Seniority on permanent absorption in an equivalent post includes prior regular service; arbitrary office memorandum words struck down.

Permanent absorption in an equivalent post on transfer from the Border Security Force to the Delhi Police entitled the officers to count their regular substantive service in the parent cadre for seniority. The Court held that seniority could not be fixed by ignoring past service where the absorption was into an equivalent grade, and the contrary view of the Tribunal was incorrect. The Office Memorandum phrase "whichever is later" was struck down as unreasonable and arbitrary because it defeated the accrued benefit of past service and could not override the equality guarantee. The impugned restriction was declared violative of Articles 14 and 16.

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Issues: (i) Whether Sub-Inspectors of the Border Security Force, on permanent absorption in the Delhi Police as Sub-Inspector (Executive), were entitled to count their substantive service in the parent cadre for seniority in the transferred cadre; (ii) whether the impugned words in the Office Memorandum, which restricted such counting by introducing the expression "whichever is later", were unconstitutional and liable to be quashed.

Issue (i): Whether Sub-Inspectors of the Border Security Force, on permanent absorption in the Delhi Police as Sub-Inspector (Executive), were entitled to count their substantive service in the parent cadre for seniority in the transferred cadre.

Analysis: The deputation and absorption were made under the relevant recruitment rules in response to the Delhi Police's need for suitable personnel. The transferred officers had been regularly appointed as Sub-Inspectors in the Border Security Force and were absorbed into an equivalent post in the Delhi Police. Seniority in the transferred cadre could not be determined by ignoring the length of regular service already rendered in the parent department when the transfer was to an equivalent post. The principle that a deputationist's pre-existing service in an equivalent grade is to be preserved for seniority purposes was held to govern the case.

Conclusion: The officers were entitled to count their substantive service in the Border Security Force for seniority in the Delhi Police cadre, and the contrary view of the Tribunal was wrong.

Issue (ii): Whether the impugned words in the Office Memorandum, which restricted such counting by introducing the expression "whichever is later", were unconstitutional and liable to be quashed.

Analysis: The Office Memorandum was inconsistent in recognising past regular service but then defeating that benefit by the phrase "whichever is later". That restriction was held to be unreasonable and arbitrary. Since the officers had a protected right to have their past regular service counted on absorption in an equivalent post, an executive instruction could not take away that benefit. The offending restriction was therefore found to offend the equality guarantee and was not sustainable.

Conclusion: The words "whichever is later" were struck down as violative of Articles 14 and 16 of the Constitution of India.

Final Conclusion: The appellants succeeded in obtaining recognition of their earlier regular service for seniority purposes, and the impugned memorandum was curtailed to the extent necessary to preserve that right.

Ratio Decidendi: Where a government servant is permanently absorbed in an equivalent post on transfer or deputation, his regular service in the parent department must be counted for seniority, and any executive instruction that arbitrarily defeats that accrued benefit is invalid.

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