MRLGANK JOHRL & ORS.versusUNION OF INDIA & ORS.

                       [2017] 7 S.C.R. 349



                   MRlGANK JOHRl & ORS.                              A
                                v.
                   UNION OF INDIA & ORS.
              (Civil Appeal Nos. 9316-9320 of 2013)
                          JULYl0,2017                                B

              (ABHAY MANOHAR SAPRE AND
                SANJAY KISHAN KAUL, JJ.)
      Service law - Permanent absorption on deputation - Seniority,
claim of - Appellant-junior engineers (Electrical) in All India Radio C
went on deputation to the Postal Department - Thereafter, appellant
opted for permanent absorption in the Postal Department on the
terms and conditions specified by the absorbing department that
services would be counted in the earlier cadre for all purposes
except his/her seniority in the cadre - Subsequently seniority list
published by the Postal Department - Challenge to, by the appellants D
- Direction by tribunal to re-draft the seniority list counting the
regular service of the appellants - However, said direction set aside
by the High Court - On appeal, held: Where absorption is on
specified terms and conditions with the benefit of such past service
in the previous cadre as well as the period of service rendered on E
deputation being denied, the OMs, which provide for the benefit of
service rendered in the previous cadre in an equivalent post on
being absorbed in another department would not apply - Thus, the
order passed by the High Court upheld - Constitution of India -
Arts 14 and 16.
                                                                      F
       Dismissing the appeals, the Court
      HELD: 1.1 The OMs, which generally provide for the
benefit of service rendered in the previous cadre in an equivalent
post on being absorbed in another department would not apply
to a case where the absorption is on specified terms and
conditions with the benefit of such past service in the previous     G
cadre as well as the period of service rendered on deputation
being denied. (Para 29) (366-A-B)
      1.2 The OM dated 29.5.1986 as modified by OM dated
27.3.2001 did provide for the benefit of the previous service
                                                                     H
                                349
350          SUPREME COURT REPORTS                    [2017] 7 S.C.R.


A rendered in the cadre. This is in effect also the ratio of the
  judgment in SI Roop/a/ case. This would also be in conformity
  with the normal service jurisprudential view. However, it would
  be a different position if the absorbing department clearly
  stipulates a condition of giving willingness to sacrifice the
  seniority while preserving all other benefits for the absorbee
B
  (which are accepted) failing which the option was available to the
  absorbee to get himself repatriated to the parent department.
  The terms and conditions are categorical in their wording that
  the absorbees would be "deemed to be new recruits" and the
  previous service would be counted for all purposes "except his/
C her seniority in·the cadre". The appellant accepted this with open
  eyes and never even challenged the same. Their representations
  to give them the benefit of their past seniority was also turned
  down and thereafter also they did not agitate the matter in any
  judicial forum. The controversy was thus not alive and it was not
D open for them to challenge the same after a long lapse of period
  of time. In fact on the day of filing of the OM, any prayer to set
  aside the terms and conditions of absorption would have been
  clearly barred by time u/s. 21 of the Administrative Tribunals
   Act, 1985. [Para 3111366-C-F)
         1.3 The appellants sought to rake up the issue only when
 E the seniority list was finalized. This was preceded by the draft
   seniority list. Whatever may be the dispute of seniority qua other
   persons, insofar as the appellants were concerned, their seniority
   was based on the terms and conditions of their absorption. The
   position of the appellants in the seniority list was thus a sequitur
 F to the terms and conditions of their absorption. It is precisely for
   this reason, anticipating that their claim would be time barred,
   that a challenge was laid only to the seniority list without
   challenging the terms and conditions of absorption though in the
   grounds, a plea was raised against the terms and conditions of
   absorption. Unless the terms and conditions of absorption were
 G to be set aside, the seniority list prepared was in conformity with
   the same. Since the appellants accepted the terms and conditions
   of absorption, they could not plead otherwise. [Paras 32, 33)[366-
   G-H; 367-A-B)
           1.4 The submission of the respondents that this issue has
 H
    MRIGANK JOHRI & ORS. v. UNION OF INDIA & ORS.                   351


