UNION OF INDIAversusSURESH KUMAR NAYAK

                   [2010] 15 (ADDL.) S.C.R. 660

A                        UNION OF INDIA
                                 v.
                    SURESH KUMAR NAYAK
                  (Civil Appeal No. 231 of 2005)

                       NOVEMBER 25, 2010
8
       [DALVEER BHANDARI AND H.L. GOKHALE, JJ.]

        Service law:

c       Cadre - Trifurcated cadres - Four units of Directorate
  General of Security comprising of joint cadres -
  Administrative control of two units of Directorate General of     I
  Security transferred from Cabinet Secretariat to Ministry of
  Home Affairs - Trifurcation of Directorate General of Security
0 into three units - Apportionment of staff on "as is where is"
  basis - Challenged by respondent-employee on the ground
  that he was denied the right to seek a/location to unit of his
  choice - Held: Challenge not tenable - There was no
  infringement of any fundamental right or any other right of the
E respondent - The entire two units were .shifted to the Ministry
  of Home Affairs and, therefore no individual option was given
  - Constitution of India, 1950 - Articles 14, 16.

        Merger of dissimilar cadres - Factors to be taken into
  consideration in determining the equation of posts - Re-
F iterated.
      Promotion - Right to be considered for promotion is a
  term of service, but mere chances are not - Reduction in
  chances of promotion does not tantamount to a change in the
G condition of service.

      The Special Service Bureau, the Aviation Research
  Centre, the Special Frontier Force and the Chief
  Inspectorate of Armaments (CIOA) were the four units of
  the Directorate General of Security un'der the Cabinet
H                          660
                                                         '
      UNION OF INDIA v. SURESH KUMAR NAYAK              661

  Secretariat. These four units had a common and A
  combined Directorate General of Security (Secretarial)
  Service comprising of four cadres, namely Secretarial,
  Mlnisterlal, Accounts and Stenographers Cadres with
  lnter-se seniority and Inter unit transfer liability.
                                                               B
       The Union of India took a policy decision on
  15.1.2001 to transfer the administrative control of the
  Special Service Bureau and the Chief Inspectors of
  Armaments from the Cabinet Secretariat to the Ministry
  of Home Affairs and merged the mlnlsterlal staff of the C
  Chief Inspectorate of Armaments with that of Special
  Service Bureau. As a consequence of transfer of Special
  Service eureau and the Chief Inspectorate of Armaments,
  on 23.8.2001, two units of the Cabinet Secretariat were
  transferred to the Ministry of Home Affairs. Thereafter, the
  Office of Directorate General of Security (Secretarial) D
  Service was trifurcated into Special Service Bureau
  (including Chief Inspectorate of Armaments) (Secretarial)
  Service; Aviation Research Centre (Secretarial) Service; .
  and Special Frontier Force (Secretarial) Service. The
  Secretarial/Ministerial Staff of the Directorate General of E
  Security (Secretarial) Service was apportioned on "as is
  where is" basis.

       The respondent who was working in Special Service
  Bureau filed an original application before the Central F
- Administrative Tribunal challenging the validity of the
  trifurcation orders of the Directorate General of Security
  (Secretarial) Service on the ground that no opportunity
  was provided to the staff of erstwhile Directorate General
  of Security (Secretarial) Service to exercise option for G
  choosing an organization out of the three organizations
  which violated his fundamental right under Articles 14
  and 16 of the Constitution. The Tribunal allowed the OA.
  The Union of India filed a writ petition before the High
                                                              H
    662    SUPREME COURT REPORTS [2010] 16 (ADDL.) S.C.R


A   Court. The High Court dismissed the writ petition holding
    that an opportunity to exercise the option had to be
    granted to the respondent.

       The questions which arose for consideration in the
  Instant appeal were whether the High Court was justified
8
  in setting aside the policy decision of the Government of
  India of trifurcation of the Directorate General of Security
  (Secretarial) Service Into three organisations on the
  principle of "as is where Is" basis only on the ground that
  the said decision did not provide opportunity to the staff
C of erstwhile Directorate General of Security (Secretarial)
  Service to exercise option for choosing an organisation
  of their choice; and whether the High Court was right in
  relying upon the circular issued by the Ministry of
  Personnel, Public Grievances and Pension, in May, 1994
D at the time of bifurcation of Ministry of Communication,
  which provided for an opportunity to the staff concerned
  to exercise option for choice between the bifurcated
  cadres.

