TMI Blog1987 (10) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... stava, over the petitioners, at the hearing of the writ petitions the challenge to the seniority of the respondent No. 4 has not been pressed on behalf of the petitioners inasmuch as the respondent No. 4 is to retire from service within about two years from now. We would, accordingly, exclude from our consideration the seniority of the respondent No. 4 which stands confirmed. The two petitioners, Madhavan and Sen, were directly recruited as Deputy Superintendent of Police (DSP) in the Delhi Special Police Establishment (SPE) in the Central Bureau of Investigation (CBI) on 6-7-1963 and 10-8-1963 respectively. The respondent No. S, who was appointed to the post of DSP on 13-7-1962 in the Rajasthan State Police, was sent on deputation to CBI as DSP on 1-7-1967. It may be stated at this stage that majority of the officers in the CBI are deputationists. The case of the respondent is that the CBI organisation requires very capable and experienced police officers and, accordingly, such police officers are brought to CBI on deputation from different states and, thereafter, they are generally absorbed in the A CBI. We shall presently refer to the recruitment rules of police personnel in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India and the CBI, and the respondent No. 5 in regard to his appointment to the post of SP, CBI, with retrospective effect from 21-10-1971 (FN). It is not disputed that under the Special Police Establishment (Executive Staff) Recruitment Rules, 1963, hereinafter referred to as 1963 Rules , for the appointment of a deputationist to the post of SP, the minimum qualification required was DSP in the Special Police Establishment with at least eight years service in the grade, out of which two years should. be probationary period in the CBI. It has been stated already that the respondent No. 5 O.P. Sharma became DSP in the Rajasthan State Police on 13-7-1962 and he joined the CBI as DSP on 10-7-1967. According to him, therefore, he was eligible for appointment to the post of SP after eight years of his service as DSP on July 13, 1970. It is also not disputed that under the 1963 Rules, the mode of recruitment was that not exceeding 15% of the sanctioned strength would be filled by promotion and the remaining by transfer on deputation. It is the case of the respondents Nos. 1, 2 and 5 that the proposal for convening the meeting of the DPC was approved on October 13, 1970, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent No. 5 was given a limited retrospective date of appointment as SP. The Government took note that the delayed appointment of the respondent No. S was on account of unjustifiable reasons, and assigned him the seniority over the two . petitioners with a deemed date of appointment as 21-10-1971 (FN). That is how the dispute has arisen between the petitioners and the respondent No. 5 over the question of their respective seniority in the rank of SP in the CBI. The petitioners have, in the first instance, challenged that the respondent No. 5 was not even eligible for appointment to the post of SP, CBI. The respondent No. 5 was a deputationist and under the 1963 Rules that were prevailing at the material time, he was to complete eight years service in the grade. There has been much controversy over the expression in the grade . According to the petitioners, the expression should be understood as meaning in the grade of SP in the CBI. In other words, the contention of the petitioners is that the respondent No. 5 should have been for eight years in the CBI as DSP before he would be eligible for appointment to the post of SP in the CBI. As the respondent No. 5 joined the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to the result of the writ petition. As a result of that order, the respondent No. 5 was promoted to the post of DIG on October 13, 1983 on an ad hoc basis subject to the result of the writ petitions. The petitioners were also appointed DIGs on ad hoc basis by virtue of an interim order of this Court on April 24, 1985. Thus the petitioners and the respondent No. 5 have been in the post of DIG on ad hoc basis. After the lapse of time and after the appointment of the petitioners and the respondent No. S to the post of DIG, though on ad hoc basis, the real question is the question of their inter se seniority in the post of DIG in the CBI. It has been strenuously urged on behalf of the petitioners at the very outset that the respondent No. S was not eligible for being appointed to the post of DIG, CBI. In support of this contention our attention has been drawn to the Central Bureau of Investigation (Deputy Inspector General of Police/Deputy Director) Recruitment Rules, 1975, hereinafter referred to as the 1975 Rules , which prescribe the following eligibility requirement for being considered for the appointment to the post of DIG in the CBI:- Superintendent of Police ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners centres round the expression on a regular basis. 