been squarely dealt with in Indu Shekhar Singh 's case where A
almost identical issues have been dealt with by holding that the
State was within its right to impose conditions where the
employees had the option to exercise their right of election, is
accepted. The entitlement was not under any rules but under
what was called the residuary power. [Para 34)(367-B-C)
                                                                    B
      1.5 The High Court rightly interpreted the Rules. The
method of recruitment as per Rule 3, has to be specified in Column
5 to 15 of the Schedule, while Rule 5 provides for power of
relaxation. Column 11 provides for the method of recruitment-
whether by direct recruitment, or by promotion, or by deputation
or transfer, and the percentage of the vacancies to be filled by C
various methods. This may vary from post to post. For the Junior
Engineer (Electrical) post, the ratio is mentioned as 83.33 % by
direct recruitment and 16.66% by promotion through a
departmental competitive examination. The office note regarding
the absorption dated 2.11.1998 also refers to the 'open competitive D
examination not being held. and the consequences thereof, with
absorption of persons like the appellants being envisaged to deal
with the given situation, but subject to the terms and conditions
which were then set out in OM dated 9.11.1999. [Para 35)(367-
D-F]
                                                                    E
      1.6 Whenever the post could be filled by deputation as a
method of recruitment it was so spec~fically provided. Column
12 deals with the scenario where the recruitment method provides
for appointment by promotion, on deputation or transfer. Thus,
Column 12 would apply only if the mode of recruitment was
prescribed as per Column 11 which is not applicable in this case.   F
(Para 36)(367-F-G]
       1.7 The failure of the Government to assail the judgment
of the Ernakulum Bench did create a situation of implementation .
of the OM as in the case of Shri Hari Singh but in view of the
judicial pronouncement by the impugned order which arose from G
the Delhi Bench of the Tribunal, the legal position was settled at
the level of the High Court. The impugned judgment cannot be
faulted in its conclusion. The applications for direction and
contempt petition are closed. [Paras 37, 38)(367-H; 368-A-B]
                                                                    H
!   352            SUPREME COURT REPORTS                       [2017] 7 S.C.R.


    A            SJ Roop/al & Anr. v. Lt. Governor through Chief
                 Secretary, Delhi & Ors. (2000) 1 SCC 644 : [19991 5
                 Suppl. SCR 310; K.Madhavan v. Union of India (1987)
                 4 SCC 566 : (1988) 1 SCR 42; Union of India & Ors.
                 v. ·.Deo Narain & Ors. (2008) 10 SCC 84 : (2008) 13
                 SCR 402; T. Vijaykumar & Anr. v. Union of India &
    B
                 Ors. O.A.No.734 of 2002; Union of India v. Ku/dip
                 Singh Permer & Ors. (2003) 9 SCC 472 : (2003)
                 2 Suppl. SCR 677; Central Inland Water Transport
                 Corporation Ltd. & Anr. v. Brojo Nath Ganguly & Anr.
                 (1986) 3 SCC 156 : [1986) 2 SCR 278; lndu Shekhar
     c           Singh & Ors. v. State of U.P. & Ors. (2006) 8 SCC 129
                 : [2006) 1 Suppl. SCR 497 - referred to.
                                 Case Law Reference
                 [1999) 5 Suppl. SCR 310         referred to      Para4

     D           (1988) 1 SCR 421                referred to      Para7
                 [2008) 13 SCR 402               referred to      Para9
                 [2003) 2 Suppl. SCR 677         referred to      Para 18
                 [1986) 2 SCR 278                referred to      Para 19
     E           (2006) 1 Suppl. SCR 497         referred to      Para 21
                ClVILAPPELLATE JURISDICTION: Civil Appeal Nos. 9316-
          9320 of 2013.
                From the Judgment and Order dated 06.07.2011 of the High Court
          of Delhi at New Delhi in Writ Petition Nos. 372-76 of2006
     F
                                        WITH
                 Conmt. Pet. (C) Nos. 474-478/2014 in C. A. Nos. 9316-9320 of
          2013
                 C. A. Nos. 8802-8806 of2017.
     G
                K. Radhakrishnan, Sr. Adv., K. V. Jagdishvaran, Ms. G Indira,
          Advs. for the Appellant.
               A. K. Panda, Yashank A., Amarendra Sharan, Sr. Advs., V. N.
          Raghupathy, Sudarshan Rajan, R. Balasubramanian, Ms. Sunita Rani
          Singh, Ms. Rashmi Malhotra, Ms. Aarti Sharma, D. S. Mabra,
     H
    MRIGANK JOHRI & ORS. v. UNION OF INDIA & ORS.                             353



G. S. Makker; B. Krishna Prasad, Sudarshan Rajan, Arjun Gadhoke,              A
R. Ramanmurthy, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      SANJAY KISHAN KAUL, J. Leave granted.
        1. The appellants were appointed as Junior Engineers (Electrical)     B
in the All India Radio, New Delhi from time to time between 1987-1990.
On an option being invited for deputation as Junior Engineers to the
Electrical Wing of the Postal Department, the appellants opted for the
same and memorandums were issued for their deputation in 1996. The
initial period of deputation was two years but the appellants were desirous
of permanent absorption in the Department of Post (hereinafter referred       C
to as the 'DOP').
       2. The All India Radio had become an autonomous body, namely,
"Prasar Bharati" and it appears that some of the appellants thus did not
want to continue in the parent cadre. The option was, however, available
forthe deputation to either go back to their parent cadre or seek absorption, D
as they did, on terms and conditions to be specified by the absorbing
department, the DOP. The request made by the appellant No.4 clearly
state that they would abide by the terms and conditions of absorption in
the DOP. However, the other appellants in their requests for absorption
requested for their previous seniority and service terms in the parent E
department to be preserved. It also appears that thi;:ri;: was possibility of
some of the Junior Engineers to be declan:d surplus in their parent
department. The fact, however, remains that when ultimately the request
for absorption by the DOP was acceded to. it was on terms and conditions,
specified and agreed to by the appellants. The said terms and conditions
are as under :-                                                               F
(i) He/She will sever all connections with his/her parent Ministry/
    Department.
(ii) He/She will not ask for repatriation to his/her parent Ministry/
    Department.
                                                                              G
(iii) He/Sire will be deemed to be new recruits in tire unit to wlliclr
     he/she is ordered to be posted.
(iv) He/She will be given pay protection and his/her pay will be regulated
    in accordance with the provisions in FR/SR, and pay will be drawn
    as per CCA pay rules applicable to DOP Civil Wing.                        H
354             SUPREME COURT REPORTS                            [2017] 7 S.C.R.


