indu Shekhar Singhs case (supra) and noticing the
scheme of Central Health Service Rules 1996, particularly the
fact that deputation is not the source of appointment to the
posts of Senior Medical Officer and Chief Medical Officer under
Schedule III appended to the said Rules and that there is no

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provision under the said Rules for absorption of deputationists
in CHS, vide judgment dated 04.03.2008 the Full Bench held as
under:-
25. We do not think the apprehension as above may
be real. The position cannot be forgotten that
whatever service rendered by the applicants from the
date on which they are deemed as occupying the
grade of Rs. 10,000-15,200 which alone is relevant
here requires to be recognized as service rendered
under the CHS. They are not to have any probationary
period de novo; they would be qualified to press the
benefit to their whole past service for promotion to
the immediate next grade, viz. that of Chief Medical
Officer. Additional incumbency of actual service in the
CHS is, therefore, not postulated or to be insisted on.
The DPC will have to consider the person eligible,
even from the very next date of his absorption.

26. In the result, we answer the reference as following:

(1) It may not be a universal rule that deputationists

are to be given seniority taking into full account the
equivalence service rendered by them in the parent
department. Such rights could be conferred on them,
only subject to the service rules, that the operational
in respect of the Institution;

(2) The recognition of service of a transferred

employee may infringe rights of existing personnel or
may affect their career prospects but if the situation is
postulated and permitted by the governing rules, it
will definitely have operation, since seniority or

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 12 of 39

 promotions cannot be recognized and fundamental
rights but only rights conferred by statute;

(3) In view of the decision Prabha Devi and Indu

Shekhar Singh (supra), the rights available to
deputationists, who ultimately come to be regularized
in the new employment, will have to abide by the
rules that are in vogue. It is mandatory that special
rules as are applicable are to be duly taken notice of.
However, the benefit of service that they can carry for
reckoning them eligible for the next promotional post
when the claims are considered, should always be
with them;

(4) In the matter of further promotions, deputationists

who get absorbed will not be able to weightage on the
basis of the seniority that is carried by them. In
respect of DPC clearance, minimum incumbency and
other restrictions, they will have to be governed by
the rules in force and it may not be possible for any
such persons to assert that conferment of seniority
brings with it all the other rights, including that of
promotion.

27. As arising out of the decisions and conclusions

made above, we do not think that applicants have
made out a case for interference. The impugned order
dated 29.8.2006 whereby they have been advised
that for the purpose of promotion to the next grade,
the required qualifying service would be counted only
from the date of absorption, is a reasonable
stipulation and goes well with the conditions that were
incorporated in the order of their appointment viz.

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 that they have been absorbed on regular basis only
with effect from the dated specified in the respective
orders, but subject to the observations made by us
earlier in Paragraph 25.

14. In view of the apparent contradiction between paras 25

and 27 of the judgment and order dated 4.3.2008, for on one
hand the Full Bench directed that the condition contained in
the Office Order dated 29.08.2006 that the minimum
qualifying service required by the respondents for being
eligible to be considered for promotion to the post of Chief
Medical Officer shall be reckoned from the date of their
absorption in CHS is valid and legal, on the other hand, it was
directed that the respondents shall be entitled to include the
service rendered by them in their parent departments towards
minimum qualifying service required by them for being eligible
to be considered for promotion to the post of Chief Medical
Officer, the petitioner filed a review petition before the Full
Bench of CAT seeking review of the said judgment and order
dated 4.3.2008.
15. Vide judgment and order dated 22.04.2009, the Tribunal
disposed of the Review Petition and held that the judgment of
the Supreme Court in SI Rooplals case (supra) postulates that
the service rendered by a deputationist on an equivalent post
in his parent department is required to be taken into
consideration for the purposes of fixation of his seniority in the
transferred department; that the consequential benefits which
flows to a deputationist due to fixation of such seniority
including promotional benefits can be denied only when there
is an express provision in the recruitment rules of the
transferred department permitting said denial and that since
there is no provision in Central Health Services Rules, 1996

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permitting the non-consideration of service of a deputationist
in his parent department while determining the period of
service spent by him in CHS for being eligible to be considered
for promotion to a higher post, the condition contained in
Office Order dated 29.08.2006 that the minimum qualifying
service required by the respondents for being eligible to be
considered for promotion to the post of Chief Medical Officer
shall be reckoned from the date of their absorption in CHS is
arbitrary, unreasonable and thus liable to be struck down. The
questions referred to the Full Bench were answered in
following terms:-

24. Resultantly and as a fall out of our discussions

hereinabove made, we answer the reference as
following:

As per the interpretation given by the Supreme Court

in SI Roop Lals case (supra) deputationists are to be
given seniority taking into full account the equivalent
service rendered by them in the parent department.