E         Allowing the appeal, the Court

      HELD: 1. The High Court was not justified in relying
  on the Circular issued by the Ministry of Personnel and
  Public Grievances and Pension on 18.5.1994 in which the
  resultant units (after bifurcation) still remained part and
F parcel of the parent Ministry. In the instant case, the entire
  two units were shifted from the Cabinet Secretariat to the
  Ministry of Home Affairs and it was, therefore, decided not
  to give individual option. The Central Administrative
  Tribunal erroneously held that the respondent's
G fundamental rights were infringed. The High Court was
  not justified in affirming the judgment of the Tribunal
  because there was no infringement of any fundamental
  right or any other right of the respondent. [Paras 19, 20]
  [669-C-E]
H
    UNION OF INDIA v. SURESH KUMAR NAYAK            663 .

     2. In *Pipal case and in **Chandrakant case, this A
Court had laid down that when different cadres are
merged, certain principles have to be kept in mind which
are (1) where there were regularly constituted similar
cadres in the different integrating units, the cadres will
ordinarily be integrated on that basis but (2) where there B
were no such similar cadres, the following factors will be
taken into consideration in determining the equation of
posts:- (a) Nature and duties of a post; (b) Powers
exercised by the officers holding a post, the extent of
territorial or other charge held or responsibilities c
discharged; (c) The minimum qualifications, if any,
prescribed for recruitment to the post and; (d) the salary
of the post. [Para 25] [671-8-F]

     *S.P. Shivprasad Pipal vs. Union of India and Ors.
(1998) 4 SCC 598; **State of Maharashtra and Anr. vs.       D
Chandrakant Anant Kulkarni and Ors. (1981) 4 SCC 130 -
relied on.

     3. The claim of respondent that his chances of
promotion were reduced by transferring his unit to the E
Ministry of Home Affairs is set aside. Although a right to
be considered for promotion is a term of service, but
mere chances of promotion are not. Reduction in
chances of promotion does not tantamount to a change
in the condition of service. In the instant case, even F
according to the appellant, the chances of promotion
have in fact been increased. The respondent was not
able to make out that his. case fell in any of the four
criteria laid down in *Pipal case. The judgments of the
Tribunal and the High Court are set aside. [Paras 21, 26- G
29] [669-E; 671-G-H; 672-A-B]
                   Case LaW' Reference:
    (1998) 4 sec 598        relied on      Para 23, 25-.
    (1981) 4 sec 130        relied on       Para 25, 26     H
        664     SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R


    A       CIVIL APPEALLATE JURISDICTION : Civil Appeal No.
        231 of 2005.

            From the Judgment & Order dated 6.11.2003 of the High
        Court of Delhi at New Delhi in W.P. No. 3000 of 2003.

    B       Binu Tamta, Sadhana Sandhu, Samridhi Sinha and S.N.
        Terdal (for Sushma Suri) for the Appellant.
              K.L. Bhandula a·nd Ashwani Bhardwaj for the Respondent.·
              The Judgment of the Court was delivered by
    c
          DALVEER BHANDARI, J. 1. This appeal is directed
      against the judgment and order dated 6.11.2003 passed by the
      High Court of Delhi in Civil Writ No.3000 of 2003. Brief facts .
      which are necessary to dispose of this appeal are recapitulated
    D as under:

            2. The Directorate General of Security (for short 'DGS')
        under Cabinet Secretariat had four units.

IE      (1)               (2)            (3)             (4)
I



        Special           Aviation       Special        Chief
        Service           Research       Frontier Force Inspectorate of
        Bureau (SSB)      Centre (ARC)   (SFF)          Armament
                                                        (CIOA)
    F
             These four units had a common and combined DGS
        (Secretarial) Service with inter-se seniority and the inter unit
        transfer liability having 4 cadres:
               (1)   Secretarial
    G
               (2)   Ministerial
               (3)   Accounts
               (4)   Stenographers
    H
                                                               I