A     (v) His/Her will count for all purposes except his/her seniority in
          the cadre.
      (vi) He/She will move to the place of posting at his/her own cost.
      (vii) He/She will stand Junior to all JEs (C )l(E) who have already
          opted for DOP Civil Wing and those who have joined the Postal
B         Civil Wing before date of issue of letter of his/her absorption in
          the Civil Wing of Deptt. of Post.
      (viii) He/She will count his/her seniority from the date of issue of letter
          of permanent absorption in the Postal Civil Wing unit to which he/she
          is ordered to be posted on permanent absorption. However, the inter
c         se seniority of JEs absorbed from CCW, AIR, will be in accordance
          with their seniority fixed by the AIR (Civil Construction Wmg), Ministry
          ofl & B.
      (ix) He/She will resign form his/her present post of JE (C)/(E) from his/
          her parent department.
 D    (x) As a JE(C)(E) his/her transfer liability will be within the jurisdiction
          of the Postal Civil/Elect. Circle in which he/she is posted."
                                                                (emphasis supplied).
              The aforesaid terms and conditions, so far as the present
      controversy is concerned, thus clearly set out that the appellants would
 E    be treated as "new recruits" and the service will be counted in the earlier
      cadre for all purposes "except his/her seniority in the cadre''. There was
      no murmur of protest at the relevant time.
              3. However, after a couple of years, the appellants made
      representations seeking to consider their deputation period for fixing the
 F    seniority but such a request was not accepted. It is on the occasion of
       finalization of the seniority list that the appellants approached the Central
       Administ~i~e Tribunal, Principal Bench, New Delhi by filing OA
       No.1490 of 2004 under Section 19 of the AdministrativeTribunal Act,
       1985 seeking to contendJ!tat the appellants were compelled to accept
       the terms and conditions of absorption on a permanent transfer basis
 G     while joining the Postal Department and that such terms and conditions
       were totally arbitrary, illegal and against the provisions of the Constitution
       of India, being opposed to public policy. The ground of challenge, inter
       alia, raised the plea of violation ofArticles 14 and 16 of the Constitution
       oflndia and sought to rely on the guidelines contained in OM No.9/11/
       55-RPS dated 22.12.1959 which reads as under:-
 H
      MRIGANK JOHRI & ORS. v. UNION OF INDIA & ORS.                            355
               [SANJAY KISHAN KAUL, J.]

        "(iv) In the case of a person who is initially taken on deputation A
        and absorbed later, 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 also should be taken into account B
        in fixation of his seniority subject to the condition that he will be
        given seniority from the date he has been holding the post on
        deputation.     ·
                                       OR
        The date from which he has been appointed on a regular basis to        c
        the same or equivalent grade in his parent department, whichever
        is later."
       4. The plea of the appellants before the Tribunal was that the date
of seniority would be from the date of deputation but in case the person
was already holding the same or equivalent grade on a regular basis in D
his parent department, such regular service in the grade should also be
counted. The stand of the appellants was that they were already holding
the post of Assistant Engineer in the parent department on a regular
basis. rhe expression "whichever is later" was, however, struck down
in SI Roop/al & Anr. Vs. Lt. Governor through ChiefSecretary, Delhi
& Ors. 1 and thus 0Mdated22.12.1959 wasmodifiedbyOMNo.20011/ E
1/2000-Estt.(l) dated 27.3.2001 by replacing it with "whichever is earlier"
and these instructions were to take effect from 14.12.1999. However,
insofar as the relief is concerned, the same was only for quashing the
seniority list published on 5.1.2004 with a declaration that the appellants'
seniority should !:le reckoned in the Postal Electrical Department from F
the date on which they joined the service inAll India Radio, as well as in
DOP, on regular basis. There was no specific prayer made for quashing
the terms and conditions contained in the absorption letter.
       5. The aforesaid aspect is of some significance, since, if the terms
and conditions of the absorption letter were sought to be quashed (which       G
is really the grievance as the seniority list was a sequitur to the same),
the bar oflirnitation of one year would stare in the face in view of Section
21 of the Administrative Tribunals Act, 1985.
         6. The counter affidavit filed by the DOP opposed the petition
1
    (2000) 1 sec 644
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356             SUPREME COURT REPORTS                         [2017] 7 S.C.R.