The recognition of service of a transferred employee

may infringe rights of existing personnel or may affect
their career prospects but if the situation is postulated
and permitted by the governing rules, it definitely
requires obedience, since seniority or promotions
cannot be recognized as fundamental rights but only
rights conferred by statute;

In the matter of promotions, as far as the present case

is concerned, deputationists who got absorbed will be
able to claim weightage on the basis of the seniority
that is carried by them. As general rule, in respect of

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 DPC clearance and minimum incumbency, the position
will be governed by the respective special rules as are
in force.

16. It is after chartering the aforesaid route that the instant

petitions have come up before us.
17. During the hearing of the petition(s), learned counsel for
the petitioner contended: (i) the Full Bench of the Tribunal has
committed an illegality by applying the ratio in SI Rooplals
case (supra), for therein the Supreme Court was not concerned
with the issue involved in the present case i.e. eligibility of the
deputationists for promotion but was concerned with the
fixation of seniority of the deputationists; (ii) the Full Bench
failed to appreciate that the ratio laid down in SI Rooplals case
(supra) had been deviated to by the Supreme Court, in the
decisions reported as Indu Shekhar Singh v State of UP (2006)
8 SCC 129, Union of India v G.R.K. Sharma (1998) 6 SCC 186
and T.K. Ponnnuswamy v Govt. of Tamil Nadu 1994 Supp (3)
SCC 376; and (iii) the Full Bench did not appreciate the dictum
of law laid down in the decision reported as R. Prabha Devi v
Government of India (1988) 2 SCC 233 that seniority in a
particular cadre does not entitle a public servant for promotion
to higher post unless he fulfils the eligibility condition
prescribed under relevant recruitment rules.
18. Per contra, learned counsel for the respondents
contended that the conclusion drawn by the Full Bench in the
impugned judgment that the services rendered by the
respondents on the post of Senior Medical Officer in their
parent departments should be included towards the qualifying
service required by them for being eligible to be considered for
promotion to the post of Chief Medical Officer is legal and valid
in view of the decisions of Supreme Court reported as K.

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Madhavan v Union of India (1987) 4 SCC 576, K. Chandraiah v
K. Anjaiah (1998) 3 SCC 218 and Sub-Inspector Rooplal v Lt.
Governor (2000) 1 SCC 644.
19. As noted by us herein above, unfortunately neither party
drew attention of the Tribunal to the amendment incorporated
to Rule 8 of the Central Health Services Rules 1996 as per the
notification dated 30.7.2001, the rule as amended being as
noted by us in para 8 above.
20. Every person holding a post in a cadre in a government
department has a legitimate expectation of being considered
for promotion as per his seniority in the cadre. He can also
legitimately expect that no person from outside his cadre will
join the cadre in such a way so as to disturb his seniority in the
cadre. Thus, prima facie, being a matter of a legitimate
expectancy of a government servant for being promoted, it
can be said as a starting point that where the recruitment
rules do not provide for absorption in the cadre by a
deputationist walking in but a deputationist walks in, he must
do so at the cost of his experience in the same post in the
parent department being excluded while reckoning his
eligibility for promotion in the department where he is
absorbed permanently but after making initial entry as a
deputationist. But, where the recruitment rules provide as a
manner of absorption on permanent basis, persons coming on
deputation, the existing employees in the cadre would be
expected to know that anyone from outside can walk into the
cadre and thus the question of their legitimate expectation
being affected does not arise.
21. Are we correct in observing as in para 20 above. Let us
have a look to the case law on the subject.
22. In the decision reported as K. Madhavan v Union of India
(1987) 4 SCC 566, two writ petitions were decided by the