    UNION OF INDIA v. SURESH KUMAR NAYAK                     665
           [DALVEER BHANDARI, J.]
    3. The respondent was directly recruited as Assistant in       A
the year 1995 in the Special Service Bureau. In 1996, he
requested for his transfer to another unit Aviation Research
Centre but he could not be transferred for administrative
reasons.
                                                                  B
      4. It may be pertinent to mention here that the Union of
India took a policy decision in January, 2001, to transfer the
administrative control of the SpeCial Service Bureau and the
Chief Inspectors of Armaments from the Cabinet Secretariat
to the Ministry of Home Affairs vide Cabinet Secretariat Order . C
No.1 /2/2001-EA-1 dated 15.1.2001 and merged the ministerial
staff of the Chief Inspectorate of Armaments with that of Special
Service Bureau. As a consequence of transfer of Special
Service Bureau and the Chief Inspectorate of Armaments, two
units of the Cabinet Secretariat were transferred to the Ministry
of Home Affairs, vide Cabinet Secretariat Order N0.1/2/201- D
EA-1-3483-A, dated 23.08.2001.

   ·5, The office of Directorate General of Security
(Secretarial) Service was trifurcated into:
                                                                   E
     (i)       Special Service Bureau (including Chief
             Inspectorate of Armaments) (Secretarial) Service;

    . (ii)    Aviation Research Centre (Secretarial) Service;
             and
                                                                   F
     (iii)   Special Frontier Force (Secretarial) Service.

    6. The Secretarial/Ministerial Staff of the Directorate."'
General of Security (Secretarial) Service was apportioned on
"AS IS WHERE IS" basis with the approval of the Directorate G
General of Security (Secretarial), Home Secretary and the
Cabinet Secretary and the incumbents of the appointed posts
were made to continue in their respective units on "AS IS
WHERE IS" basis at the time of trifurcation on 23.1.2001.

    7. The respondent challenged the validity of the Cabinet       H
    666    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R


'A Secretariat Order dated 23.8.2001 and the Special Service
   Bureau Directorate's order dated 21.12.2001 containing the
   trifurcation orders of the Directorate General of Security
   (Secretarial) Service before the Central Administrative Tribunal,
   Principal Bench, New Delhi.
 B
         8. The order was assailed on the ground that the said
   orders did not provide opportunity to the staff of the erstwhile
   Directorate General r:f Security (Secretarial) Service to
   exercise option for croosing an organisation of their choice out
 C of the three organisations.

       9. According to the respondent, allocating staff to other
  units in the cadre on the basis of "AS IS WHERE IS" is arbitrary
  and violative of Article 14 and 16 of the Constitution. The
  respondent prayed that the aforesaid orders dated 23.08.2001
D and 21.12.2001 be quashed.

       10. The respondent also prayed that the appellant Union
  of India be directed to provide an opportunity to the incumbents
  of the erstwhile Directorate General of Security (Secretarial)
E Service to opt any of these trifurcated services in a fair and just
  manner.

         11. The Central Administrative Tribunal (''Tribunal", for
    short) by its order dated 13.11.2002 allowed the original
    application filed by the respondent and held that the order dated
F   9.9.1993 by which the joint cadre has been done away with is
    clearly violative of the rights of the respondent ~nder Article 16
    of the Constitution.

       12. The Tribunal also observed that once a joint cadre is
G created under the orders of a competent authority, it can only
  be dismembered if the fundamental rights of the public servants
  are not infringed. The Tribunal further observed as under:

          "In this case we find that earlier these were four units whicti
          w~re trifurcated in three units. One unit is under the M:nistry
H
     UNION OF INDIA v. SURESH KUMAR NAYAK                      667
            {DALVEER BHANDARI, J.]
     of Home Affairs and the other two remain under the                A
     Ministry of Communication. This fact does not affect the
     right of the applicant to seek allocation to a particular unit.
     The infringement of the fundamental right of the applicant
     would definitely affect this service conditions. Thus, we find
     that the impugned order cannot be sustained. While                B
     allocating the cadres we hope the direction of DOPT as
     followed in the case of Ministry of Communication, will be
     taken into consideration. The OA is allowed in the
     aforesaid terms. No costs."