A     primarily on the ground that the deputationists were absorbed as per the
      terms and conditions accepted by them given in the application and the
      seniority had been fixed accordingly. The draft seniority list was issued
      on 20.8.2002 and the final seniority list was only published thereafter on
      5.1.2004. The plea of any compulsion on the appellants by the respondent
      Department to accept the terms and conditions for absorption were
 B
      denied.
           7. The Tribunal by a judgment dated 30.8.2005 allowed the
   application with the direction to re-draft the seniority list counting the
   regular service of the appellants on the analogous post of Junior Engineer
   in the lending department of All India Radio preceding their deputation
 c as also the period spent on deputation till their permanent absorption.
   The Tribunal took note of the fact that apparently there was also a
   modified seniority list on 16.2.1974 but the position of the appellants had
   not changed. Reliance was placed on the OM No.2002017/80-Estt.(D)
   dated 29.5.1986,judgment in SI Roop/al case (supra) and the modified
 D OM dated 27.3.2001 to come to the conclusion thatthe fixation of seniority
   of the appellants was thus in contravention of the ratio of the said judgment
   and was violative of Articles 14 and 16 of the Constitution of India and
   was thus liable to be quashed. The Tribunal also took note of the judgment
   in K.Mad/iava11 vs. Union of I11dia1 where it was opined that there
   was not much of a difference between the deputation and transfer and
 E thus it would be against all rules of service jurisprudence, if a Government
   Servant holding a particular post was transferred to the s~e or equivalent
   post in another Government Department and the period of his service in
   the post before his transfer was not taken into consideration in computing
   his seniority in the transferred post, thus the transfer could not wipe out
 F his length of service in the post from which he had been transferred.
          8. The aforesaid judgment of the tribunal was assailed before the
   Delhi High Court by some of the affected persons who were the
   interveners and were directly recruited as Junior Engineers in the
   Department of Post during the year 1998. In terms of the judgment
 G dated 6.7.2011 the Division Bench of the High Court allowed the writ
   petition and set aside the direction of the Tribunal.
             9. The rationale of the view taken by the High Court is as under:-
             (a) The recruitment to the post of Junior Engineer (Civil) in Civil
       ' (1987) 4 sec 566
 H
    MRIGANK JOHRI & ORS. v. UNION OF INDIA & ORS.                            357
             [SANJAY KISHAN KAUL, J.]

      Wing in the DOP was as per the DOP Junior Engineer (Civil) in A
      the Civil Wing Rules, 1995 framed on 20.1.1995 and published in
      the gazette on 2.12.1995 under the powers conferred by the proviso
      to Article 309 of the Constitution of India. The method of
      recruitment to the post of Junior Engineer was by only two modes
      - 83.33% by direct recruitment, through an All India Open B
      Competitive Examination and 16.66% by promotion, through a
      departmental competitive examination. This was apparent from
      Column 11 of the said Rules. The appellants had not been appointed
      by any of the two modes. There was, however, a provision for
      relaxation of the Rules with the Central Government.
      (b)The appellants herein could not be permitted to seek reliance       C
      on Column 12 which was for recruitment by promotion or
      deputation or transfer and deputation was one of the methods
      specified therein. This was so, as, if the mode of recruitment by
      deputation is not prescribed in Column 11, then, Column 12 could
      not be relied upon. No order has been produced under Rule 5 for        D
      relaxation by the Central Government.
      (c)The office memorandum dated 29 .5.1986, as modified, would
      have application only ifthe recruitment rules provide for deputation
      to be observed as a mode of recruitment.
      (d)The appellants have consciously given their. consent for E
      absorption with the looming possibility of them being rendered
      surplus in All India Radio and could not assail at a subsequent
      date, the terms of absorption. The High Court placed reliance of
      the judgment in Union ofIndia & Ors. Vs. Deo Narain & Ors. 1
      holding that employees who voluntarily and unilaterally seek F
      transfer forgoing their seniority and join another cadre with open
      eyes and are placed below the employees working in the
      transferred cadre, cannot make a grievance later on regarding
      their seniority.
       10. The appellants aggrieved by the said judgment preferred SLP       G
(C) Nos. 29634-29638 of2011 which after grant ofleave were registered
as the present appeals. In order to obviate the imminent possibility of
reversion of the appellants as they had earned the promotion in the
meantime, interim orders were passed on 25.2.2013 staying the reversion
• (2008) 10 sec 84
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358             SUPREME COURT REPORTS                          [2017] 7 S.C.R.