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Supreme Court by a common order. In one writ petition, the
petitioners were directly recruited as Deputy Superintendent of
Police (DSP) in Delhi Special Police Establishment in CBI in the
year 1963. Respondent No.5 therein who was appointed as
DSP in Rajasthan State Police in the year 1962 was sent on
deputation to CBI as DSP in the year 1967. Under the Special
Police Establishment (Executive Staff) Recruitment Rules 1963
(herein after referred to as the 1963 Rules), the source of
appointment to the post of SP was promotion and transfer by
deputation and the minimum qualification required for being
eligible to be considered for appointment to the post of SP was
DSP in Special Police Establishment with at least eight years
service in the grade, out of which two years should be
probationary period in CBI. Under the Central Bureau of
Investigation (Deputy Inspector General of Police/Deputy
Director) Recruitment Rules 1975 (herein after referred to as
the 1975 Rules) the minimum qualification required for being
considered for appointment to the post of DIG was
Superintendent of Police (including Assistant Inspector General
of Police/Assistant Director) in Central Bureau of Investigation
with eight years service in the grade rendered after
appointment thereto on a regular basis. Respondent No.5
therein was first promoted as SP and thereafter as DIG. For
determining the seniority and eligibility of respondent No.5
therein for said promotions, the period of service of
respondent No.5 therein as DSP in Rajasthan State Police was
included towards his period of service in CBI. The first
contention advanced by the petitioners therein was that the
service rendered by respondent No.5 therein in his parent
department could not have been included towards period of
service spent by respondent No.5 therein on the post of DSP in
CBI. In support of the said contention, it was submitted that

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the expression in the grade occurring in Recruitment Rules
1963 should be understood to have meant grade of DSP in CBI,
meaning thereby that, respondent No.5 therein should have
spent eight years in CBI as DSP before he could have been
considered eligible for promotion to the post of SP. The
aforesaid contention of the petitioners was repelled in the
following terms:-

6. ...We are, however, unable to accept the

contention. Eight years service in the grade would
mean eight years service in the grade of DSP. The
1963 Rules do not provide that the period of eight
years should be computed from the date of
deputation to the CBI as DSP. In the absence of any
such expression, it must be held that the period
during which one held the post of DSP in the State
Police Service should also be taken into account for
computing the period of eight years. The 1963 Rules
provide that two years must be spent on probation as
DSP in the CBI. The position, therefore, comes to this
that of the total period of eight years, two years must
be on probation basis in the CBI. An officer may have
been in the State Police as DSP for a period of six
years and, thereafter, if he joins the CBI on deputation
and spends two years on probation, he would be
eligible for consideration for appointment to the post
of SP. If this view is not taken, no officer would be
available to join the CBI on deputation....

23. The second contention advanced by the petitioners

therein was that Respondent No.5 therein was not eligible for
being promoted to the post of DIG. In support of said

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contention, it was submitted by the petitioners therein that the
expression on a regular basis occurring in 1975 Rules implies
that qualifying service required by a deputationist for being
considered eligible for promotion to the post of DIG should be
reckoned after date of absorption of the deputationist as SP in
CBI. The aforesaid contention was repelled by Supreme Court
in following terms:-

10. The 1975 Rules which are relevant for the

purpose do not explain what is meant by the
expression on a regular basis. The expression has
created some ambiguity in the eligibility clause giving
rise to this controversy. There can be no doubt that
when a person is appointed to a post against a
permanent vacancy on probation, his appointment is
on a regular basis, but when a person is appointed to
a post on a purely temporary or on an ad hoc basis,
the appointment is not on a regular basis. The
expression on a regular basis in the 1975 Rules
cannot, in our opinion, be interpreted to mean as on
absorption in the CBI as SP. The general principle is
that in the absence of any specific provision to the
contrary, the length of service from the date of
appointment to a post should be taken into
consideration for the purpose of either seniority in
that post or eligibility for the higher post. As no
explanation has been given in the 1975 Rules of the
said expression, we do not think it desirable to deviate
from the established principle of computing the length
of service for the purpose of seniority or eligibility for
the higher post from the date of appointment. In our
view, therefore, the expression on a regular basis

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 would mean the appointment to the post on a regular
basis in contradistinction to appointment on ad hoc or
stopgap or purely temporary basis. Respondent 5, in
our opinion, satisfied the eligibility test of the 1975
Rules for consideration for the post of DIG.....
(Emphasis Supplied)

24. In the other writ petition, the petitioner therein was

promoted to the post of Deputy Commandent in BSF on 14
June 1976, which post was equivalent to the grade of SP in
Central Bureau of Investigation. The petitioner therein joined
CBI on deputation as SP on September 29, 1979 and was
permanently absorbed in the rank of SP on October 28, 1963.
The question which arose for consideration before Supreme
Court was whether the service rendered by the petitioner
therein in BSF can be taken into account for the purpose of
fixing his seniority in CBI, which question was answered in
affirmative by the court in following terms:-