       13. The appellant Union of India aggrieved by the order         C
  dated 13.11.2002 passed by the Tribunal, filed a writ petition
  before the Division Bench of the Delhi High Court. The Division
. Bench relied on the Circular dated 18.5.1994 issued by the
  Ministry of Personnel, Public Grievances and Pension when the
  two separate cadres in the Ministry of Communications were           D
  created and came to the conclusion that an opportunity to
  exercise the option had to be granted to the respondent. The
  writ petition filed by the Union of India was dismissed by the
  High Court by the impugned judgment.
                                                                       E
      14. The appellant aggrieved by the impugned judgments
 of the Tribunal and Delhi High Court has preferred this appeal
 on the following questions of law:

            (a) Whether the High Court is justified in setting
     aside the policy decision of the Government of India of           F
     trifurcation of the Directorate General of Security
     (Secretarial) Service into three organisations on the
     principle of "AS IS WHERE IS" basis only on the ground
     that the said decision did not provide opportunity to the staff
     of erstwhile Directorate General of Security (Secretarial)        G
     Service to exercise option for choosing an organisation of
     their choice?

           (b) Whether the High Court is right in relying upon
     the circular issued by the Ministry of Personnel, Public          H
    668     SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R


A         Grievances and Pension, in May, 1994 at the time of
          bifurcation of Ministry of Communication, which provided
          for an opportunity to the staff concerned to exercise option
          for choice between the bifurcated cadres?

B      15. The appellant submitted that the circular of 1994
  related to bifurcation of the Ministry of Communication and in
  that case the resultant units still remained part and parcel of
  the parent Ministry i.e. Ministry of Communication even after the .
  bifurcation. While the organisation of the Directorate General
C of Security (Secretarial) Service trifurcated into three different
  and independent departments u_nder the Ministry of Home
  Affairs under the Cabinet Secretariat.

       16. It was also submitted that the object of bifurcation in
  the case of former is the classification of the two cadres on the
D basis of different functions to be performed by them for better
  command and control, whereas in the present transfer case,
  the trifurcation was related as a consequence of transfer of
  administrative control of the Special Service Bureau to the
  Ministry of Home Affairs from Cabinet Secretariat, in the interest
E of national security i.e. to guard international border all along
  lndo Nepal border.

       17. Special Service Bureau, Aviation Research Centre,
  Special Frontier Force and the Chief Inspectorate of
  Armaments (CIOA) were four units of the Directorate General
F of Security under the Cabinet Secretariat. These four units had
  a common and combined Directorate General of Security
  (Secretarial) Service comprising of four cadres, namely
  Secretarial, Ministerial, Accounts and Stenographers Cadres
  with inter-se seniority and inter unit transfer liability as notified
G under the Recruitment Rules vide Cabinet Secretariat
  Notification No.EA/SE-115/70 dated 04.11.1975.

       18. According to the appellant, the policy decision of the
  Government of India taken at the highest level in the interest of
H national security ought not to have been interfered with by which
     UNION OF INDIA v. SURESH KUMAR NAYAK                      669
            [DALVEER BHANDARI, J.]
two units, namely, Special Service Bureau and Chief                     A
Inspectorate of Armaments were transferred from the Cabinet
Secretariat to the Ministry of Home Affairs. On transfer, the
entire staff of the Special Service Bureau enblock was
alsotransferred to the Ministry of Home Affairs. When the entire
unit was transferred, there was no question of giving an option         B
to the respondent and similarly placed other employees.

      19. In the impugned judgment, the High Court was not
justified in relying on the Circular issued by the Ministry of
 Personnel and Public Grievances and Pension on 18.5.1994.
In the instant case, the entire two units were shifted from the         C
Cabinet Secretariat to the/Ministry of Home Affairs. It was
decided not to give individual option.

     20. The Central Administrative Tribunal erroneously held
that the respondent's fundamental rights were infringed and             o
accordingly it quashed the order dated 9.9.1993. In the
impugned judgment the High Court was not justified in affirming
the judgment of the Central Administrative Tribunal because,
in our considered view, there has been no infringement of any
fundamental right or any other right of the respondent.                 E

      21. The respondent has claimed that his chances of
promotion have been reduced by transferring his unit to the
Ministry of Home Affairs. According to the appellant, even this
is not factually correct. The appellant filed an additional affidavit
before the High Court in which it was mentioned that as per             F
the combined common seniority of Assistants in the Directorate
General of Secretarial Service, as it stood on 23.8.2001 i.e.
before trifurcation, respondent Suresh Kumar Nayak was
placed at Serial No.116 out of 176 Assistants shown in the
seniority list, excluding the Assistants on deputation. After           G
trifurcation of the Directorate General of Secretarial Service in
2001, taking his continuation in the Special Service Bureau as
Assistant, his placing in the seniority list of the said unit is at
Serial No.65 out of 112 Assistants. Similarly, he was allotted/
transferred to Aviation Research Centre on trifurcation of              H
    670 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.