A     of the appellants till final disposal.
             11. Before dealing with the merits of the controversy before us, it
      is necessary to note that the respondent authority initially filed a counter
      affidavit before this Court on 16.2.2012 seeking to support the appellants
      but subsequently that counter affidavit was sought to be withdrawn and
B     replaced with another counter affidavit vide I.A.Nos.21-25 of2015. The
      new counter affidavit sought to be brought on record was more or less
      inconformity with the stand of the respondent authorities before the
      Tribunal. It may also be noted that, as informed, no counter affidavit
      was filed before the High Court by the respondent authorities. It is in
      these circumstances that we are of the view that the stand sought to be
 C    taken afresh by the respondent authorities is liable to be brought on
      record, being consistent with their original stand and the applications are
      accordingly ordered. Of course, it is not clear as to what was the reason
      for the earlier counter affidavit which was in divergence with the stand
      before the Tribunal.
 D            12. Mr. K.Radhakrishnan, learned senior counsel appearing for
      the appellants sought to support the judgment of the tribunal and assail
      the judgment of the High Court by seeking to rely on the OM dated
      29.5.1986 as modified by OM dated27.3.2001, post the judgment in SJ
      Roop Lal & Anr. (supra). He sought to contend that the ratio of the said
 E    judgment would squarely apply in the facts of the present case and thus
      the tribunal had rightly quashed the seniority list.
             13. The second limb of his submission was based on Column 12
      of the said Rules. In order to appreciate this controversy, it is necessary
      to reproduce the extracts of the said Rules -
 F           "New Delhi, the 21 ''November, 1995.
             GS.R.522- In exercise of the powers conferred by the provision
             to article 309 of the Constitution, the President hereby makes the
             following Rules regulating the method of recruitment to the post
             of Junior Engineer (civil) in Civil Wing of the Department of Post,
 G           namely:-
              !. Short title and Commencement - ( 1) These Rules may be
              called the Department of Post Junior Engineer (Civil) in Civil Wing]
              Rules, 1995.
              (2) They shall come into force on the date of their publication in
 H
    MRIGANK JOHRI & ORS. v. UNION OF INDIA & ORS.                             359
             [SANJAY KISHAN KAUL, J.]

      the Official Gazette.                                                   A
      3. Method of Recruitment, Age limit and Qualifications etc. -
      The method of recruitment, age limit, qualification and other matters
      relating thereto, shall be as specified in the columns 5 to 14 of the
      Schedule aforesaid.
      5. Power to relax - Where the Central Government is of opinion B
      that it is necessary or expedient so to do it may, by order for
      reasons to be recorded in writing, relax any of the provisions of
      these rules with respect to any class or category of persons."
      Method of Recruitment whether by direct recruitment or
      by promotion or by deputation or transfer and percentage                c
      of the vacancies to be filled by various methods :
      Col.11-(i) 83 1/3% by direct recruitment through All India Open
      Competitive Examination conducted by the Department of Post/                  ..,
      Telecom and
                                                                              D
      (ii) 16.2/3% by promotion through departmental competitive
      Examination.
      In case of recruitment by promotion or deputation or
      transfer, grade from which promotion or deputation or
      transfer to be made.
                                                                              E
      Col.12 - Promotion : ••.•..•••.


              Deputation :
      Official under Central Government :                                     F
      (i) Holding analogous posts on regular basis ; or
      (ii) With 5 years regular service in the pay scale ofRs.1400-2300
      as Junior Engineer (Civil).
      Transfer : Officials under Central Government holding analogous         G
      post. ....
       14. The rationale of the view adopted by the High Court was thus
assailed on the ground that Column 12 provided for employment through
the mode of deputation for officials holding an analogous post on regular
basis.
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360               SUPREME COURT REPORTS                            [2017] 7 S.C.R.