21. 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

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 21 of 39

 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.
See R.S. Makashi v. I.M. Menon; Wing Commander J.
Kumar v. Union of India

25. In the decision reported as K.Anjaiah v K. Chandraiah

(1998) 3 SCC 218, the Service Commission in Andhra Pradesh
was formed under the Provisions of the Andhra Pradesh
College Service Commission Act, 1985 (hereinafter referred to
as the Act). The employees of the Commission came on
deputation from the State Government in different batches
and such deputationists were managing the affairs of the
Commission. It is relevant to note that one of the sources for
appointment in Service Commission was deputation. Section
20 of the Act conferred power upon the Commission to make
Regulations with the previous approval of the Government. In
exercise of the power conferred upon the Commission under
Section 20 read with Section 7(3) of the Act a set of
Regulations were framed by the Commission. Regulation 9 of
the said Regulations reads as under:-

9. (1) The persons drawn from other

departments will carry on their service and they
will be treated as on other duty for a tenure

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 22 of 39

 period to be specified by the Commission or
until they are permanently absorbed in the
Commission whichever is earlier.

(2) The services of those staff members

working in the Commission on deputation basis
and who opted for their absorption in the
Commission, shall be appointed regularly as the
staff in the Commission, in the cadre to which
they belong, as per the orders of Government
approving their appointments batch by batch
and to determine the seniority accordingly. For
this purpose the Commission may review the
promotions already affected.

26. The deputed employees in the Commission assailed the

validity of aforesaid Rule 9(2) before Supreme Court. It was
held by the Court that seniority of the deputationists in the
Commission shall be determined on the basis of service of
deputationist in his parent department. The relevant
observations of the Court are being noted herein under:-

7. We find considerable force in this argument and

reading down the provision of Regulation 9(2) we hold
that while determining the inter se seniority of the
deputationists in the new cadre under the Commission
after they are finally absorbed, their past services
rendered in the Government have to be taken into
account. In other words the total length of service of
each of the employees would be the determinative
factor for reckoning their seniority in the new services

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 23 of 39

 under the Commission. Mr Ram Kumar, learned
counsel appearing for the appellants, vehemently
urged that length of service under the Commission
should be the criteria for determining the inter se
seniority but we are unable to persuade ourselves to
agree with the aforesaid submission of the learned
counsel. It is not known that when the persons were
brought over to the Commission from the Government
on deputation whether their option had been asked
for or not. Further such a principle if accepted then
the inter se seniority would be dependent upon the
whim of the Government, and we see no rationale
behind the aforesaid principle. The two decisions on
which Mr Ram Kumar, learned counsel placed reliance
in support of his contention in fact do not lay down
the aforesaid proposition. We have, therefore, no
hesitation to reject the submission of Mr Ram Kumar.

27. In the decision reported as Sub-Inspector Rooplal v Lt.

Governor (2000) 1 SCC 644, the petitioners, who were
employed as Sub-Inspectors in Border Security Force and were
sent on deputation to Delhi Police in the cadre of Sub-Inspector
(Executive) and were permanently absorbed by Delhi Police in
the said cadre, challenged the validity of the office
memorandum dated 29.05.1986, contents whereof have been
noted in para 2 above. Delhi Police (Appointment and
Recruitment) Rules 1980 provide for mode of recruitment in
Delhi Police. It is relevant to note that Rule 5(h) of the said
Rules provides that if the Commissioner is of the opinion that it
is necessary or expedient in the interest of work to do so, he
may make appointment(s) to all non-gazetted categories of

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 24 of 39

both executive and ministerial cadres of the Delhi Police on
deputation basis by drawing suitable persons from any other
State, Union Territory, Central police organisation or any other
force. Rule 17 of the said Rules empowered the Commissioner
of Police, Delhi to sanction permanent absorption of persons
sent on deputation with the consent of the deputed official in
the Delhi Police of upper and lower subordinates and with the
concurrence of the Head of Police Force from which said
official is deputed. While quashing the expression whichever
is later occurring in the said office memorandum, Supreme
Court observed as under:-

15. We will now take up the question whether the

appellants are entitled to count their service rendered
by them as Sub-Inspectors in BSF for the purpose of
their seniority after absorption as Sub-Inspectors
(Executive) in the Delhi Police or not. We have already
noticed the fact that it is pursuant to the needs of the
Delhi Police that these officials were deputed to the
Delhi Police from 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 BSF,
the appellants services were regularised in the post
of Sub-Inspector and they were transferred as
regularly appointed Sub-Inspectors to the Delhi Police
Force. Therefore, on being absorbed in an equivalent
cadre in the transferred post, we find no reason why
these transferred officials should not 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

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 25 of 39

 more than one case. Since the earlier Bench of the
Tribunal relied upon Madhavan case1 to give relief to
the deputationists, we will first consider the law laid
down by this Court in Madhavan case1. This Court in
that case while considering a similar question, came
to the following conclusion: (SCC p. 580, para 21)

.....

