TMI Blog1999 (12) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... on being permanently absorbed in the transferred post, is entitled to count his substantive service as Sub-Inspector in the BSF for the purpose of his seniority in the Cadre of Sub-Inspector (Executive) in Delhi Police or not. To appreciate the controversy involved in these cases, it is necessary to note the background of these transfers from various Police Organisations to Delhi Police. A perusal of the letter issued by the Commissioner of Police, Delhi, No. 15413/Est. dated 10.9.1985 shows that in the year 1985 with a view to strengthen the existing security system in the Capital, the Delhi Police has created 12 new Police Stations in Delhi. Consequent to the same and in view of the prevailing conditions, it was felt necessary to fill up the required posts in Delhi Police within the shortest possible time so that there is an immediate impact on the law and order situation in Delhi. In the said letter, the Commissioner noted that in the normal course the recruitment at different levels and training of the recruits would take a longer time and in view of the urgent need of the hour, a decision was taken to take suitable persons on deputation in the ranks of Inspector, Sub-Inspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of this Court shows that the respondents in the SLP were represented by a counsel and the Court passed an order after hearing the counsel, Strangely enough, the respondent which was the employer of both the originally recruited Sub- Inspectors of Delhi Police as well as subsequently transferred arid absorbed officials was still not satisfied even with this decision of the apex Court and filed a review petition against the said order of dismissal of the SLP, which review petition came to be dismissed by this Court with the following order:- Apart from the fact that the petitions are delayed by 444 days, even on merits we see no reason to entertain these petitions, Hence the Review Petitions are dismissed. Thus, the first bout of litigation which originated with regard to a simple question of counting the seniority, in the year 1991 came to an end in February, 1996- But, so fair as the respondent is concerned, it was not prepared to accept the law laid down in Antony Mathew's case. Though it gave the benefit of the order of the Tribunal, as affirmed by this Court, to Antony Mathew, it was not ready to extend the same benefit to the persons similarly situated like the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is against this order of the tribunal that the appellants have preferred SLPs. in which leave to appeal was granted by this Court. Before us in these matters, Mr. P.P. Rao and Mr. S.K. Dholakia, learned senior counsel appearing for the parties contended that the latter Bench of the tribunal committed a judicial impropriety in taking a contra view from the earlier judgment without Following the rule of precedent They questioned the correctness of the finding of tribunal in the impugned judgment as to equation of the two posts of Sub-Inspector based only on an unequal pay scale. The reliance on the O.M. dated 29.5.1986 was also questioned on the ground that same was not acted upon earlier and the existence of the same was not made known to all concerned at any relevant point of time. It is to be noted that the constitutional validity of the said O.M. is also challenged before us in W.P.No. 191 of 1999. We have heard the learned Additional Solicitor General and Sri Bimal Roy Jad on behalf of the respondents. At the outset, we must express our serious dissatisfaction in regard to the manner in which a coordinate Bench of the tribunal has overruled, in effect, an earlier judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re- considered, lie should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. We are indeed sorry to note the attitude of the tribunal in this case which, after noticing the earlier judgment of a coordinate Bench and after noticing the judgment of this Court, has still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment thereby creating a judicial uncertainty in regard to the declaration of law involved in this case. Because of this approach of the latter Bench of the tribunal in this case, a lot of valuable time of the Court is wasted and parties to this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. See R.S. Mokashi and Ors, v. l.M. Menon and Ors., [1982] 1 SCC 379 and Wing Commander J, Kumar V. Union of India and Ors., [1982] 3 SCR 453. (emphasis supplied) Similar is the view taken by this Court in the cases of K.S. Mokashi and Ors. and Wing Commander J, Kumar (supra) which judgments have been followed by This Court in Madhavan's case. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia mentioned hereinabove are in any manner different between the two posts concerned. Therefore, it should be held that the view taken by the tribunal in the impugned order that the two posts of Sub-Inspector in the BSF and the Sub-Inspector (Executive) in Delhi Police are not equivalent merely on the ground that the two posts did not carry the same pay-scale, is necessarily to be rejected. We are further supported in this view of ours by another judgment of this Court :in the case of Vice-Chancellor, L.N. Mithila University v. Dayanand Jha. [1986] 3 SCC 7 Wherein at para 8 of the judgment, this Court held: Learned counsel for the respondent is therefore right in contending that equivalency of the pay scale is not the Only factor in judging whether the post of Principal and that of Reader are equivalent posts. We are inclined to agree with him that the real criterion to adopt is whether they could be regarded of equal status and responsibility xxx The true criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts, xxx Therefore, in our opinion, the finding of the tribunal that the posts of Sub-inspector in the BSF and Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Department, after absorption in an equivalent post, is arbitrarily taken away, if the Memorandum in question is applicable to them. Therefore, they had prayed for a declaration that the Memorandum be declared as ultra vires to (he extent it offends their fundamental right. The relevant part of the Memorandum impugned in the writ petition referred to above, reads thus: 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the petitioners who are the appellants in the civil appeals, were regularly appointed as Sub-Inspectors in the BSF on the date of their deputation. We have also accepted the fact that the post of Sub-Inspector held by them in the BSF is equivalent to the post of Sub- Inspector (Executive) in the Delhi Police to which they stood deputed. That being the case, in view of the judgment in the cases of R.S. Mokashi, Wing Commander J. Kumar and Madhavan (supra), it is clear that they are entitled to count the service rendered by them in the post of Sub-Inspector in the BSF for the purpose of seniority in the cadre of Sub-Inspector (Executive) in Delhi Police. Therefore, such a right of the petitioners/ appellants 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. Anjaih Ors. v. K. Chandraiah and Ors., [1988] 3 SCC 218. In that case this Court was considering a statutory regulation which in almost similar terms used in the Office Memorandum with which we are concerned, deprived the civil servants of their past service in the department. The Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciple was reiterated by this Court in K. Madhavan case. A three-Judge Bench judgment of this Court in the case of Wing Commander J. Kumar also reiterated the aforesaid well- known principle in the service jurisprudence, xxx 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 petitioners/ appellants and the offending words in the Memorandum whichever is later are held to be violative of Articles 14 and 16 of the Constitution, hence, those words are quashed from the text of the impugned Memorandum. Consequently, the right of the petitioners/appellants to count their service from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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