A            15. The third limb of his submission was that the Emakulum Bench
      of Central Administrative Tribunal in T. Jlijaykumar & Anr. Vs. Union
      of India & Ors. 4 had dealt with some issues qua absorption of Junior
      Engineers in the DOP who were identically absorbed on 28.8.2000. A
      similar plea raised before the Tribunal found favour with the Tribunal.
      The stand the department made before the tribunal, that the terms and
B     conditions ofabsorption having been consciously agreed upon, could not
      be violated, was repelled. It was also noted in the said judgment that the
      order of absorption did not mention that it was in public interest or not
      and thus any absorption, unless contrary is mentioned, would be in public
      interest. The absorption was against the unfilled vacancy and thus no
 C    other senior or junior appointed by the Department would be sacrificing
      his legitimate seniority to make way for the absorbee, as those aggrieved,
      had not joined the Post Department by that time. It appears that against
      this judgment, no appeal was filed.
             16. The fourth limb of the submission connected with the same is
 D    in case of Shri B.K.Singh, a Junior Engineer, wherein an order dated
      2.11.2006 was issued giving him seniority and thus it would be
      discriminatory not to give the same benefit to the appellants. It may,
      however, be noted that at this stage itself that the said order was a
      sequitur to the judgment of the tribunal (Emakulum Bench) and it is
      stated that the authorities were facing contempt proceedings.
 E
             17. Learned senior counsel for the appellants while relying upon
      the judgment in SI Roop/al (supra) drew our attention to Para 19. of the
      observations which reads as under :-
                 "19 ................ .It is to be noted that the law in regard to the
 F              right of a deputationist to count his service for the purpose of
                seniority in the transferred department was settled as far back as
                in the year 1982 itself in the cases of R.S.Makashi and Wing
                Commander J. Kumar (if not earlier). Therefore, it is reasonable
                to expect that a deputationist, when his service is sought to be
                absorbed in the transferred department would certainly have
 G              expected that his seniority in the parent department would be
                counted. In such a situation, it was really the duty of the
                respondents, if at all the conditions stipulated in the impugned
                memorandum were applicable to such persons, to have made the
                conditions in the memorandum known to the deputationist before
 H     4
           O.A.No. 734 of2002 - Decided on 15.4.2005
    MRIGANK JOHRI & ORS. v. UNION OF INDIA & ORS.                             361
             [SANJAY KlSHAN KAUL, J.)

     absorbing his services, in all fairness, so that such a deputationist    A
     would have had the option of accepting the permanent absorption
     in the Delhi Police or not. The very fact that such steps were not
     taken shows that this memorandum was, in fact, never acted upon.
     Apart from the above question of equity, the appellants have
     challenged the constitutional validity of the above memorandum           B
     on the ground that the same violates Articles 14 and 16 of the
     Constitution."
      A reference was also made to Paras 22 and 23 which reads as
under:-
     "22. However, in that case this Court instead of striking down the       c
     said Regulation, upholding the contention that a deputationist is
     entitled to count his seniority when absorbed in the deputed post,
     observed thus:
        "When the Commission finally takes a decision to permanently
      absorb these deputationists after obtaining their option the question   D
      of their inter se seniority in the Commission crops up and Regulation
      9(2) deals with the said situation. In the case ofR.S.Makashi vs.
      I.M.Menon this Court had indicated that it is a just and wholesome
      principle commonly applied to persons coming from different
      sources and drafted to serve a new service to count their pre-
      existing length of service for determining their ranking in the new     E
      service cadre. The said principle 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, ............."                                           f
      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            G
      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
                                                                              H
362            SUPREME COURT REPORTS                           [2017] 7 S.C.R.



A           the appellant-petitioners and the offending words in the
            memorandum "whichever is later" are held to be violative ofArticle
            14 and 16 of the Constitution, 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
B
            BSF, while computing their seniority in the cadre of Sub-Inspector
            (Executive) in the Delhi Police, is restored."
            18. The sole purpose of referring to Union of India vs. Ku/dill..:
                                                                              ·
                                                                                ..
      Singh Per'!'er & Ors. 5 ~as t~ bring to our notice that the same issu,£:_
 c    has been discussed also lil this case.                                   r
            19. Learned senior counsel also refers to the observations in
      Central Inland Water Transport Corporation Ltd. & Anr. vs. Brojo
      Natll Gimguly & Anr. 6 on the issue of consent of the agreement being
      obtained by coercion, fraud and misrepresentation. We may, however,
      clarify at this stage that really speaking, no factual matrix has been laid
 D    for this proposition and no details of any coercion have been really brought
      forth.
            20. On the other hand, learned counsel appearing for the private
      respondents sought to support the impugned judgment of the High Court
      and referred to the observations where the High Court had noticed the
 E    terms and conditions accepted by the appellants for their permanent
      absorption in the DOP. ln such a situation, it could not be said that such-
      terms and conditions were violative of Articles 14 and 16 of the
      Constitution of India and the consent so obtained was not tainted by any
      compulsion and the option to go back to the parent cadre remained. It is
 F    in furtherance of their career prospects that the appellants, it was
      contended, preferred to be absorbed in the DOP forgoing the seniority
      rather than go back to their parent department.
            21. Learned counsel contended that the aforesaid issue was no
      longer res integra in view of the subsequent judgment of this Court in
 G    Indu Sllekhar Singh & Ors. vs. State of U.P. &Ors. 7• The question
      exa1nined was whether the terms and conditions imposed by the State in
      the matter of absorption could be said to be ultra vires Article 14 of the
      Constitution oflndia. The offer had been made by the State not in terms
      '2003 (9) sec 472
      • (1986) 3 sec 1s6
      1
        (2006) s sec 129
 H
    MRIGANK JOHRI & ORS. v. UNION OF INDIA & ORS.                           363
             [SANJAY KISHAN KAUL, J.]