16. Similar is the view taken by this Court in the cases

of R.S. Makashi6 and Wing Commander J. Kumar7
which judgments have been followed by this Court in
Madhavan case1. Hence, we do not think it is
necessary for us to deal in detail with the view taken
by this Court in those judgments. Applying the
principles laid down in the above-referred cases, we
hold the appellants are entitled to count the
substantive service rendered by them in the post of
Sub-Inspector in BSF while counting their service in
the post of Sub-Inspector (Executive) in the Delhi
Police Force.

....

19. This leaves us to consider the validity of the office

memorandum which was relied upon by the Tribunal
in the impugned judgment.

20. A perusal of clause (iv) of the memorandum shows

that the author of this memorandum has taken
inconsistent views in regard to the right of a

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 26 of 39

 deputationist to count his seniority in the parent
department. While in the beginning part of clause (iv)
in clear terms he says that if a deputationist holds an
equivalent grade on regular basis in the parent
department, such regular service in the grade shall
also be taken into account in fixing the seniority. In
the latter part the author proceeds to say

subject to the condition that he will be given

seniority from the date he has been holding the
post 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.

The use of the words whichever is later negatives

the right which was otherwise sought to be conferred
under the previous paragraph of clause (iv) of the
memorandum. We are unable to see the logic behind
this. The use of the words whichever is later being
unreasonable, it offends Article 14 of the Constitution.
It is also argued on behalf of the appellants that this
memorandum is further violative of Articles 14 and 16
of the Constitution inasmuch as it arbitrarily takes
away the service rendered by the deputationist when
he is absorbed in the Delhi Police which right of a civil
servant cannot be taken away without the authority of
law. We have noticed earlier that the petitioners, who
are the appellants in the civil appeals, were regularly
appointed as Sub-Inspectors in BSF on the date of
their deputation. We have also accepted the fact that
the post of Sub-Inspector held by them in BSF is
equivalent to the post of Sub-Inspector (Executive) in

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 27 of 39

 the Delhi Police to which they stood deputed. That
being the case, in view of the judgment in the cases of
R.S. Makashi, Wing Commander J. Kumar7 and
Madhavan it is clear that they are entitled to count the
service rendered by them in the post of Sub-Inspector
in BSF for the purpose of seniority in the cadre of Sub-
Inspector (Executive) in the Delhi Police. Therefore,
such a right of the appellant-petitioners could not
have been taken away in the garb of an office
memorandum which is impugned in the above writ
petition. This view of ours finds support from a
judgment of this Court in the case of K. Anjaiah v. K.
Chandraiah.

.....

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
the deputed post would be violative of Articles 14 and
16 of the Constitution. Hence, liable to be struck
down. Since the impugned memorandum in its
entirety does not take away the above right of the
deputationists and by striking down the offending part
of the memorandum, as has been prayed in the writ
petition, the rights of the appellants could be
preserved, we agree with the prayer of the appellant-
petitioners and the offending words in the
memorandum whichever is later are held to be
violative of Articles 14 and 16 of the Constitution,
W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 28 of 39
 hence, those words are quashed from the text of the
impugned memorandum. Consequently, the right of
the appellant-petitioners to count their service from
the date of their regular appointment in the post of
Sub-Inspector in BSF, while computing their seniority
in the cadre of Sub-Inspector (Executive) in the Delhi
Police, is restored.....