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 ffrom the established principle of computing the length of service for the purpose of seniority or eligibility for the high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SPs, including the five posts out of the quota for direct recruitment. It is alleged by the petitioners that the respondent No. 5 was appointed to the post of SP in the CBI in one of the said five posts meant to be filled by direct recruits in violation of the quota rule. The chart also contains a submission that the appointment of five deputationists/transferees, including the appointment of respondent No. 5, as SP on 28-10-1972 was illegal. In other words, it is alleged that the respondent No. 5 was appointed in one of the said five posts meant for direct recruits. There is no material whatsoever to suggest that the respondent No. 5 was appointed in one of the S posts in excess of the quota for the deputationists. In the circumstances, we are not inclined to accept such contention without any foundation therefor. The most significant and crucial fact is the appointment of the respondent No. 5 to the post of SP with retrospective effect from a deemed date of appointment, that is, 21-10-1971 (FN). It is strenuously urged on behalf of the petitioners that such deemed appointment with retrospective effect from 21-10-1971 (FN) was wholly illegal and mala fide and should be struck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... departmental file relating to the postponement of DPC. Paragraph 9 of the note of one O.P. Bansal is as follows:- In so far as the representation of Shri O.P. Sharma is concerned, it has been found from the records that in October, 1970 a proposal was made by the Administrative officer, CBl, for convening a meeting of the Selection Board for the consideration of suitability or otherwise of 6 non-IPS deputationist Dy. SPs who had completed 8 years service in the grade of Dy. SP and Shri O.P. Sharma was No. 3 among them. It was stated in that note that there were 42 posts of SP and equivalent rank in CBI and that there were 3 vacancies in the grade. It was further stated that none of the non-deputationist Dy. SPs. had put in 8 years service at that time and, as such, they were not eligible for consideration for promotion. As a result of this, all the 3 posts were to be filled by deputationists. It was not stated in that note whether any of the 3 posts fell in the promotion quota, which at that time comprised not exceeding 15% of the strength, i.e. 6 posts. The proposal for convening a meeting of the Selection Board was approved on 13-10-1970, but on 15-10- 1970 the Director, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him for appointment to the post of SP that the respondent No. S was appointed on October 28, 1972 to the post of SP, CBI. As the foundation of the appointment of the respondent No. 5 to the post of SP with retrospective effect from 21-10-1971(FN), namely, the postponement of the meeting of the DPC in october, 1970 arbitrarily, is shaken to a great extent, there was no question of any injustice done to the respondent No. S. The retrospective appointment or promotion to a post should be given most sparingly and on sound reasoning and foundation. In the instant case, we do not find that there was any justification for the appointment of the respondent No. S to the post of SP in the CBI with retrospective effect from 2 1-10-1971 (FN) so as to make him senior to the petitioners. We may now deal with the Writ Petition No. 1021 of 1986. The principal question that is involved in this writ petition is whether the length of service of the petitioner Dwarka Nath in the Border Security Force (BSF) should be taken into account for the purpose of deciding his seniority in the CBI in the rank of SP. On 14-6-1976 the petitioner was regularly promoted to the post of Deputy Commandant in the BS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 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 Ors. v. I.M. Menon Ors. [1982] 1 SCC 379; Wing Commander J. Kumar v. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said circulars dated 16-4-1980 and 10-9-1980 were found to be not workable, the CBI suspended the same for a further decision by its circular dated 6.10.1981, the relevant portion of which is extracted below:- In response to this office circular No. A. 31016/14/80-AD. I (DPC) dated 10-9-80, some of the branches have sent options of some of the officers for absorption in the CBI. Some options are conditional and some have sought some clarification with reference to seniority. 2. The matter is under correspondence with the DP AR. The branches will be informed as soon as a decision is arrived at. Decision on the options received will be taken after the clarification has been received from the DP AR. No decision has yet been taken by the Government. Mr. P.P. Rao, learned Counsel appearing on behalf of the petitioner, has drawn our attention to the counter-affidavit to the rejoinder in CMP Nos. A 5429 and 5430 of 1984 filed in the above writ petitions Nos. 9847 and 9848 of 1983, wherein it has been categorically admitted by the Union of India that after the issue of the circular dated 11-9-1980, the matter was reexamined by the Director of CBI and found to be unworkable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rule contemplate that only those officers, who had experience of investigation would be appointed to the post in the CBI. Under the rule, such an officer should be a suitable officer and should be holding analogous post in the Central Government Department concerned. The petitioner was found to be a suitable officer and at the time of his deputation he was holding the post of Deputy Commandant which, according to the petitioner, is equivalent to the post of SP in the CBI. We are unable to accept the contention of the respondents Nos. 3 and 5 that the post of Deputy Commandant in the BSF is not equivalent to the post of SP in the CBI. The letter of the Under Secretary to the Government of India dated November 25, 1983 shows on the face of it that the post of Deputy Commandant in the BSF is equivalent to that of SP in the CBI. It has been expressly conceded by the learned Additional Solicitor General that the Government accepts the post of the Deputy Commandant in the BSF as equivalent to the post of SP in the CBI. At this stage, we may refer to the letter dated January 24, 1984 of the CBI to the Government of India wherein it has been categorically stated inter alia that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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