of any specific powers under the Rules, but in exercise of its residuary    A
power and thus the State was right to impose conditions, as the absorbees
had exercised their right of election. We may usefully referred to Paras
25, 26, 31, 47, 48 and 55 which are as under:
      "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 B
      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 C
      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 D
      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 E
      respectively.
       26. They, therefore, exercised their right of option. Once they
       obtained entry on the basis of election, they cannot be allowed to
       tum round and contend that the conditions are illegal. (See R. N.
       Gosain v. Yashpal        Dhir [(1992) 4             SCC       683] F
       Ramankutty Guptan v. Avara [(1994) 2 SCC 642] and Bank of
       India v. O.P. Swarnakar [(2003) 2 SCC 721 : 2003 SCC (L&S)
       200] .) Furthermore, there is no fundamental right in regard to the
       counting of the services rendered in an autonomous body. The
       past services can be taken into consideration only when the Rules G
       permit the same or where a special situation exists, which would
       entitle the employee to obtain such benefit of past service.
       31. Absorption of the deputationists, on the other hand, would
       depend upon an arrangement, which may be made by the State
       being not a part of the statutory rule. They would, thus, be borne   H
364            SUPREME COURT REPORTS                          [2017] 7 S.C.R.



A           in the cadre in terms of the directions of the State in exercise of
            its residuary power.
            4 7. 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
B           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
c           Act, in terms whereof no provision exists for recruitment of
            deputationists. Recruitment of deputationists, in fact, is excluded
            therefrom.
            SS. It was thus, open to the respondents herein not to agree to in
            spite of the said conditions as they had already been working with
D           a statutory authority; they, however, expressly consented to do
            so. They must have exercised their option, having regard to benefits
            to which they were entitled to in the new post. Once such option
            is exercised, the consequences attached thereto would ensue.
            (See HEC Voluntary Retd. Employees Welfare Society v. Heavy
            Engg. Corpn. Ltd. [(2006) 3 sec 708 : 2006 sec (L&S) 602 :
 E          JT (2006) 3 SC 102] )"
             22. It was emphasized that Column 11 of the said Rules providing
      for recruitment does not provide for the option of deputation and thus
      also the aforesaid observations would squarely apply.
             23. Learned counsel submitted that there were different sources
 F
      of recruitment for different posts. For example, in case of senior
      draughtsman (electrical), 100% recruitment was by promotion failing
      which it would be by deputation/transfer. It was specifically mentioned
      that the benefit of added years of service would be available. Thus,
      wherever the recruitment was by way deputation/transfer, it was so
 G    mentioned, which was not the case for recruitment as Junior Engineer
      (Electrical).
            24. Learned counsel referred to Union of India & Ors. vs. Deo
      Narain (supra) to buttress the submission that while taking length of
      service/qualifying service in case of transfer from one cadre to the other
 H
     MRIGANK JOHRI & ORS. v. UNION OF INDIA & ORS.                            365
              [SANJAY KISHAN KAUL, J.]

of his own request, there could be loss of seniority. Eligibility and seniority A
are two different concepts and thus completion of combined qualifying
service in previous and new cadres might render an employee eligible to
the considered for promotion but does not entitle such an employee to be
promoted by jumping over his seniors in new cadre.
       25. Learned senior counsel appearing for the UOl/Department             B
also sought to support the impugned judgment and submitted that their
revised counter affidavit which sought to replace the original counter
affidavit was consistent with their stand before the Tribunal.
       26. Learned counsel drew our attention to Annexure P-7, which
is a note of the Civil Engineer Wing, Department of Postal Services. c
The note records that there are only two sources of recruitment i.e.
direct recruitment and departmental examination. The open competitive
examination had not been held and a one-time relaxation to conduct the
examination by the SE (Co-ordination) could also not be obtained. The
work was thus being carried out by Junior Engineers who were on
deputation from the D.0. T. A few were optees to the Postal Civil Wing D
and a few were on deputation from the Civil Construction Wing, AIR.
The Member (P) of the D.0.T. had taken up the matter of repatriation
with Member (D), DOP and it was committed that all Junior Engineers
(Civil/Elect.) on deputation from DOT would be repatriated by 31.3 .1999,
which would create a void. Simultaneously, applications for permanent E
absorption were being received from Junior Engineers (Civil/Elect.) on
deputation from CCW, AIR and thus this matter was taken up with their
parent department. Since the permanent absorption of these Junior
Engineers would give the DOP a slight respite from the dismal position,
it was proposed to give its consent in principle for absorption on permanent
basis. It is thereafter that the DOP issued the above memorandum dated F
9.11.1999 annexed atAnnexure P-8 towards the objective on the terms
and conditions given in the annexure which were thus made applicable.
      27. The whole process, it was thus contended, was with a clear
understanding of the terms and conditions on which such absorption
was to take place. In fact one of the Junior Engineers, P.DavidAdaikala G
Raj opted for repatriation to his parent department with the All India
Radio on completion of deputation.
     28. We have given our careful consideration to the rival contentions
made elaborately on both sides.
                                                                               H
366            SUPREME COURT REPORTS                           [2017] 7 S.C.R.