28. In the decision reported as Indu Shekhar Singh v State of

UP (2006) 8 SCC 129, respondents Nos.2, 3, 4 and 6 therein
were appointed in U.P. Jal Nigam on diverse dates. State of
U.P. created Ghaziabad Development Authority in exercise of
its power under UP Urban Planning and Development Act, 1973
(herein after referred to as the Act). On 25.06.1985 State of
U.P. notified UP Development Authorities Centralised Service
Rules 1966 (herein after referred to as the Rules) in exercise
of its power under the Act. Respondents Nos.2, 3, 4 and 6 were
deputed to Ghaziabad Development Authority on diverse
dates. Rule 5-A of the Rules provided for absorption only of the
employees deputed from Development Authorities in
Centralised Service. Notwithstanding the fact that UP Jal
Nigam was not a development authority, vide letters dated
27.08.1987 and 28.11.1991 issued to respondents Nos.2 and 4
therein they were asked to communicate their acceptance for
absorption in Centralised Service subject to the conditions
specified in the said letter. One of the conditions specified
therein was that service of the respondents in UP Jal Nigam
would not be taken into consideration for determination of
their seniority in Centralised Service and that they would be
placed below the employees appointed on regular basis in the
seniority list. The offer contained in the aforesaid letters was

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 29 of 39

accepted by the respondents Nos. 2 and 4 therein.
Respondents Nos.3 and 6 therein opted on their own for
absorption in Centralised Service. An office order was issued
by the Government of UP wherein the employees who had
joined the Centralised Service on a regular basis were placed
above respondents Nos.2, 3, 4 and 6 therein in the seniority
list, which order was impugned by respondents Nos. 2 and 4
therein by filing a writ petition before the Allahabad High
Court. The principal grievance raised by the said respondents
was that the government has erred in not taking into account
service rendered by them under UP Jal Nigam while fixing their
seniority in the Centralised Service. Relying upon the ratio laid
down by the Supreme Court in K.Madhavans case (supra), the
High Court allowed the writ petition filed by the respondents
therein. In appeal, the Supreme Court set aside the judgment
passed by the High Court. The relevant observations of the
Supreme Court are as under:-
19. The terms and conditions of
recruitment/appointment to the post, seniority and
other terms and conditions of service are governed by
statutory rules. The statute provides that only those,
who were in the employment of different development
authorities, shall be borne to the cadre of the Central
services. The U.P. Jal Nigam was not a development
authority. It was constituted under a different statute.
It was an autonomous body. The employees working
with the Jal Nigam might have been deputed to the
services of the development authorities, but only by
reason thereof they did not derive any right to be
absorbed in the services. Ordinarily, an employee has
no legal right to be deputed to another organisation.
He has also no right to be permanently absorbed

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 30 of 39

 excepting in certain situation as was held by this
Court in Union of India v. V. Ramakrishnan.

20. Respondents 2 to 4 were deputed to the

Ghaziabad Development Authority on their own. They
were presumed to be aware that they were not borne
in the cadre of centralised services. The Rules do not
provide for appointment by way of transfer.
Appointment by way of absorption of a deputed
employee would amount to fresh appointment which
may be subject to the offer given by the Authority.
The Development Authority is a statutory authority.
So is the Jal Nigam. The Schedules appended to the
Rules provide for posts to be filled up by promotion or
by direct recruitment or by both. Schedule IV provides
for the posts which are outside the purview of the
Public Service Commission and are required to be
filled up by promotion only, whereas Schedule V
specifies those posts which are outside the purview of
the Public Service Commission, but are to be filled up
through direct recruitment only. It is not disputed that
the State of U.P. has since issued a notification on 9-
12-2002 whereby and whereunder Rule 7(1) of the
1985 Rules stood substituted, in terms whereof the
past services of only those officers and employees
were to be counted who would finally be absorbed in
the services in terms of Section 5-A(2) of the Act on
the criterion of continuous length of service, including
the services rendered in a Development Authority,
Nagar Mahapalika, Nagar Palika or Improvement Trust
on similar posts. Respondents 2 to 4 were not and
could not have been absorbed under Section 5-A(2) of
W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 31 of 39
 the Act and thus evidently Rule 7(1) is not attracted.
The only rule, which provides for seniority, is Rule 28.
Rules 7 and 28, as noticed hereinbefore, occur in
different chapters providing for different situations.

21. Respondents 2 to 4, therefore, were not entitled to

the benefits of Rule 7. In terms of the Rules, there is
no provision for appointment by way of transfer. There
is also no provision for appointment on permanent
absorption of the deputed employees. The only
provision which in the fact situation obtaining in the
present case would apply and that too in the event
the State intended to absorb the employees of the Jal
Nigam, would be Section 7(1) of the Act and sub-rule
(2) of Rule 37 of the 1985 Rules.

22. Seniority, as is well settled, is not a fundamental

right. It is merely a civil right. (See Bimlesh Tanwar v.
State of Haryana4, SCC para 49 and also Prafulla
Kumar Das v. State of Orissa5.)

.....