A Directorate General of Secretarial Service and is borne on
  Aviation Research Centre's strength and his placing in the the
  seniority list would be at Sri. No.28, out of 46 posts of Assistants
  allotted to the Aviation Research Centre. Suresh Kumar Nayak,
  Assistant was not interested to be transferred/ allocated to
8 Special Frontier Force on trifurcation.
       22. According to the learned counsel for the appellant, if ·
  the chances of promotion are affected, even then it would not
  bf~ a case where the Court would be justified in allowing the
  original application on the ground of infringement of the
C respondent's fundamental rights under Articles 14 and 16 of the
  Constitution.

       23. Learned counsel for appellant placed reliance on a
  judgment of this Court in S.P. Shivprasad Pipal vs. Union of
o India and Ors., (1998) 4 sec 598. In this case, by notification
  dated 3.2.1987, the Central Labour Service was created by
  merging the following three cadres:

        (a) Central Industrial Relations Machinery consisting of
        Assistant Labour Commissioner (Central), Regional
E       Labour Commissioner (Central), Deputy Chief Labour
        Commissioner (Central, Joint Chief Labour Commissioner
        (Central) and Chief Labour Commissioner (Central).

        (b) Labour officers (Central pool) consisting of Labour
F       Officers and senior labour Officers.

        (c) Labour Welfare Commissioners' cadre consisting of
        Assistant Welfare Commissioner and Welfare
        Commissioner.
G       24. This Court observed as under:
        "A decision to merge such cadres is essentially a matter
        of policy. Since the three cadres carried the same pay
        scale at the relevant time, merging of the three cadres
H       cannot be said to have caused any prejudice to the
     UNION OF INDIA v. SURESH KUMAR NAYAK                     671
            [DALVEER BHANDARI, J.]
    ·members of any of the cadres. The total number of posts          A
     were also increased proportionately when the merger took
     place so that the percentage of posts available on
     promotion was not in any manner adversely affected by the
     merger of the cadres."
                                                                      B
      25. This Court laid down that when different cadres are
 merged, certain principles have to be borne in mind. Thesf::!
 principles were enunciated in the case of State of Maharashtra
 and Anr vs. Chandrakant Anant Kulkarni and Ors., (1981) 4
 sec 130 and have been approved subsequently in the case              c
·of S.P. Shivprasad Pipal (supra) and they are reproduced as
 under:

           (1) where there were regularly constituted similar
     cadres in the different integrating units the cadres will
     ordinarily be integrated on that basis but                D

           (2) where there were no such similar cadres, the
     following factors will be taken into consideration in
     determining the equation of posts:-

     (a) Nature and duties of a post;                                 E

     (b) Powers exercised by the officers holding a post the
     extent of territorial or other charge held or responsibilities
     discharged;
                                                                      F
     (c) The minimum qualifications, if any, prescribed for
     recruitment to the post and;

     {d) the salary of the post.

      26. In the Chandrakant Anant Kulkarni (supra) this Court G
 has laid down the principle that mere chances of promotion are
 not conditions of service and the fact that there was reduction
 in the chances of promotion did not tantamount to a change in
 the conditions of service. A right to be considered for promotion
 is a term of service, but mere chances of promotion are not.      H
     672     SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A        27. In the instant case, even according to the appellant, the
     chances of promotion have in fact been increased.
          28. Mr. K.L. Bhandula, learned counsel appearing for the
     respondent has not been able to make out that his case falls
     in any of the four criteria which have been laid down in the case
8
     of Shivprasad Pipal (supra).

       29. In this view of .the matter, we are constrained to set
  aside the impugned judgment dated 13.11.2002 of the Tribunal
  as well as the judgment dated 6.11.2003 passed by the High
C Court of Delhi in Civil Writ Petition No.3000/2003.

          30. Consequently, this appeal is allowed. The original
     application filed by the respondent stands dismissed. In the
     facts and circumstances of the case, we direct the parties to
0    bear their own costs.

    . D.G.                                          Appeal allowed .