A           29. The contentions may be elaborate but the crux of the issue is
      whether the OMs referred to aforesaid which generally provide for the
      benefit of service rendered in the previous cadre in an equivalent post
      on being absorbed in another department would apply to a case where
      the absorption is on specified terms and conditions with the benefit of
      such past service in the previous cadre as well as the period of service
B
      rendered on deputation being denied?
            30. Our answer to this query is in the negative for which we
      proceed to pen down reasons.
            31. It is no doubt true thatthe OM dated29.5.1986 as modified by
c . OM dated 27.3.2001 did provide for the benefit of the previous service
   rendered in the cadre. This is in effect also the ratio of the judgment in
   SI Roop/al case (supra). This would also be inconformity with the normal
   service jurisprudential view. However, it would be a different position if
   the absorbing department clearly stipulates a condition of giving willingness
   to sacrifice the seniority while preserving all other benefits for the
 D absorbee (which are accepted) failing which the option was available to
   the absorbee to get himself repatriated to the parent department. The
   terms and conditions are categorical in their wording that the absorbees
   would be "deemed to be new recruits" and the previous service would
   be counted for all purposes "except his/her seniority in the cadre". The
 E appellant accepted this with open eyes and never even challenged the
   same. Their representations to give them the benefit of their past seniority
   was also turned down and thereafter also they did not agitate the matter
   in any judicial forum. The controversy was thus not alive and it was not
   open for them to challenge the same after a long lapse of period o'ftime.
   In fact on the day of filing of the OM, any prayer to set aside the terms
 F and conditions of absorption would have been clearly barred by time
   under Section 21 of the Administrative Tribunals Act, 1985.
             32. The appellants sought to rake up the issue only when the
      seniority list was finalized. This was preceded by the draft seniority list.
      Whatever may be the dispute of seniority qua other persons, insofar as
 G    the appellants were concerned, their seniority was based on the terms
      and conditions of their absorption. The position of the appellants in the
      seniority list was thus a sequitur to the terms and conditions of their
      absorption. We are of the view that it is precisely for this reason,
      anticipating that their claim would be time barred, that a challenge was
 H    laid only to the seniority list without challenging the terms and conditions
    MRIGANK JOHRI & ORS. v. UNION OF INDIA & ORS.                             367
             [SANJAY KISHAN KAUL, J.]

of absorption though in the grounds, a plea was raised against the terms      A
and conditions of absorption. Unless the terms and conditions of absorption
were to be set aside, the seniority list prepared was inconformity with
the same.
       33. Even otherwise, as noted above, since the appellants accepted
the terms and conditions of absorption, they could not plead otherwise.       B
       34. We are in agreement with the submission of the respondents
that this issue has been squarely dealt with in lndu Shekhar Singh~
case (supra) where almost identical issues have been dealt with by holding
that the State was within its right to impose conditions where the
employees had the option to exercise their right of election. The             c
entitlement was not under any rules but under what was called the
residuary power.
       35.The High Court, in our view, rightly interpreted the Rules
extracted aforesaid. The method ofrecruitment as per Rule 3, has to be
specified in Column 5 to 15 of the Schedule, while Rule 5 provides for D
power of relaxation. Column 11 provides for the method of recruitment
- whether by direct recruitment, or by promotion, or by deputation or
transfer, and the percentage of the vacancies to be filled by various
methods. This may vary from post to post. For the Junior Engineer
(Electrical) post, the ratio is mentioned as 83.33 % by direct recruitment
and 16.66% by promotion through a departmental competitive examination. E
The office note regarding the absorption dated 2.11.1998 also refers to
the open competitive examination not being held and the consequences
thereof, with absorption.of persons like the appellants being envisaged
to deal with the given situation, but subject to the terms and conditions
which were then set out in OM dated 9.11.1999.                             F
        36. It was further rightly pointed out that whenever the post could
be filled by deputation as a method of recruitment it was so specifically
provided, illustratively in the case of a senior draughtsman (electrical).
Column 12 deals with the scenario where the recruitment method provides
for appointment by promotion, on deputation or transfer. Thus Column          G
12 would apply only ifthe mode of recruitment was prescribed as per
Column 11 which is not applicable in this case.
       37. It is true that the failure of the Government to assail the
judgment of the Emakulum Bench did create a situation of implementation
of the OM as in the case of Shri Hari Singh but in view of the judicial       H
368                SUPREME COURT REPORTS                        [2017] 7 S.C.R.


A     pronouncement by the impugned order which arose from the Delhi Bench
      of the Tribunal, the legal position was settled at the level of the High
      Court. We are thus of the view that the impugned judgment cannot be
      faulted in its conclusion and for these reasons the appeals stand dismissed.
            38. The applications for direction and contempt petition accordingly
B     stands closed.


      Nidhi Jain                                                  Appeals dismissed.