24. The question which arises is as to whether the

terms and conditions imposed by the State in the
matter of absorption of Respondents 2 to 4 in the
permanent service of the Ghaziabad Development
Authority is ultra vires Article 14 of the Constitution of
India.

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 32 of 39

 25. The State was making an offer to the respondents
not in terms of any specific power under the Rules,
but in exercise of its residuary power (assuming that
the same was available). The State, therefore, was
within its right to impose conditions. The respondents
exercised their right of election. They could have
accepted the said offer or rejected the same. While
making the said offer, the State categorically stated
that for the purpose of fixation of seniority, they would
not be obtaining the benefits of services rendered in
the U.P. Jal Nigam and would be placed below in the
cadre till the date of absorption. The submission of Mr
Verma that the period for which they were with the
Authority by way of deputation, should have been
considered towards seniority cannot be accepted
simply for the reason that till they were absorbed,
they continued to be in the employment of the Jal
Nigam. Furthermore, the said condition imposed is
backed by another condition that the deputed
employee who is seeking for absorption shall be
placed below the officers appointed in the cadre till
the date of absorption. Respondents 2 to 4 accepted
the said offer without any demur on 3-9-1987, 28-11-
1991 and 6-4-1987 respectively.

26. They, therefore, exercised their right of option.

Once they obtained entry on the basis of election,
they cannot be allowed to turn round and contend
that the conditions are illegal. (See R.N. Gosain v.
Yashpal Dhir, Ramankutty Guptan v. Avaraand Bank of
India v. O.P. Swarnakar.) Furthermore, there is no
fundamental right in regard to the counting of the
W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 33 of 39
 services rendered in an autonomous body. The past
services can be taken into consideration only when
the Rules permit the same or where a special situation
exists, which would entitle the employee to obtain
such benefit of past service.....

29. With regard to its earlier decisions in K. Madhavan, K.

Chandraiah and SI Rooplals cases (supra), the Supreme Court
observed as under:-
38. In K. Madhavan v. Union of India whereupon Mr
Verma placed strong reliance, this Court was
considering a case where deputation was made to
CBI. The said decision was rendered in a situation
wherein the original Rule 5 of the 1963 Rules
providing for 85% of the recruitment by way of
transfer or deputation was altered to 75%. In that
case, the earlier services rendered by the appellants
therein were directed to be considered having regard
to the statutory rules governing the field. Therein no
question of a person joining the services after
resigning from his old post arose. It is only in that
situation, the Court opined that there was not much
difference between deputation and transfer.

39. A difference between transfer and deputation

would be immaterial where an appointment by
transfer is permissible, particularly in an organisation
like CBI where personnel are drawn from different
sources by way of deputation. It is one thing to say
that a deputationist may be regarded as having been
appointed on transfer when the deputation is from

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 34 of 39

 one department of the Government to another
department, but it would be another thing to say that
employees are recruited by different statutory
authorities in terms of different statutory rules. In a
given case, the source of recruitment, the
qualification, etc., may be different in different
organisations. The statutory authorities, it is trite, are
not and cannot be treated to be the departments of
the Government. Their employees are governed by
the rules applicable to them. Their services are not
protected under Article 311 of the Constitution.

40. The State can (sic cannot) compel an employee to

go on deputation from its parent department to
another public sector undertaking unless a statutory
rule exists in this behalf. In absence of such a rule, no
employer can force an employee to join the services
of another employer. Thus, K. Madhavan, in our
opinion, has no application in the instant case.

41. K. Anjaiah v. K. Chandraiah was again a case

where this Court was concerned with multi-source
recruitment.....

42. Therein, thus, existed a provision for appointment

by way of absorption of the deputationist. The said
regulation was declared unconstitutional by the
Tribunal......

Such a finding was, thus, arrived at by way of reading

down the Rules so as to uphold the constitutionality of

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 35 of 39

 the said provision and not by laying any law in that
behalf upon interpreting Rule 9(2).

43. Having noticed the aforementioned decisions of

this Court, we may now notice Sub-Inspector Rooplal
which is the sheet anchor of the judgment rendered
by the High Court.

.....

47. The decisions referred to hereinbefore, therefore,

lay down a law that past services would only be
directed to be counted towards seniority in two
situations: (1) when there exists a rule directing
consideration of seniority; and (2) where recruitments
are made from various sources, it would be
reasonable to frame a rule considering the past
services of the employees concerned.

48. The said decisions, in our considered view, have

no application in this case, having regard to the
provisions of Section 5-A of the Act, in terms whereof
no provision exists for recruitment of deputationists.
Recruitment of deputationists, in fact, is excluded
therefrom..... (Emphasis Supplied)

30. In the decisions reported as K.Savitri v Union of India

(1998) 4 SCC 358 and Union of India v G.R.K. Sharma (1998) 6
SCC 186 the issue before the Supreme Court was whether the
surplus employees, having been rendered surplus in the
parent department, on being redeployed under the provisions

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 36 of 39

of the Central Civil Services (Redeployment of Surplus Staff)
Rules, 1990 (hereinafter referred to as the Rules) can claim
the benefit of past services rendered by them for the purposes
of seniority or experience in the redeployed organisation. Rule
9 of the said rules specifically provided that benefit of past
services in the parent department cannot be claimed by
surplus employees on being redeployed. In view of the specific
provision contained in the Rules, it was held by the court that
surplus employees cannot claim benefit of past services in the
parent department on being redeployed.
31. Having analyzed the decisions afore-noted it is apparent
that the various Benches of the CAT misinterpreted the ratio of
the decisions of the Supreme Court in K.Madhavan, K.
Chandraiah and SI Rooplals case (supra) and Indu Shekhar
Singhis case (supra).
32. A close perusal of the aforesaid decisions, particularly the
portions underlined by us in the paragraphs quoted from Indu
Shekhars case (supra) succinctly brings out that the decisions
of Supreme Court in K. Madhavan, K. Chandraiah and SI
Rooplals cases and Indu Shekhars cases (supra) operate in
different fields. Whereas K. Madhavan, K. Chandraiah and SI
Rooplals cases deal with a situation where one of the sources
for appointment to a cadre in the transferred department is
deputation, Indu Shekhars case deals with a situation where
the deputation was not provided as a source of appointment to
a cadre under the Recruitment Rules of the transferred
department and the government had permanently appointed
the deputationist in the transferred department in exercise of
its residuary powers.
33. Incidentally, we may note that Indu Shekhars case
(supra) also brings out that there is considerable difference
between the situations where both parent and transferred

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 37 of 39

departments are government departments and where either of
the parent or transferred department or both of the
departments are statutory organizations. The reason behind
this is obvious. Every statutory organization may or may not
be a government department. A government department has
to be an organization which is not only completely controlled
and financed by the government but has also no identity of its
own.
34. From the afore-noted decisions, the legal principle which
can be deduced is: (i) where one of the sources of
appointment to a post in a cadre is deputation, service
rendered by a deputationist on an equivalent post in his parent
department shall be taken into consideration while computing
his period of service in the deputed post for the purposes of
determination of his seniority and eligibility for promotion in
the transferred department; (ii) in cases where deputation is
not the source of appointment in a cadre under the
recruitment rules and a deputationist is absorbed in the
transferred department by the government in exercise of its
residuary powers, whether service rendered by a deputationist
in his parent department shall be taken into consideration
while computing his period of service in deputed post for the
purposes of determination of his seniority and eligibility for
promotion in transferred department would be dependent
upon terms and conditions of deputation or absorption of
deputationists in transferred department.
35. No strait jacket formula of universal application can be
evolved in respect of said cases. Each case would have to be
examined independently on its own facts and the statutory
framework.

W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 38 of 39

36. The reason behind the aforesaid principle is obvious.
Where one of the source of appointment in a cadre in the
transferred department is deputation, no employee in said
cadre can have any legitimate expectation of non-disturbance
of his seniority and promotional prospects by deputationists,
for they are well cognizant of the fact that a deputationist can
be appointed in the cadre at any time and that said
appointment would have an effect on their seniority and
promotional prospects.
37. Thus, for reasons different than the reasons advanced by
the Tribunal, which unfortunately did not have the benefit of
considering the effect of the amendment to Rule 8 of the
Central Health Services Rules 1996 with effect from 30.7.2001,
we concur with the final directions issued by the Tribunal.
38. For guidance in future when a similar issue arises, we
may only state that it would be better for the Tribunal or a
Court to see the relevant service rule and whether or not
deputation as a source of recruitment is provided or whether
the absorption of a deputationist is an exercise of a residual
power by the Government for, as noted herein above the root
distinction lies therein.
39. We dismiss the writ petitions, but in the facts and
circumstances of the cases direct that each party shall bear
the respective cost.

(PRADEEP NANDRAJOG)
JUDGE

(MOOL CHAND GARG)

JUDGE
JULY 22, 2010
mm / dk

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